Republic of the Philippines SUPREME COURT Manila EN BANC

(c) the addition of another legislative district in Makati is not in accord with Section 5 (3), Article VI of the Constitution for as of the latest survey (1990 census), the population of Makati stands at only 450,000. G.R. No. 118627 was filed by the petitioner John H. Osmea as senator, taxpayer, and concerned citizen. Petitioner assails section 52 of R.A. No. 7854 as unconstitutional on the same grounds as aforestated. We find no merit in the petitions. I Section 2, Article I of R.A. No. 7854 delineated the land areas of the proposed city of Makati, thus: Sec. 2. The City of Makati. The Municipality of Makati shall be converted into a highly urbanized city to be known as the City of Makati, hereinafter referred to as the City, which shall

G.R. No. 118577 March 7, 1995 JUANITO MARIANO, JR. et al., petitioners, vs. THE COMMISSION ON ELECTIONS, THE MUNICIPALITY OF MAKATI, HON. JEJOMAR BINAY, THE MUNICIPAL TREASURER, AND SANGGUNIANG BAYAN OF MAKATI, respondents. G.R. No. 118627 March 7, 1995 JOHN R. OSMEA, petitioner, vs. THE COMMISSION ON ELECTIONS, THE MUNICIPALITY OF MAKATI, HON. JEJOMAR BINAY, MUNICIPAL TREASURER, AND SANGGUNIANG BAYAN OF MAKATI, respondents.

comprise the present territory of the Municipality of Makati in Metropolitan Manila Area over which it has jurisdiction
bounded on the northeast by Pasig River and beyond by the City of Mandaluyong and the Municipality of Pasig; on the southeast by the municipalities of Pateros and Taguig; on the southwest by the City of Pasay and the Municipality of Taguig; and, on the northwest, by the City of Manila. The foregoing provision shall be without prejudice to the

PUNO, J.: At bench are two (2) petitions assailing certain provisions of Republic Act No. 7854 as unconstitutional. R.A. No. 7854 as unconstitutional. R.A. No. 7854 is entitled, "An Act Converting the Municipality of Makati Into a Highly Urbanized City to be known as the City of Makati." 1 G.R. No. 118577 involves a petition for prohibition and declaratory relief. It was filed by petitioners Juanito Mariano, Jr., Ligaya S. Bautista, Teresita Tibay, Camilo Santos, Frankie Cruz, Ricardo Pascual, Teresita Abang, Valentina Pitalvero, Rufino Caldoza, Florante Alba, and Perfecto Alba. Of the petitioners, only Mariano, Jr., is a resident of Makati. The others are residents of Ibayo Ususan, Taguig, Metro Manila. Suing as taxpayers, they assail as unconstitutional sections 2, 51, and 52 of R.A. No. 7854 on the following grounds: 1. Section 2 of R.A. No. 7854 did not properly identify the land area or territorial jurisdiction of Makati by metes and bounds, with technical descriptions, in violation of Section 10, Article X of the Constitution, in relation to Sections 7 and 450 of the Local Government Code; 2. Section 51 of R.A. No. 7854 attempts to alter or restart the "three consecutive term" limit for local elective officials, in violation of Section 8, Article X and Section 7, Article VI of the Constitution. 3. Section 52 of R.A. No. 7854 is unconstitutional for: (a) it increased the legislative district of Makati only by special law (the Charter in violation of the constitutional provision requiring a general reapportionment law to be passed by Congress within three (3) years following the return of every census; (b) the increase in legislative district was not expressed in the title of the bill; and

resolution by the appropriate agency or forum of existing boundary disputes or cases involving questions of territorial jurisdiction between the City of Makati and the adjoining local government units. (Emphasis supplied)
In G.R. No. 118577, petitioners claim that this delineation violates sections 7 and 450 of the Local Government Code which require that the area of a local government unit should be made by metes and bounds with technical descriptions. 2 The importance of drawing with precise strokes the territorial boundaries of a local unit of government cannot be overemphasized. The boundaries must be clear for they define the limits of the territorial jurisdiction of a local government unit. It can legitimately exercise powers of government only within the limits, its acts are ultra vires. Needless to state, any uncertainty in the boundaries of local government units will sow costly conflicts in the exercise of governmental powers which ultimately will prejudice the people's welfare. This is the evil sought to avoided by the Local Government Code in requiring that the land area of a local government unit must be spelled out in metes and bounds, with technical descriptions. Given the facts of the cases at bench, we cannot perceive how this evil can be brought about by the description made in section 2 of R.A. No. 7854, Petitioners have not demonstrated that the delineation of the land area of the proposed City of Makati will cause confusion as to its boundaries. We note that said delineation did not change even by an inch the land area previously covered by Makati as a municipality. Section 2 did not add, subtract, divide, or multiply the established land area of Makati. In language that cannot be any clearer, section 2 stated that, the city's land area "shall comprise the present territory of the municipality." The deliberations of Congress will reveal that there is a legitimate reason why the land area of the proposed City of

Makati was not defined by metes and bounds, with technical descriptions. At the time of the consideration of R.A. No. 7854, the territorial dispute between the municipalities of Makati and Taguig over Fort Bonifacio was under court litigation. Out of a becoming sense of respect to co-equal department of government, legislators felt that the dispute should be left to the courts to decide. They did not want to foreclose the dispute by making a legislative finding of fact which could decide the issue. This would have ensued if they defined the land area of the proposed city by its exact metes and bounds, with technical descriptions. 3 We take judicial notice of the fact that Congress has also refrained from using the metes and bounds description of land areas of other local government units with unsettled boundary disputes. 4 We hold that the existence of a boundary dispute does not per se present an insurmountable difficulty which will prevent Congress from defining with reasonable certitude the territorial jurisdiction of a local government unit. In the cases at bench, Congress maintained the existing boundaries of the proposed City of Makati but as an act of fairness, made them subject to the ultimate resolution by the courts. Considering these peculiar circumstances, we are not prepared to hold that section 2 of R.A. No. 7854 is unconstitutional. We sustain the submission of the Solicitor General in this regard, viz.: Going now to Sections 7 and 450 of the Local Government Code, it is beyond cavil that the requirement stated therein, viz.: "the territorial jurisdiction of newly created or converted cities should be described by meted and bounds, with technical descriptions" was made in order to provide a means by which the area of said cities may be reasonably ascertained. In other words, the requirement on metes and bounds was meant merely as tool in the establishment of local government units. It is not an end in itself. Ergo, so long as the territorial jurisdiction of a city may be reasonably ascertained, i.e., by referring to common boundaries with neighboring municipalities, as in this case, then, it may be concluded that the legislative intent behind the law has been sufficiently served. Certainly, Congress did not intends that laws creating new cities must contain therein detailed technical descriptions similar to those appearing in Torrens titles, as petitioners seem to imply. To require such description in the law as a condition sine qua non for its validity would be to defeat the very purpose which the Local Government Code to seeks to serve. The manifest intent of the Code is to empower local government units and to give them their rightful due. It seeks to make local governments more responsive to the needs of their constituents while at the same time serving as a vital cog in national development. To invalidate R.A. No. 7854 on the mere ground that no cadastral type of description was used in the law would serve the letter but defeat the spirit of the Code. It then becomes a case of the master serving the slave, instead of the other way around. This could not be the intendment of the law. Too well settled is the rule that laws must be enforced when ascertained, although it may not be consistent with the strict letter of the statute. Courts will not follow the letter of the statute when to do so would depart from the true intent of the legislature or would otherwise yield conclusions inconsistent with the general purpose of the act. (Torres v. Limjap, 56 Phil., 141; Taada v. Cuenco, 103 Phil. 1051; Hidalgo v. Hidalgo, 33 SCRA 1105). Legislation is an active instrument of government, which, for purposes of interpretation, means that laws have ends

to achieve, and statutes should be so construed as not to defeat but to carry out such ends and purposes (Bocolbo v. Estanislao, 72 SCRA 520). The same rule must indubitably apply to the case at bar. II Petitioners in G.R. No. 118577 also assail the constitutionality of section 51, Article X of R.A. No. 7854. Section 51 states: Sec. 51. Officials of the City of Makati. The represent elective officials of the Municipality of Makati shall continue as the officials of the City of Makati and shall exercise their powers and functions until such time that a new election is held and the duly elected officials shall have already qualified and assume their offices: Provided, The new city will acquire a new corporate existence. The appointive officials and employees of the City shall likewise continues exercising their functions and duties and they shall be automatically absorbed by the city government of the City of Makati. They contend that this section collides with section 8, Article X and section 7, Article VI of the Constitution which provide: Sec. 8. The term of office of elective local officials, except barangay officials, which shall be determined by law, shall be three years and no such official shall serve for more than three consecutive terms. Voluntary renunciation of the office for any length of time shall not be considered as an interruption in the continuity of his service for the full term for which he was elected. xxx xxx xxx Sec. 7. The Members of the House of Representatives shall be elected for a term of three years which shall begin, unless otherwise provided by law, at noon on the thirtieth day of June next following their election. No Member of the House of Representatives shall serve for more than three consecutive terms. Voluntary renunciation of the office for any length of time shall not be considered as an interruption in the continuity of his service for the full term for which he was elected. Petitioners stress that under these provisions, elective local

officials, including Members of the House of Representative, have a term of three (3) years and are prohibited from serving for more than three (3) consecutive terms. They argue that by providing that the new city shall acquire a new corporate existence, section 51 of R.A. No. 7854 restarts the term of the
present municipal elective officials of Makati and disregards the terms previously served by them. In particular, petitioners point that section 51 favors the incumbent Makati Mayor, respondent Jejomar Binay, who has already served for two (2) consecutive terms. They further argue that should Mayor Binay decide to run and eventually win as city mayor in the coming elections, he can still run for the same position in 1998 and seek another three-year consecutive term since his previous three-year consecutive term as municipal mayor would not be counted. Thus, petitioners conclude that said section 51 has been conveniently crafted to suit the political ambitions of respondent Mayor Binay. We cannot entertain this challenge to the constitutionality of section 51. The requirements before a litigant can challenge the

constitutionality of a law are well delineated. They are: 1) there must be an actual case or controversy; (2) the question of constitutionality must be raised by the proper party; (3) the constitutional question must be raised at the earliest possible opportunity; and (4) the decision on the constitutional question must be necessary to the determination of the case itself. 5 Petitioners have far from complied with these requirements. The petition is premised on the occurrence of many contingent events, i.e., that Mayor Binay will run again in this coming mayoralty elections; that he would be re-elected in said elections; and that he would seek re-election for the same position in the 1998 elections. Considering that these contingencies may or may not happen, petitioners merely pose a hypothetical issue which has yet to ripen to an actual case or controversy. Petitioners who are residents of Taguig (except Mariano) are not also the proper parties to raise this abstract issue. Worse, they hoist this futuristic issue in a petition for declaratory relief over which this Court has no jurisdiction. III Finally, petitioners in the two (2) cases at bench assail the constitutionality of section 52, Article X of R.A. No. 7854. Section 52 of the Charter provides: Sec. 52. Legislative Districts. Upon its conversion into a highly-urbanized city, Makati shall thereafter have at least two (2) legislative districts that shall initially correspond to the two (2) existing districts created under Section 3(a) of Republic Act. No. 7166 as implemented by the Commission on Elections to commence at the next national elections to be held after the effectivity of this Act. Henceforth, barangays Magallanes, Dasmarias and Forbes shall be with the first district, in lieu of Barangay Guadalupe-Viejo which shall form part of the second district. (emphasis supplied) They contend. that the addition of another legislative district in Makati is unconstitutional for: (1) reapportionment 6cannot made by a special law, (2) the addition of a legislative district is not expressed in the title of the bill 7 and (3) Makati's population, as per the 1990 census, stands at only four hundred fifty thousand (450,000). These issues have been laid to rest in the recent case of Tobias v. Abalos. 8 In said case, we ruled that reapportionment of legislative districts may be made through a special law, such as in the charter of a new city. The Constitution 9 clearly provides that Congress shall be composed of not more than two hundred fifty (250) members, unless otherwise fixed by law. As thus worded, the Constitution did not preclude Congress from increasing its membership by passing a law, other than a general reapportionment of the law. This is its exactly what was done by Congress in enacting R.A. No. 7854 and providing for an increase in Makati's legislative district. Moreover, to hold that reapportionment can only be made through a general apportionment law, with a review of all the legislative districts allotted to each local government unit nationwide, would create an inequitable situation where a new city or province created by Congress will be denied legislative representation for an indeterminate period of time. 10 The intolerable situations will deprive the people of a new city or province a particle of their sovereignty. 11 Sovereignty cannot admit of any kind of subtraction. It is indivisible. It must be forever whole or it is not sovereignty.

Petitioners cannot insist that the addition of another legislative district in Makati is not in accord with section 5(3), Article VI 12 of the Constitution for as of the latest survey (1990 census), the population of Makati stands at only four hundred fifty thousand (450,000). 13 Said section provides, inter alia, that a city with a population of at least two hundred fifty thousand (250,000) shall have at least one representative. Even granting that the population of Makati as of the 1990 census stood at four hundred fifty thousand (450,000), its legislative district may still be increased since it has met the minimum population requirement of two hundred fifty thousand (250,000). In fact, section 3 of the Ordinance appended to the Constitution provides that a city whose population has increased to more than two hundred fifty thousand (250,000) shall be entitled to at least one congressional representative. 14 Finally, we do not find merit in petitioners' contention that the creation of an additional legislative district in Makati should have been expressly stated in the title of the bill. In the same case of Tobias v. Abalos, op cit., we reiterated the policy of the Court favoring a liberal construction of the "one title-one subject" rule so as not to impede legislation. To be sure, with Constitution does not command that the title of a law should exactly mirror, fully index, or completely catalogue all its details. Hence, we ruled that "it should be sufficient compliance if the title expresses the general subject and all the provisions are germane to such general subject." WHEREFORE, the petitions are hereby DISMISSED for lack of merit No costs. SO ORDERED.

Narvasa, C.J., Feliciano, Padilla, Bidin, Regalado, Romero, Bellosillo, Melo, Quiason, Vitug, Kapunan, Mendoza and Francisco, JJ., concur.

Separate Opinions DAVIDE, JR., J., concurring: I concur in the well written opinion of Mr. Justice Reynato S. Puno. I wish, however, to add a few observations. I. Section 10, Article X of the Constitution provides that "[n]o province, city, municipality or barangay may be created, divided, merged, abolished, or its boundary substantially altered, except in accordance with the criteria established in the local government code and subject to the approval by a majority of the votes cast in a plebiscite in the political units directly affected." These criteria are now set forth in Section 7 of the Local Government Code of 1991 (R.A. No. 7160). One of these is that the territorial jurisdiction of the local government unit to be created or converted should be properly identified by metes and bounds with technical descriptions. The omission of R.A. No. 7854 (An Act Converting the

Municipality of Makati Into a Highly Urbanized City to be

Known as the City of Makati) to describe the territorial

boundaries of the city by metes and bounds does not make R.A. No. 7854 unconstitutional or illegal. The Constitution does not provide for a description by metes and bounds as a condition sine qua non for the creation of a local government unit or its conversion from one level to another. The criteria provided for in Section 7 of R.A. No. 7854 are not absolute, for, as a matter of fact, the section starts with the clause "as a general rule." The petitioners' reliance on Section 450 of R.A. No. 7160 is unavailing Said section only applies to the conversion of a municipality or a cluster of barangays into a COMPONENT CITY, not a highly urbanized city. It pertinently reads as follows: Sec. 450. Requisite for creation. (a) A municipality or a cluster of barangays may be converted into a component city if it has an average annual income, as certified by the Department of Finance, of at least Twenty million pesos (P20,000,000.00) for the last two (2) consecutive years based on 1991 constant prices, and if it has either of the following requisites: xxx xxx xxx (b) The territorial jurisdiction of a newly created city shall be properly identified by metes and bounds. . . . The constitution classifies cities as either highly urbanized or component. Section 12 of Article X thereof provides: Sec. 12. Cities that are highly urbanized, as determined by law, and component cities whose charters prohibit their voters from voting for provincial elective officials, shall be independent of the province. The voters of component cities within a province, whose charters contain no such prohibition, shall not be deprived of their right to vote for elective provincial officials. And Section 451 of R.A. No. 7160 provides: Sec. 451. Cities Classified. A city may either be component or highly urbanized: Provided, however, That the criteria established in this Code shall not affect the classification and corporate status of existing cities. Independent component cities are those component cities whose charters prohibit their voters from voting for provincial elective officials. Independent component cities shall be independent of the province. II. Strictly speaking, the increase in the number of legislative seats for the City of Makati provided for in R.A. No. 7854 is not an increase justified by the clause unless otherwise fixed by law in paragraph 1, Section 5, Article VI of the Constitution. That clause contemplates of the reapportionment mentioned in the succeeding paragraph (4) of the said Section which reads in full as follows: Within three years following the return of every census, the Congress shall make a reapportionment of legislative districts based on the standards provided in this section. In short, the clause refers to a general reapportionment law.

The increase under R.A. No. 7854 is a permissible increase under Sections 1 and 3 of the Ordinance appended to the Constitution which reads: Sec. 1. For purposes of the election of Members of the House of Representatives of the First Congress of the Philippines under the Constitution proposed by the 1986 Constitutional Commissionand subsequent elections, and until otherwise provided by law, the Members thereof shall be elected from legislative districts apportioned among the provinces, cities, and the Metropolitan Manila Area as follows: METROPOLITAN MANILA AREA xxx xxx xxx MAKATI one (1) xxx xxx xxx Sec. 3. Any province that may hereafter be created, or any city

whose population may hereafter increase to more than two hundred fifty thousand shall be entitled in the immediately following election to at least one Member or such number of Members as it may be entitled to on the basis of the number of its inhabitants and according to the standards set forth in paragraph (3), Section 5 of Article VI of the Constitution. The
number of Members apportioned to the province out of which such new province was created, or where the city, whose population has so increased, is geographically located shall be correspondingly adjusted by the Commission on Elections but such adjustment shall not be made within one hundred and twenty days before the election. (Emphases supplied)

Separate Opinions DAVIDE, JR., J., concurring: I concur in the well written opinion of Mr. Justice Reynato S. Puno. I wish, however, to add a few observations. I. Section 10, Article X of the Constitution provides that "[n]o province, city, municipality or barangay may be created, divided, merged, abolished, or its boundary substantially altered, except in accordance with the criteria established in the local government code and subject to the approval by a majority of the votes cast in a plebiscite in the political units directly affected." These criteria are now set forth in Section 7 of the Local Government Code of 1991 (R.A. No. 7160). One of these is that the territorial jurisdiction of the local government unit to be created or converted should be properly identified by metes and bounds with technical descriptions. The omission of R.A. No. 7854 (An Act Converting the

Municipality of Makati Into a Highly Urbanized City to be Known as the City of Makati) to describe the territorial
boundaries of the city by metes and bounds does not make R.A. No. 7854 unconstitutional or illegal. The Constitution does not provide for a description by metes and bounds as a condition sine qua non for the creation of a local government unit or its conversion from one level to another. The criteria provided for in Section 7 of R.A. No. 7854 are not absolute, for,

as a matter of fact, the section starts with the clause "as a general rule." The petitioners' reliance on Section 450 of R.A. No. 7160 is unavailing Said section only applies to the conversion of a municipality or a cluster of barangays into a COMPONENT CITY, not a highly urbanized city. It pertinently reads as follows: Sec. 450. Requisite for creation. (a) A municipality or a cluster of barangays may be converted into a component city if it has an average annual income, as certified by the Department of Finance, of at least Twenty million pesos (P20,000,000.00) for the last two (2) consecutive years based on 1991 constant prices, and if it has either of the following requisites: xxx xxx xxx (b) The territorial jurisdiction of a newly created city shall be properly identified by metes and bounds. . . . The constitution classifies cities as either highly urbanized or component. Section 12 of Article X thereof provides: Sec. 12. Cities that are highly urbanized, as determined by law, and component cities whose charters prohibit their voters from voting for provincial elective officials, shall be independent of the province. The voters of component cities within a province, whose charters contain no such prohibition, shall not be deprived of their right to vote for elective provincial officials. And Section 451 of R.A. No. 7160 provides: Sec. 451. Cities Classified. A city may either be component or highly urbanized: Provided, however, That the criteria established in this Code shall not affect the classification and corporate status of existing cities. Independent component cities are those component cities whose charters prohibit their voters from voting for provincial elective officials. Independent component cities shall be independent of the province. II. Strictly speaking, the increase in the number of legislative seats for the City of Makati provided for in R.A. No. 7854 is not an increase justified by the clause unless otherwise fixed by law in paragraph 1, Section 5, Article VI of the Constitution. That clause contemplates of the reapportionment mentioned in the succeeding paragraph (4) of the said Section which reads in full as follows: Within three years following the return of every census, the Congress shall make a reapportionment of legislative districts based on the standards provided in this section. In short, the clause refers to a general reapportionment law. The increase under R.A. No. 7854 is a permissible increase under Sections 1 and 3 of the Ordinance appended to the Constitution which reads: Sec. 1. For purposes of the election of Members of the House of Representatives of the First Congress of the Philippines under the Constitution proposed by the 1986 Constitutional Commissionand subsequent elections, and until otherwise provided by law, the Members thereof shall be elected from

legislative districts apportioned among the provinces, cities, and the Metropolitan Manila Area as follows: METROPOLITAN MANILA AREA xxx xxx xxx MAKATI one (1) xxx xxx xxx Sec. 3. Any province that may hereafter be created, or any city

whose population may hereafter increase to more than two hundred fifty thousand shall be entitled in the immediately following election to at least one Member or such number of Members as it may be entitled to on the basis of the number of its inhabitants and according to the standards set forth in paragraph (3), Section 5 of Article VI of the Constitution. The
number of Members apportioned to the province out of which such new province was created, or where the city, whose population has so increased, is geographically located shall be correspondingly adjusted by the Commission on Elections but such adjustment shall not be made within one hundred and twenty days before the election. (Emphases supplied)

Republic of the Philippines SUPREME COURT Manila EN BANC G.R. No. 189793 April 7, 2010

SENATOR BENIGNO SIMEON C. AQUINO III and MAYOR JESSE ROBREDO, Petitioners, vs. COMMISSION ON ELECTIONS represented by its Chairman JOSE A.R. MELO and its Commissioners, RENE V. SARMIENTO, NICODEMO T. FERRER, LUCENITO N. TAGLE, ARMANDO VELASCO, ELIAS R. YUSOPH AND GREGORIO LARRAZABAL, Respondents. DECISION PEREZ, J.: This case comes before this Court by way of a Petition for Certiorari and Prohibition under Rule 65 of the Rules of Court. In this original action, petitioners Senator Benigno Simeon C. Aquino III and Mayor Jesse Robredo, as public officers, taxpayers and citizens, seek the nullification as unconstitutional of Republic Act No. 9716, entitled "An Act Reapportioning the Composition of the First (1st) and Second (2nd) Legislative Districts in the Province of Camarines Sur and Thereby Creating a New Legislative District From Such Reapportionment." Petitioners consequently pray that the respondent Commission on Elections be restrained from making any issuances and from taking any steps relative to the implementation of Republic Act No. 9716.

Republic Act No. 9716 originated from House Bill No. 4264, and was signed into law by President Gloria Macapagal Arroyo on 12 October 2009. It took effect on 31 October 2009, or fifteen (15) days following its publication in the Manila Standard, a newspaper of general circulation.1 In substance, the said law created an additional legislative district for the Province of Camarines Sur by reconfiguring the existing first and second legislative districts of the province. Prior to Republic Act No. 9716, the Province of Camarines Sur was estimated to have a population of 1,693,821,2distributed among four (4) legislative districts in this wise: District Municipalities/Cities Libmanan Minalabac Pamplona Pasacao San Fernando Canaman Camaligan Magarao Bombon Calabanga Sangay San Jose Tigaon Tinamba Siruma Buhi Bula Nabua Population 417,304

4th District Caramoan (formerly 3rd Garchitorena District) Goa Lagonoy Presentacion 5th District Iriga (formerly 4th Baao District) Balatan Bato

Sangay San Jose Tigaon Tinamba Siruma Buhi Bula Nabua

372,548

429,070

1st District Del Gallego Ragay Lupi Sipocot Cabusao 2nd District Gainza Milaor Naga Pili Ocampo

474,899

Republic Act No. 9716 is a well-milled legislation. The factual recitals by both parties of the origins of the bill that became the law show that, from the filing of House Bill No. 4264 until its approval by the Senate on a vote of thirteen (13) in favor and two (2) against, the process progressed step by step, marked by public hearings on the sentiments and position of the local officials of Camarines Sur on the creation of a new congressional district, as well as argumentation and debate on the issue, now before us, concerning the stand of the oppositors of the bill that a population of at least 250,000 is required by the Constitution for such new district.4 Petitioner Aquino III was one of two senators who voted against the approval of the Bill by the Senate. His co-petitioner, Robredo, is the Mayor of Naga City, which was a part of the former second district from which the municipalities of Gainza and Milaor were taken for inclusion in the new second district. No other local executive joined the two; neither did the representatives of the former third and fourth districts of the province. Petitioners contend that the reapportionment introduced by Republic Act No. 9716, runs afoul of the explicit constitutional standard that requires a minimum population of two hundred fifty thousand (250,000) for the creation of a legislative district.5 The petitioners claim that the reconfiguration by Republic Act No. 9716 of the first and second districts of Camarines Sur is unconstitutional, because the proposed first district will end up with a population of less than 250,000 or only 176,383. Petitioners rely on Section 5(3), Article VI of the 1987 Constitution as basis for the cited 250,000 minimum population standard.6 The provision reads: Article VI

3rd District Caramoan Garchitorena Goa Lagonoy Presentacion 4th District Iriga Baao Balatan Bato

372,548

429,070

Following the enactment of Republic Act No. 9716, the first and second districts of Camarines Sur were reconfigured in order to create an additional legislative district for the province. Hence, the first district municipalities of Libmanan, Minalabac, Pamplona, Pasacao, and San Fernando were combined with the second district municipalities of Milaor and Gainza to form a new second legislative district. The following table3 illustrates the reapportionment made by Republic Act No. 9716: District 1st District Municipalities/Cities Del Gallego Ragay Lupi Sipocot Cabusao Libmanan Minalabac Pamplona Pasacao Naga Pili Ocampo Canaman San Fernando Gainza Milaor Camaligan Magarao Bombon Calabanga Population 176,383

Section 5. (1) x x x x (2) x x x x (3) Each legislative district shall comprise, as far as practicable, contiguous, compact, and adjacent territory.Each city with a population of at least two hundred fifty thousand, or each province, shall have at least one representative. (4) x x x x (Emphasis supplied). The petitioners posit that the 250,000 figure appearing in the above-cited provision is the minimum population requirement

2nd District

276,777

3rd District (formerly 2nd District)

439,043

for the creation of a legislative district.7 The petitioners theorize that, save in the case of a newly created province, each legislative district created by Congress must be supported by a minimum population of at least 250,000 in order to be valid.8 Under this view, existing legislative districts may be reapportioned and severed to form new districts, provided each resulting district will represent a population of at least 250,000. On the other hand, if the reapportionment would result in the creation of a legislative seat representing a populace of less than 250,000 inhabitants, the reapportionment must be stricken down as invalid for non-compliance with the minimum population requirement. In support of their theory, the petitioners point to what they claim is the intent of the framers of the 1987 Constitution to adopt a population minimum of 250,000 in the creation of additional legislative seats.9 The petitioners argue that when the Constitutional Commission fixed the original number of district seats in the House of Representatives to two hundred (200), they took into account the projected national population of fifty five million (55,000,000) for the year 1986.10 According to the petitioners, 55 million people represented by 200 district representatives translates to roughly 250,000 people for every one (1) representative.11 Thus, the 250,000 population requirement found in Section 5(3), Article VI of the 1987 Constitution is actually based on the population constant used by the Constitutional Commission in distributing the initial 200 legislative seats. Thus did the petitioners claim that in reapportioning legislative districts independently from the creation of a province, Congress is bound to observe a 250,000 population threshold, in the same manner that the Constitutional Commission did in the original apportionment. Verbatim, the submission is that: 1. Republic Act 9716 is unconstitutional because the newly apportioned first district of Camarines Sur failed to meet the population requirement for the creation of the legislative district as explicitly provided in Article VI, Section 5, Paragraphs (1) and (3) of the Constitution and Section 3 of the Ordinance appended thereto; and 2. Republic Act 9716 violates the principle of proportional representation as provided in Article VI, Section 5 paragraphs (1), (3) and (4) of the Constitution.12 The provision subject of this case states: Article VI Section 5. (1) The House of Representatives shall be composed of not more than two hundred and fifty members, unless otherwise fixed by law, who shall be elected from legislative districts apportioned among the provinces, cities and the Metropolitan Manila area in accordance with the number of their respective inhabitants, and on the basis of a uniform and progressive ratio, and those who, as provided by law, shall be elected through a party-list system of registered national, regional and sectoral parties or organizations.

(2) x x x x (3) Each legislative district shall comprise, as far as practicable, contiguous, compact, and adjacent territory. Each city with a population of at least two hundred fifty thousand, or each province, shall have at least one representative. (4) Within three years following the return of every census, the Congress shall make a reapportionment of legislative districts based on the standards provided in this section. On the other hand, the respondents, through the Office of the Solicitor General, seek the dismissal of the present petition based on procedural and substantive grounds. On procedural matters, the respondents argue that the petitioners are guilty of two (2) fatal technical defects: first, petitioners committed an error in choosing to assail the constitutionality of Republic Act No. 9716 via the remedy of Certiorari and Prohibition under Rule 65 of the Rules of Court; and second, the petitioners have no locus standi to question the constitutionality of Republic Act No. 9716. On substantive matters, the respondents call attention to an apparent distinction between cities and provinces drawn by Section 5(3), Article VI of the 1987 Constitution. The respondents concede the existence of a 250,000 population condition, but argue that a plain and simple reading of the questioned provision will show that the same has no application with respect to the creation of legislative districts in provinces.13 Rather, the 250,000 minimum population is only a requirement for the creation of a legislative district in a city. In sum, the respondents deny the existence of a fixed population requirement for the reapportionment of districts in provinces. Therefore, Republic Act No. 9716, which only creates an additional legislative district within the province of Camarines Sur, should be sustained as a perfectly valid reapportionment law. We first pass upon the threshold issues. The respondents assert that by choosing to avail themselves of the remedies of Certiorari and Prohibition, the petitioners have committed a fatal procedural lapse. The respondents cite the following reasons: 1. The instant petition is bereft of any allegation that the respondents had acted without or in excess of jurisdiction, or with grave abuse of discretion.1avvphi1 2. The remedy of Certiorari and Prohibition must be directed against a tribunal, board, officer or person, whether exercising judicial, quasi-judicial, or ministerial functions. Respondents maintain that in implementing Republic Act No. 9716, they were not acting as a judicial or quasi-judicial body, nor were they engaging in the performance of a ministerial act.

3. The petitioners could have availed themselves of another plain, speedy and adequate remedy in the ordinary course of law. Considering that the main thrust of the instant petition is the declaration of unconstitutionality of Republic Act No. 9716, the same could have been ventilated through a petition for declaratory relief, over which the Supreme Court has only appellate, not original jurisdiction. The respondents likewise allege that the petitioners had failed to show that they had sustained, or is in danger of sustaining any substantial injury as a result of the implementation of Republic Act No. 9716. The respondents, therefore, conclude that the petitioners lack the required legal standing to question the constitutionality of Republic Act No. 9716. This Court has paved the way away from procedural debates when confronted with issues that, by reason of constitutional importance, need a direct focus of the arguments on their content and substance. The Supreme Court has, on more than one occasion, tempered the application of procedural rules,14 as well as relaxed the requirement of locus standi whenever confronted with an important issue of overreaching significance to society. 15 Hence, in Del Mar v. Philippine Amusement and Gaming Corporation (PAGCOR)16 and Jaworski v. PAGCOR,17this Court sanctioned momentary deviation from the principle of the hierarchy of courts, and took original cognizance of cases raising issues of paramount public importance. The Jaworski case ratiocinates: Granting arguendo that the present action cannot be properly treated as a petition for prohibition, the transcendental importance of the issues involved in this case warrants that we set aside the technical defects and take primary jurisdiction over the petition at bar. One cannot deny that the issues raised herein have potentially pervasive influence on the social and moral well being of this nation, specially the youth; hence, their proper and just determination is an imperative need. This is in accordance with the well-entrenched principle that rules of procedure are not inflexible tools designed to hinder or delay, but to facilitate and promote the administration of justice. Their strict and rigid application, which would result in technicalities that tend to frustrate, rather than promote substantial justice, must always be eschewed. (Emphasis supplied) Anent the locus standi requirement, this Court has already uniformly ruled in Kilosbayan v. Guingona,18 Tatad v. Executive Secretary,19 Chavez v. Public Estates Authority20 and Bagong Alyansang Makabayan v. Zamora,21 just to name a few, that absence of direct injury on the part of the party seeking judicial review may be excused when the latter is able to craft an issue of transcendental importance. In Lim v. Executive Secretary, 22 this Court held that in cases of transcendental importance, the cases must be settled promptly and definitely, and so, the standing requirements may be relaxed. This liberal stance has been echoed in the more recent decision on Chavez v. Gonzales. 23 Given the weight of the issue raised in the instant petition, the foregoing principles must apply. The beaten path must be taken. We go directly to the determination of whether or not a

population of 250,000 is an indispensable constitutional requirement for the creation of a new legislative district in a province. We deny the petition. We start with the basics. Any law duly enacted by Congress carries with it the presumption of constitutionality. 24Before a law may be declared unconstitutional by this Court, there must be a clear showing that a specific provision of the fundamental law has been violated or transgressed. When there is neither a violation of a specific provision of the Constitution nor any proof showing that there is such a violation, the presumption of constitutionality will prevail and the law must be upheld. To doubt is to sustain.25 There is no specific provision in the Constitution that fixes a 250,000 minimum population that must compose a legislative district. As already mentioned, the petitioners rely on the second sentence of Section 5(3), Article VI of the 1987 Constitution, coupled with what they perceive to be the intent of the framers of the Constitution to adopt a minimum population of 250,000 for each legislative district. The second sentence of Section 5(3), Article VI of the Constitution, succinctly provides: "Each city with a population of at least two hundred fifty thousand, or each province, shall have at least one representative." The provision draws a plain and clear distinction between the entitlement of a city to a district on one hand, and the entitlement of a province to a district on the other. For while a province is entitled to at least a representative, with nothing mentioned about population, a city must first meet a population minimum of 250,000 in order to be similarly entitled. The use by the subject provision of a comma to separate the phrase "each city with a population of at least two hundred fifty thousand" from the phrase "or each province" point to no other conclusion than that the 250,000 minimum population is only required for a city, but not for a province. 26 Plainly read, Section 5(3) of the Constitution requires a 250,000 minimum population only for a city to be entitled to a representative, but not so for a province. The 250,000 minimum population requirement for legislative districts in cities was, in turn, the subject of interpretation by this Court in Mariano, Jr. v. COMELEC.27 In Mariano, the issue presented was the constitutionality of Republic Act No. 7854, which was the law that converted the Municipality of Makati into a Highly Urbanized City. As it happened, Republic Act No. 7854 created an additional legislative district for Makati, which at that time was a lone district. The petitioners in that case argued that the creation of an additional district would violate Section 5(3), Article VI of the Constitution, because the resulting districts would be supported by a population of less than 250,000, considering that Makati had a total population of only 450,000. The Supreme Court sustained the constitutionality of the law and the validity

of the newly created district, explaining the operation of the Constitutional phrase "each city with a population of at least two hundred fifty thousand," to wit: Petitioners cannot insist that the addition of another legislative district in Makati is not in accord with section 5(3), Article VI of the Constitution for as of the latest survey (1990 census), the population of Makati stands at only four hundred fifty thousand (450,000). Said section provides, inter alia, that a city with a population of at least two hundred fifty thousand (250,000) shall have at least one representative. Even granting that the population of Makati as of the 1990 census stood at four hundred fifty thousand (450,000), its legislative district may still be increased since it has met the minimum population requirement of two hundred fifty thousand (250,000). In fact, Section 3 of the Ordinance appended to the Constitution provides that a city whose population has increased to more than two hundred fifty thousand (250,000) shall be entitled to at least one congressional representative.28(Emphasis supplied) The Mariano case limited the application of the 250,000 minimum population requirement for cities only to its initial legislative district. In other words, while Section 5(3), Article VI of the Constitution requires a city to have a minimum population of 250,000 to be entitled to a representative, it does not have to increase its population by another 250,000 to be entitled to an additional district. There is no reason why the Mariano case, which involves the creation of an additional district within a city, should not be applied to additional districts in provinces. Indeed, if an additional legislative district created within a city is not required to represent a population of at least 250,000 in order to be valid, neither should such be needed for an additional district in a province, considering moreover that a province is entitled to an initial seat by the mere fact of its creation and regardless of its population. Apropos for discussion is the provision of the Local Government Code on the creation of a province which, by virtue of and upon creation, is entitled to at least a legislative district. Thus, Section 461 of the Local Government Code states: Requisites for Creation. (a) A province may be created if it has an average annual income, as certified by the Department of Finance, of not less than Twenty million pesos (P20,000,000.00) based on 1991 constant prices and either of the following requisites: (i) a contiguous territory of at least two thousand (2,000) square kilometers, as certified by the Lands Management Bureau; or (ii) a population of not less than two hundred fifty thousand (250,000) inhabitants as certified by the National Statistics Office. Notably, the requirement of population is not an indispensable requirement, but is merely an alternative addition to the indispensable income requirement.

Mariano, it would turn out, is but a reflection of the pertinent ideas that ran through the deliberations on the words and meaning of Section 5 of Article VI. The whats, whys, and wherefores of the population requirement of "at least two hundred fifty thousand" may be gleaned from the records of the Constitutional Commission which, upon framing the provisions of Section 5 of Article VI, proceeded to form an ordinance that would be appended to the final document. The Ordinance is captioned "APPORTIONING THE SEATS OF THE HOUSE OF REPRESENTATIVES OF THE CONGRESS OF THE PHILIPPINES TO THE DIFFERENT LEGISLATIVE DISTRICTS IN PROVINCES AND CITIES AND THE METROPOLITAN MANILA AREA." Such records would show that the 250,000 population benchmark was used for the 1986 nationwide apportionment of legislative districts among provinces, cities and Metropolitan Manila. Simply put, the population figure was used to determine how many districts a province, city, or Metropolitan Manila should have. Simply discernible too is the fact that, for the purpose, population had to be the determinant. Even then, the requirement of 250,000 inhabitants was not taken as an absolute minimum for one legislative district. And, closer to the point herein at issue, in the determination of the precise district within the province to which, through the use of the population benchmark, so many districts have been apportioned, population as a factor was not the sole,though it was among, several determinants. From its journal,29 we can see that the Constitutional Commission originally divided the entire country into two hundred (200) districts, which corresponded to the original number of district representatives. The 200 seats were distributed by the Constitutional Commission in this manner: first, one (1) seat each was given to the seventy-three (73) provinces and the ten (10) cities with a population of at least 250,000;30 second, the remaining seats were then redistributed among the provinces, cities and the Metropolitan Area "in accordance with the number of their inhabitants on the basis of a uniform and progressive ratio."31 Commissioner Davide, who later became a Member and then Chief Justice of the Court, explained this in his sponsorship remark32 for the Ordinance to be appended to the 1987 Constitution: Commissioner Davide: The ordinance fixes at 200 the number of legislative seats which are, in turn, apportioned among provinces and cities with a population of at least 250, 000 and the Metropolitan Area in accordance with the number of their respective inhabitants on the basis of a uniform and progressive ratio. The population is based on the 1986 projection, with the 1980 official enumeration as the point of reckoning. This projection indicates that our population is more or less 56 million. Taking into account the mandate that each city with at least 250, 000 inhabitants and each province shall have at least one representative, we first allotted one seat for each of the 73 provinces, and each one for all cities with a population of at least 250, 000, which are the Cities of Manila, Quezon, Pasay, Caloocan, Cebu, Iloilo, Bacolod, Cagayan de Oro, Davao and Zamboanga. Thereafter, we then proceed[ed] to increase whenever appropriate the number of seats for the provinces and cities in accordance with the number of their inhabitants on the basis of a uniform and progressive ratio. (Emphasis supplied).

Thus was the number of seats computed for each province and city. Differentiated from this, the determination of the districts within the province had to consider "all protests and complaints formally received" which, the records show, dealt with determinants other than population as already mentioned. Palawan is a case in point. Journal No. 107 of the Constitutional Commission narrates: INTERPELLATION OF MR. NOLLEDO: Mr. Nolledo inquired on the reason for including Puerto Princesa in the northern towns when it was more affinity with the southern town of Aborlan, Batarasa, Brookes Point, Narra, Quezon and Marcos. He stated that the First District has a greater area than the Second District. He then queried whether population was the only factor considered by the Committee in redistricting. Replying thereto, Mr. Davide explained that the Committee took into account the standards set in Section 5 of the Article on the Legislative Department, namely: 1) the legislative seats should be apportioned among the provinces and cities and the Metropolitan Manila area in accordance with their inhabitants on the basis of a uniform and progressive ratio; and 2) the legislative district must be compact, adjacent and contiguous. Mr. Nolledo pointed out that the last factor was not met when Puerto Princesa was included with the northern towns. He then inquired what is the distance between Puerto Princesa from San Vicente. xxxx Thereupon, Mr. Nolledo stated that Puerto Princesa has a population of 75,480 and based on the apportionment, its inclusion with the northern towns would result in a combined population of 265,000 as against only 186,000 for the south. He added that Cuyo and Coron are very important towns in the northern part of Palawan and, in fact, Cuyo was the capital of Palawan before its transfer to Puerto Princesa. He also pointed out that there are more potential candidates in the north and therefore if Puerto Princesa City and the towns of Cuyo and Coron are lumped together, there would be less candidates in the south, most of whose inhabitants are not interested in politics. He then suggested that Puerto Princesa be included in the south or the Second District. Mr. Davide stated that the proposal would be considered during the period of amendments. He requested that the COMELEC staff study said proposal.33 "PROPOSED AMENDMENT OF MR. NOLLEDO On the districting of Palawan, Mr. Nolledo pointed out that it was explained in the interpellations that District I has a total population of 265,358 including the City of Puerto Princesa, while the Second District has a total population of 186,733. He proposed, however, that Puerto Princesa be included in the Second District in order to satisfy the contiguity requirement in the Constitution considering that said City is nearer the southern towns comprising the Second District.

In reply to Mr. Monsods query, Mr. Nolledo explained that with the proposed transfer of Puerto Princesa City to the Second District, the First District would only have a total population of 190,000 while the Second District would have 262,213, and there would be no substantial changes. Mr. Davide accepted Mr. Nolledos proposal to insert Puerto Princesa City before the Municipality of Aborlan. There being no objection on the part of the Members the same was approved by the Body. APPROVAL OF THE APPORTIONMENT AND DISTRICTING OF PALAWAN There being no other amendment, on motion of Mr. Davide, there being no objection, the apportionment and districting for the province of Palawan was approved by the Body.34 The districting of Palawan disregarded the 250,000 population figure. It was decided by the importance of the towns and the city that eventually composed the districts. Benguet and Baguio are another reference point. The Journal further narrates: At this juncture, Mr. Davide informed the Body that Mr. Regalado made a reservation with the Committee for the possible reopening of the approval of Region I with respect to Benguet and Baguio City. REMARKS OF MR. REGALADO Mr. Regalado stated that in the formulation of the Committee, Baguio City and Tuba are placed in one district. He stated that he was toying with the idea that, perhaps as a special consideration for Baguio because it is the summer capital of the Philippines, Tuba could be divorced from Baguio City so that it could, by itself, have its own constituency and Tuba could be transferred to the Second District together with Itogon. Mr. Davide, however, pointed out that the population of Baguio City is only 141,149. Mr. Regalado admitted that the regular population of Baguio may be lower during certain times of the year, but the transient population would increase the population substantially and, therefore, for purposes of business and professional transactions, it is beyond question that population-wise, Baguio would more than qualify, not to speak of the official business matters, transactions and offices that are also there. Mr. Davide adverted to Director de Limas statement that unless Tuba and Baguio City are united, Tuba will be isolated from the rest of Benguet as the place can only be reached by passing through Baguio City. He stated that the Committee would submit the matter to the Body. Upon inquiry of the Chair whether he is insisting on his amendment, Mr. Regalado stated that the Body should have a say on the matter and that the considerations he had given are not on the demographic aspects but on the fact that Baguio City

is the summer capital, the venue and situs of many government offices and functions. On motion of Mr. Davide, there being no objection, the Body approved the reconsideration of the earlier approval of the apportionment and districting of Region I, particularly Benguet. Thereafter, on motion of Mr. Davide, there being no objection, the amendment of Mr. Regalado was put to a vote. With 14 Members voting in favor and none against, the amendment was approved by the Body. Mr. Davide informed that in view of the approval of the amendment, Benguet with Baguio City will have two seats. The First District shall comprise of the municipalities of Mankayan, Buguias, Bakun, Kabayan, Kibungan, Bokod, Atok, Kapangan, Tublay, La Trinidad, Sablan, Itogon and Tuba. The Second District shall comprise of Baguio City alone. There being no objection, the Body approved the apportionment and districting of Region I.35 Quite emphatically, population was explicitly removed as a factor. It may be additionally mentioned that the province of Cavite was divided into districts based on the distribution of its three cities, with each district having a city: one district "supposed to be a fishing area; another a vegetable and fruit area; and the third, a rice growing area," because such consideration "fosters common interests in line with the standard of compactness." 36 In the districting of Maguindanao, among the matters discussed were "political stability and common interest among the people in the area" and the possibility of "chaos and disunity" considering the "accepted regional, political, traditional and sectoral leaders."37 For Laguna, it was mentioned that municipalities in the highland should not be grouped with the towns in the lowland. For Cebu, Commissioner Maambong proposed that they should "balance the area and population."38 Consistent with Mariano and with the framer deliberations on district apportionment, we stated in Bagabuyo v. COMELEC39 that: x x x Undeniably, these figures show a disparity in the population sizes of the districts. The Constitution, however, does not require mathematical exactitude or rigid equality as a standard in gauging equality of representation. x x x. To ensure quality representation through commonality of interests and ease of access by the representative to the constituents, all that the Constitution requires is that every legislative district should comprise, as far as practicable, contiguous, compact and adjacent territory. (Emphasis supplied). This 2008 pronouncement is fresh reasoning against the uncompromising stand of petitioner that an additional provincial legislative district, which does not have at least a 250,000 population is not allowed by the Constitution. The foregoing reading and review lead to a clear lesson.

Neither in the text nor in the essence of Section 5, Article VI of the Constitution can, the petition find support. And the formulation of the Ordinance in the implementation of the provision, nay, even the Ordinance itself, refutes the contention that a population of 250,000 is a constitutional sine qua non for the formation of an additional legislative district in a province, whose population growth has increased beyond the 1986 numbers. Translated in the terms of the present case: 1. The Province of Camarines Sur, with an estimated population of 1,693,821 in 2007 is based on the formula and constant number of 250,000 used by the Constitutional Commission in nationally apportioning legislative districts among provinces and cities entitled to two (2) districts in addition to the four (4) that it was given in the 1986 apportionment. Significantly, petitioner Aquino concedes this point.40 In other words, Section 5 of Article VI as clearly written allows and does not prohibit an additional district for the Province of Camarines Sur, such as that provided for in Republic Act No. 9786; 2. Based on the pith and pitch of the exchanges on the Ordinance on the protests and complaints against strict conformity with the population standard, and more importantly based on the final districting in the Ordinance on considerations other than population, the reapportionment or the recomposition of the first and second legislative districts in the Province of Camarines Sur that resulted in the creation of a new legislative district is valid even if the population of the new district is 176,383 and not 250,000 as insisted upon by the petitioners. 3. The factors mentioned during the deliberations on House Bill No. 4264, were: (a) the dialects spoken in the grouped municipalities; (b) the size of the original groupings compared to that of the regrouped municipalities; (c) the natural division separating the municipality subject of the discussion from the reconfigured District One; and (d) the balancing of the areas of the three districts resulting from the redistricting of Districts One and Two.41 Each of such factors and in relation to the others considered together, with the increased population of the erstwhile Districts One and Two, point to the utter absence of abuse of discretion, much less grave abuse of discretion,42 that would warrant the invalidation of Republic Act No. 9716. To be clear about our judgment, we do not say that in the reapportionment of the first and second legislative districts of Camarines Sur, the number of inhabitants in the resulting

additional district should not be considered. Our ruling is that population is not the only factor but is just one of several other factors in the composition of the additional district. Such settlement is in accord with both the text of the Constitution and the spirit of the letter, so very clearly given form in the Constitutional debates on the exact issue presented by this petition.1avvphi1 WHEREFORE, the petition is hereby DISMISSED. Republic Act No. 9716 entitled "An Act Reapportioning the Composition of the First (1st) and Second (2nd) Legislative Districts in the Province of Camarines Sur and Thereby Creating a New Legislative District From Such Reapportionment" is a VALID LAW. SO ORDERED. JOSE PORTUGAL PEREZ Associate Justice WE CONCUR: REYNATO S. PUNO Chief Justice

REYNATO S. PUNO Chief Justice

Sen. Aquino, Mr. President, we have to respond to the last statement. The others that have been recommended together with the Camarines Sur bill were all tested based on one standard, not separate standards for everybody. It is our opinion and that is the source of this discussion and of this debate; that we hold that there is a 250,000-rule embodied in so many provisions of the Constitution. Our distinguished collegue from the Bicol and Makati areas does not agree. I think we have established that we do not agree on our interpretation of the Constitution.
41

With his permission, Mr. President, since I am against of his time, may we move on to the next point so as not to be accused of delaying the passage of the bill any further? May we ask: Why was Libmanan not considered to be a portion of the proposed first district? Because having done the same, instead of having the 170,000-figure, we would have a 269,222 population figure. Sen. Arroyo. All right. Look at that map. Sen. Aquino. May we just move to another rostrum, Mr. President. We cannot view the details from this particular rostrum, with the indulgence of our distinguished colleague. Sen. Arroyo. x x x. x x x x. Now, the first district of Camarines Sur is so big that it consists of 40% of the province, area-wise. Libmanan is the biggest municipality in the entire or present first district. It stuck in the middle. We cannot move that no matter what because that is the biggest. Anyway, we move it left, we move it right, it would change the configuration. Those are the practical difficulties in trying to figure out how. That is the situation. As we see, there is a water extension of the gulf. We cannot connect them because they are separated by water. So it is no longer contiguous because it is separated by water and there is nothing we can do about it. That is what I was saying about mathematical formula. We cannot have mathematical formula when a natural boundary like water cannot make the municipalities contiguous. That is the picture. It is all there.

ANTONIO T. CARPIO Associate Justice CONCHITA CARPIO MORALES Associate Justice

RENATO C. CORONA Associate Justice PRESBITERO J. VELASCO, JR. Associate Justice TERESITA J. LEONARDO-DE CASTRO Associate Justice DIOSDADO M. PERALTA Associate Justice MARIANO C. DEL CASTILLO Associate Justice MARTIN S. VILLARAMA, JR. Associate Justice

ANTONIO EDUARDO B. NACHURA Associate Justice

ARTURO D. BRION Associate Justice

LUCAS P. BERSAMIN Associate Justice

(On Official Leave) ROBERTO A. ABAD* Associate Justice

JOSE CATRAL MENDOZA Associate Justice CERTIFICATION Pursuant to Section 13, Article VIII of the Constitution, it is hereby certified that the conclusions in the above Decision had been reached in consultation before the case was assigned to the writer of the opinion of the Court.

The violet is the tagalog-speaking province. The green is the Bicol-speaking province so that is the only way to divide it. So much has been done in the Lower House in trying to figure it out. But as long as the three Congressman do not agree, then there is nothing we can do about it. That Representative, what the Congressman say in his district is "king". He is the king there, there is nothing we can do about it. We respect that. Libmanan is the biggest one. We cannot move that anyway. (TSN, Senate Plenary Debates on H.B. No. 4264, 22 September 2009). Grave abuse of discretion contemplates a situation where the power is exercised in an arbitrary or despotic manner by reason of passion or personal hostility so patent and gross as to amount to an evasion of positive duty or a virtual refusal to perform the duty enjoined by, or to act at all in contemplation of law. (Cabrera v. COMELEC, G.R. No. 182084, 6 October 2008, 567 SCRA 686, 691).
42

members of the Senate represent the people at large while the members of the House represent the people in legislative districts. Thus, population or the number of inhabitants in a district is the essential measure of representation in the House of Representatives.5 Section 5(1), Article VI of the 1987 Constitution, just like in the previous Constitutions, 6 could not be any clearer: The House of Representatives shall be composed of x x x members, x x x, 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 x x x. (Emphasis supplied) Evidently, the idea of the people, as individuals, electing their representatives under the principle of "one person, one vote,"7 is the cardinal feature of any polity, like ours, claiming to be a "democratic and republican State."8 A democracy in its pure state is one where the majority of the people, under the principle of "one person, one vote," directly run the government.9 A republic is one which has no monarch, royalty or nobility,10 ruled by a representative government elected by the majority of the people under the principle of "one person, one vote," where all citizens are equally subject to the laws. 11 A republic is also known as a representative democracy. The democratic and republican ideals are intertwined, and converge on the common principle of equality -- equality in voting power, and equality under the law. The constitutional standard of proportional representation is rooted in equality in voting power -- that each vote is worth the same as any other vote, not more or less. Regardless of race, ethnicity, religion, sex, occupation, poverty, wealth or literacy, voters have an equal vote. Translated in terms of legislative redistricting, this means equal representation for equal numbers of people12 or equal voting weight per legislative district. In constitutional parlance, this means representation for every legislative district "in accordance with the number of their respective inhabitants, and on the basis of a uniform and progressive ratio" 13 or proportional representation. Thus, the principle of "one person, one vote" or equality in voting power is inherent in proportional representation. It was in obedience to the rule on proportional representation that this Court unanimously struck down an apportionment law which: (a) x x x gave Cebu seven members, while Rizal with a bigger number of inhabitants got four only; (b) x x x gave Manila four members, while Cotabato with a bigger population got three only; (c) [gave] Pangasinan with less inhabitants than both Manila and Cotabato x x x more than both, five members having been assigned to it; (d) [gave] Samar (with 871,857) four members while Davao with 903,224 got three only; (e) [gave] Bulacan with 557,691 x x x two only, while Albay with less inhabitants (515,691) got three, and (f) [gave] Misamis Oriental with 387,839 x x x one member only, while Cavite with less inhabitants (379,904) got two.14 x x x x

DISSENTING OPINION CARPIO, J.: I dissent. The majority opinion wreaks havoc on the bedrock principle of our "democratic and republican State"1that all votes are equal. Instead, the majority opinion introduces the Orwellian concept that some votes are more equal than others. The majority opinion allows, for the first time under the 1987 Constitution, voters in a legislative district created by Congress to send one representative to Congress even if the district has a population of only 176,383. In sharp contrast, all other legislative districts created by Congress send one representative each because they all meet the minimum population requirement of 250,000. The assailed Republic Act No. 9716 (RA 9716) is unconstitutional for being utterly repugnant to the clear and precise "standards" prescribed in Section 5, Article VI of the 1987 Constitution for the creation of legislative districts. Section 5(4)2 of Article VI mandates that "Congress shall make a reapportionment of legislative districts based on the standards" fixed in Section 5. These constitutional standards, as far as population is concerned, are: (1) proportional representation; (2) minimum population of 250,000 per legislative district; (3) progressive ratio in the increase of legislative districts as the population base increases; and (4) uniformity in apportionment of legislative districts "in provinces, cities, and the Metropolitan Manila area." The assailed RA 9716 grossly violates these constitutional standards. Legislators Represent People, Not Provinces or Cities There was never any debate3 in the design of our government that the members of the House of Representatives, just like the members of the Senate, represent people not provinces, cities, or any other political unit.4 The only difference is that the

for being repugnant to the constitutional edict under the 1935 Constitution that the Members of the House of Representatives "shall be apportioned among the several provinces as nearly as may be according to the number of their respective inhabitants."15 Section 5(1), Article VI of the 1987 Constitution is even more precise by providing that the Members of the House "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 x x x." The phrase "as nearly as may be according to the number of their respective inhabitants" in the 1935 Constitution has been changed in the 1987 Constitution to the more precise "in accordance with the number of their respective inhabitants, and on the basis of a uniform and progressive ratio x x x." The addition of the phrase "on the basis of a uniform and progressive ratio" was meant to stress that the rule on proportional representation shall apply uniformly in the apportionment of every legislative district. The phrase "in accordance with the number of their respective inhabitants," which precedes the phrase "provinces, cities and the Metropolitan Manila area," means that legislative districts in provinces, cities and the Metropolitan Manila area shall be apportioned according to proportional representation or equal representation for equal numbers of people. Thus, there shall be one legislative district for every given number of people, whether inhabiting in provinces, cities or the Metropolitan Manila area. The phrase "on the basis of a uniform x x x ratio" means that the ratio of one legislative district for every given number of people shall be applied uniformly in all apportionments, whether in provinces, cities or the Metropolitan Manila area. Section 5(3) of Article VI mandates that "[e]ach city with a population of at least two hundred fifty thousand x x x shall have at least one representative." Consequently, a population of 250,000 serves as the default minimum population applicable to every legislative district following the rule on uniformity in the apportionment of legislative districts, whether in provinces, cities or in the Metropolitan Manila area. The phrase "progressive ratio" means that the number of legislative districts shall increase as the number of the population increases, whether in provinces, cities or the Metropolitan Manila area. Thus, a province shall have one legislative district if it has a population of 250,000, and two legislative districts if it has 500,000. This insures that proportional representation is maintained if there are increases in the population of a province, city, or the Metropolitan Manila area. This is what is meant by a "progressive ratio" in the apportionment of legislative districts, a ratio that must also be uniformly applied. Obviously, the 1987 Constitution has laid down clear and precise standards in the apportionment of legislative districts compared to the 1935 Constitution. What is inescapable is that the 1987 Constitution has strengthened and tightened the requirement of uniformity in the apportionment of

legislative districts, whether in provinces, cities or the Metropolitan Manila area. To now declare, as the majority opinion holds, that apportionment in provinces can disregard the minimum population requirement because the Constitution speaks of a minimum population only in cities is logically flawed, constitutionally repulsive, and fatally corrosive of the bedrock notion that this country is a "democratic and republican State."16 This ruling of the majority strikes a debilitating blow at the heart of our democratic and republican system of government. Under the majoritys ruling, Congress can create legislative districts in provinces without regard to any minimum population. Such legislative districts can have a population of 150,000, 100,000, 50,000 or even 100, thus throwing out of the window the constitutional standards of proportional representation and uniformity in the creation of legislative districts. To disregard the minimum population requirement of 250,000 in provincial legislative districts while maintaining it in city legislative districts is to disregard, as a necessary consequence, the constitutional standards of proportional representation and uniformity in the creation of legislative districts in "provinces, cities, and the Metropolitan Manila area." This means that legislative districts in provinces can have a minimum population of anywhere from 100 (or even less) to 250,000, while legislative districts in cities will always have a minimum population of 250,000. This will spell the end of our democratic and republican system of government as we know it and as envisioned in the 1987 Constitution. Constitutional Standards for Reapportionment: Population and Territory The Constitution itself provides the "standards" against which reapportionment laws like RA 9716 will be tested, following its command that "Congress shall make a reapportionment of legislative districts based on the standardsprovided in this section,"17 referring to Section 5, Article VI. These standards relate to first, population, and second, territory. Section 5 admits of no other standards. On population, the standards of the 1987 Constitution have four elements. First is the rule on proportional representation, which is the universal standard in direct representation in legislatures. Second is the rule on a minimum population of 250,000 per legislative district, which was not present in our previous Constitutions. Third is the rule on progressive ratio, which means that the number of legislative districts shall increase as the number of the population increases in accordance with the rule on proportional representation. Fourth is the rule on uniformity, which requires that the first three rules shall apply uniformly in all apportionments in provinces, cities and the Metropolitan Manila area. The Constitution18 and the Ordinance19 appended to the 1987 Constitution fixes the minimum population of a legislative district at 250,000. Although textually relating to cities, this minimum population requirement applies equally to legislative districts apportioned in provinces and the Metropolitan Manila area because of the constitutional command that "legislative

districts [shall be] 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." To reiterate, the Constitution commands that this rule on uniformity shall apply to legislative districts in "provinces, cities, and the Metropolitan Manila area." Otherwise, districts apportioned in provinces, if freed from the minimum population requirement, will have constituencies two, four, ten times lower than in districts apportioned in cities, violating the constitutional command that apportionment shall be based on a uniform ratio in "provinces, cities, and the Metropolitan Manila area." In short, the constitutional "standards" in the apportionment of legislative districts under Section 5 of Article VI, as far as population is concerned, are: (1) proportional representation; (2) a minimum "population of at least two hundred fifty thousand" per legislative district; (3) progressive ratio in the increase of legislative districts as the population base increases; and (4) uniformity in the apportionment of legislative districts in "provinces, cities, and the Metropolitan Manila area." For territory, the Constitution prescribes the "standards" that a legislative district must be, "as far as practicable, contiguous, compact, and adjacent." To repeat, other than population and territory, there are no other standards prescribed in Section 5 of Article VI. This Court cannot add other standards not found in Section 5. The Malapportionment of RA 9716 Flouts the Constitutional Standards on Population RA 9716 grossly malapportions Camarines Surs proposed five legislative districts by flouting the standards of proportional representation among legislative districts and the minimum population per legislative district. Based on the 2007 census, the proposed First District under RA 9716 will have a population of only 176,383, which is 29% below the constitutional minimum population of 250,000 per legislative district. In contrast, the remaining four proposed districts have populations way above the minimum with the highest at 439,043 (proposed Third District), lowest at 276,777 (proposed Second District) and an average of 379,359. Indeed, the disparity is so high that three of the proposed districts (Third, Fourth, and Fifth Districts) have populations more than double that of the proposed First District.20 This results in wide variances among the districts populations. Still using the 2007 census, the ideal per district population for Camarines Sur is 338,764.21 The populations of the proposed districts swing from this ideal by a high of positive 29.6% (Third District) to a low of negative 47.9% (First District).22 This means that the smallest proposed district (First District) is underpopulated by nearly 50% of the ideal and the biggest proposed district (Third District) is overpopulated by nearly 30% of the ideal. The resulting vote undervaluation (for voters in the disfavored districts) and vote overvaluation (for voters in the First District) fails even the most liberal application of the constitutional standards. Votes in the proposed First District are overvalued by

more than 200% compared to votes from the Third, Fourth, and Fifth Districts and by more than 60% compared to votes in the Second District. Conversely, votes from the Third, Fourth, and Fifth Districts are undervalued by more than 200% compared to votes in the First District while those in the Second District suffer more than 60% undervaluation. Proportional representation in redistricting does not mean exact numbers of population, to the last digit, for every legislative district. However, under the assailed RA 9716, the variances swing from negative 47.9% to positive 29.6%. Under any redistricting yardstick, such variances are grossly anomalous and destructive of the concept of proportional representation. In the United States, the Supreme Court there ruled that a variance of even less than 1% is unconstitutional in the absence of proof of a good faith effort to achieve a mathematically exact apportionment.23 Significantly, petitioner Senator Aquinos attempt to redraw districting lines to make all five proposed districts compliant with the minimum population requirement (and thus lessen the wide variances in population among the districts) was thwarted chiefly for political expediency: his colleagues in the Senate deemed the existing districts in Camarines Sur "untouchable" because "[a Congressman] is king [in his district]."24 This shows a stark absence of a good faith effort to achieve a more precise proportional representation in the redistricting under the assailed RA 9716. Clearly, RA 9716 tinkers with vote valuation, and consequently with the constitutional standard of proportional representation, based solely on the whims of incumbent Congressmen, an invalid standard for redistricting under Section 5 of Article VI. Equally important, RA 9716 violates the minimum population requirement of 250,000 in creating the proposed First District, which will have a population of only 176,383. The minimum population of 250,000 per legislative district admits of no variance and must be complied with to the last digit. The Constitution mandates a population of "at least two hundred fifty thousand" for a legislative district in a city, and under the principle of "uniform and progressive ratio," for every legislative district in provinces and in the Metropolitan Manila area. Entitlement of "Each Province" to "at Least One Representative" No Basis to Ignore Standard of Uniform Population Ratio The directive in Section 5(3) of Article VI that "each province, shall have at least one representative" means only that when a province is created, a legislative district must also be created with it.25 Can this district have a population below 250,000? To answer in the affirmative is to ignore the constitutional mandate that districts in provinces be apportioned "in accordance with the number of their respective inhabitants, and on the basis of a uniform and progressive ratio." That the Constitution never meant to exclude provinces from the requirement of proportional representation is evident in the opening provision of Section 5(1), which states: The House of Representatives shall be composed of x x x members, x x x, 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 x x x." (Boldfacing and underscoring supplied) In short, the Constitution clearly mandates that the creation of legislative districts in provinces, cities and the Metropolitan Manila area must comply with proportional representation, on the basis of a uniform and progressive ratio.26 Apportionment in the Ordinance Appended to the 1987 Constitution Distinct from Legislative Reapportionments It will not do to hoist the apportionment under the Ordinance appended to the Constitution or Mariano v. COMELEC27 and Bagabuyo v. COMELEC28 as normative props to shore up the hollow proposition that reapportionment in provinces can dispense with the minimum population of 250,000 as prescribed in Section 5 of Article VI. In the first place, the Constitutional Commission, exercising constituent powers, enjoyed absolute discretion to relax the standards it textualized in Section 5, Article VI, in the interest of creating legislative districts en masse cognizant of legitimate concerns.29 Only the people, through the instrument of ratification, possessed the greater sovereign power to overrule the Constitutional Commission. By overwhelmingly ratifying the 1987 Constitution, the people in the exercise of their sovereign power sanctioned the Constitutional Commissions discretionary judgments. In contrast, Congress enacted RA 9716 in the exercise of its legislative powers under the 1987 Constitution and subject to the reapportionment standards in Section 5, Article VI of the Constitution. Congress is strictly bound by the reapportionment standards in Section 5, unlike the Constitutional Commission which could create one-time exceptions subject to ratification by the sovereign people. Until it enacted RA 9716, Congress never deviated from the minimum population requirement of 250,000 in creating a legislative district. Thus, in Republic Act No. 7854 (RA 7854) which doubled the legislative districts in Makati City, the Court in Mariano v. COMELEC took note of the certification by the National Statistics Office that at the time of the enactment of RA 7854, the population of Makati City was 508,174, entitling it to two representatives. 30 Footnote 13 in Mariano v. COMELEC states: "As per the certificate issued by Administrator Tomas Africa of the National Census and Statistics Office, the population of Makati as of 1994 stood at 508,174; August 4, 1994, Senate Deliberations on House Bill No. 12240 (converting Makati into a highly urbanized city) x x x." Similarly, in Republic Act No. 9371 (RA 9371) which also doubled the legislative districts in Cagayan de Oro City, the two districts created complied with the minimum population of 250,000 (254,644 and 299,322, respectively), as the Court noted in Bagabuyo v. COMELEC.31 Contrary to the assertion of the majority opinion, neither Mariano v. COMELEC nor Bagabuyo v. COMELEC supports the claim that Congress can create a legislative district with a population of less than 250,000. On the contrary, these cases confirm that every legislative district must have a minimum population of 250,000. Only very recently, this Court in Aldaba v. COMELEC32 struck down a law creating a legislative district in the City of Malolos, which has a population just short of the 250,000 minimum requirement.

RA 9716 Harbinger for Wave of Malapportionments More than 20 years after the 1987 Constitution took effect, Congress has yet to comply with the Constitutions mandate that "[w]ithin three years following the return of every census, the Congress shall make a reapportionment of legislative districts based on the standards provided in this section."33 Instead, Congress has contented itself with enacting piecemeal reapportionment laws for individual areas, either for this sole purpose34or ancillary to the conversion35 or creation36 of a local government unit, at the behest of legislators representing the area. As movements of district lines spell doom or salvation for entrenched political interests, this process subjects Congress to intense pressure to keep off certain districts. Until RA 9716 came along, Congress was able to balance political exigency with constitutional imperatives. RA 9716 marks a tectonic shift by tilting the balance in favor of entrenched interests, sacrificing the Constitution and ultimately, the ideals of representative democracy, at the altar of political expediency. If left unchecked, laws like RA 9716 will fill the House of Representatives with two breeds of legislators, one, representing districts two, four, ten times more populous than other favored districts, elected by voters holding "mickey mouse votes" and another, representing small, favored districts, elected by voters holding "premium votes" two, four, ten times more valuable than the votes in disfavored districts. Our oath of office as Justices of this Court forbids us from legitimizing this constitutionally abhorrent scheme, a scheme that for the first time under the 1987 Constitution creates a new politically privileged class of legislators in what is supposed to be a "democratic and republican State."37 To uphold RA 9716 is to uphold the blatant violation of the constitutional standards requiring proportional representation and a minimum population in the creation of legislative districts. This will derail our one person, one vote representative democracy from the tracks clearly and precisely laid down in the 1987 Constitution. And for what end -- to create a special class of legislative districts represented by a new political elite exercising more legislative power than their votes command? Such a grant of privileged political status is the modern day equivalent of a royalty or nobility title, which is banned under the 1987 Constitution. History will not be kind to those who embark on a grotesquely anomalous constitutional revision that is repulsive to our ideals of a "democratic and republican State." The ruling of the majority today could sound the death knell for the principle of "one person, one vote" that insures equality in voting power. All votes are equal, and there is no vote more equal than others. This equality in voting power is the essence of our democracy. This Court is supposed to be the last bulwark of our democracy. Sadly, here the Court, in ruling that there are some votes more equal than others, has failed in its primordial constitutional duty to protect the essence of our democracy. Accordingly, I vote to GRANT the petition and to DECLARE UNCONSTITUTIONAL Republic Act No. 9716 for grossly violating the standards of proportional representation and

minimum population in the creation of legislative districts as prescribed in Section 5, Article VI of the 1987 Constitution. ANTONIO T. CARPIO Associate Justice

Section 1, Article V of the Constitution provides: "Suffrage may be exercised by all citizens of the Philippines not otherwise disqualified by law, who are at least eighteen years of age, and who shall have resided in the Philippines for at least one year and in the place wherein they propose to vote for at least six months immediately preceding the election. No literacy, property, or other substantive requirement shall be imposed on the exercise of suffrage."
7 8

Footnotes Section 1, Article II of the 1987 Constitution provides: "The Philippines is a democratic and republican State. Sovereignty resides in the people and all government authority emanates from them." (Emphasis supplied)
1

Section 1, Article II, 1987 Constitution.

Section 5(4), Article VI of the Constitution provides: "Within three years following the return of every census, the Congress shall make a reapportionment of legislative districts based on the standards provided in this section." (Emphasis supplied)
2

The 1935 and 1973 Constitutions described the Philippines as a "republican State." During the deliberations of the Constitutional Commission, Commissioner Adolfo Azcuna explained that the word "democratic" was added "to emphasize that in this new Constitution there are instances where the people would act directly, and not through their representatives." IV Record of the Constitutional Commission, p. 735, 17 September 1986.
9

The creation of the union of the United States of America was nearly aborted because of the bitter controversy in the drafting of the US Constitution on the manner of representation to the US Congress. The debate pitted, on the one hand, small States which wanted representation by State and, on the other hand, delegates who insisted on direct representation, consistent with democratic ideals. The impasse was broken by what is popularly known as the Great Compromise, allowing States to send two representatives to the US Senate (regardless of population) and reserving membership in the US House of Representatives to Congressmen directly elected by the people in legislative districts based on proportional representation. (See Wesberry v. Sanders, 376 U.S. 1 [1964].)
3 4

Section 31, Article VI of the 1987 Constitution provides: "No law granting a title of royalty or nobility shall be enacted."
10

John Adams wrote in 1787 that the "only true definition of a republic" is "a government, in which all men, rich and poor, magistrates and subjects, officers and people, masters and servants, the first citizen and the last, are equally subject to the laws." The Founders Constitution, Republican Government, Chapter 4, Document 10, http://presspubs.uchicago.edu/founders/documents/v1ch4s10.html , accessed 3 April 2010.
11 12

Wesberry v. Sanders, 376 U.S. 1, 11 [1964]. Section 5(1), Article VI, 1987 Constitution.

13

Or as a parallel ruling in another jurisdiction puts it: Legislators represent people, not trees or acres. Legislators are elected by voters, not farms or cities or economic interests. As long as ours is a representative form of government, and our legislatures are those instruments of government elected directly by and directly representative of the people, the right to elect legislators in a free and unimpaired fashion is a bedrock of our political system. (Reynolds v. Sims, 377 U.S. 533, 562 [1964].)

Macias v. COMELEC, No. L-18684, 14 September 1961, 3 SCRA 1, 5-6. The Court took note of the following addition malapportionments: "These were not the only instances of unequal apportionment. We see that Mountain Province has 3 whereas Isabela, Laguna and Cagayan with more inhabitants have 2 each. And then, Capiz, La Union and Ilocos Norte got 2 each, whereas Sulu that has more inhabitants got 1 only. And Leyte with 967,323 inhabitants got 4 only, whereas Iloilo with less inhabitants (966,145) was given 5." (Id. at 6.)
14 15

Section 5, Article VI, 1935 Constitution. Section 1, Article II, 1987 Constitution. Section 5(4), Article VI, 1987 Constitution.

Save for those elected under the part-list system who represent sectors.
5

16

17

Substantially identical provisions are found in Section 2, Article VIII (1973 Constitution) and Section 5, Article VI (1935 Constitution).
6

Section 5(3), Article VI provides: "Each legislative district shall comprise, as far as practicable, contiguous, compact, and adjacent territory. Each city with a population of at least two hundred fifty thousand, or
18

each province, shall have at least one representative." (Emphasis supplied)

19

Section 3, which provides: Any province that may hereafter be created, or any city whose population may hereafter increase to more than two hundred fifty thousand shall be entitled in the immediately following election to at least one Member or such number of Members as it may be entitled to on the basis of the number of its inhabitants and according to the standards set forth in paragraph (3), Section 5 of Article VI of the Constitution. The number of Members apportioned to the province out of which such new province was created or where the city, whose population has so increased, is geographically located shall be correspondingly adjusted by the Commission on Elections but such adjustment shall not be made within one hundred and twenty days before the election.

"[T]he as nearly as practicable standard requires that the State make a good-faith effort to achieve precise mathematical equality. x x x. Unless population variances among congressional districts are shown to have resulted despite such effort, the State must justify each variance, no matter how small." Article I, 2, therefore, "permits only the limited population variances which are unavoidable despite a good-faith effort to achieve absolute equality, or for which justification is shown." xxx x x x Adopting any standard other than population equality, using the best census data available, x x x would subtly erode the Constitution's ideal of equal representation. If state legislators knew that a certain de minimis level of population differences were acceptable, they would doubtless strive to achieve that level rather than equality. x x x Furthermore, choosing a different standard would import a high degree of arbitrariness into the process of reviewing apportionment plans. x x x. In this case, appellants argue that a maximum deviation of approximately 0.7% should be considered de minimis. If we accept that argument, how are we to regard deviations of 0.8%, 0.95%, 1%, or 1.1%? (Citations omitted; emphasis supplied) As evident in the following exchange between petitioner and Senator Joker Arroyo (Petition, pp. 2324):
24

20

See note 22.

Based on Camarines Surs total population of 1,693,821.

21

The range of deviations is shown below (based on the 2007 census):

22

District No.

Population

% Variation From Ideal - 47.9 - 18.3 + 29.6 + 9.9 + 26.6

1 2 3 4 5
23

176,383 276,777 439,043 372,548 429,070

Karcher v. Daggett, 462 U.S. 725 (1983). The U.S. Supreme Court declared: Article I, 2 establishes a "high standard of justice and common sense" for the apportionment of congressional districts: "equal representation for equal numbers of people." x x x. Precise mathematical equality, however, may be impossible to achieve in an imperfect world; therefore the "equal representation" standard is enforced only to the extent of requiring that districts be apportioned to achieve population equality "as nearly as is practicable." x x x As we explained further in Kirkpatrick v. Preisler,

Sen. Aquino. Mr. President, we have to respond to the last statement. The others that have been recommended together with the Camarines Sur bill were all tested based on one standard, not separate standards for everybody. It is our opinion and that is the source of this discussion and of this debate, that we hold that there is a 250,000-rule embodied in so many provisions of the Constitution. Our distinguished colleague from the Bicol and Makati areas does not agree. I think we have established that we do not agree on our interpretation of the Constitution. With his permission, Mr. President, since I am against of his time, may we move on to the next point so as not be accused of delaying the passage of the bill any further? May we ask: Why was Libmanan not considered to be a portion of the proposed first district? Because having done the same, instead of having the 170,000-figure, we

supra:

would have a 269,222 population figure. O achieve Sen. Arroyo. All right. Look at that map. Sen. Aquino. May we just move to another rostrum, Mr. President. We cannot view the details from this particular rostrum, with the indulgence of our distinguished colleague. Sen. Arroyo. As I have said, the brown portion in that map of Camarines Sur I do not know what district it is but it is represented by Congressman Fuentebella. He does not want this district touched. There is nothing we can do about it since he does not want it to be touched. The red portion is represented by Congressman Alfelor. He does not want his district to be touched. The green portion is represented by Congressman Villafuerte. He does not also want it touched. Even if they have a pregnant populace or inhabitants, he does not want it touched. Now, the first district of Camarines Sur is so big that it consists of 40% of the province, area-wise. Libmanan is the biggest municipality in the entire or present first district. It stuck in the middle. We cannot move that no matter what because that is the biggest. Anyway, we move it left, we move it right, it would change the configuration. Those are the practical difficulties in trying to figure out how. That is the situation. As we see, there is a water extension of the gulf. We cannot connect them because they are separated by water. So it is no longer contiguous because it is separated by water and there is nothing we can do about it. That is what I was saying about mathematical formula. We cannot have mathematical formula when a natural boundary like water cannot make the municipalities contiguous. That is the picture. It is all there. The violet is the Tagalog-speaking province. The green is the Bicol-speaking province so that is the only way to divide it. So much has been done in the Lower House in trying to figure it out. But as long as the three Congressmen do not agree, then there is nothing we can do about it. That is the power. For those of us who have served in the House of Representative, what the Congressman says in his district is "king". He is the king there, there is nothing we can do about it. We respect that. Libmanan is the biggest one. We cannot move that anyway.

Sen. Aquino. Mr. President, the question is, why not include Libmanan in the proposed first district? The proposed first district has the towns of Del Gallego which is, I am not sure, in the northernmost tip of Camarines Sur, Ragay, Lupi, Sipocot, they are all adjacent to each other on the map previously shown and that can be done. That can be reconfigured if we were just using geography and the test of territoriality. Now, in sequel to that, the proposed second district of Magarao, Panaman (sic) and Camaligan can be placed in the proposed second district and it will have a population of 258,000. The body of water alluded to by our distinguished colleague, it seems in our map that the municipalities mentioned are all on the same side of the waterway. We do not see where the issue of contiguousness comes in to play. The proposed third district, with these changes, would still be having a population of 364,187. The only point we are trying to raise is that if it just a question of territory and population, there seems to be other ways of having configured these districts to enable Camarines Sur to have its entire complement of six districts. If the answer is, that the congressmen there who are now representing Camarines Sur cannot agree on the other modes of configuring their district, then that is another. But will our distinguished colleague agree that there is no constitutional prohibition for us to reconfigure these districts on a different formula. Sen. Arroyo. Mr. President, this is where the Senate must differ to the House of Representatives. Redistricting is a local bill and it cannot emanate from the Senate. It will emanate only from the House of Representatives. This has been debated in the House of Representatives over and over and no one could agree. So, in its wisdom, the House of Representatives agreed to what has been presented here. If we agree now it to reconfigure it, the Senate now will be intruding into what is purely a House of Representatives business. This is redistricting. Quite frankly, what business does the Senate have in trying to reconfigure out the provinces when we do not represent any particular district? Only congressmen who are familiar with their own districts can discuss this. (Emphasis supplied) Thus, in Sema v. COMELEC (G.R. No. 177597, 16 July 2008, 558 SCRA 700) we struck down a statutory provision authorizing a regional legislative assembly to create provinces because the creation of provinces
25

entails the creation of legislative districts which is the sole prerogative of Congress. Although extant legislation allows creation of provinces with population of less than 250,000 (Section 461(a) of Republic Act No. 7160), this is no reason to validate RA 9716 because Section 5(1) of Article VI trumps any statute. At any rate, the constitutionality of Section 461(a) is not before the Court.
26 27

of another legislative district and indubitably involves the expenditure of public funds. I DISSENT, however, on the ponencias conclusion, on the substantive issue, that a population of 250,000 is not an indispensable constitutional requirement for the creation of a new legislative district in a province. Contrary to the ponencias assertion, petitioners do not merely rely on Article VI, Section 5 (3) but also on Section 5 (1) of the same Article. 2 Both provisions must be read together in light of the constitutional requirements of population and contiguity. Section 5 (3) of Article VI disregards the 250,000 population requirement only with respect to existing provinces whose population does not exceed 250,000 or to newly created provinces under the Local Government Code (as long as the income and territory requirements are met). The ponencia misinterprets Mariano v. Comelec.3 The actual population of the City of Makati during the Senate deliberations in 1994 on House Bill (H.B.) No. 4264 that was to be enacted into R.A. No. 7854 was 508,174.4 That is why the Court in Mariano declared: Petitioners cannot insist that the addition of another legislative district in Makati is not in accord with Section 5(3), Article VI of the Constitution for as of the latest survey (1990 census), the population of Makati stands at only four hundred fifty thousand (450,000). Said section provides, inter alia, that a city with a population of at least two hundred fifty thousand (250,000) shall have at least one representative. Even granting that the population of Makati as of the 1990 census stood at four hundred fifty thousand (450,000), its legislative district may still be increased since it has met the minimum population requirement of two hundred fifty thousand (250,000). In fact, Section 3 of the Ordinance appended to the Constitution provides that a city whose population has increased to more than two hundred fifty thousand (250,000) shall be entitled to at least one congressional representative.5 (emphasis in the original) Nothing in Mariano reflects that the Court disregarded the 250,000 population requirement as it merely stated that Makatis legislative district may still be increased as long as the minimum population requirement is met. The permissive declaration at that time presupposes that Makati must still meet the constitutional requirements before it can have another congressional district. The Local Government Code likewise is not in point since Section 461 thereof tackles the creation of a province and not the reapportioning of a legislative district based on increasing population. There is thus no point in asserting that population is merely an alternative addition to the income requirement. The ponencia likewise misinterprets Bagabuyo v. Comelec.6 Notably, the ponencia spliced that portion of the decision in Bagabuyo which it cited to suit its argument. Thus the ponencia quotes: x x x Undeniably, these figures show a disparity in the population sizes of the districts. The Constitution, however, does not require mathematical exactitude or rigid equality as a

312 Phil 259 (1995). G.R. No. 176970, 8 December 2008, 573 SCRA 290.

28

Thus, the Constitutional Commissions decision to relax the population threshold in Palawan, Benguet, and Baguio and consider other standards in apportioning legislative districts in Cavite (urbanization and livelihood), Maguindanao (political stability), and Laguna (topography), as noted in the Decision.
29 30

312 Phil 259 (1995).

G.R. No. 176970, 8 December 2008, 573 SCRA 290, 309.

31 32

G.R. No. 188078, 15 March 2010. Section 5(4), Article VI. E.g., RA 9371. E.g., RA 7854.

33

34

35

E.g., Republic Act No. 4695 creating the provinces of Benguet, Mountain Province, Ifugao and KalingaApayao and providing for their legislative districts.
36 37

Section 1, Article II, 1987 Constitution.

The Lawphil Project - Arellano Law Foundation

CONCURRING AND DISSENTING OPINION CARPIO MORALES, J.: I concur with the ponencias discussion on the procedural issue. "Transcendental importance" doctrine aside, petitioners have the requisite locus standi. Petitioners are suing not only as lawmakers but as taxpayers and citizens as well. At the initiative of a taxpayer, a statute may be nullified, on the supposition that expenditure of public funds for the purpose of administering an unconstitutional act constitutes a misapplication of such funds.1 Republic Act No. 9716 (R.A. 9716) mandates the creation

standard in gauging equality of representation. x x x To ensure quality representation through commonality of interests and ease of access by the representative to the constituents, all that the Constitution requires is that every legislative district should comprise, as far as practicable, contiguous, compact and adjacent territory. (emphasis and underscoring in the original by the ponente) It omitted that portion which specified the respective total population of the two districts as above 250,000. Thus the full text of the pertinent portion of the decision reads: The petitioner, unfortunately, did not provide information about the actual population of Cagayan de Oro City. However, we take judicial notice of the August 2007 census of the National Statistics Office which shows that barangays comprising Cagayan de Oros first district have a total population of 254,644while the second district has 299,322 residents. Undeniably, these figures show a disparity in the population sizes of the districts. The Constitution, however, does not require mathematical exactitude or rigid equality as a standard in gauging equality of representation. x x x (emphasis and underscoring supplied) The two legislative districts of Cagayan de Oro subject of Bagabuyo met the minimum population requirement at the time of reappportionment. The ponencias construal of the disparity in population sizes of the districts involved in Bagabuyo clearly differs from the disparity of population in the present case. The Record of the Constitutional Commission itself declares that the 250,000 benchmark was used in apportioning the legislative districts in the country. The sponsorship speech of Commissioner Hilario Davide, Jr.7 reflects so. x x x x. Each legislative district shall comprise, as far as practicable, contiguous, compact and adjacent territory.Each city or each province with a population of at least 250,000 shall have at least one Representative. This is Section 5 of the Article on the Legislative. x x x x The ordinance fixes at 200 the number of legislative seats which are, in turn, apportioned among the provinces and cities with a population of at least 250,000 and the Metropolitan Manila area in accordance with the number of their respective inhabitants on the basis of a uniform and progressive ratio. The population is based on the 1986 projection, with the 1980 official enumeration as the point of reckoning. This projection indicates that our population is more or less 56 million. Taking into account the mandate that each city with at least 250,000 inhabitants and each province shall have at least one representative, we at first allotted one seat for each of the 73 provinces; and one each for all cities with a population of at least 250,000, which are the Cities of Manila, Quezon, Pasay, Caloocan, Cebu, Iloilo, Bacolod, Cagayan de Oro, Davao and Zamboanga. Thereafter, we then proceeded to increase whenever appropriate the number of seats for the provinces and cities in accordance with number of their inhabitants on the basis of a uniform and progressive ratio. x x x x. (capitalization, emphasis, italics and underscoring supplied)

The framers of the Constitution intended to apply the minimum population requirement of 250,000 to both cities and provinces in the initial apportionment, in proportion to the countrys total population at that time (56 million). Yet the ponencia asserts that the 250,000 benchmark was used only for the purpose of the 1986 initial apportionment of the legislative districts, and now disregards the benchmarks application in the present petition. It is eerily silent, however, on what the present population yardstick is. If the present estimated population of 90 million is to be the dividend, 8 then there would roughly be one legislative district representative for every 450,000. Following the constitutional mandate, the population requirement cannot fall below 250,000. This is the average "uniform and progressive ratio" that should prevail. Thus, using the present population figure, the benchmark should be anywhere between 250,000-450,000 persons per district. Using anything less than 250,000 is illogical, for it would operate to allow more than 360 representatives of legislative districts alone on some capricious basis other than the variable of population. A case in point is the congressional reapportionment done in the provinces of Sultan Kudarat and Zamboanga Sibugay effected through Republic Act No. 93579 and Republic Act No. 9360,10 respectively. At the time of the congressional deliberations and effectivity of these laws, the population count in these provinces more than met the basic standard. Sultan Kudarat already had a population of 522,187 during the 1995 census year,11 while Zamboanga Sibugay met the population threshold in 2001 with an estimated 503,700 headcount. 12 The ponencia sweepingly declares that "population was explicitly removed as a factor."13 Far from it. Population remains the controlling factor. From the discussions in the initial apportionment and districting of Puerto Princesa, Baguio, Cavite, Laguna, Maguindanao and Cebu in 1986, it is clear that population and contiguity were the primary considerations, and the extraneous factors considered were circumspectly subsumed thereto. The ponencia harps on petitioners admission that Camarines Sur is actually entitled to SIX legislative districts, given its population of 1,693,821, to justify its conclusion that there is nothing wrong in the creation of another legislative district in the province. This is a wrong premise. It bears noting that petitioners raised the legislative entitlement to underscore the GRAVE ABUSE OF DISCRETION committed in the enactment of R.A. 9716. R.A. 9716 created one legislative district by reconfiguring the first and second districts. It did not, however, touch the third and fourth districts which, when properly reapportioned, can easily form another district. No reasons were offered except Senator Joker Arroyos during the Senate Plenary Debates on H.B. No. 4264, viz: "When it comes to their district, congressmen are kings. We cannot touch them. He [referring to Rep. Villafuerte] does not also want it [referring to the district of Rep. Villafuerte] touched... even if they have a pregnant populace or inhabitants, he does not want it touched."14

The resulting population distribution in the present case violates the uniform and progressive ratio prescribed in the Constitution. Prior to the enactment of R.A. No. 9716, the tally of population percentage per district in Camarines Sur based on its population of 1,693,821 was as follows: District 1: 24.6% District 2: 28.03% District 3: 21.99% District 4: 25.33% Compare now the population percentage per district after the passage of R.A. 9716: District 1: 10.4% District 2: 16.34% District 3: 25.9% District 4: 21.99% (former District 3) District 5: 25.33% (former District 4) Remarkably, before R.A. No. 9716, the first district met the 250,000 minimum. After R.A. No. 9716, it suffered a very significant drop in its population from 416,680 to 176,157. The extraneous factors15 cited by the ponencia do not suffice to justify the redistricting, particularly the inclusion of the municipality of Libmanan in the second district. Linguistic difference is a weak basis to segregate the municipalities in the redistricting. To sanction that as basis would see a wholesale redistricting of the entire country, given the hundreds of dialects being spoken. Imagine Binondo being segregated from the Tagalog-speaking district of Tondo or Sta. Cruz in Manila on the ground that Fookien is largely spoken in Binondo. The former first district supposedly occupied 40% of the total land area of Camarines Sur. But the former fourth district (which is now the fifth) comprises the same percentage of land area, if not bigger. If land area was a factor, then the former fourth district should have been re-districted also since it is endowed with a big area like the former first district. The municipality of Libmanan is supposedly isolated by a body of water from the first district. But so is the municipality of Cabusao which is situated northeast of Libmanan and which is bordered by the same body of water. Yet Cabusao is part of the new first district. Considering the similar geographical location of the two municipalities, there is no compelling reason to segregate Libmanan from the first district and tack it to the newly created second district. The seminal case of Reynolds v. Sims16 had already ruled that these factors cannot be permissively considered in legislative reapportionment.

x x x Population is, of necessity, the starting point for consideration and the controlling criterion for judgment in legislative apportionment controversies. x x x [We] hold that, as a basic constitutional standard, [equal protection] requires that the seats in both houses of a bicameral state legislature must be apportioned on a population basis. Simply stated, an individuals right to vote for state legislators is unconstitutionally impaired when its weight is in a substantial fashion diluted when compared with votes of citizens living in other parts of the [State]. xxxx [Equal protection] requires that a State make an honest and good faith effort to construct districts, in both houses of its legislature, as nearly of equal population as is practicable. We realize that it is a practical impossibility to arrange legislative districts so that each one has an identical number of residents, citizens, or voters. Mathematical exactness or precision is hardly a workable constitutional requirement. So long as the divergences from a strict population principle are constitutionally permissible, but neither history alone, nor economic or other sorts of group interests, are permissible factors in attempting to justify disparities from population-based representation. Citizens, not history or economic interests, cast votes. Considerations of area alone provide an insufficient justification for deviations from the equal-population principle. Again, people, not land or trees or pastures, vote. x x x (emphasis and underscoring supplied) Undoubtedly, Camarines Surs malapportionment largely partakes of gerrymandering.17 A final word. By pronouncing that "other factors," aside from population, should be considered in the composition of additional districts, thereby adding other requisites despite the Constitutions clear limitation to population and contiguity, the ponencia effectively opens the floodgates to opportunistic lawmakers to reconfigure their own principalia and bantam districts. Leaving open Section 5 of Article VI to arbitrary factors, such as economic, political, socio-cultural, racial and even religious ones, is an invitation to a free-for-all. In light of the foregoing, I vote to GRANT the petition and DECLARE UNCONSTITUTIONAL Republic Act No. 9716. CONCHITA CARPIO MORALES Associate Justice

Republic of the Philippines SUPREME COURT Manila EN BANC G.R. No. 96859 October 15, 1991 MOHAMMAD ALI DIMAPORO, petitioner, vs. HON. RAMON V. MITRA, JR., Speaker, House of

Representatives, and (Hon. QUIRINO D. ABAD SANTOS, JR.) HON. CAMILO L. SABIO Secretary, House of representatives, respondent.

In effect, he was virtually barred and excluded from performing his duties and from exercising his rights and privileges as the duly elected and qualified congressman from his district. Petitioner admits that he filed a Certificate of Candidacy for the position of Regional Governor of Muslim Mindanao. He, however, maintains that he did not thereby lose his seat as congressman because Section 67, Article IX of B.P. Blg. 881 is not operative under the present Constitution, being contrary thereto, and therefore not applicable to the present members of Congress. In support of his contention, petitioner points out that the term of office of members of the House of Representatives, as well as the grounds by which the incumbency of said members may be shortened, are provided for in the Constitution. Section 2, Article XVIII thereof provides that "the Senators, Members of the House of Representatives and the local officials first elected under this Constitution shall serve until noon of June 30, 1992;" while Section 7, Article VI states: "The Members of the House of Representatives shall be elected for a term of three years which shall begin, unless otherwise provided by law, at noon on the thirtieth day of June next following their election." On the other hand, the grounds by which such term may be shortened may be summarized as follows: a) Section 13, Article VI: Forfeiture of his seat by holding any other office or employment in the government or any subdivision, agency or instrumentality thereof, including government-owned or controlled corporations or subsidiaries; b) Section 16 (3): Expulsion as a disciplinary action for disorderly behavior; c) Section 17: Disqualification as determined by resolution of the Electoral Tribunal in an election contest; and, d) Section 7, par. 2: Voluntary renunciation of office. He asserts that under the rule expressio unius est exclusio alterius, Section 67, Article IX of B.P. Blg. 881 is repugnant to these constitutional provisions in that it provides for the shortening of a congressman's term of office on a ground not provided for in the Constitution. For if it were the intention of the framers to include the provisions of Section 67, Article IX of B.P. Blg. 881 as among the means by which the term of a Congressman may be shortened, it would have been a very simple matter to incorporate it in the present Constitution. They did not do so. On the contrary, the Constitutional Commission only reaffirmed the grounds previously found in the 1935 and 1973 Constitutions and deliberately omitted the ground provided in Section 67, Article IX of B.P. Blg. 881. On the premise that the provision of law relied upon by respondents in excluding him from the Roll of Members is contrary to the present Constitution, petitioner consequently concludes that respondents acted without authority. He further maintains that respondents' so-called "administrative act" of striking out his name is ineffective in terminating his term as Congressman. Neither can it be justified as an interpretation of the Constitutional provision on voluntary renunciation of office as only the courts may interpret laws. Moreover, he claims that he cannot be said to have forfeited his seat as it is only when a

Rilloraza, Africa, De Ocampo & Africa and Enrique M. Fernando for petitioner.

DAVIDE, JR., J.:p Petitioner Mohamad Ali Dimaporo was elected Representative for the Second Legislative District of Lanao del Sur during the 1987 congressional elections. He took his oath of office on 9 January 1987 and thereafter performed the duties and enjoyed the rights and privileges pertaining thereto. On 15 January 1990, petitioner filed with the Commission on Elections a Certificate of Candidacy for the position of Regional Governor of the Autonomous Region in Muslim Mindanao. The election was scheduled for 17 February 1990. Upon being informed of this development by the Commission on Elections, respondents Speaker and Secretary of the House of Representatives excluded petitioner's name from the Roll of Members of the House of Representatives pursuant to Section 67, Article IX of the Omnibus Election Code. As reported by the Speaker in the session of 9 February 1990: The Order of Business today carries a communication from the Commission on Elections which states that the Honorable Mohammad Ali Dimaporo of the Second District of Lanao del Sur filed a certificate of candidacy for the regional elections in Muslim Mindanao on February 17, 1990. The House Secretariat, performing an administrative act, did not include the name of the Honorable Ali Dimaporo in the Rolls pursuant to the provision of the Election Code, Article IX, Section 67, which states: Any elective official whether national or local running for any office other than the one which he is holding in a permanent capacity except for President and Vice-President shall be considered ipso factoresigned from his office upon the filing of his certificate of candidacy.' The word 'ipso facto' is defined in Words and Phrases as by the very act itself by the mere act. And therefore, by the very act of the (sic) filing his certificate of candidacy, the Honorable Ali Dimaporo removed himself from the Rolls of the House of Representatives; and, therefore, his name has not been carried in today's Roll and will not be carried in the future Rolls of the House. ... Having lost in the autonomous region elections, petitioner, in a letter dated 28 June 1990 and addressed to respondent Speaker, expressed his intention "to resume performing my duties and functions as elected Member of Congress." The record does not indicate what action was taken on this communication, but it is apparent that petitioner failed in his bid to regain his seat in Congress since this petition praying for such relief was subsequently filed on 31 January 1991. In this petition, it is alleged that following the dropping of his name from the Roll, petitioner was excluded from all proceedings of the House of Representatives; he was not paid the emoluments due his office; his staff was dismissed and disbanded; and his office suites were occupied by other persons.

congressman holds another office or employment that forfeiture is decreed. Filing a certificate of candidacy is not equivalent to holding another office or employment. In sum, petitioner's demand that his rights as a duly elected member of the House of Representatives be recognized, is anchored on the negative view of the following issues raised in this petition: A. IS SECTION 67, ARTICLE IX, OF B.P. BLG. 881 OPERATIVE UNDER THE PRESENT CONSTITUTION? B. COULD THE RESPONDENT SPEAKER AND/OR THE RESPONDENT SECRETARY, 'BY ADMINISTRATIVE ACT', EXCLUDE THE PETITIONER FROM THE ROLLS OF THE HOUSE OF REPRESENTATIVES, THEREBY PREVENTING HIM FROM EXERCISING HIS FUNCTIONS AS CONGRESSMAN, AND DEPRIVING HIM OF HIS RIGHTS AND PRIVILEGES AS SUCH? On the other hand, respondents through the Office of the Solicitor General contend that Section 67, Article IX of B.P. Blg. 881 is still operative under the present Constitution, as the voluntary act of resignation contemplated in said Section 67 falls within the term "voluntary renunciation" of office enunciated in par. 2, Section 7, Article VI of the Constitution. That the ground provided in Section 67 is not included in the Constitution does not affect its validity as the grounds mentioned therein are not exclusive. There are, in addition, other modes of shortening the tenure of office of Members of Congress, among which are resignation, death and conviction of a crime which carries a penalty of disqualification to hold public office. Respondents assert that petitioner's filing of a Certificate of Candidacy is an act of resignation which estops him from claiming otherwise as he is presumed to be aware of existing laws. They further maintain that their questioned "administrative act" is a mere ministerial act which did not involve any encroachment on judicial powers. Section 67, Article IX of B.P. Blg. 881 reads: Any elective official whether national or local running for any office other than the one which he is holding in a permanent capacity except for President and Vice-President shall be considered ipso facto resigned from his office upon the filing of his certificate of candidacy. The precursor of this provision is the last paragraph of Section 2 of C.A. No. 666, which reads: Any elective provincial, municipal, or city official running for an office, other than the one for which he has been lastly elected, shall be considered resigned from his office from the moment of the filing of his certificate of candidacy. Section 27 of Article II of Republic Act No. 180 reiterated this rule in this wise:

Sec. 27. Candidate holding office. Any elective provincial, municipal or city official running for an office, other than the one which he is actually holding, shall be considered resigned from office from the moment of the filing of his certificate of candidacy. The 1971 Election Code imposed a similar proviso on local elective officials as follows: Sec. 24. Candidate holding elective office. Any elective

provincial, sub-provincial, city, municipal or municipal district officer running for an office other than the one which he is holding in a permanent capacity shall be considered ipso facto resigned from his office from the moment of the filing of his certificate of candidacy.
Every elected official shall take his oath of office on the day his term of office commences, or within ten days after his proclamation if said proclamation takes place after such day. His failure to take his oath of office as herein provided shall be considered forfeiture of his right to the new office to which he has been elected unless his failure is for a cause or causes beyond his control. The 1978 Election Code provided a different rule, thus: Sec. 30. Candidates holding political offices. Governors, mayors, members of various sanggunians, or barangay officials, shall, upon filing of a certificate of candidacy, be considered on forced leave of absence from office. It must be noted that only in B.P. Blg. 881 are members of the legislature included in the enumeration of elective public officials who are to be considered resigned from office from the moment of the filing of their certificates of candidacy for another office, except for President and Vice-President. The advocates of Cabinet Bill No. 2 (now Section 67, Article IX of B.P. Blg. 881) elucidated on the rationale of this inclusion, thus: MR. PALMARES: In the old Election Code, Your Honor, in the 1971 Election Code, the provision seems to be different I think this is in Section 24 of Article III. Any elective provincial, sub-provincial, city, municipal or municipal district officer running for an office other than the one which he is holding in a permanent capacity shall be considered ipso facto resigned from his office from the moment of the filing of his certificate of candidacy. May I know, Your Honor, what is the reason of the Committee in departing or changing these provisions of Section 24 of the old Election Code and just adopting it en toto? Why do we have to change it? What could possibly be the reason behind it, or the rationale behind it? MR. PEREZ (L.): I have already stated the rationale for this, Mr. Speaker, but I don't mind repeating it. The purpose is that the people must be

given the right to choose any official who belongs to, let us say,

to the Batasan if he wants to run for another office. However, because of the practice in the past where members of the legislature ran for local offices, but did not assume the office, because of that spectacle the impression is that these officials were just trifling with the mandate of the people. They have already obtained a mandate to be a member of the legislature, and they want to run for mayor or for governor and yet when the people give them that mandate, they do not comply with that latter mandate, but still preferred (sic) to remain in the earlier mandate. So we believe, Mr. Speaker, that the people's latest mandate must be the one that will be given due course. ...
Assemblyman Manuel M. Garcia, in answer to the query of Assemblyman Arturo Tolentino on the constitutionality of Cabinet Bill No. 2, said: MR. GARCIA (M.M.): Thank you, Mr. Speaker. Mr. Speaker, on the part of the Committee, we made this proposal based on constitutional grounds. We did not propose this amendment mainly on the rationale as stated by the Gentlemen from Manila that the officials running for office other than the ones they are holding will be considered resignednot because of abuse of facilities of power or the use of

certificate should be considered the overt act of abandoning or relinquishing his mandate to the people and that he should therefore resign if he wants to seek another position which he feels he could be of better service.
As I said, Mr. Speaker, I disagree with the statements of the Gentleman from Manila because the basis of this Section 62 is the constitutional provision not only of the fact that Members of the Batasan and local officials should serve the entire 6-year term for which we were elected, but because of this new chapter on the accountability of public officers not only to the community which voted him to office, but primarily because

under this commentary on accountability of public officers, the elective public officers must serve their principal, the people, not their own personal ambition. And that is the reason, Mr.
Speaker, why we opted to propose Section 62 where candidates or elective public officers holding offices other than the one to which they were elected, should be considered ipso factoresigned from their office upon the filing of the certificate of candidacy." It cannot be gainsaid that the same constitutional basis for Section 67, Article IX of B.P. Blg. 881 remains written in the 1987 Constitution. In fact, Section 1 of Article XI on "Accountability of Public Officers" is more emphatic in stating: 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. Obviously then, petitioner's assumption that the questioned statutory provision is no longer operative does not hold water. He failed to discern that rather than cut short the term of office of elective public officials, this statutory provision seeks to ensure that such officials serve out their entire term of office by discouraging them from running for another public office and thereby cutting short their tenure by making it clear that should they fail in their candidacy, they cannot go back to their former position. This is consonant with the constitutional edict that all public officials must serve the people with utmost loyalty and not trifle with the mandate which they have received from their constituents. In theorizing that the provision under consideration cuts short the term of office of a Member of Congress, petitioner seems to confuse "term" with "tenure" of office. As succinctly distinguished by the Solicitor General: The term of office prescribed by the Constitution may not be extended or shortened by the legislature (22 R.C.L.), but the period during which an officer actually holds the office (tenure) may be affected by circumstances within or beyond the power of said officer. Tenure may be shorter than the term or it may not exist at all. These situations will not change the duration of the term of office (see Topacio Nueno vs. Angeles, 76 Phil 12). Under the questioned provision, when an elective official covered thereby files a certificate of candidacy for another office, he is deemed to have voluntarily cut short his tenure, not his term. The term remains and his successor, if any, is allowed to serve its unexpired portion.

office facilities but primarily because under our Constitution, we have this new chapter on accountability of public officers. Now,
this was not in the 1935 Constitution. It states that (sic) Article XIII, Section 1 Public office is a public trust. Public officers and employees shall serve with the highest degree of responsibility, integrity, loyalty and efficiency and shall remain accountable to the people.

Now, what is the significance of this new provision on accountability of public officers? This only means that all elective public officials should honor the mandate they have gotten from the people. Thus, under our Constitution, it says
that: 'Members of the Batasan shall serve for the term of 6 years, in the case of local officials and 6 years in the case of barangay officials. Now, Mr. Speaker, we have precisely included this as part of the Omnibus Election Code because a Batasan Member

who hold (sic) himself out with the people and seek (sic) their support and mandate should not be allowed to deviate or allow himself to run for any other position unless he relinquishes or abandons his office. Because his mandate to the people is to serve for 6 years. Now, if you allow a Batasan or a governor or a mayor who was mandated to serve for 6 years to file for an office other than the one he was elected to, then, that clearly shows that he has not (sic) intention to service the mandate of the people which was placed upon him and therefore he should be considered ipso facto resigned. I think more than anything
that is the accountability that the Constitution requires of elective public officials. It is not because of the use or abuse of powers or facilities of his office, but it is because of the Constitution itself which I said under the 1973 Constitution called and inserted this new chapter on accountability. Now, argument was said that the mere filing is not the intention to run. Now, what is it for? If a Batasan Member files the

certificate of candidacy, that means that he does not want to serve, otherwise, why should he file for an office other than the one he was elected to? The mere fact therefore of filing a

That the ground cited in Section 67, Article IX of B.P. Blg. 881 is not mentioned in the Constitution itself as a mode of shortening the tenure of office of members of Congress, does not preclude its application to present members of Congress. Section 2 of Article XI provides that "(t)he President, the Vice-President, the Members of the Supreme Court, the Members of the Constitutional Commissions, and the Ombudsman may be removed from office, on impeachment for, and conviction of, culpable violation of the Constitution, treason, bribery, graft and corruption, other high crimes, or betrayal of public trust. All

It is also a recurring phrase all over the constitution. Could the Committee please enlighten us exactly what 'voluntary renunciation' means? Is this akin to abandonment? MR. DAVIDE: Abandonment is voluntary. In other words, he cannot circumvent the restriction by merely resigning at any given time on the second term. MR. MAAMBONG: Is the Committee saying that the term voluntary renunciation is more general than abandonment and resignation? MR. DAVIDE: It is more general, more embracing. That the act, contemplated in Section 67, Article IX of B.P. Blg. 881, of filing a certificate of candidacy for another office constitutes an overt, concrete act of voluntary renunciation of the elective office presently being held is evident from this exchange between then Members of Parliament Arturo Tolentino and Jose Rono: MR. RONO: My reasonable ground is this: if you will make the person ... my, shall we say, basis is that in one case the person is intending to run for an office which is different from his own, and therefore it should be considered, at least from the legal significance, an intention to relinquish his office. MR. TOLENTINO: Yes ... MR. RONO: And in the other, because he is running for the same position, it is otherwise. MR. TOLENTINO:

other public officers and employees may be removed from office as provided by law, but not by impeachment. Such
constitutional expression clearly recognizes that the four (4) grounds found in Article VI of the Constitution by which the tenure of a Congressman may be shortened are not exclusive. As held in the case of State ex rel. Berge vs. Lansing, the expression in the constitution of the circumstances which shall bring about a vacancy does not necessarily exclude all others. Neither does it preclude the legislature from prescribing other grounds. Events so enumerated in the constitution or statutes are merely conditions the occurrence of any one of which the office shall become vacant not as a penalty but simply as the legal effect of any one of the events. And would it not be preposterous to say that a congressman cannot die and cut his tenure because death is not one of the grounds provided for in the Constitution? The framers of our fundamental law never intended such absurdity. The basic principle which underlies the entire field of legal concepts pertaining to the validity of legislation is that by enactment of legislation, a constitutional measure is presumed to be created. This Court has enunciated the presumption in favor of constitutionality of legislative enactment. To justify the nullification of a law, there must be a clear and unequivocal breach of the Constitution, not a doubtful and argumentative implication. A doubt, even if well-founded, does not suffice. The maxim expressio unius est exclusio alterius is not to be applied with the same rigor in construing a constitution as a statute and only those things expressed in such positive affirmative terms as plainly imply the negative of what is not mentioned will be considered as inhibiting the power of legislature. The maxim is only a rule of interpretation and not a constitutional command. This maxim expresses a rule of construction and serves only as an aid in discovering legislative intent where such intent is not otherwise manifest. Even then, the concept of voluntary renunciation of office under Section 7, Article VI of the Constitution is broad enough to include the situation envisioned in Section 67, Article IX of B.P. Blg. 881. As discussed by the Constitutional Commissioners: MR. MAAMBONG: Could I address the clarificatory question to the Committee? The term 'voluntary renunciation' does not only appear in Section 3; it appears in Section 6. MR. DAVIDE: Yes. MR. MAAMBONG:

Yes, but what I cannot see is why are you going to compel a person to quit an office which he is only intending to leave? A relinquishment of office must be clear, must be definite. MR. RONO: Yes, sir. That's precisely, Mr. Speaker, what I'm saying that while I do not disagree with the conclusion that the intention cannot be enough, but I am saying that the filing of the

certificate of candidacy is an over act of such intention. It's not just an intention; it's already there.
In Monroy vs. Court of Appeals, a case involving Section 27 of R.A. No. 180 above-quoted, this Court categorically pronounced that "forfeiture (is) automatic and permanently effective upon the filing of the certificate of candidacy for another office. Only

the moment and act of filing are considered. Once the certificate is filed, the seat is forever forfeited and nothing save a new election or appointment can restore the ousted official. Thus, as We had occasion to remark, through Justice J.B.L. Reyes, in Castro vs. Gatuslao: ... The wording of the law plainly indicates that only the date of filing of the certificate of candidacy should be taken into account. The law does not make the forfeiture dependent upon

Fernan, C.J., took no part.

Separate Opinions GUTIERREZ, JR., J., dissenting: I am constrained to dissent from the majority opinion. I believe that the Speaker and the Secretary of the House of Representatives have no power, in purported implementation of an invalid statute, to erase from the Rolls of the House the name of a member duly elected by his sovereign constituents to represent them in Congress. The rejection of the bid of the Honorable Mohammad Ali Dimaporo to retain his seat in Congress may appear logical, politically palatable, and and salutary to certain quarters. But I submit that it is in cases like the present petition where the Court should be vigilant in preventing the erosion of fundamental concepts of the Constitution. We must be particularly attentive to violations which are cloaked in political respectability, seemingly defensible or arguably beneficial and attractive in the short run. It is a fundamental priciple in Constitutional Law that Congress cannot add by statute or administrative act to the causes for disqualification or removal of constitutional officers. Neither can Congress provide a different procedure for disciplining Constitution. This is a true for the President and the members of Congress itself. The causes and procedures for removal found in the Constitution are not mere diciplinary measures. They are intended to protect constitutional officers in the unhampered and indepedent discharge of their functions. It is for this reason that the court should ensure that what the Constitution provides must be followed. The Constitutuion provides how the tenure of members of Congress may be shortened: A. Forefeiture of his seat by holding any other office or employment in the government or any subdivision, agency, or instrumentality thereof, including government-owned or controlled corporations or subsidiaries (Art. VI, Section 13); B. Expulsion as a disciplinary action for disorderly behavior (Art. VI, Sec. 16[3]); C. Disqualification as determined by resolution of the Electoral Tribubal in an election contest (Art. VI, Sec. 17); D. Voluntary renunciation of office (Art. VI, Sec. 7, par. 2). (See Petition, p. 8) The respondents would now add to the above provisions, an enactment of the defunct Batasang Pambansa promulgated long before the present Constitution took effect. B.P. Blg. 881, Article IX, Section 67 provides: Any elective official whether national or local running for any office other than the one which he is holding in a permanent capacity except for President and Vice-President shall be

future contingencies, unforeseen and unforeseeable, since the vacating is expressly made as of the moment of the filing of the certificate of candidacy. ...
As the mere act of filing the certificate of candidacy for another office produces automatically the permanent forfeiture of the elective position being presently held, it is not necessary, as petitioner opines, that the other position be actually held. The ground for forfeiture in Section 13, Article VI of the 1987 Constitution is different from the forfeiture decreed in Section 67, Article IX of B.P. Blg. 881, which is actually a mode of voluntary renunciation of office under Section 7, par. 2 of Article VI of the Constitution. The legal effects of filing a certificate of candidacy for another office having been spelled out in Section 67, Article IX, B.P. Blg. 881 itself, no statutory interpretation was indulged in by respondents Speaker and Secretary of the House of Representatives in excluding petitioner's name from the Roll of Members. The Speaker is the administrative head of the House of Representatives and he exercises administrative powers and functions attached to his office. As administrative officers, both the Speaker and House Secretary-General perform ministerial functions. It was their duty to remove petitioner's name from the Roll considering the unequivocal tenor of Section 67, Article IX, B.P. Blg. 881. When the Commission on Elections communicated to the House of Representatives that petitioner had filed his certificate of candidacy for regional governor of Muslim Mindanao, respondents had no choice but to abide by the clear and unmistakable legal effect of Section 67, Article IX of B.P. Blg. 881. It was their ministerial duty to do so. These officers cannot refuse to perform their duty on the ground of an alleged invalidity of the statute imposing the duty. The reason for this is obvious. It might seriously hinder the transaction of public business if these officers were to be permitted in all cases to question the constitutionality of statutes and ordinances imposing duties upon them and which have not judicially been declared unconstitutional. Officers of the government from the highest to the lowest are creatures of the law and are bound to obey it. In conclusion, We reiterate the basic concept that a public office is a public trust. It is created for the interest and benefit of the people. As such, the holder thereof is subject to such regulations and conditions as the law may impose and he cannot complain of any restrictions which public policy may dictate on his office. WHEREFORE, the instant petition is DISMISSED for lack of merit. SO ORDERED.

Narvasa, Cruz, Paras, Feleciano, Grio-Aquino, Medialdea and Regalado, JJ., concur.

considered ipso facto resigned from his office upon the filing of his certificate of candidacy. (Petition, p. 8) I take exception to the Solicitor General's stand that the grounds for removal mentioned in the Constitution are not exclusive. They are exclusive. The non-inclusion of physical causes like death, being permanently comatose on a hospital bed, or disappearance in the sinking of a ship does not justify in the slightest an act of Congress expelling one of its members for reasons other than those found in the Constitution. Resignation is provided for by the Constitution. It is voluntary renunciation. So is naturalization in a foreign country or express renunciation of Philippine citizenship. Conviction of a crime carrying a penalty of disqualification is a disqualification against running for public office. Whether or not the conviction for such a crime while the Congressman is in office may be a ground to expel him from Congress is a matter which we cannot decide obiter. We must await the proper case and controversy. My point is Congress cannot by statute or disciplinary action add to the causes for disqualification or removal of its members. Only the Constitution can do it. The citation of the precursors of B.P. 881 namely, Section 2 of Commonwealth Act No. 665, Section 27 of Article II of Rep. Act No. 180, the 1971 Election Code, and the 1978 Election Code does not help the respondents. On the contrary, they strengthen the case of the petitioner. It may be noted that all the earlier statutes about elective officials being considered resigned upon the filing of a certificate of candidacy refer to non-constitutional officers. Congress has not only the power but also the duty to prescribe causes for the removal of provincial, city, and municipal officials. It has no such power when it comes to constitutional officers. It was not alone egoistic self-interest which led the legislature during Commonwealth days or Congress in the pre-martial law period to exclude their members from the rule that the filing of a certificate of candidacy for another office meant resignation from one's current position. It was also a recognition that such a provision could not be validly enacted by statute. It has to be in the constitution. Does running for another elective office constitute voluntary renunciation of one's public office? In other words, did the Speaker and the House Secretary correctly interpret the meaning of "voluntary renunciation" as found in the Constitution? From 1935 when the Constitution was promulgated up to 1985 when B.P. 881 was enacted or for fifty long years, the filing of a certificate of candidacy by a Senator or member of the House was not voluntary renunciation of his seat in Congress. I see no reason why the passage of a statute by the Batasang Pambansa should suddenly change the meaning and implications of the act of filing and equate it with voluntary renunciation. "Voluntary" refers to a state of the mind and in the context of constitutional requirements should not be treated lightly. It is true that intentions may be deduced from a person's acts. I must stress, however, that for fifty years of ourconstitutional history, running for a local government position was not considered a voluntary renunciation. Congressman Dimaporo is steeped in the traditions of earlier

years. He has been engaged in politics even before some of his present colleagues in Congress were born. Neither the respondents nor this Court can state that he intended to renounce his seat in Congress when he decided to run for Regional Governor. I submit that we should not deny to him the privilege of an existing interpretation of "voluntary renunciation" and wrongly substitute the interpretation adopted by the respondents. In interpreting the meaning of voluntary renunciation, the Court should also be guided by the principle that all presumptions should be in favor of representation. As aptly stated by the petitioner: We should not lose sight of the fact that what we are dealing with here is not the mere right of the petitioner to sit in the House of Representatives, but more important, we are dealing with the political right of the people of the Second Legislative District of Lanao del Sur to representation in Congress, as against their disenfranchisement by mere 'administrative act' of the respondents. Such being the case, all presumptions should be strictly in favor of representation and strictly against disenfranchisement. And if disenfranchisement should there be, the same should only be by due process of law, both substantive and procedural, and not by mere arbitrary, capricious, and ultra vires, administrative act' of the respondents. (Reply to Comment, p. 5) The invocation of the principle of accountability found in Article XI of the Constitution does not empower the legislature to add to the grounds for dismissing its members. When Congressman Dimaporo ran for Regional Governor, he was not trifling with the mandate of his people. He wanted to serve a greater number in an autonomous, more direct, and intimate manner. He claims (a mistaken claim according to the Commission on Elections sustained by this Court) that he was cheated of victory during the elections for regional officers. He wants to continue serving his people. I fail to see how the principle of accountability and faithfulness to a trust could be applied to this specific cause of Congressman Dimaporo. For the Foregoing reasons, I VOTE to GRANT the petition.

Padilla and Bidin, JJ., concur.

# Separate Opinions GUTIERREZ, JR., J., dissenting: I am constrained to dissent from the majority opinion. I believe that the Speaker and the Secretary of the House of Representatives have no power, in purported implementation of an invalid statute, to erase from the Rolls of the House the name of a member duly elected by his sovereign constituents to represent them in Congress. The rejection of the bid of the Honorable Mohammad Ali Dimaporo to retain his seat in Congress may appear logical,

politically palatable, and and salutary to certain quarters. But I submit that it is in cases like the present petition where the Court should be vigilant in preventing the erosion of fundamental concepts of the Constitution. We must be particularly attentive to violations which are cloaked in political respectability, seemingly defensible or arguably beneficial and attractive in the short run. It is a fundamental priciple in Constitutional Law that Congress cannot add by statute or administrative act to the causes for disqualification or removal of constitutional officers. Neither can Congress provide a different procedure for disciplining Constitution. This is a true for the President and the members of Congress itself. The causes and procedures for removal found in the Constitution are not mere diciplinary measures. They are intended to protect constitutional officers in the unhampered and indepedent discharge of their functions. It is for this reason that the court should ensure that what the Constitution provides must be followed. The Constitutuion provides how the tenure of members of Congress may be shortened: A. Forefeiture of his seat by holding any other office or employment in the government or any subdivision, agency, or instrumentality thereof, including government-owned or controlled corporations or subsidiaries (Art. VI, Section 13); B. Expulsion as a disciplinary action for disorderly behavior (Art. VI, Sec. 16[3]); C. Disqualification as determined by resolution of the Electoral Tribubal in an election contest (Art. VI, Sec. 17); D. Voluntary renunciation of office (Art. VI, Sec. 7, par. 2). (See Petition, p. 8) The respondents would now add to the above provisions, an enactment of the defunct Batasang Pambansa promulgated long before the present Constitution took effect. B.P. Blg. 881, Article IX, Section 67 provides: Any elective official whether national or local running for any office other than the one which he is holding in a permanent capacity except for President and Vice-President shall be considered ipso facto resigned from his office upon the filing of his certificate of candidacy. (Petition, p. 8) I take exception to the Solicitor General's stand that the grounds for removal mentioned in the Constitution are not exclusive. They are exclusive. The non-inclusion of physical causes like death, being permanently comatose on a hospital bed, or disappearance in the sinking of a ship does not justify in the slightest an act of Congress expelling one of its members for reasons other than those found in the Constitution. Resignation is provided for by the Constitution. It is voluntary renunciation. So is naturalization in a foreign country or express renunciation of Philippine citizenship. Conviction of a crime carrying a penalty of disqualification is a disqualification against running for public office. Whether or not the conviction for such a crime while the Congressman is in office may be a ground to expel him from Congress is a matter which we cannot decide obiter. We must await the proper case and controversy. My point is

Congress cannot by statute or disciplinary action add to the causes for disqualification or removal of its members. Only the Constitution can do it. The citation of the precursors of B.P. 881 namely, Section 2 of Commonwealth Act No. 665, Section 27 of Article II of Rep. Act No. 180, the 1971 Election Code, and the 1978 Election Code does not help the respondents. On the contrary, they strengthen the case of the petitioner. It may be noted that all the earlier statutes about elective officials being considered resigned upon the filing of a certificate of candidacy refer to non-constitutional officers. Congress has not only the power but also the duty to prescribe causes for the removal of provincial, city, and municipal officials. It has no such power when it comes to constitutional officers. It was not alone egoistic self-interest which led the legislature during Commonwealth days or Congress in the pre-martial law period to exclude their members from the rule that the filing of a certificate of candidacy for another office meant resignation from one's current position. It was also a recognition that such a provision could not be validly enacted by statute. It has to be in the constitution. Does running for another elective office constitute voluntary renunciation of one's public office? In other words, did the Speaker and the House Secretary correctly interpret the meaning of "voluntary renunciation" as found in the Constitution? From 1935 when the Constitution was promulgated up to 1985 when B.P. 881 was enacted or for fifty long years, the filing of a certificate of candidacy by a Senator or member of the House was not voluntary renunciation of his seat in Congress. I see no reason why the passage of a statute by the Batasang Pambansa should suddenly change the meaning and implications of the act of filing and equate it with voluntary renunciation. "Voluntary" refers to a state of the mind and in the context of constitutional requirements should not be treated lightly. It is true that intentions may be deduced from a person's acts. I must stress, however, that for fifty years of ourconstitutional history, running for a local government position was not considered a voluntary renunciation. Congressman Dimaporo is steeped in the traditions of earlier years. He has been engaged in politics even before some of his present colleagues in Congress were born. Neither the respondents nor this Court can state that he intended to renounce his seat in Congress when he decided to run for Regional Governor. I submit that we should not deny to him the privilege of an existing interpretation of "voluntary renunciation" and wrongly substitute the interpretation adopted by the respondents. In interpreting the meaning of voluntary renunciation, the Court should also be guided by the principle that all presumptions should be in favor of representation. As aptly stated by the petitioner: We should not lose sight of the fact that what we are dealing with here is not the mere right of the petitioner to sit in the House of Representatives, but more important, we are dealing

with the political right of the people of the Second Legislative District of Lanao del Sur to representation in Congress, as against their disenfranchisement by mere 'administrative act' of the respondents. Such being the case, all presumptions should be strictly in favor of representation and strictly against disenfranchisement. And if disenfranchisement should there be, the same should only be by due process of law, both substantive and procedural, and not by mere arbitrary, capricious, and ultra vires, administrative act' of the respondents. (Reply to Comment, p. 5) The invocation of the principle of accountability found in Article XI of the Constitution does not empower the legislature to add to the grounds for dismissing its members. When Congressman Dimaporo ran for Regional Governor, he was not trifling with the mandate of his people. He wanted to serve a greater number in an autonomous, more direct, and intimate manner. He claims (a mistaken claim according to the Commission on Elections sustained by this Court) that he was cheated of victory during the elections for regional officers. He wants to continue serving his people. I fail to see how the principle of accountability and faithfulness to a trust could be applied to this specific cause of Congressman Dimaporo. For the Foregoing reasons, I VOTE to GRANT the petition.

than the one which he is holding in a permanent capacity, except for President and Vice-President, shall be considered ipso facto resigned from his office upon the filing of his certificate of candidacy. The petition for certiorari and prohibition in G.R. No. 147387 was filed by Rodolfo C. Farias, Manuel M. Garcia, Francis G. Escudero and Agapito A. Aquino. At the time of filing of the petition, the petitioners were members of the minority bloc in the House of Representatives. Impleaded as respondents are: the Executive Secretary, then Speaker of the House of Representatives Feliciano R. Belmonte, Jr., the Commission on Elections, the Secretary of the Department of the Interior and Local Government (DILG), the Secretary of the Senate and the Secretary General of the House of Representatives. The petition for prohibition in G.R. No. 152161 was filed by Gerry A. Salapuddin, then also a member of the House of Representatives. Impleaded as respondent is the COMELEC. Legislative History of Republic Act No. 9006 Rep. Act No. 9006, entitled An Act to Enhance the Holding of Free, Orderly, Honest, Peaceful and Credible Elections through Fair Election Practices, is a consolidation of the following bills originating from the House of Representatives and the Senate, respectively: House Bill (HB) No. 9000 entitled AN ACT ALLOWING THE USE OF MASS MEDIA FOR ELECTION PROPAGANDA, AMENDING FOR THE PURPOSE BATAS PAMBANSA BILANG 881, OTHERWISE KNOWN AS THE OMNIBUS ELECTION CODE, AS AMENDED, AND FOR OTHER PURPOSES;[1]

Padilla and Bidin, JJ., concur.

EN BANC [G.R. No. 147387. December 10, 2003] RODOLFO C. FARIAS, MANUEL M. GARCIA, FRANCIS G. ESCUDERO, and AGAPITO A. AQUINO, AS MEMBERS OF THE HOUSE OF REPRESENTATIVES AND ALSO AS TAXPAYERS, IN THEIR OWN BEHALF AND IN REPRESENTATION OF THE MEMBERS OF THE MINORITY IN THE HOUSE OF REPRESENTATIVES, petitioners, vs. THE EXECUTIVE SECRETARY, COMMISSION ON ELECTIONS, HON. FELICIANO R. BELMONTE, JR., SECRETARY OF THE INTERIOR AND LOCAL GOVERNMENT, SECRETARY OF THE SENATE, AND SECRETARY GENERAL OF THE HOUSE OF REPRESENTATIVES, respondents. [G.R. No. 152161. December 10, 2003] CONG. GERRY A. SALAPUDDIN, petitioner, vs. COMMISSION ON ELECTIONS, respondent. DECISION CALLEJO, SR., J.: Before the Court are two Petitions under Rule 65 of the Rules of Court, as amended, seeking to declare as unconstitutional Section 14 of Republic Act No. 9006 (The Fair Election Act), insofar as it expressly repeals Section 67 of Batas Pambansa Blg. 881 (The Omnibus Election Code) which provides: SEC. 67. Candidates holding elective office. Any elective official, whether national or local, running for any office other Senate Bill (SB) No. 1742 entitled AN ACT TO ENHANCE THE HOLDING OF FREE, ORDERLY, HONEST, PEACEFUL, AND CREDIBLE ELECTIONS THROUGH FAIR ELECTION PRACTICES.[2] A Bicameral Conference Committee, composed of eight members of the Senate[3] and sixteen (16) members of the House of Representatives,[4] was formed to reconcile the conflicting provisions of the House and Senate versions of the bill. On November 29, 2000, the Bicameral Conference Committee submitted its Report,[5] signed by its members, recommending the approval of the bill as reconciled and approved by the conferees. During the plenary session of the House of Representatives on February 5, 2001, Rep. Jacinto V. Paras proposed an amendment to the Bicameral Conference Committee Report. Rep. Didagen P. Dilangalen raised a point of order commenting that the House could no longer submit an amendment thereto. Rep. Sergio A.F. Apostol thereupon moved that the House return the report to the Bicameral Conference Committee in view of the proposed amendment thereto. Rep. Dilangalen expressed his objection to the proposal. However, upon viva voce voting, the majority of the House approved the return of the report to the Bicameral Conference Committee for proper action.[6]

In view of the proposed amendment, the House of Representatives elected anew its conferees[7] to the Bicameral Conference Committee.[8] Then again, for unclear reasons, upon the motion of Rep. Ignacio R. Bunye, the House elected another set of conferees[9] to the Bicameral Conference Committee.[10] On February 7, 2001, during the plenary session of the House of Representatives, Rep. Bunye moved that the House consider the Bicameral Conference Committee Report on the contrasting provisions of HB No. 9000 and SB No. 1742. Rep. Dilangalen observed that the report had been recommitted to the Bicameral Conference Committee. The Chair responded that the Bicameral Conference Report was a new one, and was a result of the reconvening of a new Bicameral Conference Committee. Rep. Dilangalen then asked that he be given time to examine the new report. Upon motion of Rep. Apostol, the House deferred the approval of the report until the other members were given a copy thereof.[11] After taking up other pending matters, the House proceeded to vote on the Bicameral Conference Committee Report on the disagreeing provisions of HB No. 9000 and SB No. 1742. The House approved the report with 125 affirmative votes, 3 negative votes and no abstention. In explaining their negative votes, Reps. Farias and Garcia expressed their belief that Section 14 thereof was a rider. Even Rep. Escudero, who voted in the affirmative, expressed his doubts on the constitutionality of Section 14. Prior to casting his vote, Rep. Dilangalen observed that no senator signed the Bicameral Conference Committee Report and asked if this procedure was regular. [12] On the same day, the Senate likewise approved the Bicameral Conference Committee Report on the contrasting provisions of SB No. 1742 and HB No. 9000. Thereafter, Rep. Act No. 9006 was duly signed by then Senate President Aquilino Pimentel, Jr. and then Speaker of the House of Representatives Feliciano R. Belmonte, Jr. and was duly certified by the Secretary of the Senate Lutgardo B. Barbo and the Secretary General of the House of Representatives Robert P. Nazareno as the consolidation of House Bill No. 9000 and Senate Bill No. 1742, and finally passed by both Houses on February 7, 2001. President Gloria Macapagal-Arroyo signed Rep. Act No. 9006 into law on February 12, 2001. The Petitioners Case The petitioners now come to the Court alleging in the main that Section 14 of Rep. Act No. 9006, insofar as it repeals Section 67 of the Omnibus Election Code, is unconstitutional for being in violation of Section 26(1), Article VI of the Constitution, requiring every law to have only one subject which should be expressed in its title. According to the petitioners, the inclusion of Section 14 repealing Section 67 of the Omnibus Election Code in Rep. Act No. 9006 constitutes a proscribed rider. They point out the dissimilarity in the subject matter of Rep. Act No. 9006, on the one hand, and Section 67 of the Omnibus Election Code, on the other. Rep. Act No. 9006 primarily deals with the lifting of the ban on the use of media for election propaganda and the elimination of unfair election practices, while Section 67 of the Omnibus Election Code imposes a limitation on elective officials who run for an office other than the one they are holding in a

permanent capacity by considering them as ipso facto resigned therefrom upon filing of the certificate of candidacy. The repeal of Section 67 of the Omnibus Election Code is thus not embraced in the title, nor germane to the subject matter of Rep. Act No. 9006. The petitioners also assert that Section 14 of Rep. Act No. 9006 violates the equal protection clause of the Constitution because it repeals Section 67 only of the Omnibus Election Code, leaving intact Section 66 thereof which imposes a similar limitation to appointive officials, thus: SEC. 66. Candidates holding appointive office or position. Any person holding a public appointive office or position, including active members of the Armed Forces of the Philippines, and officers and employees in government-owned or controlled corporations, shall be considered ipso facto resigned from his office upon the filing of his certificate of candidacy. They contend that Section 14 of Rep. Act No. 9006 discriminates against appointive officials. By the repeal of Section 67, an elective official who runs for office other than the one which he is holding is no longer considered ipso facto resigned therefrom upon filing his certificate of candidacy. Elective officials continue in public office even as they campaign for reelection or election for another elective position. On the other hand, Section 66 has been retained; thus, the limitation on appointive officials remains - they are still considered ipso facto resigned from their offices upon the filing of their certificates of candidacy. The petitioners assert that Rep. Act No. 9006 is null and void in its entirety as irregularities attended its enactment into law. The law, not only Section 14 thereof, should be declared null and void. Even Section 16 of the law which provides that [t]his Act shall take effect upon its approval is a violation of the due process clause of the Constitution, as well as jurisprudence, which require publication of the law before it becomes effective. Finally, the petitioners maintain that Section 67 of the Omnibus Election Code is a good law; hence, should not have been repealed. The petitioners cited the ruling of the Court in Dimaporo v. Mitra, Jr.,[13] that Section 67 of the Omnibus Election Code is based on the constitutional mandate on the Accountability of Public Officers:[14] 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. Consequently, the respondents Speaker and Secretary General of the House of Representatives acted with grave abuse of discretion amounting to excess or lack of jurisdiction for not considering those members of the House who ran for a seat in the Senate during the May 14, 2001 elections as ipso facto resigned therefrom, upon the filing of their respective certificates of candidacy. The Respondents Arguments For their part, the respondents, through the Office of the Solicitor General, urge this Court to dismiss the petitions contending, preliminarily, that the petitioners have no legal standing to institute the present suit. Except for the fact that their negative votes were overruled by the majority of the

members of the House of Representatives, the petitioners have not shown that they have suffered harm as a result of the passage of Rep. Act No. 9006. Neither do petitioners have any interest as taxpayers since the assailed statute does not involve the exercise by Congress of its taxing or spending power. Invoking the enrolled bill doctrine, the respondents refute the petitioners allegations that irregularities attended the enactment of Rep. Act No. 9006. The signatures of the Senate President and the Speaker of the House, appearing on the bill and the certification signed by the respective Secretaries of both houses of Congress, constitute proof beyond cavil that the bill was duly enacted into law. The respondents contend that Section 14 of Rep. Act No. 9006, as it repeals Section 67 of the Omnibus Election Code, is not a proscribed rider nor does it violate Section 26(1) of Article VI of the Constitution. The title of Rep. Act No. 9006, An Act to Enhance the Holding of Free, Orderly, Honest, Peaceful and Credible Elections through Fair Election Practices, is so broad that it encompasses all the processes involved in an election exercise, including the filing of certificates of candidacy by elective officials. They argue that the repeal of Section 67 is germane to the general subject of Rep. Act No. 9006 as expressed in its title as it eliminates the effect of prematurely terminating the term of an elective official by his filing of a certificate of candidacy for an office other than the one which he is permanently holding, such that he is no longer considered ipso facto resigned therefrom. The legislature, by including the repeal of Section 67 of the Omnibus Election Code in Rep. Act No. 9006, has deemed it fit to remove the unfairness of considering an elective official ipso facto resigned from his office upon the filing of his certificate of candidacy for another elective office. With the repeal of Section 67, all elective officials are now placed on equal footing as they are allowed to finish their respective terms even if they run for any office, whether the presidency, vicepresidency or other elective positions, other than the one they are holding in a permanent capacity. The respondents assert that the repeal of Section 67 of the Omnibus Election Code need not be expressly stated in the title of Rep. Act No. 9006 as the legislature is not required to make the title of the act a complete index of its contents. It must be deemed sufficient that the title be comprehensive enough reasonably to include the general subject which the statute seeks to effect without expressing each and every means necessary for its accomplishment. Section 26(1) of Article VI of the Constitution merely calls for all the parts of an act relating to its subject to find expression in its title. Mere details need not be set forth. According to the respondents, Section 14 of Rep. Act No. 9006, insofar as it repeals Section 67, leaving Section 66 of the Omnibus Election Code intact and effective, does not violate the equal protection clause of the Constitution. Section 67 pertains to elective officials while Section 66 pertains to appointive officials. A substantial distinction exists between these two sets of officials; elective officials occupy their office by virtue of their mandate based upon the popular will, while the appointive officials are not elected by popular will. The latter cannot, therefore, be similarly treated as the former. Equal protection simply requires that all persons or things similarly situated are

treated alike, both as to rights conferred and responsibilities imposed. Further, Section 16, or the Effectivity clause, of Rep. Act No. 9006 does not run afoul of the due process clause of the Constitution as it does not entail any arbitrary deprivation of life, liberty and property. Specifically, the section providing for penalties in cases of violations thereof presume that the formalities of the law would be observed, i.e., charges would first be filed, and the accused would be entitled to a hearing before judgment is rendered by a court having jurisdiction. In any case, the issue about lack of due process is premature as no one has, as yet, been charged with violation of Rep. Act No. 9006. Finally, the respondents submit that the respondents Speaker and Secretary General of the House of Representatives did not commit grave abuse of discretion in not excluding from the Rolls those members thereof who ran for the Senate during the May 14, 2001 elections. These respondents merely complied with Rep. Act No. 9006, which enjoys the presumption of validity until declared otherwise by the Court. The Courts Ruling Before resolving the petitions on their merits, the Court shall first rule on the procedural issue raised by the respondents, i.e., whether the petitioners have the legal standing or locus standi to file the petitions at bar. The petitions were filed by the petitioners in their capacities as members of the House of Representatives, and as taxpayers and registered voters. Generally, a party who impugns the validity of a statute must have a personal and substantial interest in the case such that he has sustained, or will sustain, direct injury as a result of its enforcement.[15]The rationale for requiring a party who challenges the constitutionality of a statute to allege such a personal stake in the outcome of the controversy is to assure that concrete adverseness which sharpens the presentation of issues upon which the court so largely depends for illumination of difficult constitutional questions.[16] However, being merely a matter of procedure, this Court, in several cases involving issues of overarching significance to our society,[17] had adopted a liberal stance on standing. Thus, in Tatad v. Secretary of the Department of Energy,[18] this Court brushed aside the procedural requirement of standing, took cognizance of, and subsequently granted, the petitions separately filed by then Senator Francisco Tatad and several members of the House of Representatives assailing the constitutionality of Rep. Act No. 8180 (An Act Deregulating the Downstream Oil Industry and For Other Purposes). The Court likewise took cognizance of the petition filed by then members of the House of Representatives which impugned as unconstitutional the validity of a provision of Rep. Act No. 6734 (Organic Act for the Autonomous Region in Muslim Mindanao) in Chiongbian v. Orbos.[19] Similarly, the Court took cognizance of the petition filed by then members of the Senate, joined by other petitioners, which challenged the validity of Rep. Act No. 7716 (Expanded Value Added Tax Law) in Tolentino v. Secretary of Finance.[20]

Members of Congress, such as the petitioners, were likewise allowed by this Court to challenge the validity of acts, decisions, rulings, or orders of various government agencies or instrumentalities inDel Mar v. Philippine Amusement and Gaming Corporation,[21] Kilosbayan, Inc. v. Guingona, Jr.,[22] Philippine Constitution Association v. Enriquez,[23] Albano v. Reyes,[24] and Bagatsing v. Committee on Privatization.[25] Certainly, the principal issue posed by the petitions, i.e., whether Section 67 of the Omnibus Election Code, which this Court had declared in Dimaporo[26] as deriving its existence from the constitutional provision on accountability of public officers, has been validly repealed by Section 14 of Rep. Act No. 9006, is one of overarching significance that justifies this Courts adoption of a liberal stance vis--visthe procedural matter on standing. Moreover, with the national elections barely seven months away, it behooves the Court to confront the issue now and resolve the same forthrightly. The following pronouncement of the Court is quite apropos: ... All await the decision of this Court on the constitutional question. Considering, therefore, the importance which the instant case has assumed and to prevent multiplicity of suits, strong reasons of public policy demand that [its] constitutionality . . . be now resolved. It may likewise be added that the exceptional character of the situation that confronts us, the paramount public interest, and the undeniable necessity for a ruling, the national elections beings barely six months away, reinforce our stand.[27] Every statute is presumed valid.[28] The presumption is that the legislature intended to enact a valid, sensible and just law and one which operates no further than may be necessary to effectuate the specific purpose of the law.[29] It is equally well-established, however, that the courts, as guardians of the Constitution, have the inherent authority to determine whether a statute enacted by the legislature transcends the limit imposed by the fundamental law.[30] And where the acts of the other branches of government run afoul of the Constitution, it is the judiciarys solemn and sacred duty to nullify the same.[31] Proceeding from these guideposts, the Court shall now resolve the substantial issues raised by the petitions.

SEC. 67. Candidates holding elective office. Any elective official, whether national or local, running for any office other than the one which he is holding in a permanent capacity, except for President and Vice-President, shall be considered ipso facto resigned from his office upon the filing of his certificate of candidacy. Section 26(1), Article VI of the Constitution provides: SEC. 26 (1). Every bill passed by the Congress shall embrace only one subject which shall be expressed in the title thereof. The proscription is aimed against the evils of the so-called omnibus bills and log-rolling legislation as well as surreptitious and/or unconsidered encroaches. The provision merely calls for all parts of an act relating to its subject finding expression in its title.[33] To determine whether there has been compliance with the constitutional requirement that the subject of an act shall be expressed in its title, the Court laid down the rule that Constitutional provisions relating to the subject matter and titles of statutes should not be so narrowly construed as to cripple or impede the power of legislation. The requirement that the subject of an act shall be expressed in its title should receive a reasonable and not a technical construction. It is sufficient if the title be comprehensive enough reasonably to include the general object which a statute seeks to effect, without expressing each and every end and means necessary or convenient for the accomplishing of that object. Mere details need not be set forth. The title need not be an abstract or index of the Act. [34] The title of Rep. Act No. 9006 reads: An Act to Enhance the Holding of Free, Orderly, Honest, Peaceful and Credible Elections through Fair Election Practices. Section 2 of the law provides not only the declaration of principles but also the objectives thereof: Sec. 2. Declaration of Principles. The State shall, during the election period, supervise or regulate the enjoyment or utilization of all franchises or permits for the operation of media of communication or information to guarantee or ensure equal opportunity for public service, including access to media time and space, and the equitable right to reply, for public information campaigns and fora among candidates and assure free, orderly, honest, peaceful and credible elections. The State shall ensure that bona fide candidates for any public office shall be free from any form of harassment and discrimination.[35] The Court is convinced that the title and the objectives of Rep. Act No. 9006 are comprehensive enough to include the repeal of Section 67 of the Omnibus Election Code within its contemplation. To require that the said repeal of Section 67 of the Code be expressed in the title is to insist that the title be a complete index of its content.[36] The purported dissimilarity of Section 67 of the Omnibus Election Code, which imposes a limitation on elective officials who run for an office other than the one they are holding, to the other provisions of Rep. Act No. 9006, which deal with the lifting of the ban on the use of media for election propaganda, does not violate the one subject-one title rule. This Court has held that an act having a single general subject, indicated in the

Section 14 of Rep. Act No. 9006 Is Not a Rider[32]

At the core of the controversy is Section 14, the repealing clause of Rep. Act No. 9006, which provides: Sec. 14. Sections 67 and 85 of the Omnibus Election Code (Batas Pambansa Blg. 881) and Sections 10 and 11 of Republic Act No. 6646 are hereby repealed. As a consequence, the first proviso in the third paragraph of Section 11 of Republic Act No. 8436 is rendered ineffective. All laws, presidential decrees, executive orders, rules and regulations, or any part thereof inconsistent with the provisions of this Act are hereby repealed or modified or amended accordingly. The repealed provision, Section 67 of the Omnibus Election Code, quoted earlier, reads:

title, may contain any number of provisions, no matter how diverse they may be, so long as they are not inconsistent with or foreign to the general subject, and may be considered in furtherance of such subject by providing for the method and means of carrying out the general subject.[37] The deliberations of the Bicameral Conference Committee on the particular matter are particularly instructive: SEN. LEGARDA-LEVISTE: Yes, Mr. Chairman, I just wanted to clarify. So all were looking for now is an appropriate title to make it broader so that it would cover this provision [referring to the repeal of Section 67 of the Omnibus Election Code], is that correct? Thats all. Because I believe ... THE CHAIRMAN (REP. SYJUCO): We are looking for an appropriate coverage which will result in the nomenclature or title. SEN. LEGARDA-LEVISTE: Because I really do not believe that it is out of place. I think that even with the term fair election practice, it really covers it, because as expressed by Senator Roco, those conditions inserted earlier seemed unfair and it is an election practice and, therefore, I think, Im very comfortable with the title Fair Election Practice so that we can get over with these things so that we dont come back again until we find the title. I mean, its one provision which I think is fair for everybody. It may seem like a limitation but this limitation actually provides for fairness in election practices as the title implies. THE CHAIRMAN (REP. SYJUCO):

enhance the holding of free, orderly, honest ... elections through fair election practices. But as you said, we will put that aside to discuss later one. Secondly, I think the Declaration of Principles contained in Section 2, paragraph 2 is perfectly adequate in that it says that it shall ensure candidates for public office that may be free from any form of harassment and discrimination. Surely this provision in Section 67 of the old Election Code of the existing Omnibus Election Code is a form of harassment or discrimination. And so I think that in the effort at leveling the playing field, we can cover this and it should not be considered a rider. SEN. LEGARDA-LEVISTE: I agree, Mr. Chairman. I think the Congresswoman from Ilocos had very clearly put it, that it is covered in the Declaration of Principles and in the objective of this bill. And therefore, I hope that the House contingent would agree to this so that we can finish it now. And it expressly provides for fair election practices because ... THE CHAIRMAN (SEN. ROCO): Yeah, I think what is on the table is that we are not disputing this, but we are looking for a title that is more generic so that then we have less of an objection on constitutionality. I think thats the theory. So, there is acceptance of this. Maybe we should not call it na limitation on elected officials. Maybe we should say the special provision on elected officials. So how is that? Alam mo ito ... REP. MARCOS: I think we just change the Section 1, the short title.

Yes. THE CHAIRMAN (SEN. ROCO): SEN. LEGARDA-LEVISTE: Also, Then we say - - on the short title of the Act, we say ... So I would want to beg the House contingent, lets get it over with. To me, ha, its not a very touchy issue. For me, its even a very correct provision. I feel very comfortable with it and it was voted in the Senate, at least, so I would like to appeal to the ... para matapos na, then we come back as a Bicam just for the title Is that what youre ...? THE CHAIRMAN (REP. SYJUCO): Its not the title per se, its the coverage. So if you will just kindly bear with us. Im happy that there is already one comfortable senator there among ... several of us were also comfortable with it. But it would be well that when we rise from this Bicam that were all comfortable with it. THE CHAIRMAN (SEN. ROCO): Yes. Anyway, lets listen to Congressman Marcos. REP. MARCOS: Mr. Chairman, may I just make the observation that although it is true that the bulk of provisions deals with the area of propaganda and political advertising, the complete title is actually one that indulge full coverage. It says An Act to REP. MARCOS: What if we say fair election practices? Maybe that should be changed... THE CHAIRMAN (SEN. ROCO): O, sige, fine, fine. Lets a brainstorm. Equal... REP. PADILLA: Mr. Chairman, why dont we use An Act rationalizing the holding of free, orderly, honest, peaceful and credible elections, amending for the purpose Batasang Pambansa known as the Omnibus Election Code? THE CHAIRMAN (SEN. ROCO): Why dont we remove fair and then this shall be cited as Election Practices Act? REP. PICHAY: Thats not an election practice. Thats a limitation.

THE CHAIRMAN (SEN. ROCO): Ah - - - ayaw mo iyong practice. O, give me another noun. REP. MARCOS: The Fair Election. THE CHAIRMAN (SEN. ROCO): O, Fair Election Act. REP. MACARAMBON: Nagbi-brainstorm tayo dito, eh. How about if we change the title to enhance the holding of free, orderly, honest, peaceful and ensure equal opportunity for public service through fair election practices? REP. PICHAY: Fair election practices? REP. MACARAMBON: Yeah. To ensure equal opportunity for public service through fair ... THE CHAIRMAN (SEN. ROCO): Wala nang practices nga. REP. PICHAY: Wala nang practices. THE CHAIRMAN (SEN. ROCO): It shall be cited as Fair Election Act. (Informal discussions) REP. PICHAY: Approve na iyan. THE CHAIRMAN (SEN. ROCO): Done. So, okay na iyon. The title will be Fair Election Act. The rest wala nang problema ano? VOICES: Wala na. REP. MACARAMBON: Wala na iyong practices? THE CHAIRMAN (SEN. ROCO): Wala na, wala na. Mahina tayo sa practice, eh. O, wala na? We will clean up. REP. MARCOS: Title?

THE CHAIRMAN (SEN. ROCO): The short title, This Act ... THE CHAIRMAN (REP. SYJUCO): Youre back to your No. 21 already. REP. MARCOS: The full title, the same? THE CHAIRMAN (SEN. ROCO): Iyon na nga. The full title is An Act to enhance the holding ... Thats the House version, eh, dahil pareho, hindi ba? Then the short title This Act shall be known as the Fair Election Act.[38] The legislators considered Section 67 of the Omnibus Election Code as a form of harassment or discrimination that had to be done away with and repealed. The executive department found cause with Congress when the President of the Philippines signed the measure into law. For sure, some sectors of society and in government may believe that the repeal of Section 67 is bad policy as it would encourage political adventurism. But policy matters are not the concern of the Court. Government policy is within the exclusive dominion of the political branches of the government.[39] It is not for this Court to look into the wisdom or propriety of legislative determination. Indeed, whether an enactment is wise or unwise, whether it is based on sound economic theory, whether it is the best means to achieve the desired results, whether, in short, the legislative discretion within its prescribed limits should be exercised in a particular manner are matters for the judgment of the legislature, and the serious conflict of opinions does not suffice to bring them within the range of judicial cognizance.[40] Congress is not precluded from repealing Section 67 by the ruling of the Court in Dimaporo v. Mitra[41] upholding the validity of the provision and by its pronouncement in the same case that the provision has a laudable purpose. Over time, Congress may find it imperative to repeal the law on its belief that the election process is thereby enhanced and the paramount objective of election laws the fair, honest and orderly election of truly deserving members of Congress is achieved. Moreover, the avowed purpose of the constitutional directive that the subject of a bill should be embraced in its title is to apprise the legislators of the purposes, the nature and scope of its provisions, and prevent the enactment into law of matters which have not received the notice, action and study of the legislators and the public.[42] In this case, it cannot be claimed that the legislators were not apprised of the repeal of Section 67 of the Omnibus Election Code as the same was amply and comprehensively deliberated upon by the members of the House. In fact, the petitioners, as members of the House of Representatives, expressed their reservations regarding its validity prior to casting their votes. Undoubtedly, the legislators were aware of the existence of the provision repealing Section 67 of the Omnibus Election Code.

Section 14 of Rep. Act No. 9006 Is Not Violative of the Equal Protection Clause of the Constitution[43]

The petitioners contention, that the repeal of Section 67 of the Omnibus Election Code pertaining to elective officials gives undue benefit to such officials as against the appointive ones and violates the equal protection clause of the constitution, is tenuous. The equal protection of the law clause in the Constitution is not absolute, but is subject to reasonable classification. If the groupings are characterized by substantial distinctions that make real differences, one class may be treated and regulated differently from the other.[44] The Court has explained the nature of the equal protection guarantee in this manner: The equal protection of the law clause is against undue favor and individual or class privilege, as well as hostile discrimination or the oppression of inequality. It is not intended to prohibit legislation which is limited either in the object to which it is directed or by territory within which it is to operate. It does not demand absolute equality among residents; it merely requires that all persons shall be treated alike, under like circumstances and conditions both as to privileges conferred and liabilities enforced. The equal protection clause is not infringed by legislation which applies only to those persons falling within a specified class, if it applies alike to all persons within such class, and reasonable grounds exist for making a distinction between those who fall within such class and those who do not.[45] Substantial distinctions clearly exist between elective officials and appointive officials. The former occupy their office by virtue of the mandate of the electorate. They are elected to an office for a definite term and may be removed therefrom only upon stringent conditions.[46] On the other hand, appointive officials hold their office by virtue of their designation thereto by an appointing authority. Some appointive officials hold their office in a permanent capacity and are entitled to security of tenure[47] while others serve at the pleasure of the appointing authority.[48] Another substantial distinction between the two sets of officials is that under Section 55, Chapter 8, Title I, Subsection A. Civil Service Commission, Book V of the Administrative Code of 1987 (Executive Order No. 292), appointive officials, as officers and employees in the civil service, are strictly prohibited from engaging in any partisan political activity or take part in any election except to vote. Under the same provision, elective officials, or officers or employees holding political offices, are obviously expressly allowed to take part in political and electoral activities.[49] By repealing Section 67 but retaining Section 66 of the Omnibus Election Code, the legislators deemed it proper to treat these two classes of officials differently with respect to the effect on their tenure in the office of the filing of the certificates of candidacy for any position other than those occupied by them. Again, it is not within the power of the Court to pass upon or look into the wisdom of this classification. Since the classification justifying Section 14 of Rep. Act No. 9006, i.e., elected officials vis-a-vis appointive officials, is anchored upon material and significant distinctions and all the persons belonging under the same classification are similarly treated, the equal protection clause of the Constitution is, thus, not infringed.

Is Applicable In this Case

Not content with their plea for the nullification of Section 14 of Rep. Act No. 9006, the petitioners insist that the entire law should be nullified. They contend that irregularities attended the passage of the said law particularly in the House of Representatives catalogued thus: a. Creation of two (2) sets of BCC (Bicameral Conference Committee) members by the House during its session on February 5, 2001; b. No communication from the Senate for a conference on the compromise bill submitted by the BCC on November 29, 2000; c. The new Report submitted by the 2nd/3rd BCC was presented for approval on the floor without copies thereof being furnished the members; d. The 2nd/3rd BCC has no record of its proceedings, and the Report submitted by it was not signed by the Chairman (Sen. Roco) thereof as well as its senator-members at the time it was presented to and rammed for approval by the House; e. There was no meeting actually conducted by the 2nd/3rd BCC and that its alleged Report was instantly made and passed around for the signature of the BCC members; f. The Senate has no record of the creation of a 2nd BCC but only of the first one that convened on November 23, 2000; g. The Effectivity clauses of SB No. 1741 and HB No. 9000, as well as that of the compromise bill submitted by the BCC that convened on November 20, 2000, were couched in terms that comply with the publication required by the Civil Code and jurisprudence, to wit: ... However, it was surreptitiously replaced in its final form as it appears in 16, R.A. No. 9006, with the provision that This Act shall take effect immediately upon its approval; h. The copy of the compromise bill submitted by the 2nd/3rd BCC that was furnished the members during its consideration on February 7, 2001, did not have the same 16 as it now appears in RA No. 9006, but 16 of the compromise bill, HB 9000 and SB 1742, reasons for which no objection thereto was made; i. The alleged BCC Report presented to the House on February 7, 2001, did not contain a detailed, sufficiently

explicit statement of the changes in or amendments to the subject measure; and

j. The disappearance of the Cayetano amendment, which is Section 12 of the compromise bill submitted by the BCC. In fact, this was the subject of the purported proposed amendment to the compromise bill of Member Paras as stated in paragraph 7 hereof. The said provision states, thusly: Sec. 12. Limitation on Elected Officials. Any elected official who runs for president and vice-president shall be considered ipso facto resigned from his office upon the filing of the certificate of candidacy.[50]

The Enrolled Bill Doctrine

The petitioners, thus, urge the Court to go behind the enrolled copy of the bill. The Court is not persuaded. Under the enrolled bill doctrine, the signing of a bill by the Speaker of the House and the Senate President and the certification of the Secretaries of both Houses of Congress that it was passed are conclusive of its due enactment. A review of cases[51] reveals the Courts consistent adherence to the rule. The Court finds no reason to deviate from the salutary rule in this case where the irregularities alleged by the petitioners mostly involved the internal rules of Congress, e.g., creation of the 2nd or 3rd Bicameral Conference Committee by the House. This Court is not the proper forum for the enforcement of these internal rules of Congress, whether House or Senate. Parliamentary rules are merely procedural and with their observance the courts have no concern.[52] Whatever doubts there may be as to the formal validity of Rep. Act No. 9006 must be resolved in its favor. The Court reiterates its ruling in Arroyo v. De Venecia,[53] viz.: But the 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. In Osmea v. Pendatun, it was held: At any rate, courts have declared that the rules adopted by deliberative bodies are subject to revocation, modification or waiver at the pleasure of the body adopting them. And it has been said that Parliamentary rules are merely procedural, and with their observance, the courts have no concern. They may be waived or disregarded by the legislative body. Consequently, mere failure to conform to parliamentary usage will not invalidate the action (taken by a deliberative body) when the requisite number of members have agreed to a particular measure.

challenged on constitutional grounds, the sole function of the court is to determine whether it transcends constitutional limitations or the limits of legislative power.[57] No such transgression has been shown in this case. WHEREFORE, the petitions are DISMISSED. No pronouncement as to costs. SO ORDERED.

Davide, Jr., C.J., Puno, Vitug, Panganiban, Quisumbing, YnaresSantiago, Sandoval-Gutierrez, Carpio, Austria-Martinez, Corona, Carpio-Morales, Azcuna, and Tinga, JJ., concur.

Republic of the Philippines SUPREME COURT Manila

EN BANC

G.R. No. L-2821

March 4, 1949

JOSE AVELINO, petitioner, vs. MARIANO J. CUENCO, respondent.

The Effectivity Clause Is Defective Vicente J. Francisco for petitioner.

Finally, the Effectivity clause (Section 16) of Rep. Act No. 9006 which provides that it shall take effect immediately upon its approval, is defective. However, the same does not render the entire law invalid. In Taada v. Tuvera,[54] this Court laid down the rule: ... the clause unless it is otherwise provided refers to the date of effectivity and not to the requirement of publication itself, which cannot in any event be omitted. This clause does not mean that the legislator may make the law effective immediately upon approval, or on any other date without its previous publication. Publication is indispensable in every case, but the legislature may in its discretion provide that the usual fifteen-period shall be shortened or extended.[55] Following Article 2 of the Civil Code[56] and the doctrine enunciated in Taada, Rep. Act No. 9006, notwithstanding its express statement, took effect fifteen days after its publication in the Official Gazette or a newspaper of general circulation. In conclusion, it bears reiterating that one of the firmly entrenched principles in constitutional law is that the courts do not involve themselves with nor delve into the policy or wisdom of a statute. That is the exclusive concern of the legislative branch of the government. When the validity of a statute is

Office of the Solicitor General Felix Angelo Bautista, Ramon Diokno and Lorenzo M. Taada for respondent. Teehankee, Fernando, Sunico & Rodrigo; Vera, Montesines & Navarro; Felixberto M. Serrano and Vicente del Rosario as amici curiae.

RESOLUTION

In G.R. No. L-2821, Avelino vs. Cuenco, the Court by a vote of six justices against four resolved to deny the petition.

Without prejudice to the promulgation of a more extended opinion, this is now written briefly to explain the principal grounds for the denial.

The Court believes the following essential facts have been established:

In the session of the Senate of February 18, 1949, Senator Lorenzo M. Taadare quested that his right to speak on the next session day, February 21, 1949, to formulate charges against the then Senate President Jose Avelino be reserved. His request was approved.

At this juncture, some disorderly conduct broke out in the Senate gallery, as if by pre-arrangement. At about this same time Senator Pablo Angeles David, one of the petitioner's followers, was recognized by petitioner, and he moved for adjournment of session, evidently, again, in pursuance of the above-mentioned conspiracy to muzzle Senator Taada.

On February 21, 1949, hours before the opening of the session Senator Taada and Senator Taada and Senator Prospero Sanidad filed with the Secretary of the Senate a resolution enumerating charges against the then Senate President and ordering the investigation thereof.

Senator Sanidad registered his opposition to the adjournment of the session and this opposition was seconded by herein respondent who moved that the motion of adjournment be submitted to a vote. Another commotion ensued.

Although a sufficient number of senators to constitute a quorum were at the Senate session hall at the appointed time (10:00 A.M.), and the petitioner was already in his office, said petitioner delayed his appearance at the session hall until about 11:35 A.M. When he finally ascended the rostrum, he did not immediately open the session, but instead requested from the Secretary a copy of the resolution submitted by Senators Taada and Sanidad and in the presence of the public he read slowly and carefully said resolution, after which he called and conferred with his colleagues Senator Francisco and Tirona.

Senator David reiterated his motion for adjournment and herein respondent also reiterated his opposition to the adjournment and again moved that the motion of Senator David be submitted to a vote.

Suddenly, the petitioner banged the gavel and abandoning the Chair hurriedly walked out of the session hall followed by Senator David, Tirona, Francisco, Torres, Magalona and Clarin, while the rest of the senators remained. Whereupon Senator Melencio Arranz, Senate President Pro-tempore, urged by those senators present took the Chair and proceeded with the session.

Shortly before 12:00 noon, due to the session be opened, the petitioner finally called the meeting to order. Except Senator Sotto who was confined in a hospital and Senator Confesor who is in the United States, all the Senator were present.

Senator Sanidad, following a long established practice, moved that the roll call be dispensed with, but Senator Tirona opposed said motion, obviously in pursuance of a premeditated plan of petitioner and his partisans to make use of dilatory tactics to prevent Senator Taada from delivering his privilege speech. The roll was called.

Senator Cabili stood up, and asked that it be made of record it was so made that the deliberate abandonment of the Chair by the petitioner, made it incumbent upon Senate President Protempore Arranz and the remaining members of the Senate to continue the session in order not to paralyze the functions of the Senate.

Senate President Pro-tempore Arranz then suggested that respondent be designated to preside over the session which suggestion was carried unanimously. the respondent thereupon took the Chair.

Senator Sanidad next moved, as is the usual practice, to dispense with the reading of the minutes, but this motion was likewise opposed by Senator Tirona and David, evidently, again, in pursuance of the above-mentioned conspiracy.

Upon motion of Senator Arranz, which was approved Gregorio Abad was appointedActing Secretary, because the Assistance Secretary, who was then acting as Secretary, had followed the petitioner when the latter abandoned the session.

Before and after the roll call and before and after the reading of the minutes, Senator Taada repeatedly stood up to claim his right to deliver his one-hour privilege speech but the petitioner, then presiding, continuosly ignored him; and when after the reading of the minutes, Senator Taada instead on being recognized by the Chair, the petitioner announced that he would order the arrest of any senator who would speak without being previously recognized by him, but all the while, tolerating the actions of his follower, Senator Tirona, who was continuously shouting at Senator Sanidad "Out of order!" everytime the latter would ask for recognition of Senator Taada.

Senator Taada, after being recognized by the Chair, was then finally able to deliver his privilege speech. Thereafter Senator Sanidad read aloud the complete text of said Resolution (No. 68), and submitted his motion for approval thereof and the same was unanimously approved.

With Senate President Pro-tempore Arranz again occupying the Chair, after the respondent had yielded it to him, Senator

Sanidad introduced Resolution No. 67, entitled "Resolution declaring vacant the position of the President of the Senate and designated the Honorable Mariano Jesus Cuenco Acting President of the Senate." Put to a vote, the said resolution was unanimously approved.

Senator Cuenco took the oath.

The precedent of Werts vs. Roger does not apply, because among other reasons, the situation is not where two sets of senators have constituted themselves into two senates actually functioning as such, (as in said Werts case), there being no question that there is presently one Philippines Senate only. To their credit be it recorded that petitioner and his partisans have not erected themselves into another Senate. The petitioner's claim is merely that respondent has not been duly elected in his place in the same one Philippines Senate.

The next day the President of the Philippines recognized the respondent as acting president of the Philippines Senate.

It is furthermore believed that the recognition accorded by the Chief Executive to the respondent makes it advisable, more than ever, to adopt the hands-off policy wisely enunciated by this Court in matters of similar nature.

By his petition in this quo warranto proceeding petitioners asked the Court to declare him the rightful President of the Philippines senate and oust respondent.

The Court has examined all principal angles of the controversy and believes that these are the crucial points:

a. Does the Court have jurisdiction over the subject-matter?

The second question depends upon these sub-questions. (1) Was the session of the so-called rump Senate a continuation of the session validly assembled with twenty two Senators in the morning of February 21, 1949?; (2) Was there a quorum in that session? Mr. Justice Montemayor and Mr. Justice Reyes deem it useless, for the present to pass on these questions once it is held, as they do, that the Court has no jurisdiction over the case. What follows is the opinion of the other four on those four on those sub-questions.

b. If it is has, were resolution Nos. 68 and 67 validly approved?

c. Should the petition be granted?

Supposing that the Court has jurisdiction, there is unanimity in the view that the session under Senator Arranz was a continuation of the morning session and that a minority of ten senators may not, by leaving the Hall, prevent the other twelve senators from passing a resolution that met with their unanimous endorsement. The answer might be different had the resolution been approved only by ten or less.

To the first question, the answer is in the negative, in view of the separation of powers, the political nature of the controversy (Alejandrino vs. Quezon, 46 Phil., 83; Vera vs. Avelino, 77 Phil., 192; Mabanag vs. Lopez Vito, 78 Phil., 1) and the constitutional grant to the Senate of the power to elect its own president, which power should not be interfered with, nor taken over, by the judiciary. We refused to take cognizance of the Vera case even if the rights of the electors of the suspended senators were alleged affected without any immediate remedy. A fortiori we should abstain in this case because the selection of the presiding officer affect only the Senators themselves who are at liberty at any time to choose their officers, change or reinstate them. Anyway, if, as the petition must imply to be acceptable, the majority of the Senators want petitioner to preside, his remedy lies in the Senate Session Hall not in the Supreme Court.

The Court will not sally into the legitimate domain of the Senate on the plea that our refusal to intercede might lead into a crisis, even a resolution. No state of things has been proved that might change the temper of the Filipino people as a peaceful and lawabiding citizens. And we should not allow ourselves to be stampeded into a rash action inconsistent with the calm that should characterized judicial deliberations.

If the rump session was not a continuation of the morning session, was it validly constituted? In other words, was there the majority required by the Constitution for the transaction of the business of the Senate? Justice Paras, Feria, Pablo and Bengzon say there was, firstly because the minute say so, secondly, because at the beginning of such session there were at least fourteen senators including Senators Pendatun and Lopez, and thirdly because in view of the absence from the country of Senator Tomas Confesor twelve senators constitute a majority of the Senate of twelve three senators. When the Constitution declares that a majority of "each House" shall constitute a quorum, "the House: does not mean "all" the members. Even a majority of all the members constitute "the House". (Missouri Pac. vs. Kansas, 63 Law ed. [U. S.], p. 239). There is a difference between a majority of "the House", the latter requiring less number than the first. Therefore an absolute majority (12) of all the members of the Senate less one (23), constitutes constitutional majority of the Senate for the purpose of a quorum. Mr. Justice Pablo believes furthermore than even if the twelve did not constitute a quorum, they could have ordered the arrest of one, at least, of the absent members; if one had been so arrested, there would be no doubt Quorum then, and Senator Cuenco would have been elected just the same inasmuch as there would be eleven for Cuenco, one against and one abstained.

In fine, all the four justice agree that the Court being confronted with the practical situation that of the twenty three senators who may participate in the Senate deliberations in the days immediately after this decision, twelve senators will support Senator Cuenco and, at most, eleven will side with Senator Avelino, it would be most injudicious to declare the latter as the rightful President of the Senate, that office being essentially one that depends exclusively upon the will of the majority of the senators, the rule of the Senate about tenure of the President of that body being amenable at any time by that majority. And at any session hereafter held with thirteen or more senators, in order to avoid all controversy arising from the divergence of opinion here about quorum and for the benefit of all concerned,the said twelve senators who approved the resolutions herein involved could ratify all their acts and thereby place them beyond the shadow of a doubt.

As already stated, the six justices hereinabove mentioned voted to dismiss the petition. Without costs.

contrary, does not find it convenient to compel the attendance of any senator of the Avelino group. Then the question arises-who will decide the conflict between the two groups? This anomalous situation will continue while the conflict remains unsettled, and the conflict will remain unsettled while this Court refuses to intervene. In the meantime the validity of all the laws, resolutions and other measures which may be passed by the Cuenco group will be open to doubt because of an alleged lack of quorum in the body which authored them. This doubt may extend, in diverse forms, to the House of Representative and to the other agencies of the government such as the Auditor General's Office. Thus, a general situation of uncertainty, pregnant with grave dangers, is developing into confusion and chaos with severe harm to the nation. This situation may, to a large extent, be stopped and constitutional processes may be restored in the Senate if only this Court, as the guardian of the Constitutional, were to pronounce the final word on the constitutional mandate governing the existing conflict between the two groups. And, in my opinion, under the present circumstances, this Court has no other alternative but to meet challenge of the situation which demands the utmost of judicial temper and judicial statesmanship. As hereinbefore stated, the present crisis in the Senate is one that imperatively calls for the intervention of this Court.

Separate Opinions

MORAN, C.J., concurring:

I believe that this Court has jurisdiction over the case.1 The present crisis in the Senate is one that imperatively calls for the intervention of the Court.

As to the legality of respondent's election as acting President of the Senate,2I firmly believe that although petitioner's adjournment of the session of February 21, 1949, was illegality cannot be countered with another illegality. The session wherein respondent was elected as acting President of the Senate was illegal because when Senator Mabanag raised the question of a quorum and the roll was called, only twelve senators were present. In the Philippines there are twenty-four senators, and therefore, the quorum must be thirteen. The authorities on the matter are clear.

Respondent Cuenco cannot invoke the doctrine of noninterference by the courts with the Senate because the legal capacity of his group of twelve senators to acts as a senate is being challenged by petitioner on the groundof lack of quorum (Attorney General ex rel. Werts vs. Rogers et al., Atl. 726; 23 L. R. A., 352). If this group is found sufficient to constitute a quorum under the Constitution, then its proceedings should be free from interference. But if it is not possessed of a valid quorum, then its proceedings should be voided.

The constitution of our state ordains that a majority of each house shall constitute a quorum. the house of representative consist of 125 members; 63 is a majority and quorum. When a majority or quorum are present, the house can do business; not otherwise. A quorum possessed all the powers of the whole body, a majority of which quorum must, of course, govern. (In re Gunn, 50 Kan., 155; 32 P., 470, 476; 19 L.R.A., 519.)

The issue as to the legal capacity of the Cuenco group to act as a senate cannot be considered a political question the determination of which devolves exclusively upon the Senate. That issue involves a constitutional question which cannot be validly decided either by the Cuenco group or by the Avelino group separately, for, if the Cuenco group has no quorum, the Avelino has decidedly less. And for obvious reasons, the two groups cannot act together inasmuch as the members of the Avelino group, possibly to avoid trouble, do not attend the sessions presided by the respondent believing as they do that the latter was illegally elected. Upon the other hand, the Cuenco group believing itself as possessing the constitutional quorum and not desiring to make any semblance of admission to the

Quorum as used in U. S. C. A. Const. Art. 4 sec. 8, providing that a majority of each house shall constitute a quorum to do business, is, for the purpose of the Assembly, not less than the majority of the whole number of which the house may be composed. Vacancies from death, resignation or failure to elect cannot be deducted in ascertaining the quorum. (Opinion of Justice, 12 Fla. 653.)

The general rule is that a quorum is a majority of all the members and a majority of this majority may legislate and do the work of the whole. (State vs. Ellington 117 N. C., 158; 23 S. E. 250-252, 30 L.R.A., 532; 53 Am. SR., 580.)

. . . a majority of each House is necessary to transact business, and a minority cannot transact business, this view being in keeping with the provision of the Constitution permitting a smaller number than a quorum to adjourn from day to day merely. (Earp vs. Riley, 40 OKL., 340; p. 164; Ralls vs. Wyand, 40 OKL., 323; 138 P. 158.)

done by them. This is a suggestion coming from a humble citizen who is watching with a happy heart the movement of this gallant group of prominent leaders campaigning for a clean and honest government in this dear country of ours.

The Constitution provides that "a majority of each (house) shall constitute a quorum to do business." In other words, when a majority are present the House is in a position to do business. Its capacity to transact business is then established, created by the mere presence of a majority, and depend upon the disposition or assent or action of any single member or faction of the majority present. All that the Constitution required is the presence of a majority, and when that majority are present, the power of the House arises. (U. S. vs. Ballin, Joseph & Co., 36 Law ed. 321, 325.)

PERFECTO, J., dissenting:

In these quo warranto proceedings the question as to who among the parties is entitled to hold the position of President of the Senate is in issue.

If all the members of the select body or committee, or if all the agents are assembled, or if all have been duly notified, and the minority refuse, or neglect to meet with the other, a majority of those present may act, provided those present constitute a majority of the whole number. In other words, in such case, a major part of the whole is necessary to constitute a quorum, and a majority of the quorum may act. If the major part withdraw so as to leave no quorum, the power of the minority to act is, in general, considered to cease. (1 Dillon, Mun. Corp. 4th ed., sec. 283.)3

There is no question that up to Monday, February 21, 1949, at the time the controversial incidents took place, petitioner Jose Avelino was rightful occupant of the position. the litigation has arisen because of the opposing contentions as to petitioner's outer and as to respondent's election as acting President of the Senate, on February 21, 1949.

Therefore, without prejudice to writing a more extensive opinion, if necessary, I believe that respondent Mariano J. Cuenco has not been legally elected as acting President of the Senate. It is true that respondent Cuenco, in fact, must be the Senate President because he represent the majority of the members now present in Manila, and, at any new session with a quorum, upon the present senatorial alignment, he will be elected to said office. But precisely he is now the master of the situation, he must win his victory in accordance with the Constitution. It is absolutely essential in the adolescent life of our Republic to insist, strictly and uncompromisingly, on thedemocratic principles consecrated in our Constitution. By such efforts alone can we insure the future of our political life as a republican form of government under the sovereignty of a Constitution from being a mockery.

Petitioner contends that the proceedings in which a resolution was passed declaring the position of President of the Senate vacant and electing respondent Mariano J. Cuenco as acting President of the Senate were illegal because, at the time, the session for said day has been properly adjourned, and the twelve Senators who remained in the session hall had no right to convene in a rump session, and said rump session lacked quorum, while respondent contents that the session which was opened by petitioner had not been legally adjournment, the Senators who remained in the session hall had only continued the same session, and there was quorum when the position of the President of the Senate was declared vacant and when respondent was elected as acting President of Senate, to fill the vacate position.

The situation now in this Court is this there are four members who believe that there was no quorum in respondent's election as against four other member who believe that there was such quorum. Two members declined to render their opinion on the matter because of their refusal to assume jurisdiction. And, one member is absent from the Philippines. Thus, the question of whether or not respondent has been legally elected is, to say the least, doubtful in this Court under the present conditions. This doubt, which taint the validity of all the laws, resolutions and other measures that the Cuenco group has passed and may pass in the future, can easily be dispelled by them by convening a session wherein thirteen senators are present and by reiterating therein all that has been previously

Petitioner's version of the facts, as alleged in his petition, is to the effect that on Monday, February 21, 1949, at the time petitioner opened the session in the Senate session hall, there were twenty two Senators present who answered the roll call; Vicente J. Francisco. Fernando Lopez, Emiliano TriaTirona, Pablo Angeles David, Salipada Pendatun, Ramon Torres, Enrique Magalona, Carlos Tan, Olegario Clarin, Melencio Arranz, Mariano Cuenco, Prospero Sanidad, Lorenzo Taada, Vicente Madrigal, Geronima Pecson, Camilo Osias, Carlos Garcia, Ramon Diokno, Jose Vera, Tomas Cabili, Alejo Mabanag, and the petitioner Jose Avelino. While the minutes of the preceding session was being read the crowd of more than 1,000 people who entered the Senate hall to witness the session, became unruly, the repeated efforts of petitioner as well as the sergeant-at-arms and other peace officers to maintain peace and order notwithstanding. Fights and commotions ensued and several shots were fired among the audience. The Senator who spoke could not be heard because the spectators would either shout to drown their voices or would demeans that some other Senator should take the floor and be recognized by petitioner. Pandemonium reigned and it was impossible for the Senate to

proceed with its deliberations free from undue pressure and without grave danger to its integrity as a body and to the personal safety of the members thereof. Senator Pablo Angeles David moved for adjournment until Thursday, February 24, 1949. There being no objection, petitioner adjourned the session until February 24, 1949. Thereupon petitioner and nine other Senator namely, Vicente J. Francisco, Fernando Lopez, Emiliano Tria Tirona, Pablo Angeles David, Sulipada Pendatun, Ramon Torres, Enriquez Magalona, Carlos Tan, and Olegario Clarin left the session hall. Senator Melencio Arranz, President ProTempore of Senate, went up the rostrum and, assuming the presidency of the chamber, convinced the remaining twelve Senators into a rump session, in which a resolution was passed declaring vacant the position of the President of the Senate and electing respondent as President of the Senate. Thereupon respondent pretended to assume the office of president of the Senate and continues to pretend to assume said office.

(c) When finally the petitioner ascended the rostrum, he did not immediately open the session, but instead requested from the Secretary a copy of the resolution submitted by Senator Taada and Sanidad and in the presence of the public the petitioner read slowly and carefully said resolution, after which he called and conferred with his followers, Senators Francisco and Tirona;

(d) Shortly before 12:00 noon, due to the insistent requested of Senators Sanidad and Cuenco that the session be opened, the petitioner finally called the meeting to order;

Petitioner alleged five grounds to claim that respondent is usurping or illegally exercising the office of the President of the Senate: 1. Petitioner had adjourned the session of the senate, the adjournment having been properly moved and, without objection, favorably acted upon; 2. Petitioner had full power to adjourn the session even without motion under chapter II, Section 8, paragraph (e) of the Rules of the Senate; 3 The ordinary daily session having been adjourned, no other session could be called in the Senate on the same day; 4 The President Pr-tempore had no authority to assume the presidency except in the cases specified in Chapter I, section 4 of the Rule of the Senate, and none of the conditions therein mentioned obtained at the time in question; and 5. The twelve Senators that convened in the rump session did not constitute a quorum to do business under the Constitution and the rule of the Senate, being less than one-half plus one of the twenty four members of the Senate.

(e) Senator Sanidad, following a practice long established in the Senate, moved that the roll call be dispensed with as it was evident that with the presence of all the 22 senator who could discharges their functions, there could be no question of a quorum, but Senator Tirona opposed said motion, evidently in pursuance of a premeditated plan and conspiracy of petitioner and his followers to make use of all sorts of dilatory tactics to prevent Senator Taada from delivering his privilege speech on the charges filed against petitioner. The roll call affirmatively showed the presence of the following 22 Senators; Vicente J. Francisco, Fernando Lopez, Emiliano Tria Tirona, Pablo Angeles David, Salipada Pendatun, Ramon Torres, Enrique Magalona, Carlos tan, Olegario Clarin, Melencio Arranz, M. Jesus Cuenco, Prospero Sanidad, Lorenzo M. Taada, Vicente Madrigal, Geronima Pecson, Camilo Osias, Carlos Garcia, Ramon Diokno, Jose Vera, Tomas Cabili, Alejo Mabanag and Jose Avelino;

(f) Senator Sanidad next moved, as in the usual practice, to dispense with the reading of the minute, but this motion was likewise opposed by senator Tirona and David, evidently, again, in pursuance of the above-mentioned conspiracy;

Respondent's version of the events as follows:

(a) Since Friday, February 18, 1949, when Senator Lorenzo M. Taada announced and reserved in open session of the Senate that on Monday, February 21, 1949, he would make use of his one-hour privilege, it was known that formal charges would be filed against the then Senate President, petitioner in this case, on said date. Hours before the opening of the session on Monday, February 21, 1949, Senators Lorenzo M. Taada and Prospero Sanidad registered in the Office of the secretary of the Senates a resolution in which serious charges were preferred against the herein petitioner. A certified copy of said resolution, marked as Exhibit "1" is hereto attacked and made an integral part hereof:

(g) Before and after the roll call before and after the reading of the minutes, Senator Taada repeatedly took the floor to claim his right to deliver his one-hour privilege speech in support of the charges against petitioner, but the latter, then presiding, continually ignored him; and when after the reading of the minutes, Senator Taada instead on being recognized by the Chair, the petitioner announced that he would being previously recognized by him, but all the while, tolerating the antics of his follower, Senator Tirona, who was continuously and vociferously shouting at Senator Sanidad "Out of order! Out of order! Out of order! . . .," everything the latter would ask the petitioner to recognized the right of Senator Taada to speak.

(b) Although a sufficient number of senators to constitute a quorum were at the Senate session hall at and before 10:00 A.M., schedule time for the session to begin, and in spite of the fact that the petitioner was already in his office, said petitioner deliberately delayed his appearance at the session hall until about 11:35 A.M.;

(h) At this juncture, some disorderly conduct broke out in the Senate gallery, as if by prearrangement, but the police officers present were able to maintain order. No shots were fired among the audience, as alleged in the petition. It was at about this same time that Senator Pablo Angeles David, one of petitioner's followers, was recognized by petitioner, and he moved for adjournment of the session, evidently again, in pursuance of the above-mentioned conspiracy to prevent Senator Taada from speaking;

(i) Senator Sanidad registered his opposition to the adjournment of the session and this opposition was seconded by herein respondent who moved that the motion of adjournment be submitted to a vote;

(j) Senator David reiterated his motion for adjournment and herein respondent also reiterated his opposition to the adjournment and again moved that the motion of Senator David be submitted to a vote;

(q) With Senate President Pro-tempore Arranz again occupying the Chair, after the respondent had yield edit to him, Senator Sanidad introduced Resolution No. 67, entitled "Resolution declaring vacant the position of the President of the Senate and designated the Honorable Mariano Jesus Cuenco Acting President of the Senate," a copy of which is herewith attacked and made an integral part hereof as Exhibit "2". Put a vote, the said Resolutionwas unanimously approved, respondent having abstained from voting;

(k) Suddenly, the petitioner abandoned the Chair and hurriedly walked out of the session hall.

(r) The respondent having been duly elected as Acting President of the Senate, immediately took his oath of Office in open session, before Senate President Pro-Tempore Melencio Arranz, and since then, has been discharging the duties and exercising the rights and prerogatives appertaining to said office;

(l) Without the session being adjournment, Senators David, Tirona, Francisco,Torres, Magalona, and Clarin followed the petitioner out of the session hall, while the rest of the senators, as afore-named in sub-paragraph (e) hereof, remained to continue the session abandoned by petitioner, whereupon Senator Melencio Arranz, as Senate Pro-tempore, took the Chair and proceeded with the session.

(s) From the allegation of the petition, it clearly appears that the petitioner had only nine senators in his favor and twelve, decidedly against him, which fact negates the petitioner's assertion that there was no opposition to the motion for adjournment submitted by Senator David;

(m) Senator Cabili took the floor and delivered a speech, whereby he asked that it be made of record as it was in so made that the deliberate abandonment of the Chair by the petitioner, made it incumbent upon SenatePresident Protempore Arranz and the remaining members of the Senate to continue the session in order not to impede and paralyze the functions of the Senate;

(t) From the beginning of the session of February 21, 1949, to the allegedadjournment, it was evidently and manifestly the purpose of the petitioner to deprive Senator Taada of his right to take the floor and to speak on the charges filed against said petitioner; that said petitioner resorted to all means to deprive the Senate of its right and prerogative to deliberate on Senate Resolution No. 68, Exhibit "1", and that when the petitioner realized that a majority of the Senator who were present in the said session was ready to approved said resolution, the petitioner abandoned the session;

(n) Senate President Pro-tempore Arranz then suggested that respondent be designated to preside over the session, which suggestion was carried unanimously. The respondent thereupon took the Chair.

(u) The minute of the session held on February 21, Exhibit 1949, a copy of which is hereto attacked and made an integral part hereof as Exhibit "3", show that the petitioner illegally abandoned the Chair while the Senate was in session and that the respondent has been duly elected Acting Senate President in accordance with the provisions of the Constitution.

(o) Upon motion of Senator Arranz, which was carried unanimously, Gregorio Abad was appointed Acting Secretary, as the Assistance Secretary, who was then acting as Secretary, had followed the petitioner when the latter abandoned the session;

(p) Senator Taada, after being recognized by the Chair, was then finally able to deliver his privilege speech, Which took more than hours, on the charges against the petitioner contained in the Resolution, attacked hereto as Exhibit "1", and moved for the immediate consideration and approval ofsaid Resolution. Senator Sanidad reiterated this motion, after having firstread aloud the complete text of said Resolution, and thereafter the same was unanimously approved;

Respondent alleges further that Senator David's motion for adjournment was objected to and not submitted to a vote and, therefore, could not have been carried; that it is not true that petitioner had the power to adjourn the session even without motion; that the session presided over, first by petitioner and then by respondent, was orderly, no Senator having been threatened or intimidated by anybody, and after petitioner abandoned the session continued peacefully until its adjournment at 4:40 P.M.; that there was only one session held on said date; that petitioner's abandonment of the Chair in the face of an impending ouster therefrom constituted a temporaryincapacity entitling the Senate President Pro-tempore to assume the Chair; that there was quorum as, with the absence of Senator Tomas Confessor, whowas in the U. S. and of Senator Vicente Sotto, who was seriously ill and confined in the Lourdes Hospital, the presence of at least twelve senators constitutes a

quorum; that, despite petitioner's claim that he adjourned the session to February 24, 1949, convinced that he did not count with the majority of the Senators and not wanting to be investigated by the specialinvestigation committee regarding the grave charges preferred against him, the petitioner deliberately did not appear at the session hall on said date.

The question raised in the petition, although political in nature, are justiciable because they involve the enforcement of legal precepts, such as the provisions of the Constitution and of the rules of the Senate. Thepower and authority to decided such questions of law form part of the jurisdiction, not only expressly conferred on the Supreme Court, but of which, by express prohibition of the Constitution, it cannot be divested.

Three special defenses are advanced by respondent: (a) Lack of jurisdiction of the Supreme Court; (b) No cause of action as there are only nine Senators who had recognized petitioner's claim against twelve Senators or who have madepatent their loss of confidence in him by voting in favor of his out ouster; and (c) The object of the action is to make the supreme Court a mere tool of a minority group of ten Senators to impose petitioner's will over and above that of the twelve other members of the Senate, to entrench petitionerin power.

SEC. 2. The Congress shall have the power to define, prescribe, and apportion the jurisdiction of the various court, but may not deprive the Supreme Court of its original jurisdiction over cases affecting ambassadors, other public ministers, and consuls, nor of its jurisdiction to review, revise, reverse, modify, or affirm on appeal, certiorari, or writ of error, as the law or the rules of the court may provide, final judgment and decrees of inferior courts in

In impugning the jurisdiction of the Supreme Court, respondent contends that the present case is not justiciable, because it involves a purely political question, the determination of which by the Senate is binding and conclusiveupon the court (Alejandrino vs. Quezon, 43 Phil., 83; Vera vs. Avelino, 77 Phil., 192) respondent has been recognized as acting President of the Senate by the President of the Philippines and said recognition is binding and conclusive on the courts (Barcelon vs. Baker, 5 Phil., 87; Severino vs. Governor-General, 16 Phil., 366); the Senate is the only body that can determine from time to time who shall be its President and petitioner's only recourse lies in said body; and this Court's action in entertaining the petition would constitute an invasion and an encroachment upon the powers, rights and prerogatives solely and exclusively appertaining to Congress, of which the Senate is a branch.

(1) All cases in which the constitutionality or validity of any treaty, law, ordinance or regulations is in question.

(2) All case involving the legality of any tax, impost, assessment, or toll, or any penalty imposed in relation thereto.

(3) All cases in which the jurisdiction of any trial court is in issue.

(4) All criminal cases in which the penalty imposed is death or life imprisonment.

Upon the conflicting claims of the parties as to the real events, this Court authorized the reception of evidence. Before passing to consider and to weigh said evidence so as to determine the true events, it is only logical that we should first pass upon the question of jurisdiction raised by respondent.

(5) All cases in which an error or question of law is involved.

In attacking the jurisdiction of the Supreme Court respondent alleges, as first ground, that the present controversy is not justiciable in nature, involving, as it does, a purely political question, the determination of which by the political agency concerned, the Senate, is binding and conclusive on the courts.

Because the legal questions raised in this case cannot be decided without decided also what is the truth on the controversial facts, by the very natureof things, the jurisdiction of the Supreme Court reached the settlement of the conflict claims as to the real events.

The contention is untenable. In the first place, it begs question. It assumes as premises that the question has been determined by the Senate, when the two opposing parties claim that each one of them represents the will of the Senate, and if the controversy should be allowed to remainunsettled, it would be impossible to determine who is right and who is wrong, and who really represent the Senate.

Respondent alleges that he has been recognized by the President of the Philippines as acting President of the Senate and that executive recognition is binding and conclusive on the courts. The contention is erroneous. The actions of the President of the Philippines cannot deprive the Supreme Court of the jurisdiction vested in it by the Constitution. If the Congress of the Philippines, in which the Legislature power is vested, cannot deprive the Supreme Court of its jurisdiction to decide questions of law, much less canthe president of the Philippines, on whom is vested the Executive power, which in the philosophical and political hierarchy is of subordinate category to the of the Legislative power, do so. The power to enact laws is higher than the power to execute them.

The third argument of argument of respondent, although based on truth, has nothing to do with the legal questions raised in this case. It is true that the Senate is the only body that can determine from time who is and shall be its President, but when the legal questions are raised in a litigation likein the present case, the proper court has the function, the province and the responsibility to decide them. To shirk that responsibility is to commit a dereliction of official duty.

of the Liberal Partyheld at Malacaang palace on January 15, 1949, delivered a speech,wherein he advocated the protection, or, at least, tolerance, of graft and corruption in the government, and placed the interest of grafters and corrupt officials as supreme and above the welfare of the people, doctrine under which it is impossible for an honest and clean governmentto exist;

WHEREAS, this speech of Senate President Jose Avelino was given wide publicity by the press, especially the Chronicle Publication in their issues of January 16 and 18, 1949, as follows: Finally, it is alleged that for this Court to entertain the petition, is invade and encroach upon the powers, rights and prerogatives solely and exclusively appertaining to the Legislative Department, of which the Senate is a branch. The contention is erroneous. The controversy as to thelegality of the adjournment declared by petitioner, of petitioner's ousters, as a result of the resolution declaring vacant the position of President of the Senate, or respondent's election as acting President of the Senate, and as to whether or not the twelve Senators who remained in the session hall could continue holding session and if they constitute quorum, are all legal question upon which courts of justice have jurisdiction and the SupremeCourt is the final arbiter.

The senate President defenses the abuses perpetrated by Liberal Party men. He called the investigations of the surplus property commission irregularities and the immigration quota scadal as acts of injustice he describe the probe as "criminal" and "odious." He flayed the National Bureau of Investigation agents for persecuting Liberal party leaders.

"We are not angels", he said. "When we die we all go to hell. It is better to be in hell because in that place are no investigations, no secretary of justice, no secretary of interior to go after us."

From the evidence, it appears that in the session of Friday, February 18, 1949, at the time the resolution of confidence in favor of petitioner, introduced by the Senator Lopez, was being put to vote, Senator Taada voted,Senator Taada voted in the negative, alleging as ground damaging facts, supported by several checks, highly detrimental to the personal and officialhonesty of petitioner. At the same time, Senator Taada announced his intention of filing in the next session, to be held on Monday, February 21, 1949, formal charges against petitioner and of delivering during the so-called privilege hour a speech in support of said charges.

Avelino, who is the present President of the Liberal party, ensured the President for his actuations which, he claimed, were mainly responsible for the division of the party into two hostile camps.

Avelino asked the President to "tolerate" if he could not "permit", the abuse of the party in power, because why should we be saints when in reality we are not?

On said Monday morning, hour before the opening of the ordinary daily session, Senator Taada and Sanidad registered with the Secretary of the Senate a resolution for the appointment of a Committee of three, composed of Senator Cuenco, Angeles David, and Mabanag, with instructed to proceed immediately to investigate the serious charges against petitioner embodiedin the document.

He stressed that the present investigation being conducted by President Quirino on the surplus property scandal and the immigration quota rackety has lowered the prestige of the Liberal Party in the eyes of the people, and is a desecration to the memory of the late President Manuel Roxas. "It is a crime against the Liberal Party", Avelino said.

Said resolution, marked as Exhibit 1 of the respondent's answer, is as follow:

RESOLUTION ORDERING THE INVESTIGATION OF CHARGES FILED AGAINST THE SENATE PRESIDENT, JOSE AVELINO.

Defining his attitude regarding rights and privileges of those who are in power in the government, Avelino maintained that the Liberal Party men are entitled to more considerations and should be given allowance to use the power and privilege. If they abuse their power as all humans are prone to do, they will be given a certain measure of tolerance, Avelino said, adding, "What are we in power for?"

WHEREAS, Senate President Jose Avelino, in a caucus of high government officials of the Philippines Government and leaders

Avelino cited the surplus property investigations as an attempt to besmear the memory of Presidential Roxas. As a result of these investigations, the members of Congress are subjected to unjust and embarrassing questioning by NBI, Avelino said. And

what is worse is the fact that these senators and representatives are being pilloried in public without formal charges filed against them. (Manila Chronicle issue of Jan. 16, 1949).

At last Saturday night's caucus Senate President Avelino for two hours lectured to President Quirino on Liberal Party discipline. At the same time he demanded "tolerance" on the part of the Chief Executive by the party in power.

Avelino compared all political parties to business corporations, of which all members are stockholders. Every year the Liberal Party makes an accounting of its loss profit. The Liberal Party, he said, has practically no dividends at all. It has lost even its original capital. Then he mentionedthe appointments to the government of Nacionalistas like: Lino Castillejo,as governor of the Reconstruction Finance Corporation, Nicanor Carag, consulto Madrid; and Vicente Formoso, General Manager of the National Tabacco Corporation."(Manila Chronicle issue of January 18, 1949.).

The investigations were conducted on vague charges, Avelino claimed. Nothing specific has teen filed against atop Liberal Party man. And yet National Bureau of Investigation agents have persecuted top leader of the LiberalParty. That is not justice. That is injustice. . . . It isodious. . . . It is criminal.

WHEREAS, after the first publication of the said speech in the Manila Chronicle issue of January 16, 1949, the Senate President, in a letter to the said news report was a "maliciously distorted presentation of my remarks at that caucus, under a tendentious headlines", and threatened that "unless the proper redness is given to me, therefore, I shall feel compelled to take the necessary steps to protect my reputation and good name";

Why did you have to order an investigation Honorable Mr. President? If you cannot permit abuses, you must at leasttolerate them. What are we in power for? We are not hypocrites. Why should we pretend to be saints when in realitywe are not? We are not angels. And besides when we die we all go to hell. Anyway, it is preferable to go to hell wherethere are no investigations, no Secretary of Justice, no Secretary of Interior to go after us.

WHEREAS, the Chronicle Publication not only refuse to retract or make the rectification demanded by the Senate President, but on the contrary, in their issue of January 18, 1949, challenged him to take his threatened action, stating that "in order to est abolished the truth, we are inviting the Senate President to file a libel suit against the Chronicle" and further repeated the publication of their reports on the Senate President speech in the same issue of January 18, 1949 as quoted above;

When Jesus died on the Cross. He made a distinction between a good crook and the bad crooks. We can prepare to be good crooks.

Avelino related the story of St. Francis of Assisi. Athief sought sanctuary in St. Francis' convent. When thesoldiers came to the convent and ordered St. Francis to produce the wanted thief, St. Francis told the soldiers that thehunted man had gone the other way.

WHEREAS, notwithstanding in the considerable length of time that has elapsed, the Senate President has not carried out his threat of filing action against the Chronicle Publication, thereby confirming, in effect, his doctrine of tolerance of graft and corruption;

Avelino then pointed out that even a saint had condoned the sins of a thief.

WHEREAS, in open and public session of the Senate on February 18, 1949, there were exhibited photostatic copies of four checks totalling P566,405.60, which appears to have come into the possession and control of the Senate President, after he had assumed his office;

xxx

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The investigation ordered by President Quirino, Avelino said, was a desecration of the memory of the late President Roxas. The probe has lowered, instead of enhanced, the prestige of the Liberal Party and its leader in the eyes of the public.

WHEREAS, the first of the aforesaid check, which is Manager's Check No. M5375 of the National City Bank of the National City Bank of New York, drawn on September 24, 1946, in favor of the Senate President in the amount of P312,500.00, was indorsed by him to his wife, Mrs. Enriqueta C. Avelino, who deposited it in her current account with the Philippine National Bank on October 26, 1946;

If the present administration fails, it is Roxas and not Quirino that suffers by it, because Quirino's administration is only a continuation of Roxas, Avelino said.

WHEREAS, the second of the aforesaid checks, which is Manager's Check No. 49706 of the Nederlands Indische Handelsbank, drawn on October 21, 1946, in favor of the Senate President in the amount of P196,905.60, was indorsedby him to his son, Mr. Jose Avelino, Jr., who cashed it October 22, 1946;

WHEREAS, the third of the aforesaid checks, which is Check No. 37262 of the Nederlandsch Indische Handelsbank, drawn on October 23,1946 by Chung Liu Ching Long & Co., Ltd., a Chinese concern, in favor of "cash", in the amount of P10,000.00, was indorsed by the Senate President to his wife, Mrs. Enriqueta C. Avelino, who deposited it in her Saving Account No. 63436 with the Philippines National Bank on October 26, 1946;

WHEREAS, in his said speech of February 18, 1949, the Senate President said that "en politica todo vale", and that inasmuch as the Nacionalistas were prone to commit frauds, it was right for the Liberals to commit frauds in the electionsto even up with frauds committed by the opposition;

WHEREAS, the said speech of February 18, 1949 delivered by the SEnate President justified the commission of electoral frauds, which justification is a direct attack on the sovereignty of the people and may be a cause of unrest or resolution;

WHEREAS, the fourth of the aforesaid checks, which is Check No. 37268 of the Nederlandsch Indische Handelsbank, drawn by the aforementioned Chinese concern, Chiung Liu Ching Long and Co., Ltd., in the amount of P47,500.00 in favor of the Senate President, was indorsed by him to his wife, Mrs. Enriqueta C. Avelino, who deposited it in her current account with the Philippines National Bank on October 26, 1946;

WHEREAS, the senate President, as ex-officio Chairman of the Commission on Appointments which passes upon all Presidential appointment, including thoseto the judiciary, has abused the prerogatives of his office by seeking in several instances to interfere with and influence some judge in decidingcase pending before, thereby imperilling the independence of the judiciaryand jeopardizing the impartial administration of justice;

WHEREAS, of the four checks aforementioned, the one for P196,905.60 was cashed by the Senate President's son, Jose Avelino, Jr., on October 22, 1946; while of the three other checks totalling P370,000.00 which was deposited by the Senate President's wife, Mrs. Enriqueta C. Avelino, in her saving and current accounts with the Philippines National Bank on October 26, 1946, P325,000.00 were withdraw by her on same day;

WHEREAS, the honor, dignity and prestige of the people and of the membersof the Senate demand a through, impartial and immediate investigation of allforegoing; Now, therefore,

WHEREAS, in the course of the speech delivered by the Senate President on the floor of the Senate on February 18, 1946, in an attempt to explain the foregoing checks, he refused to be interpolated on the same, and his explanation lacked such details and definiteness that it left many doubts unsettled;

1 Be it resolved, To appoint, as they are hereby appointed 2 com 3 who Committee of three (3) members of this Senate, to be

posed of Senator Cuenco, Angeles David and Mabanag,

WHEREAS, in the case of the check for P312,500.00 the Senate President explanation that the same represented proceeds from the sale of surplus beer to cover party obligation is directly contradicted by the source of the same, Ching Ban Yek, who declared under oath before the Horilleno Investigating Committee that the said sum of P312,500.00 had been loaned byhim to the Senate President, who repaid the same within ten days;

4 shall immediately proceed to investigate the charges mentioned 5 above, with full powers to compel the attendance of witnesses 6 and the production of books of account, documents, and other 7 evidence, and to utilized the facilities and the services of such

WHEREAS, it appears that during the period from December 29, 1945 to April 30, 1948, deposits totalling P803,865.45 were made in the current account of the Senate President's wife Mrs. Enriqueta C. Avelino, in the Philippine National Bank, of which amount P6,204.86 were deposited before his election to office and the sum of P797,660.59 was deposited after his election;

8 personnel of this Senate as it may deem necessary, with in 9 the 10 structions to render its report and recommendations to

Senate on or before Friday, February 25, 1949.

WHEREAS, the tax returns of the Senate President do not bear explanation madein his speech of February 18, 1949 to the effect that he and his wife had made substantial amounts in commercial transaction in shoes and liquor;

Adopted, February 21, 1949.

Although a sufficient number of Senators to constitute quorum were already present in said morning at and before 10:00 o'clock, the schedule time for the daily session to begin, the session was not then opened, because petitioner failed to appear in the hall until about 11:35, the time petitioner ascended the rostrum where, instead of calling the meeting to order, he asked for a copy of the resolution introduced by the Senators Taada and Sanidad and, after reading it slowly, he called to his side Senators Angeles David and Tirona and conferred with them.

President Pro-tempore of the SEnate, ascended the rostrum,and called those Senators present to order. Senator Mabanag raised the question of quorum and the question of quorum and the President Pro-tempore ordered a roll call, to which all the twelve Senators remaining in the sessionhall answered.

Only after the insistent requests of Senators Sanidad and Cuenco that thesession be opened, that petitioner called the meeting to order shortly before 12:00 o'clock noon.

Senator Sanidad moved that the roll call be dispensed with. Senator Tirona opposed the motion and the roll call showed the presence of the following twenty two Senators: Vicente J. Francisco, Fernando Lopez, Emiliano TriaTirona, Pablo Angeles David, Salipada Pendatun, Ramon Torres, Enrique Magalona, Carlos Tan, Olegario Clarin, Melencio Arranz, Mariano Jesus Cuenco, Prospero Sanidad, Lorenzo Taada, Vicente Madrigal, Geronima Pecson,Camilo Osias, Carlos Garcia, Ramon Diokno, Jose Vera, Tomas Cabili, Alejo Manag and Jose Avelino.

The President Pro-tempore declared the presence of quorum and those presentproceeded to continue transacting business. Senator Cabili took an made it of record that the deliberate abandonment of the Chair by petitioner made it incumbent upon the Senate President Pro-tempore and those remainingmembers of the Senate to continue the session in order not to impede and paralyze the functions of the Senate. Senator Arranz suggested that respondent be designated to preside over the session and the suggestion was carried unanimously and respondent took the Chair.

Senator Taada delivered his privilege speech, which took two hours on the charge against petitioner contained in Resolution No. 68, Exhibit "1", and moved for the immediate consideration and approval of said resolution, thecomplete text of which was read. The motion was seconded by Senator Sanidad, and the resolution was unanimously approved. Respondent yielded the Chair to the President Pro-tempore and Senator Sanidad introduced Resolution No.67, Exhibit "2", which read as follows:

Senator Sanidad again moved that the reading of the minutes be dispersed with, but the motion was again opposed by Senator Tirona whose opposition was joined by Senator Angeles David, and the reading of the minutes proceeded.

RESOLUTION DECLARING VACANT THE POSITION OF THE PRESIDENT OF THE SENATE AND DESIGNATING THE HONORABLE MARIANO JESUS CUENCO ACTING PRESIDENT OFTHE SENATE.

Senator Taada repeated took the floor to floor to claim his right to deliver his one-hour privilege speech in support of the charges against petitioner,pursuant to the announcement he made in the session of February 18, 1949; he did it before and after the roll call and the reading of the minutes. he wasignored by the Chair and petitioner announced that he would order the arrestof any Senator who speak without having been previously recognized by him.Senator Sanidad requested the Chair to recognized the right of Senator Taada to speak, and every time he would make the request, Senator Tirona would oppose him upon the ground that the requests were out of order.

Resolved by the Senate in session assembled, That a quorum exists; that the Honorable Jose Avelino, President of the Senate having abandoned the chair, his position is hereby declared vacant; and that, the Honorable Mariano JesusCuenco of Cebu, designated Acting President of the SEnate, until further orders from this Body.

Adopted, February 21, 1949.

Meanwhile, commotion and disorder took place in the Senate gallery. Shout were heard from individuals of the audience, where two fist fight took place. The detonation of a gun shot was heard from outside. Senator Angeles David, after being recognized by the Chair, moved for adjournment of the session. The motion was objected by Senator Cuenco who, at the same time, moved thatthe motion be submitted to vote. Petitioner, instead of submitting to vote the motion to adjourn, banged the gavel and declared the session adjourned until next Thursday, February 24, 1949, and, thereupon, left the session hall followed by the nine Senators (Vicente J. Francisco, Fernando Lopez, Emiliano Tria Tirona, Pablo Angeles David, Salipada Pendatun, Ramon Torres, Enrique Magalona, Carlos Tan, and Olegario Clarin), supporting him. Twelve SEnator, respondent and his eleven supporters, remained in the session hall. Senator Arranz,

The resolutions unanimously approved, with respondent abstaining from voting. Pursuant to said resolution, respondent took his oath of office inopen session before President ProTempore Arranz and has started, since then,to discharge the duties, rights and privileges of acting President of theSenate.

The above recital of facts is based on our findings on the evidence on record. From the said facts we believe the following conclusions are unavoidable.

1. The adjournment declared by petitioner was arbitrary and illegal.

2. After petitioner and the 9 Senators supporting him had walked out from the session hall, the Senate could not continue holding session and transact business for lack of quorum.

In the following discussion we will express the reasons in support of the above conclusions.

ILLEGAL ADJOURNMENT

We are inclined to consider respondent's version to be more in consonance with truth. We are of opinion that the motion to adjourn was actually objected to. Senator Taada was bent on delivering a speech he had ready onthe charges embodied in a resolution fathered by himself and by Senator Sanidad, which both filed early in the morning, long before the session was opened. The formulation of said charges had been announced days before,since the session of Friday, February 18, 1949, when he showed photostatic copies of some checks as basis of a part of the charges to be filed. In said Friday session respondent's group suffered defeat on the approval of the resolution of confidence fathered by Senator Lopez. And it is understandable that respondent's group of Senators, believing themselves to constitute the majority, did not want to waste any time to give a showing of said majority and must have decided to depose petitioner as soon as possible to wrestfrom him the Senate leadership that upon democratic principles rightly belongs to them.

A motion to adjourn has the highest precedence when a question is under debate and, with certain restriction, it has the highest privilege under all other conditions. Under parliamentary practice, even questions of privilege and the motion to reconsider yield to it. The motion to adjourn may be made after the "yeas'' and "nays" are ordered and before the roll call has begun, before reading of the journal. The motion is not debatable and, after the motion is made, neither another motion nor an appeal may intervene before the taking of the vote.

As a showing of eagerness to hurry up the unfolding events that would give them the control of the Senate, Senator Sanidad moved to dispense with the roll call and the reading of the minutes, and had been requesting that Senator Taada be recognized to take the floor. Senator Taada himself made attempts to deliver his speech.

The power to adjourn is one of the exclusive prerogatives of a legislative chamber. It cannot be exercised by any single individual, without usurpation of the collective prerogatives. It is too tremendous a power to be wieldedby a single individual. The functions of the Senate and its opportunity to transact official business cannot be left to the discretion of a single individual without jeopardizing the high purposes for which a legislative deliberative body is established in a democratic social order. Single-handedindividual discretion on the matter may not mean anything other than placing the legislative chamber under a unipersonal tyranny.

Evidently, petitioner and his supported decided to adopt a blocking strategyto obstruct the process that would give due course to the investigationof the serious charges made in resolution No. 68, Exhibit 1, and wouldeffect petitioner's ouster as President of the Senate.

There is no provision in the present rules of the Senate which expressly or impliedly authorizes an adjournment without the consent of the body or one which authorizes the presiding officer to decree motu proprio said adjournment, and the sound parliamentary practice and experience in thiscountry and in the United States of America, upon which ours is patterned, would not authorize the existence of such a provision.

This strategy is evidence by the belated appearance of petitioner and his supporters at the session hall and petitioner's procrastination in opening the session, by taking all his time in reading first the Taada and Sanidad resolution, formulating charges against him, and conferring with Senators Angeles David and Tirona and in not calling to order the members of the Senate before Senator's Cuenco and Sanidad began urging that the session beopened.

Petitioner alleges that he ordered the adjournment because the motion of Senator Angeles David to said effect was properly made and met with no objection. If this version of the facts is true, then it was right for petitioner to declare the adjournment, because the absence of anyobjection, provided the motion was properly made and the other Senators after having been properly apprised of the motion, did not object to it, was an evidence of an implied consent of all the members. The evidence, however, fails to support petitioner's claim.

Petitioner's allegation that, even without motion from any member, he could adjourn the session under the rules of the Senate, is not well taken. There is nothing in the rules of the Senate giving petitioner such authority. Theprovisions quoted in the petition authorizes the Senate President to take measures to stop disorder, but that power does not include the one to adjourn.

The circumstances lead us to the conclusion that illegal adjournment and the walk out of the petitioner and his supporters from the session hall had the purpose of defeating or, at least, delaying, action on the proposed investigation of the charges against petitioner and of his impedingouster, by the decisive votes of respondent's group of Senators.

The adjournment decreed by petitioner was arbitrary and illegal.

QUORUM

There is no controversy that at the session in question there were present in the session hall only twelve Senators, those composing respondent's group, and this fact had been ascertained by the roll call ordered by President Pro-tempore Arranz, after Senator Mabanag had raised the question of quorum.

The Constitution provides:

A majority of each House shall constitute a quorum to do business, but a smaller number may adjourn from day to day and may compel the attendance of absent Members in such manner and under such penalties as such House may provide. (Sec. 10, Sub-sec. 2 Article VI.)

The majority mentioned in the above provision cannot be other than the majority of the actual members of the Senate. The words "each House" in the above provision refer to the full membership of each chamber of Congress.

1. The legal and constitutional issues raised by the petitioner in this case, notwithstanding their political nature and implications, are justiciable and within the jurisdiction expressly conferred to the Supreme Court, which cannot be divested from it by express prohibition of the Constitution. Should there be analogous controversy between two claimants to the position of the President of the Philippines, according to the Solicitor General, one of the attorneys for respondent, the Supreme Court would have jurisdiction to decide the controversy, because it would raise a constitutional question. Whether there was a quorum or not in the meeting of twelve Senators in whichrespondent was elected acting President of the Senate, is a question that call for the interpretation, application and enforcement of an express and specific provision of the Constitution. Should the two absent Senators comeand attend the session and side with the petitioner's group, it is agreed that the Senate will be kept at a stand still, because of the deadlock resulting from twelve Senators, each group supporting petitioner's and respondent's opposing claims to the position of President of the Senate. Admitting that pressure of public opinion may not break the impasse, it hasbeen suggested from respondent's side that it may invite revolution. Between the two alternatives, jurisdiction of the Supreme Court and revolution, there is only one choice possible, and that is the one in consonance with the Constitution, which is complete enough to offer orderly remedies for any wrong committed within the framework of democracy it established in this country. Should this Supreme Court refuse to exercise jurisdiction in this case,such refusal can only be branded as judicial abdication, and such shirking of official responsibility cannot expect acquittal in the judgment of history. The gravity of the issues involved in this case, affecting not only the upper branch of Congress, but also the presidential succession as provided by Republic Act No. 181, is a challenge to our sense of duty which we should not fail to meet.

The Senate was and actually is composed of 24 Senators, and a majority of them cannot be less than thirteen. Twelve is only half of twenty-four. Nowhere and at no time has one-half even been the majority. Majority necessarily has to be more than onehalf.

2. The adjournment decreed by petitioner of the Monday session, without the authority of the Senate, was illegal and, therefore, null and void.

We have heard with interest the arguments advanced by respondent's counsel, premised on the fact that the above constitutional provision does not use the words "of the members" and the theory of the amicus curiae that themajority mentioned in the Constitution refers only to the majority of the members who can be reached by coercive processes. There is, however, nothing in said arguments that can validly change the natural interpretation of theunmistakable wordings of the Constitution. "Majority of each House" can mean only majority of the members of each House, and the number of said members cannot be reduced upon any artificial or imaginary basis not authorized by the context of the Constitution itself or by the sound processes of reason.

3. The rump session held by twelve Senators, the respondent and his supporters, after petitioner and his nine supporters had walked out from the session hall, had no constitutional quorum to transact business.

4. The resolution declaring vacant the position of the President of the Senate and choosing respondent as acting President of the Senate, has been adopted in contravention of the Constitution for lack of quorum. The fact that respondent has been designated only as acting President of the Senate, a position not contemplated by the Constitution or by Republic Act No. 181 on presidential succession, so much so that his position in acting capacity, according to his own counsel, would not entitle respondent to Succeedto the position of the President of the Philippines, emphasizes the invalidity of respondent's election.

For all the foregoing, we conclude that: Notwithstanding the importance of this case, the legal issues involved are very simple, and it would not be hard to reach a

prompt conclusion if we could view the controversies with the attitude of a mathematician tacklingan algebraic equation. Many considerations which, from the point of view of laymen, of the press, of public opinion in general and the people at large, may appear of great importance, such as who will wield the power to control the Senate and whether or not petitioner is guilty of the serious charges filed against him, are completely alien to the questions that this Court must answer. The motives and motivations of petitioner and respondent of their respective supporters in the Senate in taking the moves upon which this case has arisen are their exclusive business and should not be minded for the purposes of our decision.

The members of the Senate were and are free to depose petitioner and to elect another Senator as president of the Senate, and their freedom to make such change is subject only to the dictates of their own conscience and to anyverdict that the people, through the electorate, may render at the polls, and to the judgment of historians and posterity. But in making such changes of leadership, the Senate and the Senators are bound to follow the orderlyprocesses set and outlined by the Constitution and by the rules adopted by the Senate as authorized by the fundamental law. Any step beyond said legal bounds may create a legal issue which, once submitted to the proper courts of justice, the latter cannot simply wash their hands and ignore the issue upon the pretext of lack of jurisdiction, adopting the indifferent attitude of a passerby who does not care whether the lashing of the wind may causea live wire to ignite a neighboring house.

The existence of a quorum in a collective body is an indispensable condition for effective collective action. Because a society or collective body is composed of separate and independent individual units, it cannot exist without the moral annectent of proper of organization and can onlyact in organized form. Every time it has to act, it has to an organic whole, and quorum here is the organizing element without which the personality of the body cannot exist or be recognized. The importance of such organizing element has been recognize by the members of our Constitutional Convention, and that is the reason why they inserted in the Constitution the provision requiring the existence of quorum for the former National Assembly to transact official business and that requirement was also imposed by the National Assembly when, amending the Constitution, it voted itself out ofexistence, to be replaced by a bicameral Congress. The requirement, both in the original text of the Constitution and in the amendment, had been ratified by the sovereign will of the people.

When a Senator or a number of Senators come to the Supreme Court, complaining that the President of the Senate has adjourned or is adjourning the daily session of the Senate over and above objections voiced from thefloor and without obtaining first the approval or consent of the majority, we cannot close our eyes to the complaint or bury our heads in the sand in ostrich fashion: Otherwise, we would be disregarding ours sworn duty and,with our abstention or inaction, we would be printing the stamp of our approval to the existence and continuation of a unipersonal tyranny imposed upon the upper chamber of Congress, a tyranny that may obstruct and defeat the functioning and actuations of the Senate and, consequently, of the whole Congress, thus depriving the country of the benefits of legislation.

When we required a majority of a legislative chamber to constitute a quorum we did it for mighty reasons, such as that democracy is based on the rule of the majority and, to allow a quorum of less than the majority of the members, one-half of them for example, as in the present controversy, is to allow the anomalous and anarchic existence of two independent bodies where the Constitution provides for only one. If the twelve Senators of respondent's group constitute quorum to transact official business, what willpreclude the twelve remaining Senators from constituting themselves into a quorum to transact official business? This is not impossible, should Senator Sotto decide to attend the session, even if carried in a stretcher, and Senator Confesor returns from abroad and sides with petitioner's group. Then there will be, in effect, two Senate and, according to respondent's theory the Supreme Court will have no jurisdiction to decide the conflict, and noone decide it except public opinion or, in its failure, revolution. Such absurd situation and catastrophic result should be avoided:

Lack of jurisdiction is sometimes a refuge behind which weak courts may take shelter when afraid to displease the powerful.

When a member of the Senate comes to us complaining that he is being deprived of the powers and prerogative of the position of President of the Senate, to which he has been duly elected because twelve Senators, without constituting a quorum, have illegally convened and voted to depose him and to elect another Senator in his place, he raises a constitutional question of momentous importance which we should not fail to answer without betraying the official trust reposed on us. Such complaint constitutes, in effect, an accusation of usurpation of authority by the twelve Senators, in utter violation of the fundamental law. The situation would demand ready and noother agency of government can offer that remedy than the Supreme Court itself with whom the complaint has been filed.

Instead of disputing the jurisdiction of the Supreme Court in this case, everybody must congratulate himself because petitioner, instead of resorting to any high-handed mean to enforce his right to continue holding the positionof the President of the Senate, has come to us for proper redress by the orderly by the orderly processes of judicial settlement. Notwithstanding the fact that three year ago, he impugned the jurisdiction of the Supreme Court and won his case on that ground the injustice then committedagainst the suspended Senators Vera, Diokno and Romero now being more generally recognized petitioner came to this Court to submit his case to our jurisdiction.

The action taken by petitioner in filing his complaint with this Supreme Court is premised on this sharing the conviction that said Tribunal is the last bulwark of the rights and liberties of the people, the final arbiter on all constitutional conflicts, and the ultimate redoubt of the majesty of the law. That conviction and

faith should not be betrayed, but rather strengthened, and more imperatively nowadays when the majesty of the law, the basic tenets of the Constitution, the principles of humanity springing fromthe golden rule, which is the law of laws, are being the subject of bold onslaughts from many elements of society, bent on taking justice in their own hands or on imposing their will through fraud or violence. The malady is widespread enough to imperatively and urgently demand a more complete respect and faith in the effectiveness of our system of administration of justice.

believe is becoming of our official functions, disregarding completely what the President of the Philippines may say or feel about it.

For the Supreme Court to renounce its jurisdiction in this case is to disappoint the believers in a philosophy and social order based on constitutional processes and on legal juridical settlement of all conflicts that may beset a democracy. It has been said in the hearing of this case that for this Court to refuse cognizance of it may not have other alternative,if the pressure of public opinion may fail and by experience we know that it had suffered many failures than revolution. This immeasurable responsibilityof this Supreme Court if it should falter in the performance of its plain duty and should dispose of this case with the indifference with which a beach vacationist would dismiss a gust of wind.

As a matter of fact, two pretenders may dispute the office. As in the present case, Congress may split into two groups after a presidential election and each group may proclaim a different candidate as the duly elected Presidentof the Philippines. Because of a mistaken ideas to the scope of the principle of separation of powers, if the case is brought to us for decision, shall we, as Pontious Pilate, wash our hands and let the people bleed and be crucifiedin the Calvary of revolution?

There is absolutely no merit in invoking the unfortunate decision in the case of Vera vs. Avelino, (77 Phil., 1.92). No one now would regret more that such a decision had been rendered than petitioner himself, the very one whowon it upon the pusillanimous judicial theory of lack of jurisdiction. The more said decision is forgotten, the better, it being one of the blemishes without which the escutcheon of the post-liberation Supreme Court would be spotless.

The principle of separation of powers, so often invoked, to bind the hands of justice into futility, should not be understood as absolute. It is an apt rule of the tri-partite division of government as enunciated by Aristotle and further developed by Montequieu, as the best scheme to put in practice the system of check and balance considered necessary for a workable democracy. To make absolute that principle is to open the doors irretrievable absurdity and to create three separate governments within a government and three independent states within a state. Indeed, it is to avoid such a teratologiccreature that the Constitutional Convention had not inserted among the principles embodied in the fundamental law.

We vote to render judgment granting the petition and ordering respondent to relinquish the powers, prerogative and privileges of the position of the President of the Senate in favor of petitioner who, on the other side, should be restrained from putting any obstacle or obstruction by illegal adjournments or otherwise, in the holding of the, regular daily session of the Senate. Said body should be allowed to continue transacting official business unhampered by any procedure intended to impede the free expressionof the will of the majority.

BRIONES, M., dissente: Judicial determination of all constitutional or legal controversies is the inherent function of courts. The Constitution of the United States of America, unlike our own Constitution, is silent a to the power of courts of justice to nullify an unconstitutional act of Congress. Notwithstanding the silence, when the proper case arose, the United States Supreme Court, under the wise leadership of Chief Justice Marshall, had not hesitated in declaring null and void a law enacted in contravention of constitutional provisions. The Supreme Court of the Republic of the Philippines should not fail to match such and outstanding evidence of evidence of judicial statesmanship.

Sin perjuicio de redactar una opinion mas extensa sobre mi voto en ese asunto, me permito adelantar las siguientes observaciones:

To bolster the stand against our assumption of jurisdiction in this case the theory has been advanced that, the President of the Philippines having recognized respondent as a duly elected acting President of the Senate, that recognition is final and should bind this Court. The theory sprouts from the same ideology under which a former king of England tried to order Lord Coke how the latter should dispose of a pending litigation. Our answer is to paraphrase the great English judge by saying that nothing should guide us except what in conscience we

(1) Esta Corte Suprema tiene jurisdiccion sobre el asunto. Reafirmo la posicion tomada por mi en los asuntos de Vera contra Avelino (77 Phil., 192) y Mabanag contra Lopez Vito (78 Phil., 1). La cuestion constitutional y legal aqui debatida no es de caracter puramente politico en el sentido de que esta Corte deba inhibirse de enjuiciarla, sino que es perfectamente justiciable. Se plantea la cuestion de si el grupo de senadores que eligio al recurrido como presidente interino del Senado tenia facultad para hacerlo. Se alega y se sostiene que no existia dicha facultad, puesto que cuando dicho grupo se reunio no habia un quorum presente de conformidad con los terminos de la Constitucion y de los reglamentos del Senado. Esta cuestion es justiciable y puede y debe ser enjuiciada, determinada y resuelta por esta Corte, ya que la parte agraviada ha venido a nosotros en demanda de remedio. Esta Corte no puede lavarse las manos en

un ademan de inhibicion pilatista; no puede continuar con la politica de esconde-cabeza-en la arena-del-desierto estilo aveztruz. El issue constitucional y legal discutido es importante, muy importante. Tiene repercusiones directas y vitalisimas en la vida, libertad y hacienda de los ciudadanos. Es el negocio supremo de legislar lo que esta en debate. Es, por tanto, una de las esencias de la misma republica el tema de la controversia. La escaramuza politica es lo de menos; el meollo juridicoconstitucional es lo esencial e importante.

tenaz de algunos senadores adversos a el. En vista de esta oposicion, el deber de la Mesa era someter a votacion la mocion de levantamiento de la sesion presentada por el Senador Angeles David. Avelino no tenia el derecho, por si y ante si, de declarar levantada la sesion. Solamente cuando no se formula ninguna objection es cuando rutinariamente el presiding officer puede dar por aprobada una mocion de levantamiento de la sesion. Si la facultad de levantar la sesion no estuviera sujeta a la expresa voluntad de la mayoria, seria un arma sumamente peligrosa en manos de un presidente despotico y arbitrario.

Es tanto mas urgente que esta Corte asuma jurisdiccion sobre el caso cuanto que el conflicto surgido en el Senado entre los dos grupos politicos en guerra ha cobrado las proporciones de una tremenda crisis nacional, preada de graves peligros para la estabilidad de nuestras instituciones politicas, para el orden publico y para la integridad de la existencia de la nacion.

Tenemos un precedente tipico en la jurisprudencia del Estado de New Jersey, Estados Unidos de America. Es el caso de Werts vs. Rogers, del ao 1894, Atlantic Reporter, Vol. 28, p. 728, N. J. La analogia es completa. Tambien se disputaban la presidencia del Senado dos Senadores, cada cual pretendiendo ser al legitimo. Tambien hubo dos facciones, cada cual reclamando ostentar la genuina representacion popular. Un grupo se llamo "Adrian Senate" y el otro grupo "Rogers Senate", por los nombres de los presidentes en disputa. Se arguyo igualmente que la Corte Suprema de New Jersey no podia asumir jurisdiccion sobre el caso por tratarse de una cuestion eminentemente politica, por tanto no justiciable. La Corte, sin embargo, conocio del caso y, por boca de su Presidente el eminente jurisconsulto Mr. Beasley, hizo el siguiente categorico pronunciamiento:

La pretension de que el Senador Avelino ordeno el levantamiento de la sesion en uso de sus facultades inherentes, en vista de que el mismo creia que habia un peligro inminente de desorden y tumulto en la sala de sesiones, es completamente insostenible. Las circunstancias del caso no justifican semejante pretension, a tenor de las pruebas obrantes en autos. Lo que debia haber hecho el Senador Avelino era tratar de apaciguar al publico y prevenir todo conato de desorden. Tenia medios para hacerlo. No lo hizo. En cambio, dejo la silla presidencial juntamente con los senadores de su grupo. Esto equivalia a una desercion y los senadores del otro grupo tenian perfecto derecho a proceder como procedieron, quedandose en el salo para continuar celebrando la sesion. Esta sesion venia a ser una tacita reconduccion una simple prolongacion de la sesion que habia sido declarada abierta por el presidente Avelino con un quorum presente de 22 miembros.

. . . . That this court has the legal right to entertain jurisdiction in this case, displayed by this record, we have no doubt; and we are further of opinion that it is scarcely possible to conceive of any crisis in public affairs that would more imperatively than the present one call for the intervention of such judicial authority. (supra, p. 758.)

(3) Sin embargo, la sesion prolongada se convirtio en ilegal por falta de quorum. Es cosa establecida y admitida por ambas partes que al reanudarse la sesion estaban presentes los 12 miembros del grupo llamado "Senado de Cuenco" mas tres senadores del grupo llamado "Senado de Avelino". En esta coyuntura el Senador Mabanag, del grupo de Cuenco, suscito la cuestion del quorum, de cuyas resultas se ordeno por el Senador Arranz, que entonces presidia la sesion, la lectura de la lista. Tambien es cosa establecida en autos y admitida por ambas partes que al comenzar el roll call o lectura de la lista, lot tres senadores del grupo de Avelino salieron del salon y solamente respondieron al roll call los 12 senadores del grupo de Cuenco.

Ademas de la justiciabilidad de la materia en controversia, una de las principales razones invocadas por la Corte Suprema de New Jersey para asumir jurisdiccion sobre el caso fue la extrema necesidad de resolver un dead lock que paralizaba la maquinaria legislativa, afectaba a la estabilidad del gobierno y ponia en grave peligro los intereses publicos. Pregunto: no existe la misma razon de extrema necesidad en el presunto caso? que duda cabe de que el conflicto entre las dos facciones en nuestro Senado esta afectando seriamente a los intereses publicos? que duda cabe de que la normalidad constitucional esta rota, con grave preocupacion de todo el mundo y con grave dao de la tranquilidad publica?

(2) El levantamiento de la sesion ordenado por el presidente Avelino fue ilegal y arbitrario. Estimo que el presidente Avelino obro ilegal y arbitrariamente al ordenar el levantamiento de la sesion frente a la oposicion firme, energica y

Resulta evidente de estos hechos que no habia quorum, por cuanto que componiendose el Senado de 24 miembros debidamente elegidos y cualificados, el quorum para celebrar sesion valida debe ser de 13 miembros. Tanto la jurisprudencia federal como la de los estados de la Union americana esta repleta de decisiones en las que se ha sentado firmemente la doctrina de que la base para determinar el quorum legislativo es el numero total de miembros elegidos y debidamente cualificados de cada camara.1 En el presente caso, como se ha dicho, ese numero total es 24. Por tanto, el grupo Cuenco no podia seguir celebrando validamente sesion, en vista de la falta de quorum. De acuerdo con la Constitucion y los reglamentos, el grupo Cuenco tenia ante si dos caminos para actuar: (a) suspender la sesion de dia en dia hasta obtener el necesario quorum; (b) o compeler la asistencia de suficientes senadores del otro grupo para constituir dicho quorum, pudiendo a dicho efecto ordenar inclusive el arresto de los huelguistas. (Constitucion de Filipinas, art. VI, sec. 10, ap. 2;2 Reglamento del Senado, Cap. VI, arts. 23 y 24.3) Asi

que todos los procedimientos efectuados por el grupo Cuenco en dicha sesion eran nulos e ilegales.

Se ha insinuado que el cambio de fraseologia en el precepto constitucional sobre quorum es significativo. Efectivamente en el texto original de 1935 se decia lo siguiente: "A majority of all the Members shall constitute a quorum to do business" . . . , mientras que en el texto enmendado de 1940 se dice: "A majority of each House shall constitute a qurrum to do business" . . . . De esto se quiere deducir la consecuencia de que esta reforma habra sido por algo, y este algo acaso sea la posibilidad de una base menor de la totalidad de miembros para determinar la existencia de un quorum. El argumento, a mi juicio, es insostenible, por no llamarlo futil. Los autores de la enmienda no han hecho mas que copiar literalmente la fraseologia de la Constitucion federal americana; y ya hemos visto que esta se ha interpretado en el sentido de que seala, como base para determinar el quorum, la totalidad de los miembros electos y cualificados de cada camara. Por tanto, el cambio fraseologico, en vez de denotar cambio en el significado, refuerza el sentido tradicional de que la base para la determinacion del quorum la totalidad de los miembros electos y cualificados de cada camara. Aparte de que es elemental en hermeneutica legal que una misma cosa puede expresarse en terminos diferentes.

Hasta que esto se haga, el Senador Avelino es tecnicamente presidente del Senado. Es verdad que Avelino cometio una grave arbitrariedad ordenando el levantamiento de la sesion sin derecho y facultad para ello; pero una arbitrariedad no justifica otra arbitrariedad; la de destituirle por medios anticonstitucionales, ilegales y antireglamentarios. Los motivos de la accion de Avelino y de la de sus adversarios no nos interesan para nada ni caen dentro de nuestra provincia; lo unico que nos concierne son sus repercusiones juridicas.

Es de suma importancia, sobre todo en estos momentos incipientes de la republica, el que mantengamos rigida e implacablemente la integridad de la Constitucion y de los procedimientos que prescribe. Solo de esta manera podremos evitar el ciego desbordamiento de las pasiones politicas y personales, con todas sus funestas consecuencias. A toda costa hay que impedir la formacion de un clima politico, social o moral que facilite las cuarteladas, los pronunciamientos, los golpes de mano y de estado (coup d'main, coup d'etat) eso que caracteriza la historia azarosa de las llamadas "banana republicas". Un 19 Brumario solamente se puede prevenir imponiendo con todo rigor, sin blandas transigencias, la observancia de la Constitucion y de las leyes y reglamentos que la implementan.

Tambien se ha insinuado, con bastante ingenio, que en el caso que nos ocupa, la base mas racional para el quorum es 23, excluyendo al Senador Confesor que se halla en America, pero incluyendo al Senador Sotto, que si bien no pudo estar presente en la sesion de autos por estar gravemente enfermo, hallabase, sin embargo, en Manila susceptible en cualquier momento de ser llamado por el Senado. El fundamento de esta opinion es que para la determinacion del quorum no debe ser contado un miembro que esta fuera de la accion coercitiva de la camara. La proposicion es igualmente inaceptable. No solo no tiene ningun precedente en la jurisprudencia, sino que es convencional, arbitraria, sometiendo el quorum, que debe ser algo permanente, a ciertas eventualidades y contingencias. Hay que tener en cuenta que el precepto constitucional y la regla pertinente no establecen ninguna salvedad. Donde la ley no distingue, no debemos distinguir.

Voto, por tanto, en favor de la concesion del recurso interpuesto.

TUASON, J., dissenting:

I agree with Mr. Justice Briones' dissenting opinion, that the twelve senators who elected Senator Cuenco Acting President of the Senate did not constitute a quorum and, consequently, that his election was illegal.

(4) Cual es el remedio. No cabe duda de que una mayoria de Senadores tiene derecho a reorganizar el Senado en la forma que les plazca, siempre que ello se sujete a las normas prescritas por la Constitucion, las leyes y los reglamentos. En el presente caso el grupo Cuenco que al parecer forma la mayoria, por lo menos hasta la fecha, tiene en sus manos los instrumentos constitucionales y legales para efectuar una reorganizacion. Puede convocar una sesion y compeler la asistencia de un numero suficiente de Senadores para formar quorum, ordenando el arresto si fuese necesario de dichos senadores. Esto en el supuesto de que el Senador Avelino y su grupo sigan boicoteando las sesiones del Senado para impedir la existencia de un quorum. Pero si el grupo Avelino acude voluntariamente al Senado, entonces los dos grupos pueden buenamente restaurar la normalidad constitucional, procediendo a efectuar la reorganizacion que desee y dicte la mayoria.

It appears tome that the basis for computing a quorum of the Senate is thenumber of senators who have been elected and duly qualified and who have not ceased to be senators by death or legal disqualification. If this were not so, what is the standard of computation? No satisfactory, reasonable alternative has been or can be offered.

Absence abroad cannot be a disqualification unless by such absence, under the Constitution, a member of the Senate loses his office, emoluments, and other prerogatives, temporarily or permanently. There is no claim that this happens when a senators' presence at the session be the criterion, then serious illness or being in a remote island with which Manila has no regular means of communication should operate to eliminate the sick or absent members from the counting for the purpose of determining the presence of a majority.

The distinction made between absentees form legislative sessions who are in the Philippines and absentees who are in a foreign country is, to my arbitrary and unreasonable. From both the theoretical and the practical by members of Congress are sometimes found necessary to fulfill their missions. If we test the interpretation by its consequences, its unsoundness and dangers become more apparent. The interpretation would allow any number of legislators, no matter how small, to transact business so long as it is a majority of the legislators present in the country. Nothing in my opinion could have been farther from the minds of the authors of the Constitution than to permit, under circumstances, less than a majority of the chosen and qualified representatives of the people to approve measures that might vitally affect their lives, their liberty, happiness and property. The necessity of arresting absent members to complete a quorum is too insignificant, compared with the necessity of the attendance of an absolute majority, to make unamenability to arrest a factor for ruling out absentees who are beyond the legislature's process. The Congress is eminently a law-making body and is little concerned with jurisdiction over its members. The power to order arrest is an emergency measure and is rarely resorted to. Viewed in this light, it is doubtful if the authority to arrest could always afford a satisfactory remedy even in the cases of members who were inside the Philippines territory. This is especially true in the United States of America, after whose form of government ours is patterned and whose territorial possession extend to the other side of the globe.

government. Although this Court has no control over either branch of the Congress, it does have the power to ascertain whether or not one who pretends to be its officer is holding his office according to law or the Constitution. Political questions as a bar to jurisdiction can only be raised by the supreme power, by the legislature, and not by one of its creatures. (Luther vs. Border, 48 U.S. 7 How. 1, 12 Law ed., 581.) If there were two lesser officers of the Senate appointed by different faction thereof and contesting each other's right to the office, it would not be the Senate by the Court which would be called upon to decide the controversy. There is more reason for the Court to intervene when the office of the President of the Senate is at stake. The interest of the public are being greatly imperiled by the conflicting claims, and a speedy determination of the same is imperatively demanded, in the interest of good government and public order.

Fundamentally this case is analogous to Attorney General, ex rel. Werts vs. Rogers, 23 Lawyers' Reports, annotated, 354, to which I am indebted for much of the reasoning adduced in this dissent on the question of this Court's jurisdiction.

March 14, 1949

This case is easily distinguishable from Vera vs. Avelino, (77 Phil., 192), and Mabanag vs. Lopez Vito, (78 Phil., 1).

RESOLUTION

In those cases the petitions were directed against an action of a recognized Senate exercising authority within it own domain. Here the process sought is to be issued against an appointee of a senate that, it is alleged was not validly constituted to do business because, among other reasons alleged, there was not quorum. The Court is not asked to interfere with an action of a coordinate branch of the government so much as to test the legality of the appointment of the respondent.

Considering the motion for reconsideration filed by petitioner in case G.R. L-2821, Jose Avelino vs. Mariano J. Cuenco, the court, without prejudice towriting later an extended opinion, has resolved, by a majority of seven,to assume jurisdiction over the case in the light of subsequent events whichjustify its intervention; and, partly for the reasons stated in the first resolution of this Court and partly upon the grounds stated by Mr. JusticeFeria, Mr. Justice Perfecto, and Mr. Justice Briones in their separate opinions, to declare that there was a quorum at the session where respondent Mariano J. Cuenco was elected acting Senate President.

Section 1, Rule 68, of the Rules of Court provides: The Chief agrees with the result of the majority's pronouncement of the quorum upon the ground that, under the peculiar circumstances of the case,the constitutional requirement in that regard has become a mere formalism,it appearing from the evidence that any new session with a quorum wouldresult in the respondent's election as Senate President, and that the Cuenco group, taking cue from the dissenting opinions, has been trying to satisfy such formalism by issuing compulsory processes against senators of the Avelino group, but to no avail, because of the latter's persistent effortsto block all avenues to constitutional processes. For this reason, he believethat the group has done enough to satisfy the requirements of the Constitutionand that the majority's ruling is in conformity with substantial justice and with the requirements of public interest.

An action for usurpation of office of franchise may be brought in the name of the Republic of the Philippines against:

(a) A person who usurps, intrudes into, or unlawfully holds or exercise a public office, or a franchise, or an office in a corporation created by authority of law;

xxx

xxx

xxx

This provision by its terms extends to every office. Its scope does not exclude officers appointed by the legislative branch of the

The judgment of the Court is, therefore, that respondent Mariano J. Cuencohas been legally elected as Senate President and the petition is petition is dismissed, with costs against petitioner.

Mr. Justice Paras concurs in the result, Mr. Justice Bengzon dissents on the question of jurisdiction but concurs on the question of quorum.

separately, as required by Sec. 1, Art. XV, of the Constitution, since if the Members of Congress who were not allowed to take part had been counted, the affirmative votes in favor of the proposed amendment would have been short of the necessary three-fourths vote in either branch of Congress. Petitioners Mabanag et al. contended that the Court had jurisdiction and the respondents maintained the contrary on the ground that the question involved was apolitical one and within the exclusive province of the Legislature.

Mr. Justice Tuason concurs on the question of jurisdiction but dissents on that on that of quorum.

Mr. Justice Montemayor dissent s of the question of jurisdiction and reserves his vote on the question of quorum.

Mr. Justice Reyes reserves the right to express the reasons for his vote.

FERIA, J., concurring:

The theory of Separation of Powers as evolved by the Courts of last resortfrom the State Constitution of the United States of American, after which our owns is patterned, has given rise to the distinction between justiceable question which fall within the province of the judiciary, and politicalquestions which are not within the jurisdiction of the judiciary and are to be decided, under the Constitution, by the People in their sovereign capacity or in regard to which full discretionary authority has been delegated to the legislative or executive branch of the government, except to the extent that the power to deal with such question has been conferred upon the court byexpress or statutory provision. Although it is difficult to define a politicalquestion as contradistinguished from a justiceable one, it has been generally held that the first involves political rights which consist in the power to participate, directly or indirectly, in the establishment or managementof the government of the government, while justiceable questions are those which affect civil, personal or property rights accorded to every member of the community or nation.

In the case of Vera et al. vs. Avelino et al., (77 Phil., 192), the principal question raised was whether this Supreme Court had jurisdiction to set aside the Pendatun resolution ordering that petitioners Vera, Diokno and Romero shall not be sworn to nor seated as members of the Senate, and compel the respondents had no power to pass said resolution, because it was contraryto the provisions of Sec. 11, Article VI, of the Constitution, which createdthe Electoral Tribunal for the Senate as well as for the House of Representative, and provided that said Tribunal shall be judge of all contestsrelating to the election returns and qualifications of their respective members. Respondent Avelino et al., who were represented by Senator Vicente Francisco and the Solicitor General, impugned the jurisdiction of this Court to take this Court to take cognizance of said case on the ground that the question therein involved was a political question, and petitioners Veraet al., who were represented by Attorney Jose W. Diokno, who is now oneof the attorneys for respondents, who now contends that this Supreme Court has no jurisdiction over the present case, then maintained that this Court had jurisdiction.

Under such theory of Separation of Power, the judicial Supremacy is the power of judicial review in actual and appropriate case and controversies that present justiceable issues, which fall within the jurisdiction or power allocated to the judiciary; but when the issue is a political one which comeswithin the exclusive sphere of the legislative or executive department of the Government to decide, the judicial department or Supreme Court has no powerto determine whether or not the act of the Legislative or Chief Executiveis against the Constitution. What determines the jurisdiction of thecourts is the issue involved, and not the law or constitutional provisionwhich may be applied. Divorced from the remedy sought, the declaration of this Court on the matter of constitutionality or unconstitutionality of alegislative or executive act, would be a mere advisory opinion, without a coercive force.

And in the case of Mabanag et al. vs. Jose Lopez Vito et al., 78 Phil., 1, the question involved was whether it was within the jurisdiction of this Court to take cognizance of the case and prohibit the respondents from enforcing the "Congressional Resolution of both Houses proposing an amendment to the Philippines to be appended as an ordinance there", grantingcertain rights to the citizens of the United states of American in the Philippines, on the ground that it was null and void because it was not passedby the vote of three-fourths of the members of the Senate and House of Representatives, voting

Relying on the ruling laid down in Severino vs. Governor General, 16 Phil.,336; Abueno vs. Wood, 45 Phil., 612; and Alejandrino vs. Quezon, 46 Phil., 83, the Supreme Court upheld the contention of said respondent in both casesthat the question involved was a political question and therefore this Court had no jurisdiction. I was one of the three Justice who held that this Courthad jurisdiction, and dissented from the decision of the majority.

When the present case was first submitted to us, I concurred with the majority, in view of the ruling of the Court in said two

cases, which constitutes a precedent which is applicable a fortiori to the present case and must, therefore, be followed by the virtue of the doctrine or maxim of stare decisis, and in order to escape the criticism voiced by Lord Bryce inAmerican Commonwealth when he said that "The Supreme Court has changed its color i.e., its temper and tendencies, from time to time according to the political proclivities of the men who composed it. . . . Their action flowed naturally from the habits of though they had formed before their accession to the bench and from the sympathy they could not but feel for the doctrineon whose behalf they had contended." (The ANNALS of the American Academyof Political and Social Science, May, 1936, p. 50).

members of the SEnate at its session of February 21, 1949, were twenty-three (23) and therefore 12 constituted a majority.

Now that the petitioner, who obtained a ruling favorable to his contention in the Vera-Avelino case, supra, insist in his motion for reconsideration that this Court assume jurisdiction and decide whether or not there was quorum in session of the Senate of February 21, 1949, and is willing to abide by the decision of this Court (notwithstanding the aforementioned precedent),and several of the Justices, who have held before that this Supreme Courthad no jurisdiction, now uphold the jurisdiction of this Court, I gladly change my vote and concur with the majority in that this Court has jurisdiction over cases like the present in accordance with my stand inthe above mentioned cases, so as to establish in this country the judicial supremacy, with the Supreme Court as the final arbiter, to see that no one branch or agency of the government transcends the Constitution, not only in justiceable but political questions as well.

This conclusion is in consonance with the legislative and judicial precedent. In the Resolution of both Houses proposing an amendment of the Constitution of the Philippines to be appended to the Constitution, granting parity rightto American citizen in the Philippines out of which the case of Mabanag vs. Lopez, supra arose, both Houses of Congress in computing the three-fourths of all the members of the Senate and the House of Representative votingseparately, required by Sec. 1, Article XV of the Constitution, the three-fourths of all the members was based, not on the number fixed or provided for in the Constitution, but on the actual members who have qualifiedor were not disqualified. And in the case of People vs. Fuentes, 46 Phil., 22the provision of Sec. 1, subsection 2, of Act No. 3104, which requiredunanimity of vote of the Supreme Court in imposing death excepted from the court those members of the Court who were legally disqualified from the case, this Court held that the absence of the Chief Justice Avancea, authorized by resolution of the Court, was a legal disqualification, and his vote was not necessary in the determination of the unanimity of the decision imposing death penalty.

PABLO, J., concurrente:

But I maintain my opinion and vote in the resolution sought to be reconsidered,that there was a quorum in the session of the Senate of Senate of February 21,1949, for the following reasons:

Art. 3 (4) Title VI of the Constitution of 1935 provided that "the majority of all the members of the National Assembly constitute a quorum to do business" and the fact that said provision was amended in the Constitution of 1939,so as to read "a majority of each House shall constitute a quorum to do business," shows the intention of the framers of the Constitution to basethe majority, not on the number fixed or provided for the Constitution,but on actual members or incumbents, and this must be limited to actual members who are not incapacitated to discharge their duties by reason of death, incapacity, or absence from the jurisdiction of the house or forother causes which make attendance of the member concerned impossible, eventhrough coercive process which each house is empowered to issue to compel itsmembers to attend the session in order to constitute a quorum. That the amendment was intentional or made for some purpose, and not a mere oversight,or for considering the use of the words "of all the members" as unnecessary, is evidenced by the fact that Sec. 5 (5) Title VI of the original Constitution which required "concurrence of two-thirds of the members of the National Assembly to expel a member" was amended by Sec. 10 (3) Article VI of the present Constitutional, so as to require "the concurrence of two-thirds of all the members of each House". Therefore, as Senator Confesor was in the United States and absent from the jurisdiction of the Senate, the actual

Aungue los Sres. Magistrados Paras, Feria, Bengzon y yo, sosteniamos que este Tribunal no tenia jurisdiccion sobre el asunto porque era de naturaleza eminentemente politico, emitimos, sin embargo, nuestra opinion de que los doce senadores constituian quorum legal para tomar resoluciones. Desde luego, la opinion no surtio el efecto deseado. La huelga en el Senado continua. Los recientes acontecimientos pueden trascender a peores, con sus inevitables repercusiones dentro y fuera del pais. Cuando las pasiones politicas no van por el cauce de la prudencia pueden desbordase y causar fatales consecuencias. Es un sano estadismo judicial evirtarlo y, si es necesario, impedirlo.

El recurrente pide que se reconsideresa nuestra dividida opinion. alegando que las divisiones civiles en varias naciones han producido sangrientes luchas fratricidas. Si no tuviera en cuenta mas que la solitud original y los hechos probados, la mocion de reconsideracion debe ser denegada en cuanto a mi voto sobre la falta de jurisdiccion. La jurisdiccion no se confiere por la simple solicitud de una parte, ni por la anuencia de amas, sino por la ley o por la Constitucion.

La apelacion del recurrente de que este Tribunal asuma jurisdiccion para evitar derramamiento de sangre llega al corazon. Como magistrado, no deben importante las consecuencias; pero como ciudadano, me duele ver una lucha enconada entre dos grupos en el Senado sin fin practico. Al pueblo interesa que la Legislatura reanude su funcionamiento

normal. Fuerza es transigir, pues, para que haya seis votos que sostengan que este Tribunal tiene jurisdiccion. Si insisto en mi opinion anterior, fracasara todo esfuerzo de reajustre de nuestras opiniones para dar fin a la crisis en el Senado.

actions and movements provoking conflicts which invite bloodshed.

El Sr. Presidente del Tribunal y los Sres. Magistrados Perfecto y briones opinian hoy que hubo quorum en la continuacion de la sesion despues de la marcha del Senador Avelino y compaeros. Con ellos, ya hay siete votos que sostienen que las resoluciones votadas por los doce senadores son legales y validas. pero para dar fuerza legal a esta conclusion, es indispensable que el tribunal la declare con jurisdiccion. Contribuyo mi grando de arena a la feliz conclusion de un conflicto que esta minando el interes publico: voto hoy por que el Tribunal asuma jurisdiccion para dar fuerza a mi opinion anterior de que los doce senadores formaban quorum.

It is highly complimentary to our Republic and to our people that, notwithstanding the overflow of political passions and the irreconcilable attitude of warring factions, enough self-restraint has been shown to avoid any clash of forces. Indeed there is no denying that the situation, as abstaining in the upper chamber of congress, is highly explosive. It had echoed in the House of the Representatives. It has already involved in the House of the Representatives. It has already involved the President of the Philippines. The situation has created a veritable national crisis, and it is apparent that solution cannot be expected from any quarter other then this Supreme Court, upon which the quarter other than this Supreme Court, upon which the hopes of the people for an effective settlement are pinned.

De be denegarse la mocion de reconsideracion.

PERFECTO, J., concurring:

The problem of democracy must be faced not in the abstract but as practical question, as part of the infinitely motley aspects of human life. They cannot be considered as scientific propositions or hypothesis independently from the actual workings of the unpredictable flights of the spirit which seen to elude the known laws of the external world. Experience appears to be the only reliable guide in judging human conduct. Birth and death rates and incidence of illness are complied in statistics for the study and determination of human behavior, and statistics are one of the means by which the teaching may render their quota of contribution in finding the courses leading to the individual well-being and collective happiness.

The Avelino group, composed of eleven senators almost one-half of the entire body, are unanimous in belief that this Court should take jurisdiction of the matter and decide the merits of the case one way or another, and they are committed to abide by the decision regardless of whether they believe it to be right or mistaken. Among the members of the so-called Cuenco group, there are several Senators who in not remote past (see Vera vs. Avelino, 77 Phil., 192 and Mabanag vs. Lopez Vito, 78 Phil., 1) have shown their conviction that in cases analogous to the present the Supreme Court has and should exercise jurisdiction. If we include the former attitude of the senator who is at present abroad, we will find out that they are in all eighteen (18) senators who at one time or another recognized the jurisdiction of the Supreme Court for the settlement of such momentous controversies as the one now challenging our judicial statesmanship, our patriotism, our faith in democracy, the role of this Court as the last bulwark of the Constitution.

The way this case has been disposed of by the Supreme Court, upon the evidence coming from many quarters and sectors, is provenly far from being conducive to democratic eudaemonia. We intended to settle the controversy between petitioner and respondent, but actually we left hanging in the air the important and, indeed, vital questions. They posed before us in quest of enlightenment and reasonable and just in a quandary.

In the House of Representatives unmistakable statements have been made supporting the stand of the eighteen (18) senators, or of three-fourths (3/4) of the entire Upper Chamber, in support of the jurisdiction of the Supreme Court and of the contention that we should decide this case on the merits.

Judicial "hands-off" policy is, in effect, a showing of official inferiority complex. Consequently like its parallel in the psychological field, it is premised on notions of reality fundamentally wrong. It is an upshot of distorted past experience, warping the mind so as to become unable to have a healthy appraisal of reality in its true form.

We can take judicial notice that legislative work has been at a standstill; the normal and ordinary functioning of the Senate has been hampered by the non-attendance to sessions of about onehalf of the members; warrants of arrest have been issued, openly defied, and remained unexecuted like mere scraps of paper, notwithstanding the fact that the persons to be arrested are prominent persons with well-known addresses and residences and have been in daily contact with news reporters and photographers. Farce and mockery have been interspersed with

It is futile to invoke precedents in support of such an abnormal judicial abdication. The decision in the Alejandrino vs. Quezon, 46 Phil., 83, is absolutely devoid of any authority. It was rendered by a colonial Supreme Court to suit the imperialistic policies of the masters. That explains its glaring inconsistencies.

Also frivolous is to invoke the decision in Vera vs. Avelino, (77 Phil., 192), and Mabanag vs. Lopez Vito, (78 Phil., 1), both patterned after the colonial philosophy pervading the decision in Alejandrino vs. Quezon, (46 Phil., 83.) Judicial emancipation must not lag behind the political emancipation of our Republic. The judiciary ought to ripen into maturityif it has to be true to its role as spokesman of the collective conscience, of the conscience of humanity.

The word majority is a mathematical word. It has, as such, a precise and exactmathematical meaning. A majority means more than one-half (). It can neverbe identified with one-half () or less than one-half (). It involved acomparative idea in which the antithesis between more and less is etched in the background of reality as a metaphysical absolute as much as the antithesis of all opposites, and in the same way that the affirmative cannot be confused with the negative, the creation with nothingness, existence withnon-existence, truth with falsehood.

For the Supreme Court to refuse to assume jurisdiction in the case is toviolate the Constitution. Refusal to exercise the judicial power vested in it is to transgress the fundamental law. This case raises vital constitutionalquestions which no one can settle or decide if this Court should refuse to decide them. It would be the saddest commentary to the wisdom, foresight and statesmanship of our Constitutional Convention to have drafted a document leaving such a glaring hiatus in the organization of Philippine democracy ifit failed to entrusted to the Supreme Court the authority to decide such constitutional questions.

The Senate is composed of twelve four (24) senators. The majority of said senators cannot be less than thirteen (13). Twelve (12) do not constitute the majority in a group composed of twelve four (24) units. This is so evident that is not necessary to have the mathematical genius of Pythagoras, Euclid, Newton and Pascal to see it. Any elementary school student may immediately perceive it.

Our refusal to exercise jurisdiction in this case is as unjustifiable as the refusal of senators on strike to attend the sessions of the Senate and toperform their duties. A senatorial walkout defeats the legislative powervested by the Constitution in Congress. Judicial walkouts are even more harmful than a laborers' strike or a legislative impasse. Society may go on normally while laborers temporarily stop to work. Society may not be disrupted by delay in the legislative machinery. But society is menaced with dissolution in the absence of an effective administration of justice. Anarchy and chaos are its alternatives.

No amount of mental gymnastic or juristic logodaedaly will convince anyone that one of the two equal number constitute a majority part of the two numbers combined. The five (5) fingers of one hand cannot be the majorityof the combined ten (10) fingers of the two hands. Majority is incompatiblewith equality. It implies the idea of superiority.

There is nothing so subversive as official abdication or walkout by the highest organs and officers of government. If they should fail to perform their functions and duties, what is the use for minor officials and employeesto perform theirs? The constitutional question of quorum should not be leftunanswered.

Majority is a derivative of major which, in its turn, is a derivative of the Latin "magnus," meaning great. Majority means the greater of two numbers that are regarded as part of a total: the number greater than half. It implies a whole of which constitute the greater part or portion. It presupposes the existence of a total and, in the present case, the total number of twelve four (24) senators composing the Senate.

Respondent's theory that twelve (12) senators constitute the majority requiredfor the Senate quorum is absolutely unacceptable. The verbal changes made in the constitutional amendment, upon the creation of Congress to replace the National Assembly, have not affected the substance of the constitutional concept of quorum in both the original and amended contexts. The words "all the members" used in the original, for the determination of the quorum of the National Assembly, have been eliminated in the amendment, as regards the house of Congress, because they were a mere surplusage. The writer of this opinion, as Member of the Second National Assembly and in his capacity as Chairman of the Committee on Third Reading, was the one who proposed the elimination of said surplusage, because "majority of each House" can mean only the majority of the members thereof, without excluding anyone, that is, of all the members.

The above pronouncements notwithstanding, we are now inclined to conclude that for the purpose of choosing respondent merely as Acting of the Senate, asan emergency measure to fill the vacuum created by petitioner's desertion of the office of presiding officer by his walked in the session of February 21, 1949, the presence of the twelve (12) senators was enough quorum.

The Constitution provides:

(2) A majority of each House shall constitute a quorum to do business, but a smaller number may adjourn from day to day and may compel the attendance of absent members in such manner and under such penalties as such House may provide. (Sec. 10, Article VI.)

The "smaller number" referred to in the above provision has to act collectively and cannot act as collective body to perform the function specially vested in it by the Constitution unless

presided by one among theirnumber. The collective body constituted by said "smaller number" has to take measure to "compel the attendance of absent member in such manner and underpenalties as such House may provide," so as to avoid disruption in the functions of the respective legislative chamber. Said "smaller number" maybe twelve or even less than twelve senators to constitute a quorum for the election of a temporary or acting president, who will have to act until normalcy is restored.

fruitless if not farcical endeavor to compel them to attend the sessions?

As events have developed after the decision in this case has been rendered on March 4, 1949, the picture of the petitioner's attitude has acquired clearerand more definite form, and that picture brings us to the conclusion that thiscase turned into a moot one.

The events that have been unfolding before our eyes, played up everyday in screaming headlines in all newspapers and of which, by their very nature, we cannot fail to take judicial notice, considered, weighed and analyzed in relation with the happenings in the Friday and Monday sessions, February 18 and 21, 1949, have driven into our mind the conviction that, powers and prestige which command the position of President of the Senate, he actually has no earnest desire to preside over the sessions of the Senate, the most characteristic and important function of President of the Senate.

At the hearing of this case for the reception of evidence before Mr. Justice Bengzon, Senator Mariano J. Cuenco, the respondent, on cross-examination bySenator Vicente J. Francisco, counsel for petitioner, manifested that he waslooking for an opportunity to renounce the position of Acting President of the Senate, and that if Senator Jose Avelino, the petitioner, should attend the sessions. He would only make of record his protest, and never resort to force or violence to stop petitioner from presiding over said sessions.

His refusal to attend the sessions, notwithstanding respondent's commitment to allow him to preside over them, can and should logically be interpreted as an abandonment which entails forfeiture of office. (Santiago vs. Agustin, 46 Phil., 14; Ortiz vs. De Guzman, 49 Phil., 371; 46 Corpus Juris p. 980-981; Wilkinson vs. City of Birmingham, 68 So. 999; 43 American Jurisprudence p. 27).

The last statement as to allowing petitioner to preside over the sessions was made by respondent under oath twice, and petitioner, although he refused to attend the hearing of this case, so much so that, instead of testifying, he just signed an affidavit which, under the rules of procedure, is inadmissible as incompetent and is as valueless as an empty gesture, could not fail to learn about respondent's testimony, because it was given publicity, it is recorded in the transcript, and petitioner's counsel, Senator Francisco, would certainly not have failed to inform him about it.

What are petitioner's reasons for refusing to attend the Senate sessions? What are his group's reason? They say that they want a square decision on the merits of this case, for which reason the motion for reconsideration has been filed. Although we believe that the Supreme majority vote, to exercise jurisdiction in this case, and the inconsistency in the position taken by some Members of the majority has only increased public bewilderment, stronger reasons for petitioner and his group to sabotage the sessions of the Senate.

If this Court had decided this case as the four dissenters would have it, there cannot be any doubt that the Senate impasse would have been settled many days ago and, with it, the present national crisis hampering and armstringing the legislative machinery. .

Notwithstanding respondent's testimony, petitioner failed to take advantage of it and continues to refuse to attend the sessions of the Senate since he and his group of senators have walked out from the historic Monday session of February 21, 1949.

If petitioner is sincere in his desire of presiding over the sessions of the Senate, for which reason he has sought the help of the Supreme Court, why has he failed to take advantage of the commitment made under oath by respondent since February 26, 1949? Why has he, since then, been not only failing but refusing to attend the sessions and preside over them? Why is it that petitioner and his group of Senators have given occasion, in fact, compelled the senators of the Cuenco group to issue warrants of arrest to remedy the lack of quorum that has been hampering the sessions of the Senate? Why is it that the Senate sergeant-atarms, his subordinates and the peace officers helping him, have to be hunting for the senators of the Avelino group in a, so far,

The gravity of the situation cannot be gainsaid. The showings of open defiance to warrants of arrest are highly demoralizing. People are asking and wondering if senators are placed above the law that they can simply ignore warrants of arrest and despite the authority of the officers entrusted with the execution. Threats of violence pervade the air. Congress is neglecting the public interests that demand remedial legislation. The present state of confusion, of alarm, of bewilderment, of strife would have ended if, for the reasons we have stated in our dissenting opinion, the Supreme Court would have ordered petitioner's reposition.

Once petitioner had been recognized to continue to be the President of the Senate, he would certainly have attended the Senate sessions to preside over them. Then the sessions with senators of the Avelino group attending, would have been held

with the constitutional quorum. The twelve senators of the Cuenco group would have the opportunity of voting solidly to ratify or to reenact all the disputed actuations of the rump session of February 21, 1949, and there is no doubt that they would have succeeded in ousting petitioner and electing respondent to the position of President of the Senate.

ROMEO G. JALOSJOS, accused-appellant.

YNARES-SANTIAGO, J.:

Everything then would have followed the normal course. With the presence of a clear and unquestionable quorum, petitioner and his followers would have no ground for any complaint, and respondent could have assumed the Senate's presidency without any hitch.

This Court has declared that the state policy on the heinous offense of rape is clear and unmistakable. Under certain circumstances, some of them present in this case, the offender may be sentenced to a long period of confinement, or he may suffer death. The crime is an assault on human dignity. No legal system worthy of the name can afford to ignore the traumatic consequences for the unfortunate victim and grievous injury to the peace and good order of the community.1

Of course, petitioner and the senators of his group might have resorted again to the same strategy, by quorum the rump session of February 21, 1949, but it is not probable that they would have taken the same course of action after this Court, almost unanimously declared that petitioner's action in adjourning the session of February 21, 1949, was arbitrary and illegal. At any rate, the Senators of the Cuenco group would have been by then well prepared to have orders of arrest ready for immediate execution before the striking senators could leave the building housing the session hall.

Rape is particularly odious, one which figuratively scrapes the bottom of the barrel of moral depravity, when committed against a minor.2

In view of the intrinsic nature of the crime of rape where only two persons are usually involved, the testimony of the complainant is always scrutinized with extreme caution.3

The abnormal situation in the Senate must be stopped at once. Legislation must go on. The serious charges filed or may be filed against petitioner, respondent and other senators demand imperatively investigation and action to acquit the innocent and to punish the guilty ones. Public interest cannot demand less.

Under such circumstances, petitioner has lost all title to claim the position in controversy. This result will not legally or practically close any door for him to again seek the position by attending the sessions of the Senate and by securing a majority that would support him in his bid. The motion for reconsideration should be denied.

In the present case, there are certain particulars which impelled the court to devote an even more painstaking and meticulous examination of the facts on record and a similarly conscientious evaluation of the arguments of the parties. The victim of rape in this case is a minor below twelve (12) years of age. As narrated by her, the details of the rape are mesmerically sordid and repulsive. The victim was peddled for commercial sex by her own guardian whom she treated as a foster father. Because the complainant was a willing victim, the acts of rape were preceded by several acts of lasciviousness on distinctly separate occasions. The accused is also a most unlikely rapist. He is a member of Congress. Inspite of his having been charged and convicted by the trial court for statutory rape, his constituents liked him so much that they knowingly re-elected him to his congressional office, the duties of which he could not perform.

Republic of the Philippines SUPREME COURT Manila

EN BANC

G.R. Nos. 132875-76

November 16, 2001

Statutory rape committed by a distinguished Congressman on an eleven (11) year old commercial sex worker is bound to attract widespread media and public attention. In the words of accusedappellant, "he has been demonized in the press most unfairly, his image transmogrified into that of a dastardly, ogre, out to get his slimy hands on innocent and nave girls to satiate his lustful desires."4 This Court, therefore, punctiliously considered accused-appellants claim that he suffered "invidiously discriminatory treatment." Regarding the above allegation, the Court has ascertained that the extensive publicity generated by the case did not result in a mistrial; the records show that the accused had ample and free opportunity to adduce his defenses.

PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs.

This is an appeal from the decision5 of the Regional Trial Court of Makati, Branch 62, in Criminal Case Nos. 96-1985 and 961986, convicting accused-appellant Romeo Jalosjos of two (2)

counts of statutory rape, and in Criminal Case Nos. 96-1987, 961988, 96-1989, 96-1990, 96-1992, and 96-1993, for six (6) counts of acts of lasciviousness defined and penalized under Article 336 of the Revised Penal Code, in relation to Section 5(b) of Republic Act No. 7610, also known as the Child Abuse Law.

eleven year old minor Rosilyn Delantar against her will, with damage and prejudice.

CONTRARY TO LAW.7

There were six (6) other cases, Criminal Case Nos. 96-1991, 961994, 96-1995, 96-1996, 96-1997, and 96-1998, where the accused-appellant was acquitted of the charges of acts of lasciviousness for failure of the prosecution to prove his guilt beyond reasonable doubt.

For acts of lasciviousness, the informations8 under which accused-appellant was convicted were identical except for the different dates of commission on June 14, 1996; June 15, 1996; June 16, 1996; June 20, 1996; June 21, 1996; and June 22, 1996, to wit:

On December 16, 1996, two (2) informations for the crime of statutory rape; and twelve (12) for acts of lasciviousness defined and penalized under Article 336 of the Revised Penal Code, in relation to Section 5(b) of Republic Act No. 7610, were filed against accused-appellant. The accusatory portion of said informations for the crime of statutory rape state:

The undersigned, upon prior sworn complaint by the offended party, eleven (11)-year old minor ROSILYN DELANTAR accuses ROMEO JALOSJOS of the crime of ACTS OF LASCIVIOUSNESS in relation to Section 5 (b), Article III of Republic Act No. 7610, otherwise known as the Special Protection of Children against Abuse, Exploitation and Discrimination Act, committed as follows:

In Criminal Case No. 96-1985: That in the evening of June 14, 1996, or thereabout, in Room No. 1702, Ritz Towers, Makati City, Metro-Manila and within the jurisdiction of this Honorable Court, the above-named accused, with lewd design, did then and there wilfully, unlawfully and feloniously kiss, caress and fondle said complainant's face, lips, neck, breasts, whole body, and vagina, suck her nipples and insert his finger and then his tongue into her vagina, place himself on top of her, then insert his penis in between her thighs until ejaculation, and other similar lascivious conduct against her will, to her damage and prejudice.

The undersigned, upon prior sworn complaint by the offended party, eleven (11) year old minor ROSILYN DELANTAR, accuses ROMEO JALOSJOS of the crime of RAPE defined and penalized under Art. 335 (3) of the Revised Penal Code, committed as follows:

That on or about June 18, 1996 at Room No.1702, Ritz Towers, Makati City, and within the jurisdiction of this Honorable Court, the above-named accused, did then and there willfully, unlawfully and feloniously have carnal knowledge with (sic) eleven year old minor Rosilyn Delantar against her will, with damage and prejudice.

CONTRARY TO LAW.

CONTRARY TO LAW.6

In Criminal Cases Nos. 96-1988; 96-1990; and 96-1993, there were added averments that on the different dates, the accused gave the complainant P10,000.00, P5,000.00 and P5,000.00 respectively.

In Criminal Case No. 96-1986: Upon arraignment on January 29, 1997, accused-appellant refused to enter a plea. Hence, the trial court entered a plea of not guilty for him. At the trial, the prosecution presented eight (8) main witnesses and seven (7) rebuttal witnesses as well as documentary evidences marked as Exhibits A to EEEE, inclusive of submarkings. The defense, on the other hand presented twenty-six (26) witnesses. Its documentary evidence consists of Exhibits 1 to 153, inclusive of submarkings. The records of the case are extremely voluminous.

The undersigned, upon prior sworn complaint by the offended party, eleven (11) year old minor ROSILYN DELANTAR, accuses ROMEO JALOSJOS of the crime of RAPE defined and penalized under Art. 335 (3) of the Revised Penal Code, committed as follows:

That on or about June 20, 1996 at Room No. 1702, Ritz Towers, Makati City, and within the jurisdiction of this Honorable Court, the above-named accused, did then and there willfully, unlawfully and feloniously have carnal knowledge with (sic)

The Peoples version of the facts, culled mainly from the testimony of the victim, are as follows:

Maria Rosilyn Delantar was a slim, eleven-year old lass with long, straight black hair and almond-shaped black eyes. She grew up in a two-storey apartment in Pasay City under the care of Simplicio Delantar, whom she treated as her own father. Simplicio was a fifty-six year old homosexual whose ostensible source of income was selling longganiza and tocino and accepting boarders at his house. On the side, he was also engaged in the skin trade as a pimp.

Rosilyn left. As they were walking towards the elevator, accused-appellant approached them and gave Rosilyn P3,000.00.

Rosilyn never got to see her mother, though she had known a younger brother, Shandro, who was also under the care of Simplicio. At a very young age of 5, fair and smoothcomplexioned Rosilyn was exposed by Simplicio to his illicit activities. She and her brother would tag along with Simplicio whenever he delivered prostitutes to his clients. When she turned 9, Rosilyn was offered by Simplicio as a prostitute to an Arabian national known as Mr. Hammond. Thus begun her ordeal as one of the girls sold by Simplicio for sexual favors.

On June 14, 1996, at about 8:30 to 9:00 p.m., Simplicio and Rosilyn returned to accused-appellants condominium unit at Ritz Towers. When accused-appellant came out of his bedroom, Simplicio told Rosilyn to go inside the bedroom, while he and accused-appellant stayed outside. After a while, accusedappellant entered the bedroom and found Rosilyn watching television. He walked towards Rosilyn and kissed her on the lips, then left the room again. Simplicio came in and bid her goodbye. Rosilyn told Simplicio that accused-appellant kissed her to which Simplicio replied, "Halik lang naman."

Rosilyn first met accused-appellant, Romeo Jalosjos, sometime in February 1996 at his office located near Robinsons Galleria. Rosilyn and Simplicio were brought there and introduced by a talent manager by the name of Eduardo Suarez. Accusedappellant promised to help Rosilyn become an actress. When he saw Rosilyn, accused-appellant asked how old she was. Simplicio answered, "10. She is going to be 11 on May 11." Accused-appellant inquired if Rosilyn knows how to sing. Simplicio told Rosilyn to sing, so she sang the song, "Tell Me You Love Me." Accused-appellant then asked if Rosilyn has nice legs and then raised her skirt up to the mid-thighs. He asked if she was already menstruating, and Simplicio said yes. Accusedappellant further inquired if Rosilyn already had breasts. When nobody answered, accused-appellant cupped Rosilyns left breast. Thereafter, accused-appellant assured them that he would help Rosilyn become an actress as he was one of the producers of the TV programs, "Valiente" and "Eat Bulaga."

Rosilyn was left alone in the bedroom watching television. After some time, accused-appellant came in and entered the bathroom. He came out clad in a long white T-shirt on which was printed the word, "Dakak." In his hand was a plain white Tshirt. Accused-appellant told Rosilyn that he wanted to change her clothes. Rosilyn protested and told accused-appellant that she can do it herself, but accused-appellant answered, "Daddy mo naman ako." Accused-appellant then took off Rosilyns blouse and skirt. When he was about to take off her panties, Rosilyn said, "Huwag po." Again, accused-appellant told her, "After all, I am your Daddy." Accused-appellant then removed her panties and dressed her with the long white T-shirt.

The two of them watched television in bed. After sometime, accused-appellant turned off the lamp and the television. He turned to Rosilyn and kissed her lips. He then raised her shirt, touched her breasts and inserted his finger into her vagina. Rosilyn felt pain and cried out, "Tama na po." Accused-appellant stopped. He continued to kiss her lips and fondle her breasts. Later, accused-appellant told Rosilyn to sleep.

Simplicio and Suarez then discussed the execution of a contract for Rosilyns movie career. Accused-appellant, on the other hand, said that he would adopt Rosilyn and that the latter would have to live with him in his condominium at the Ritz Towers. Before Simplicio and Rosilyn went home, accused-appellant gave Rosilyn P2,000.00.

The following morning, Rosilyn was awakened by accusedappellant whom she found bent over and kissing her. He told her to get up, took her hand and led her to the bathroom. He removed Rosilyns shirt and gave her a bath. While accusedappellant rubbed soap all over Rosilyns body, he caressed her breasts and inserted his finger into her vagina. After that, he rinsed her body, dried her with a towel and applied lotion on her arms and legs. Then, he dried her hair and told her to dress up. Rosilyn put on her clothes and went out of the bathroom, while accused-appellant took a shower.

The second time Rosilyn met accused-appellant was at his condominium unit, located at Room 1702, Ritz Towers, Makati City. Accused-appellant and Simplicio discussed the contract and his plan to finance Rosilyns studies. Accused-appellant gave Simplicio P500.00, thereafter, Rosilyn, Shandro and Simplicio left.

The third meeting between Rosilyn and accused-appellant was also at Ritz Towers to discuss her acting career. Accusedappellant referred the preparation of Rosilyns contract to his lawyer, who was also present. After the meeting, Simplicio and

Accused-appellant ate breakfast while Rosilyn stayed in the bedroom watching television. When accused-appellant entered the room, he knelt in front of her, removed her panties and placed her legs on his shoulders. Then, he placed his tongue on her vagina. Thereafter, he gave Rosilyn P10,000.00 and told his housemaid to take her shopping at Shoemart. When she returned to the Ritz Towers, Simplicio was waiting for her. The two of them went home. Rosilyn narrated to Simplicio what accused-appellant did to her, and pleaded for him not to bring her back to the Ritz Towers. Simplicio told her that everything

was alright as long as accused-appellant does not have sexual intercourse with her.

between Rosilyns thighs, and made thrusting motions until he ejaculated. Thereafter, Rosilyn went to sleep.

That same evening, at around 9:00 to 9:30 in the evening, Simplicio again brought Rosilyn to the Ritz Towers. After Simplicio left, accused-appellant removed Rosilyns clothes and dressed her with the same long T-shirt. They watched television for a while, then accused-appellant sat beside Rosilyn and kissed her on the lips. He made Rosilyn lie down, lifted her shirt above her breasts, and inserted his finger into her vagina. Then, accused-appellant removed his own clothes, placed his penis between Rosilyns thighs and made thrusting motions until he ejaculated on her thighs. Thereafter, accused-appellant kissed her and told her to sleep.

The next day, June 22, 1996, Rosilyn was awakened by accusedappellant who was kissing her and fondling her sex organ. She, however, ignored him and went back to sleep. When she woke up, she found the P5,000.00 which accused-appellant left and gave the same to Simplicio Delantar, when the latter came to pick her up.

The next day, June 16, 1996, accused-appellant roused her from sleep and bathed her. Again, he rubbed soap all over her body, washed her hair, and thereafter rinsed her body and dried her hair. While accused-appellant was bathing Rosilyn, he asked her to fondle his penis while he caressed her breasts and inserted his finger into her vagina. After their shower, accused-appellant ate breakfast. He gave Rosilyn P5,000.00 and told her to just wait for Simplicio in the condominium unit. On their way home, Simplicio told Rosilyn that if accused-appellant tries to insert his penis into her vagina, she should refuse.

On June 29, 1996, Rosilyn again went to the Ritz Towers. During that visit, accused-appellant took photographs of Rosilyn. He asked her to pose with her T-shirt pulled down thereby exposing her breasts. He also took her photographs with her T-shirt rolled up to the pelvis but without showing her pubis, and finally, while straddled on a chair facing the backrest, showing her legs.

Before Rosilyn went to sleep, accused-appellant kissed her lips, fondled her breasts and inserted his finger into her vagina. The following morning, she woke up and found the P5,000.00 left by accused-appellant on the table. She recalled that earlier that morning, she felt somebody caressing her breasts and sex organ.

At around 8:00 p.m. of June 18, 1996, Simplicio brought Rosilyn to the Ritz Towers. They found accused-appellant sitting on the bed in his bedroom. Simplicio told Rosilyn to approach accusedappellant, then he left. Accused-appellant took off Rosilyns clothes and dressed her with a long T-shirt on which was printed a picture of accused-appellant and a woman, with the caption, "Cong. Jalosjos with his Toy." They watched television for a while, then accused-appellant lay beside Rosilyn and kissed her on the lips. He raised her shirt and parted her legs. He positioned himself between the spread legs of Rosilyn, took off his own shirt, held his penis, and poked and pressed the same against Rosilyns vagina. This caused Rosilyn pain inside her sex organ. Thereafter, accused-appellant fondled her breasts and told her to sleep.

On July 2, 1996 at 7:00 p.m., Rosilyn and Simplicio returned to the Ritz Towers. Rosilyn had to wait for accused-appellant, who arrived between 12:00 to 1:00 a.m. He again dressed her with the long white shirt similar to what he was wearing. While sitting on the bed, accused-appellant kissed her lips and inserted his tongue into her mouth. He then fondled her breasts and inserted his finger into her vagina, causing her to cry in pain. Accused-appellant stopped and told her to sleep.

The next morning, accused-appellant bathed her again. While he soaped her body, he fondled her breasts and inserted his finger in her vagina. Rosilyn felt pain and shoved his hand away. After bathing her, accused-appellant had breakfast. Before he left, he gave Rosilyn P5,000.00. As soon as Simplicio arrived, Rosilyn gave her the money and then they left for school.

When Rosilyn woke up the following morning, June 19, 1996, accused-appellant was no longer around but she found P5,000.00 on the table. Earlier that morning, she had felt somebody touching her private parts but she was still too sleepy to find out who it was. Rosilyn took a bath, then went off to school with Simplicio, who arrived to fetch her.

The next encounter of Rosilyn with accused-appellant was on June 21, 1996, at about 9:00 oclock in the evening in his bedroom at the Ritz Towers. Accused-appellant stripped her naked and again put on her the long shirt he wanted her to wear. After watching television for a while, accused-appellant knelt beside Rosilyn, raised her shirt, caressed her breasts and inserted his finger into her vagina. Then, he clipped his penis

On July 20, 1996, Simplicio again brought Rosilyn to the Ritz Towers. Accused-appellant was waiting in his bedroom. He took off Rosilyns clothes, including her panties, and dressed her with a long T-shirt similar to what he was wearing. After watching television, accused-appellant kissed Rosilyn on the lips, inserted his tongue in her mouth and fondled her breasts. Then, he made Rosilyn lie on the bed, spread her legs apart and placed a pillow under her back. He inserted his finger in her vagina and mounted himself between her legs with his hands rested on her sides. After that, he lifted his shirt, then pointed and pressed his penis against her vagina. Accused-appellant made thrusting motions, which caused Rosilyn pain. Thereafter, accusedappellant told her to sleep.

There are no external signs of application of any form of violence.9 In the early morning of July 21, 1996, Rosilyn felt somebody touching her sex organ, but she did not wake up. When she woke up later, she found P5,000.00 on the table, and she gave this to Simplicio when he came to fetch her.

On August 15, 1996, Rosilyn and Simplicio went to the Ritz Towers at around 7:00 p.m. Accused-appellant was about to leave, so he told them to come back later that evening. The two did not return.

The following day, Rosilyn ran away from home with the help of Yamie Estreta, one of their boarders. Yamie accompanied Rosilyn to the Pasay City Police, where she executed a sworn statement against Simplicio Delantar. Rosilyn was thereafter taken to the custody of the Department of Social Welfare and Development (DSWD). The National Bureau of Investigation (NBI) conducted an investigation, which eventually led to the filing of criminal charges against accused-appellant.

During the trial, accused-appellant raised the defense of denial and alibi. He claimed that it was his brother, Dominador "Jun" Jalosjos, whom Rosilyn had met, once at accused-appellants Dakak office and twice at the Ritz Towers. Accused-appellant insisted that he was in the province on the dates Rosilyn claimed to have been sexually abused. He attributed the filing of the charges against him to a small group of blackmailers who wanted to extort money from him, and to his political opponents, particularly Ex-Congressman Artemio Adaza, who are allegedly determined to destroy his political career and boost their personal agenda.

On August 23, 1996, Rosilyn was examined by Dr. Emmanuel L. Aranas at Camp Crame. The examination yielded the following results:

More specifically, accused-appellant claims that on June 16, 1996, he was on the Philippine Airlines (PAL) 9:40 a.m. flight from Manila to Dipolog. He stayed in Dipolog until June 18, 1996. He submitted in evidence airline ticket no. 10792424,10 showing that he was on board Flight PR 165; the said flights passengers manifest,11 where the name JALOSJOS/RM/MR appears; and photographs showing accused-appellants constituents welcoming his arrival and showing accusedappellant talking with former Mayor Hermanico Carreon and Fiscal Empainado.

EXTERNAL AND EXTRAGENITAL

Fairly developed, fairly nourished and coherent female subject. Breasts are conical with pinkish brown areola and nipples from which no secretions could be pressed out. Abdomen is flat and soft

Accused-appellant further alleges that on June 28, 1996, he again took the 9:40 a.m. flight from Manila to Dipolog City. On the same flight, he met Armando Nocom of the Philippine Daily Inquirer. Upon arrival and after talking to his representatives, he proceeded to his residence known as "Barangay House" in Taguinon, Dapitan, near Dakak Beach resort, and spent the night there.

GENITAL

There is moderate growth of pubic hair. Labia majora are full, convex and coaptated with the pinkish brown labia minora presenting in between. On separating the same disclosed an elastic, fleshy type hymen, with shallow healed laceration at 3 o'clock position and deep healed laceration at 8 o'clock position. External vaginal orifice offers moderate resistance to the introduction of the examining index finger and the virgin sized vaginal speculum. Vaginal canal is narrow with prominent rugosities. Cervix is firm and closed.

On June 29, 1996, accused-appellant attended the fiesta at Barangay San Pedro. He stayed in the house of Barangay Captain Mila Yap until 5:30 p.m. Then, together with some friends, he visited the Rizal Shrine and the Pirate Bar at Dakak Beach Resort. Thereafter, he retired in the "Barangay House" in Taguilon.

On June 30, 1996, accused-appellant alleges that he attended a city-wide consultation with his political leaders at the Blue Room of Dakak, which lasted till the afternoon. In the evening, he went home and slept in the "Barangay House."

CONCLUSION:

On July 1, 1996, he attended the whole day celebration of Dipolog Day. He spent the night in the "Barangay House."

Subject is in non-virgin state physically.

On July 2, 1996, he attended the inauguration of the reception hall of Dakak Beach Resort. The blessing ceremony was officiated by Assistant Parish Priest Adelmo Laput.

On July 3, 1996, he was the guest in the inaguration of the 3rd Engineering District of Dapitan City. After the mass, he visited the Jamboree site in Barangay Taguilon, Dapitan City.

2b. indemnify the victim, MA. ROSILYN DELANTAR, in the amount of FIFTY THOUSAND PESOS (P50,000.00) as moral damages for each of the cases.

He further contended that after his arrival in Dipolog on June 28, 1996, there was never an instance when he went to Manila until July 9, 1996, when he attended a conference called by the President of the Philippines.

3. In Criminal Cases Nos. 96-1987, 96-1988, 96-1989, 96-1990, 96-1992 and 96-1993, the prosecution has proven beyond reasonable doubt the guilt of the accused, ROMEO JALOSJOS y GARCIA, as principal in six (6) counts of acts of lasciviousness defined under Article 336 of the Revised Penal Code and penalized under Section 5 (b) of R.A. 7610 otherwise known as the Child Abuse Law. He is hereby declared CONVICTED in each of these cases;

Accused-appellant likewise alleged that on July 21, 1996, he took the 5:00 a.m. flight of PAL from Manila to Dumaguete City. From there, he was flown by a private plane to Dipolog, where he stayed until the President of the Philippines arrived.

4. Accordingly he is sentenced to:

To buttress the theory of the defense, Dominador "Jun" Jalosjos testified that he was the one, and not accused-appellant, whom Rosilyn met on three occasions. These occurred once during the first week of May 1996, at accused-appellants Dakak office where Rosilyn and Simplicio Delantar were introduced to him by Eduardo Suarez, and twice at the Ritz Towers when he interviewed Rosilyn, and later when Rosilyn and Simplicio followed up the proposed entry of Rosilyn into the show business.

4.a. suffer in each of the cases an indeterminate prison term of from eight (8) years, eight (8) months and one (1) day of prision mayor in its medium period, as maximum, to fifteen (15) years, six (6) months and twenty (20) days of reclusion temporal in its medium period, as maximum;

4.b. indemnify the victim, MA ROSILYN DELANTAR, in the amount of TWENTY THOUSAND (P20,000.00) as moral damages for each of the cases;

Dominadors admission of his meetings with Rosilyn on three instances were limited to interviewing her and assessing her singing and modeling potentials. His testimony made no mention of any sexual encounter with Rosilyn.

5. In Criminal Case Nos. 96-1991, 96-1994, 96-1995, 96-1996, 96-1997 and 96-1998, the prosecution has failed to prove beyond reasonable doubt the guilt of the accused, ROMEO JALOSJOS y GARCIA, in six (6) counts of acts of lasciviousness. Therefore, on the ground of reasonable doubt, the accused in these cases is hereby ACQUITTED.

After trial, the court rendered the assailed decision, the dispositive portion of which reads: SO ORDERED.12 WHEREFORE, premises considered, judgment is hereby rendered as follows: Hence, the instant appeal. Accused-appellant contends:

1. In Criminal Cases Nos. 96-1985 and 96-1986, the prosecution has proven beyond reasonable doubt the guilt of the accused, ROMEO JALOSJOS y GARCIA, as principal in the two (2) counts of statutory rape defined and penalized under Article 335 of the Revised Penal Code. He is hereby declared CONVICTED in each of these cases.

A.

2. Accordingly, he is sentenced to:

THE TRIAL COURT GRIEVOUSLY ERRED IN CONVICTING THE ACCUSED-APPELLANT BASED ON TESTIMONY OF THE PRIVATE COMPLAINANT, CONSIDERING THE ATTENDANT INDICIA OF INCONSISTENCIES AND UNTRUTHS.

2a. suffer the penalty of reclusion perpetua in each of these cases.

B.

THE TRIAL COURT GRIEVOUSLY ERRED IN DISREGARDING THE SIGNIFICANCE OF THE CONFLICTING STATEMENTS GIVEN BY THE PRIVATE COMPLAINANT.

modern jurisprudence.15 Thus, in People v. YansonDumancas,16 citing People v. Li Bun Juan,17 this Court held that:

C.

THE TRIAL COURT GRIEVOUSLY ERRED IN DISREGARDING THE SIGNIFICANCE OF PRIVATE COMPLAINANTS FAILURE TO IDENTIFY THE ACCUSEDAPPELLANT.

... In this connection it must be borne in mind that the principle falsus in uno falsus in omnibus is not an absolute one, and that it is perfectly reasonable to believe the testimony of a witness with respect to some facts and disbelieve it with respect to other facts. In People vs. Keller, 46 O.G. No. 7, pp. 3222-3223, the following was quoted with approval by the Court of Appeals from 1 Moore on Facts, p. 23:

D.

THE TRIAL COURT GRIEVOUSLY ERRED IN RULING THAT THE PRIVATE COMPLAINANT WAS A MINOR LESS THAN TWELVE YEARS OF AGE WHEN THE CLAIMED INCIDENTS ALLEGEDLY TOOK PLACE.

"18. Testimony may be partly credited and partly rejected. --Trier of facts are not bound to believe all that any witness has said; they may accept some portions of his testimony and reject other portions, according to what seems to them, upon other facts and circumstances to be the truth Even when witnesses are found to have deliberately falsified in some material particulars, the jury are not required to reject the whole of their uncorroborated testimony, but may credit such portions as they deem worthy of belief." (p. 945)18

E.

THE TRIAL COURT GRIEVOUSLY ERRED IN FINDING THAT RAPE WAS COMMITTED AGAINST THE PRIVATE COMPLAINANT.13

Being in the best position to discriminate between the truth and the falsehood, the trial court's assignment of values and weight on the testimony of Rosilyn should be given credence. Significantly, it should be borne in mind that the issue at hand hinges on credibility, the assessment of which, as oft-repeated, is best made by the trial court because of its untrammeled opportunity to observe her demeanor on the witness stand.

In this jurisdiction, the testimony of the private complainant in rape cases is scrutinized with utmost caution. The constitutional presumption of innocence requires no less than moral certainty beyond any scintilla of doubt. This applies with more vigor in rape cases where the evidence for the prosecution must stand or fall on its own merits and is not allowed to draw strength from the weakness of the evidence of the defense. As an inevitable consequence, it is the rape victim herself that is actually put on trial. The case at bar is no exception. Bent on destroying the veracity of private complainants testimony, the errors assigned by accused-appellant, particularly the first three, are focused on the issue of credibility.

On the demeanor and manner of testifying shown by the complainant, the trial court stated:

Guided by the foregoing principles, this court found no reason why it should not believe Rosilyn when she claimed she was raped. Testimonies of rape victims especially those who are young and immature deserve full credence (People v. Liquiran, 228 SCRA 62 (1993) considering that "no woman would concoct a story of defloration, allow an examination of her private parts and thereafter allow herself to be perverted in a public trial if she was not motivated solely by the desire to have the culprit apprehended and punished." (People v. Buyok, 235 SCRA 622 [1996]).

Accused-appellant makes much of his acquittal in Criminal Case Nos. 96-1991, 96-1994, 96-1995, 96-1996, 96-1997, and 96-1998, for acts of lasciviousness. According to him, the fact that the trial court sustained his defense of alibi in the said cases only shows that Rosilyn concocted her stories and the rest of her testimony ought not to be believed. Stated differently, accusedappellant urges the application of the doctrine of "falsus in uno falsus in omnibus" (false in part, false in everything).14

When asked to describe what had been done to her, Rosilyn was able to narrate spontaneously in detail how she was sexually abused. Her testimony in this regard was firm, candid, clear and straightforward, and it remained to be so even during the intense and rigid cross-examination made by the defense counsel.19

The contention is without merit. Falsus in uno falsus in omnibus is not an absolute rule of law and is in fact rarely applied in

Accused-appellant next argues that Rosilyns direct and redirect testimonies were rehearsed and lacking in candidness. He points

to the supposed hesitant and even idiotic answers of Rosilyn on cross and re-cross examinations. He added that she was trained to give answers such as, "Ano po?", "Parang po," "Medyo po," and "Sa tingin ko po."

case where there was no exhaustive and clear-cut evidence of full and complete penetration of the victims vagina. It may well be that Rosilyn thought, as any layman would probably do, that there must be the fullest penetration of the victims vagina to qualify a sexual act to rape.

Accused-appellants arguments are far from persuasive. A reading of the pertinent transcript of stenographic notes reveals that Rosilyn was in fact firm and consistent on the fact of rape and lascivious conduct committed on her by accused-appellant. She answered in clear, simple and natural words customary of children of her age. The above phrases quoted by accusedappellant as uttered by Rosilyn are, as correctly pointed out by the Solicitor General, typical answers of child witnesses like her.

At any rate, even assuming that Rosilyn, during her lengthy ordeals on the witness stand, may have given some ambiguous answers, they refer merely to minor and peripheral details which do not in any way detract from her firm and straightforward declaration that she had been molested and subjected to lascivious conduct by accused-appellant. Moreover, it should be borne in mind that even the most candid witness oftentimes makes mistakes and confused statements. At times, far from eroding the effectiveness of the evidence, such lapses could, indeed, constitute signs of veracity.20

In People v. Campuhan,21 we ruled that rape is consummated "by the slightest penetration of the female organ, i.e., touching of either labia of the pudendum by the penis." There need not be full and complete penetration of the victims vagina for rape to be consummated. There being no showing that the foregoing technicalities of rape was fully explained to Rosilyn on all those occasions that she was interviewed by the police, the NBI agents and DSWD social workers, she could not therefore be expected to intelligibly declare that accused-appellants act of pressing his sex organ against her labia without full entry of the vaginal canal amounted to rape.

In the decision of the trial court, the testimony on one of the rapes is cited plus the courts mention of the jurisprudence on this issue, to wit:

Q: You said that when Congressman Jalosjos inserted his finger into your vagina, your back was rested on a pillow and your legs were spread wide apart, what else did he do?

Then, too, accused-appellant capitalizes on the alleged absence of any allegation of rape in the five (5) sworn statements executed by Rosilyn as well as in the interviews and case study conducted by the representatives of the DSWD. In particular, accused-appellant points to the following documents:

A: He lifted his shirt, and held his penis; and again "idinikitdikit niya ang ari niya sa ari ko." (Italics supplied)

(1) Sworn statements dated August 22 and 26, 1996, executed before SPO5 Milagros A. Carrasco of the Pasay City Police;

Q: And, after doing that: "Idinikit-dikit niya yong ari niya sa ari ko"; what else did he do?

(2) Sworn statements dated September 5, 11, and 19, 1996, executed before NBI Agents Cynthia L. Mariano and Supervising NBI Agent Arlis E. Vela;

A: After that, "Itinutok niya po yong ari niya at idiniin-diin niya ang ari niya sa ari ko." (underscoring supplied)

(pp. 23, 25 to 30, TSN, 16 April 1997) (3) The Initial Interview of Rosilyn by the DSWD dated August 30, 1996; It is well-entrenched in this jurisdiction that rape can be committed even without full penetration of the male organ into the vagina of the woman. It is enough that there be proof of the entrance of the male organ within the labia of the pudendum of the female organ. (People vs. Mangalino, 182 SCRA 329; People vs. Tismo, 204 SCRA 535; People vs. Bacani, 181 SCRA 393). "Penetration of the penis by entry into the lips of the female organ suffices to warrant a conviction." (People vs. Galimba, G.R. No. 111563-64, February 20, 1996 citing People vs. Abonada, 169 SCRA 530). Hence, with the testimony of Rosilyn that the accused pressed against ("idiniin") and pointed to ("itinutok") Rosilyns vagina his sexual organ on two (2) occasions, two (2) acts of rape were consummated.22

(4) DSWD Final Case Study Report dated January 10, 1997.

It must be stressed that "rape" is a technical term, the precise and accurate definition of which could not have been understood by Rosilyn. Indeed, without the assistance of a lawyer, who could explain to her the intricacies of rape, she expectedly could not distinguish in her affidavits and consequently disclose with proficient exactitude the act or acts of accused-appellant that under the contemplation of law constitute the crime of rape. This is especially true in the present

Moreover, it must be borne in mind that Rosilyns purpose in executing the affidavits on August 22 and 26, 1996 before the Pasay City Police was to charge Simplicio Delantar, not accusedappellant. As aptly pointed out by the trial court, it is preposterous to expect Rosilyn to make an exhaustive narration of the sexual abuse of accused-appellant when he was not the object of the said complaint.

statement, Rosilyn referred to accused-appellant as her abuser based on the name she heard from the person to whom she was introduced and on the name she saw and read in accusedappellants office. Verily, a persons identity does not depend solely on his name, but also on his physical features. Thus, a victim of a crime can still identify the culprit even without knowing his name. Similarly, the Court, in People v. Vasquez,24 ruled that:

Additionally, Rosilyns statements, given to the NBI on September 11 and 19, 1996, concerned mainly the identification of pictures. There was thus no occasion for her to narrate the details of her sexual encounter with accused-appellant.

It matters little that the eyewitness initially recognized accusedappellant only by face [the witness] acted like any ordinary person in making inquiries to find out the name that matched [appellants] face. Significantly, in open court, he unequivocally identified accused-appellant as their assailant.

As to the interviews and studies conducted by the DSWD, suffice it to state that said meetings with Rosilyn were specially focused on the emotional and psychological repercussions of the sexual abuse on Rosilyn, and had nothing to do with the legal actions being prepared as a consequence thereof. Thus, the documents pertaining to said interviews and studies cannot be relied upon to reveal every minute aspect of the sexual molestations complained of.

Even in the case of People v. Timon,25 relied upon by accusedappellant to discredit his identification, this Court said that even assuming that the out-of-court identification of accusedappellant was defective, their subsequent identification in court cured any flaw that may have initially attended it.

At any rate, the inconsistencies between the affidavits and Rosilyns testimony, if at all they existed, cannot diminish the probative value of Rosilyns declarations on the witness stand. The consistent ruling of this Court is that, if there is an inconsistency between the affidavit of a witness and her testimonies given in open court, the latter commands greater weight than the former.23

In light of the foregoing, Rosilyns failure to identify accusedappellant out of the 16 pictures shown to her does not foreclose the credibility of her unqualified identification of accusedappellant in open court. The same holds true with the subject cartographic sketch which, incidentally, resembles accusedappellant. As noted by the trial court, accused-appellant and his brother Dominador Jalosjos have a striking similarity in facial features. Naturally, if the sketch looks like Dominador, it logically follows that the same drawing would definitely look like accused-appellant.

In the third assigned error, accused-appellant attempts to impress upon this Court that Rosilyn gave the name Congressman Romeo Jalosjos as her abuser only because that was the name given to her by the person to whom she was introduced. That same name, accused-appellant claims, was merely picked up by Rosilyn from the name plate, plaque, and memo pad she saw on accused-appellants office desk. Accusedappellant presented his brother, Dominador "Jun" Jalosjos, in an attempt to cast doubt on his culpability. It was Dominador "Jun" Jalosjos who allegedly met and interviewed Rosilyn at the Dakak office. In advancement of this theory, accused-appellant cites the fact that out of a total of 16 pictures presented to Rosilyn for identification, she picked up only 4, which depict Dominador "Jun" Jalosjos. In the same vein, accused-appellant claims that the resulting cartographic sketch from the facial characteristics given by Rosilyn to the cartographer, resembles the facial appearance of Dominador "Jun" Jalosjos. Accused-appellant also points out that Rosilyn failed to give his correct age or state that he has a mole on his lower right jaw.

Likewise, Rosilyns failure to correctly approximate the age of accused-appellant and to state that he has a mole on the lower right jaw, cannot affect the veracity of accused-appellants identification. At a young age, Rosilyn cannot be expected to give the accurate age of a 56 year-old person. As to accusedappellants mole, the Solicitor General is correct in contending that said mole is not so distinctive as to capture Rosilyns attention and memory. When she was asked to give additional information about accused-appellant, Rosilyn described him as having a "prominent belly." This, to our mind, is indeed a more distinguishing feature that would naturally catch the attention of an eleven year-old child like Rosilyn.

Contrary to the contentions of accused-appellant, the records reveal that Rosilyn positively and unhesitatingly identified accused-appellant at the courtroom. Such identification during the trial cannot be diminished by the fact that in her sworn

In his fifth assigned error, accused-appellant insists that the words "idinikit," "itinutok," and "idiniin-diin," which Rosilyn used to describe what accused-appellant did to her vagina with his genitals, do not constitute consummated rape. In addition, the defense argued that Rosilyn did not actually see accusedappellants penis in the supposed sexual contact. In fact, they stressed that Rosilyn declared that accused-appellants semen spilled in her thighs and not in her sex organ.

Moreover, in his Reply Brief, accused-appellant, citing People v. Campuhan, argued that, assuming that his penis touched or brushed Rosilyns external genitals, the same is not enough to establish the crime of rape.

PROS. ZUNO:

Q. And, after kissing your lips; after kissing you in your lips, what else did he do?

True, in People v. Campuhan,26 we explained that the phrase, "the mere touching of the external genitalia by the penis capable of consummating the sexual act is sufficient to constitute carnal knowledge," means that the act of touching should be understood here as inherently part of the entry of the penis into the labia of the female organ and not mere touching alone of the mons pubis or the pudendum. We further elucidated that:

A.

After that, he was lifting my shirt.

Q. Now, while he was lifting your shirt, what was your position; will you tell the court?

The pudendum or vulva is the collective term for the female genital organs that are visible in the perineal area, e.g., mons pubis, labia majora, labia minora, the hymen, the clitoris, the vaginal orifice, etc. The mons pubis is the rounded eminence that becomes hairy after puberty, and is instantly visible within the surface. The next layer is the labia majora or the outer lips of the female organ composed of the outer convex surface and the inner surface. The skin of the outer convex surface is covered with hair follicles and is pigmented, while the inner surface is a thin skin which does not have any hairs but has many sebaceous glands. Directly beneath the labia majora is the labia minora. Jurisprudence dictates that the labia majora must be entered for rape to be consummated, and not merely for the penis to stroke the surface of the female organ. Thus, a grazing of the surface of the female organ or touching the mons pubis of the pudendum is not sufficient to constitute consummated rape. Absent any showing of the slightest penetration of the female organ, i.e., touching of either labia of the pudendum by the penis, there can be no consummated rape; at most, it can only be attempted rape, if not acts of lasciviousness.27

A.

I was lying, sir.

Q.

Lying on what?

A.

On the bed, sir.

Q.

And, after lifting your shirt, what else did he do?

A.

He spread my legs sir.

Q.

And, after spreading your legs apart; what did he do?

In the present case, there is sufficient proof to establish that the acts of accused-appellant went beyond "strafing of the citadel of passion" or "shelling of the castle of orgasmic potency," as depicted in the Campuhan case, and progressed into "bombardment of the drawbridge [which] is invasion enough,"28 there being, in a manner of speaking, a conquest of the fortress of ignition. When the accused-appellant brutely mounted between Rosilyns wide-spread legs, unfetteredly touching, poking and pressing his penis against her vagina, which in her position would then be naturally wide open and ready for copulation, it would require no fertile imagination to belie the hypocrisy claimed by accused-appellant that his penis or that of someone who looked like him, would under the circumstances merely touch or brush the external genital of Rosilyn. The inevitable contact between accused-appellants penis, and at the very least, the labia of the pudendum of Rosilyn, was confirmed when she felt pain inside her vagina when the "idiniin" part of accused appellants sex ritual was performed.

A.

After that, he lifted his shirt and held his penis.

Q.

And while he was holding his penis; what did he do?

A.

He pressed it in my vagina.

ATTY. FERNANDEZ:

May we request that the vernacular be used?

A.

Tapos po, idinikit-dikit po niya yong ari niya sa ari ko.

The incident on June 18, 1996 was described by Rosilyn as follows:

PROS. ZUNO:

May I respectfully move that the word: "idinikit-dikit niya ang ari niya sa ari ko," be incorporated? Q. In front of your vagina? O.K.; will you tell the Court the position? Will you describe the position of Congressman Jalosjos when he was doing that. "Idinikit-dikit niya sa ari ko?" Q. And while he was doing that; according to you, "idinikitdikit niya ang ari niya sa ari mo;" what did you feel? A. A. I was afraid and then, I cried. FISCAL ZUNO: Q. Will you tell the Court why you felt afraid and why you cried? Q. Can you demonstrate? Ide-demonstrate ko po ba?

A. Because I was afraid he might insert his penis into my vagina.

xxx

xxx

xxx

Q. And, for how long did Congressman Jalosjos perform that act, which according to you, "idinikit-dikit niya yong ari niya sa ari ko?"

A. He was holding me like this with his one hand; and was holding his penis while his other hand, or his free hand was on the bed.

COURT:

xxx

xxx

xxx

Place the Tagalog words, into the records.

PROS. ZUNO:

A.

Sandali lang po yon.

Now, according to you, you dont know how to say it; or what was done to you. Now, will you tell the Court how can you describe what was done to you?

Q. What part of your vagina, or "ari" was being touched by the ari or penis? A. After he "dinikit-dikit niya yong ari niya sa ari ko; itinutok naman niya ito." xxx xxx xxx Q. Q. You said that you felt I withdraw that question. How did you know that Congressman Jalosjos was doing, "idinikitdikit niya yung ari niya sa ari ko?" O.K. you said "itinutok niya ito;" what else did he do?

PROS. ZUNO:

A.

Because I could feel it, sir.

She is now trying to describe.

Q. Now, you said you could feel it. What part of the vagina in what part of your vagina was Congressman Jalosjos, according to you, "idinikit-dikit niya yong ari niya sa ari mo?"

COURT:

Translate. A. In front of my vagina, sir.

A.

He seems to be "parang idinidiin po niya."

The answer is "masakit po."

Q. Now, what did you feel, when according to you; as I would quote: "parang idinidiin niya?"

Proceed.

PROS. ZUNO: A. Masakit po.

Q. Q. And, just to make it clear in Tagalog: Ano itong idinidiin niya? A. COURT: xxx Q. Sabi mo itinutok. Nakita mo bang itinutok?

Where did you feel the pain?

Inside my ari po. (Sa loob po ng ari ko.)

xxx

xxx

PROS. ZUNO: A. I saw him na nakaganuon po sa ano niya. Q. PROS. ZUNO: A. Q. O.K., clarify. You said "nakaganuon siya" what do you mean by "nakaganuon siya?" After that, he touched my breast, sir. And then, after that, what else did he do

Q.

And, after touching your breast, what did he do?

A. He was holding his penis, and then, that was the one which he itinutok sa ari ko.

A. And after that I felt that he was (witness demonstrating to the court, with her index finger, rubbing against her open left palm)

PROS. ZUNO: Q. Q. And, when you said "idinidiin po niya;" to which you are referring? What is this "idinidiin niya?" And after doing that, what else did he do?

A.

After that, he instructed me to go to sleep.

A.

Idinidiin niya ang ari niya sa ari ko.

xxx

xxx

xxx

Q. And what did you feel when you said: he was "idinidiin niya ang ari niya sa ari ko?"

A. sir.

I put down my clothes and then, I cried myself to sleep,

A.

Masakit po.

Q. Why did you cry? Will you tell the court, why did you cried after putting down your clothes?

COURT: A. Because I felt pity for myself. (Naaawa po ako sa sarili ko.)

A. He lifted his shirt, and held his penis; and again "idinikitdikit niya ang ari niya sa ari ko." xxx xxx x x x.

(Emphasis supplied.)29

Q. And what did you feel when he was doing that which according to you and I would quote in Tagalog: "idinikit-dikit niya yong ari niya sa ari ko?"

Even the July 20, 1996 encounter between Rosilyn and accusedappellant would not tax the sketchy visualization of the nave and uninitiated to conclude that there was indeed penile invasion by accused-appellant of Rosilyns labia. On that occasion, accused-appellant was similarly ensconced between the parted legs of Rosilyn, except that, this time, Rosilyn was conveniently rested on, and elevated with a pillow on her back while accused-appellant was touching, poking and pressing his penis against her vagina. Topped with the thrusting motions employed by accused-appellant, the resulting pain felt by Rosilyn in her sex organ was no doubt a consequence of consummated rape.

A.

I was afraid sir.

Q. And, after doing that: "idinikit-dikit niya yong ari niya sa ari ko," what else did he do?

A. After that, "itinutok niya po yong ari niya at idiniin-diin niya ang ari niya sa ari ko."

The pertinent portions of Rosilyns account of the July 20, 1996 incident is as follows:

Q. You said: "Congressman Jalosjos itinutok niya yong ari niya sa ari ko; at idiniin-diin niya yong ari niya sa ari ko;" Now, while he was doing that act, what was the position of Congressman Jalosjos?

PROS. ZUNO: A. His two (2) hands were on my side and since my legs were spread apart; he was in-between them, and doing an upward and downward movement.

xxx

xxx

xxx

Q. The moment when Cong. Jalosjos inserted his finger into your vagina, what was your position?

(Witness demonstrated a pushing, or pumping movement)

INTERPRETER:

Q. For how long did Congressman Jalosjos perform that act, pushing or pumping movement while his penis, or "ang ari niya ay nakatutok at idinidiin-diin yong ari niya sa ari mo?"

The witness is asking he (sic) she has to demonstrate? A. I dont know.

FISCAL ZUNO: Q. And what did you feel when Congressman Jalosjos was making that movement, pushing, or pumping? Q. Ipaliwanag mo lang? A. A. My back was rested on a pillow and my legs were spread apart. Q. Where did you feel the pain? I felt pain and then I cried.

Q. You said that when Congressman Jalosjos inserted his finger into your vagina, your back was rested on a pillow and your legs were spread wide apart, what else did he do?

A.

Inside my vagina, sir.

xxx

xxx

x x x.30

The childs narration of the rape sequence is revealing. The act of "idinikit-dikit niya" was followed by "itinutok niya xxx at idiniin-diin niya." The "idiniin-diin niya" was succeeded by "Masakit po." Pain inside her "ari" is indicative of consummated penetration.

The environmental circumstances displayed by the graphic narration of what took place at the appellants room from June 14 to June 16 and June 21 to June 22, 1996 are consistent with the complainants testimony which shows that rape was legally consummated.

Nevertheless, accused-appellant may not have fully and for a longer period penetrated Rosilyn for fear of perpetrating his name through a child from the womb of a minor; or because of his previous agreement with his "suking bugaw," Simplicio Delantar, that there would be no penetration, otherwise the latter would demand a higher price. This may be the reason why Simplicio Delantar gave his mocking fatherly advice to Rosilyn that it is bad if accused-appellant inserts his penis into her sex organ, while at the same time ordering her to call him if accused-appellant would penetrate her. Such instance of penile invasion would prompt Simplicio to demand a higher price, which is, after all, as the Solicitor General calls it, the peculiarity of prostitution.

In the case of People v. Campuhan, the victim put up a resistance --- by putting her legs close together --- which, although futile, somehow made it inconvenient, if not difficult, for the accused-appellant to attempt penetration. On the other hand, the ease with which accused-appellant herein perpetrated the sexual abuse, not to mention the absence of time constraint, totally distinguishes the instant case from Campuhan. Here, the victim was passive and even submissive to the lecherous acts of accused-appellant. Thus, even assuming that his penis then was flaccid, his act of holding, guiding and assisting his penis with his one hand, while touching, poking and pressing the same against Rosilyn's vagina, would surely result in even the slightest contact between the labia of the pudendum and accusedappellant's sex organ.

The defense contends that the testimony of Rosilyn that accused-appellant ejaculated on her thighs and not in her vagina, only proves that there was no rape. It should be noted that this portion of Rosilyns testimony refers to the June 15 and 21, 1996 charges of acts of lasciviousness, and not the rape charges. In any event, granting that it occurred during the twin instances of rape on June 18 and July 20, 1996, the ejaculation on the victims thighs would not preclude the fact of rape.

There is no truth to the contention of the defense that Rosilyn did not see the penis of accused-appellant. As can be gleaned from the above-quoted portions of the transcripts, Rosilyn unequivocally testified that accused-appellant held his penis then poked her vagina with it. And even if she did not actually see accused-appellants penis go inside her, surely she could have felt whether it was his penis or just his finger.

Considering that Rosilyn is a self-confessed sex worker, and the circumstances of the alleged sexual assault at bar, the defense argued that it is highly improbable and contrary to human experience that accused-appellant exercised a Spartan-like discipline and restrained himself from fully consummating the sexual act when there was in fact no reason for him not to do so. In the same light, the defense likewise branded as unnatural the testimony of Rosilyn that accused-appellant contented himself with rubbing his penis clipped between her thighs until he reached orgasm and desisted from fully penetrating her, when Rosilyn was then entirely at his disposal.

We now come to the issue of whether or not Rosilyn was below twelve (12) years of age at the time the rape complained of occurred. To bolster the declaration of Rosilyn that she was then eleven years old, the prosecution presented the following documents:

(1) Rosilyns birth certificate showing her birthday as May 11, 1985;31

The defense seems to forget that there is no standard form of behavior when it comes to gratifying ones basic sexual instinct. The human sexual perversity is far too intricate for the defense to prescribe certain forms of conduct. Even the word "perverse" is not entirely precise, as what may be perverse to one may not be to another. Using a child of tender years who could even pass as ones granddaughter, to unleash what others would call downright bestial lust, may be utterly nauseating and repulsive to some, but may peculiarly be a festive celebration of salacious fantasies to others. For all we know, accused-appellant may have found a distinct and complete sexual gratification in such kind of libidinous stunts and maneuvers.

(2) Rosilyns baptismal certificate showing her birthday as May 11, 1985;32

(3) Master List of Live Births stating that Ma. Rosilyn Delantar was born on May 11, 1985 to Librada Telen as the mother;33

(4) Marked pages of the Cord Dressing Room Book;34

(5) Summary of the Cord Dressing Book, showing her birthday as May 11, 1985 and her parents (Librada Telen and Simplicio Delantar) patient file number (39-10-71);35

In Africa v. Caltex, et al., (Phil), Inc., et al.,39 the Court laid down the requisites for the application of the foregoing rule, thus:

(6) Record of admission showing her parents patient number (39-10-71) and confinement at the Jose Fabella Memorial Hospital from May 5-14, 1985.36

(a) That the entry was made by a public officer, or by another person specially enjoined by law to do so;

It is settled that in cases of statutory rape, the age of the victim may be proved by the presentation of her birth certificate. In the case at bar, accused-appellant contends that the birth certificate of Rosilyn should not have been considered by the trial court because said birth certificate has already been ordered cancelled and expunged from the records by the Regional Trial Court of Manila, Branch 38, in Special Proceedings No. 9781893, dated April 11, 1997.37 However, it appears that the said decision has been annulled and set aside by the Court of Appeals on June 10, 1999, in CA-G.R. SP No. 45289. The decision of the Court of Appeals was appealed to this Court by petition for review, docketed as G.R. No. 140305. Pending the final outcome of that case, the decision of the Court of Appeals is presumed valid and can be invoked as prima facie basis for holding that Rosilyn was indeed eleven years old at the time she was abused by accused-appellant.

(b) That it was made by the public officer in the performance of his duties or by such other person in the performance of a duty specially enjoined by law; and

(c) That the public office or the other person had sufficient knowledge of the facts by him stated, which must have been acquired by him personally or through official information.

However, even assuming the absence of a valid birth certificate, there is sufficient and ample proof of the complainants age in the records.

In order for a book to classify as an official register and admissible in evidence, it is not necessary that it be required by an express statute to be kept, nor that the nature of the office should render the book indispensable; it is sufficient that it be directed by the proper authority to be kept. Thus, official registers, though not required by law, kept as convenient and appropriate modes of discharging official duties, are admissible.40

Rosilyns Baptismal Certificate can likewise serve as proof of her age. In People v. Liban,38 we ruled that the birth certificate, or in lieu thereof, any other documentary evidence that can help establish the age of the victim, such as the baptismal certificate, school records, and documents of similar nature, can be presented.

Entries in public or official books or records may be proved by the production of the books or records themselves or by a copy certified by the legal keeper thereof.41 It is not necessary to show that the person making the entry is unavailable by reason of death, absence, etc., in order that the entry may be admissible in evidence, for his being excused from appearing in court in order that public business be not deranged, is one of the reasons for this exception to the hearsay rule.42

And even assuming ex gratia argumenti that the birth and baptismal certificates of Rosilyn are inadmissible to prove her age, the Master List of Live Births and the Cord Dressing Book of Dr. Jose Fabella Memorial Hospital where Rosilyn was born are sufficient evidence to prove that her date of birth was May 11, 1985. These documents are considered entries in official records, admissible as prima facie evidence of their contents and corroborative of Rosilyns testimony as to her age.

Corollary thereto, Presidential Decree No. 651, as amended by P.D. No. 766,43 mandates hospitals to report and register with the local civil registrar the fact of birth, among others, of babies born under their care. Said Decree imposes a penalty of a fine of not less that P500.00 nor more than P1,000.00 or imprisonment of not less than three (3) months nor more than six (6) months, or both, in the discretion of the court, in case of failure to make the necessary report to the local civil registrar.

Thus, Rule 130, Section 44, of the Rules of Court states:

Entries in official records. --- Entries in official records made in the performance of his duty by a public officer of the Philippines, or by a person in the performance of a duty especially enjoined by law, are prima facie evidence of the facts therein stated.

Hence, under the above-cited P.D. 651, as amended, in connection with Rule 30, Section 44, of the Rules of Court, it is clear that the Cord Dressing Room Book where the fact of birth, name of the mother and other related entries are initially recorded, as well as the Master List of Live Births of the hospital, are considered entries in official record, being indispensable to and appropriate modes of recording the births of children preparatory to registration of said entries with the local civil

registrar, in compliance with a duty specifically mandated by law. In Criminal Cases Nos. 96-1991 and 96-1998, for two counts of acts of lasciviousness allegedly committed both in the early mornings of June 19 and July 21, 1996, Rosilyn merely testified that she felt somebody touching her private part but failed to identify the person who was performing those lecherous acts as she was too sleepy to wake up. Hence, accused-appellant was likewise acquitted in these cases on the ground of reasonable doubt.

It matters not that the person presented to testify on these hospital records was not the person who actually made those entries way back in 1985, but Amelita Avenante, the records custodian of the hospital in 1995. To reiterate, these records may be proved by the presentation of the record itself or by a certified copy or the legal keeper thereof. Proof of the unavailability of the person who made those entries is not a requisite for their admissibility. What is important is that the entries testified to by Avenante were gathered from the records of the hospital which were accomplished in compliance with a duty specifically mandated by law.

Therefore, the Cord Dressing Room Book and the Master List of Live Births of the hospital are admissible as evidence of the facts stated therein.

With respect, however, to the acts of lasciviousness committed in the morning of June 15 and 22, 1996, and in the evening of June 14, 15, 18, and 21, 1996, as well as the rape perpetrated on June 18, 1996 and July 20, 1996, accused-appellant failed to account for his whereabouts. A careful review of the pertinent transcript of stenographic notes reveals that accused-appellant did not give any testimony as to where he was at the time these crimes were committed. Clearly, therefore, the trial court correctly disregarded his unsubstantiated defense of denial, which cannot prevail over his positive identification by Rosilyn as the culprit.

The preparation of these hospital documents preceded that of the birth and baptismal certificates of Rosilyn. They establish independent and material facts prepared by unbiased and disinterested persons under environmental circumstances apart from those that may have attended the preparation of the birth and baptismal certificates. Hence, these hospital records, to reiterate, are sufficient to support the testimony of Rosilyn as to her age.

Consequently, the testimony of Simplicio Delantar that the entries in the birth certificate of Rosilyn are false and that he merely made them up, particularly her date of birth, was correctly disregarded by the trial court. It should be noted that the criminal charges for child abuse filed by Rosilyn against him was the direct cause of his incarceration. This raises a possibility that Simplicio falsely testified in the present case, to get even with Rosilyn.

As regards the charge of acts of lasciviousness committed in the morning of June 16, 1996, accused-appellant claimed that it was impossible for him to have committed the same because he flew to Dipolog on that day. The records disclose, however, that accused-appellants flight was at 9:40 a.m. The possibility, therefore, of accused-appellants having performed the lascivious acts on the victim before he went off to the airport is not at all precluded. For his failure to prove the physical impossibility of his presence at the Ritz Towers in the morning of June 16, 1996, when the sexual abuse of Rosilyn was committed, his defense of alibi must fail.

Article III, Section 5 of Republic Act No. 7610, states:

Likewise, the trial court correctly disregarded the testimonies of Gloria Binay and Angelito Intruzo because the defense failed to prove that they were knowledgeable as to the circumstances of Rosilyns birth. Their testimonies consist mainly of observations tending to show that Rosilyns appearance belie her claim that she was born on May 11, 1985.

Child Prostitution and other Sexual Abuse. --- Children, whether male or female, who for money or profit, or any other consideration or due to the coercion or influence of any adult, syndicate or group, indulge in sexual intercourse or lascivious conduct are deemed to be children exploited in prostitution and other sexual abuse.

The penalty of reclusion temporal in its medium period to reclusion perpetua shall be imposed upon the following: In the four instances of acts of lasciviousness allegedly committed on June 29, June 30, July 2, and July 3, 1996 (Criminal Cases Nos. 96-1994, 96-1995, 96-1996, and 96-1997, respectively), the trial court acquitted accused-appellant on the ground of reasonable doubt as the defense was able to prove that accused-appellant was not in Manila but either in Dipolog or Dapitan City at the time the lascivious acts were supposedly committed. The evidence of the defense established that accused-appellant flew to Dipolog on June 28, 1996, and stayed there until July 9, 1996.

xxx

xxx

xxx

(b) Those who commit the act of sexual intercourse or lascivious conduct with a child exploited in prostitution or subjected to other sexual abuse; Provided, That when the victim is under twelve (12) years of age, the perpetrators shall be prosecuted

under Article 335, paragraphs 3, for rape and Article 336 of Act No. 3815, as amended, the Revised Penal Code, for rape or lascivious conduct, as the case may be: Provided, That the penalty for lascivious conduct when the victim is under twelve (12) years of age shall be reclusion temporal in its medium period; x x x . (Emphasis supplied.)

The penalty for violation of Section 5 (b) of R.A. 7610, or the Child Abuse Law, where the victim is below 12 years of age, is reclusion temporal in its medium period.

In People v. Optana,44 the Court, citing the case of People v. Larin,45 explained the elements of the offense of violation of Section 5 (b) of R.A. 7610, or the Child Abuse Law, as follows:

The records show that on at least nine (9) separate occasions, the accused-appellant inserted his finger into the complainants vagina. These insertions took place in 1996. A year later, Congress enacted Republic Act No. 8353, the Anti-Rape law of 1997. It does not apply to this case but it indicates state policy on rape. The Revised Penal Code is now amended to read as follows:

1. The accused commits the act of sexual intercourse or lascivious conduct.

Article 266-A. Rape; When and How Committed. Rape is committed

2. The said act is performed with a child exploited in prostitution or subjected other sexual abuse.

1. By a man who have carnal knowledge of a woman under any of the following circumstances:

3. The child, whether male or female, is below 18 years of age. a) Through force, threat or intimidation;

A child is deemed exploited in prostitution or subjected to other sexual abuse, when the child indulges in sexual intercourse or lascivious conduct (a) for money, profit, or any other consideration; or (b) under the coercion or influence of any adult, syndicate or group. Under RA 7610, children are "persons below eighteen years of age or those unable to fully take care of themselves or protect themselves from abuse, neglect, cruelty, exploitation or discrimination because of their age or mental disability or condition."

b) When the offended party is deprived of reason or otherwise unconscious;

c) By means of fraudulent machination or grave abuse of authority; and

"Lascivious conduct" is defined under Article XIII, Section 32 of the Implementing Rules and Regulation of R.A. 7610, as follows:

d) When the offended party is under twelve (12) years of age or is demented, even though none of the circumstances mentioned above be present.

[T]he intentional touching, either directly or through clothing, of the genitalia, anus, groin, breast, inner thigh, or buttocks, or the introduction of any object into the genitalia, anus or mouth, of any person, whether of the same or opposite sex, with an intent to abuse, humiliate, harass, degrade, or arouse or gratify the sexual desire of any person, bestiality, masturbation, lascivious exhibition of the genitals or pubic area of a person.

2. By any person who, under any of the circumstances mentioned in paragraph 1 hereof, shall commit an act of sexual assault by inserting his penis into another persons mouth or anal orifice or any instrument or object, into the genital or anal orifice of another person. (Emphasis supplied.)

In the case at bar, accused-appellants acts of kissing Rosilyn on the lips, fondling her breast, inserting his finger into her vagina and placing his penis between her thighs, all constitute lascivious conduct intended to arouse or gratify his sexual desire. Hence, the trial court correctly convicted accused-appellant of violation of Section 5 (b) of R.A. 7610, or the Child Abuse Law, in Criminal Cases Nos. 96-1987, 96-1988, 96-1989, 96-1990, 961992, and 96-1993, charging him with the above-described lascivious acts.

Indicative of the continuing state policy towards rape, the AntiRape Law of 1997 now classifies the crime as an offense against persons. Any public prosecutor, not necessarily the victim or her parents, can prosecute the case.

The penalties for the crime of rape in the light of various circumstances, which are now set forth and contained in Article 266-B of the Revised Penal Code, have also been increased.

Considering that there are neither mitigating nor aggravating circumstance, the trial court correctly imposed on accusedappellant the maximum penalty of fifteen (15) years, six (6) months and twenty (20) days of reclusion temporal, which is within the medium period of reclusion temporal medium, pursuant to our ruling in Dulla v. Court of Appeals.46 Notwithstanding that R.A. 7610 is a special law, accusedappellant may enjoy a minimum term of the indeterminate sentence to be taken within the range of the penalty next lower to that prescribed by the Code.47 However, the trial court erroneously fixed the minimum term of the indeterminate sentence at eight (8) years, eight (8) months and one (1) day of prision mayor in its medium period. In the aforesaid case of Dulla,48 we held that the penalty next lower in degree to reclusion temporal medium is reclusion temporal minimum, the range of which is from twelve (12) years and one (1) day to fourteen (14) years and eight (8) months. Hence, for violation of Article III, Section 5 (b) of R.A. 7610, accused-appellant shall suffer the indeterminate sentence of twelve years (12) and one (1) day of reclusion temporal, as minimum, to fifteen (15) years, six (6) months and twenty (20) days of reclusion temporal as maximum.

even her passive submission to the sexual act will not mitigate nor absolve the accused from liability.49

In the case at bar, the prosecution established beyond reasonable doubt that accused-appellant had carnal knowledge of Rosilyn. Moreover, the prosecution successfully proved that Rosilyn was only eleven years of age at the time she was sexually abused. As such, the absence of proof of any struggle, or for that matter of consent or passive submission to the sexual advances of accusedappellant, was of no moment. The fact that accused-appellant had sexual congress with eleven year-old Rosilyn is sufficient to hold him liable for statutory rape, and sentenced to suffer the penalty of reclusion perpetua.

As to accused-appellant's civil liability, the amount of moral damages awarded by the trial court for each count of acts of lasciviousness under Section 5 (b) of R.A. 7610 should be increased from P20,000.00 to P50,000.00.50 On the other hand, the award of the amount of P50,000.00 as moral damages for each count of statutory rape was correct.

At the time of commission of the crimes complained of herein in 1996, statutory rape was penalized under Section 11 of R.A. 7659, which amended Article 335 of the Revised Penal Code, to wit:

When and how rape is committed. --- Rape is committed by having carnal knowledge of a woman under any of the following circumstances:

1. By using force or intimidation;

In People v. Lor,51 citing the cases of People v. Victor,52 and People v. Gementiza,53 we held that the indemnity authorized by our criminal law as civil indemnity ex delicto for the offended party, in the amount authorized by the prevailing judicial policy and aside from other proven actual damages, is itself equivalent to actual or compensatory damages in civil law. Said civil indemnity is mandatory upon finding of the fact of rape; it is distinct from and should not be denominated as moral damages which are based on different jural foundations and assessed by the court in the exercise of sound judicial discretion.54 Hence, accused-appellant should be ordered to pay the offended party another P50,000.00 as civil indemnity for each count of rape and acts of lasciviousness.

2. When the woman is deprived of reason or otherwise unconscious; and

3. When the woman is under twelve years of age or is demented.

The crime of rape shall be punished by reclusion perpetua. xxx.

In statutory rape, mere sexual congress with a woman below twelve years of age consummates the crime of statutory rape regardless of her consent to the act or lack of it. The law presumes that a woman of tender age does not possess discernment and is incapable of giving intelligent consent to the sexual act. Thus, it was held that carnal knowledge of a child below twelve years old even if she is engaged in prostitution is still considered statutory rape. The application of force and intimidation or the deprivation of reason of the victim becomes irrelevant. The absence of struggle or outcry of the victim or

WHEREFORE, the Decision of the Regional Trial Court of Makati, Branch 62, in Criminal Case Nos. 96-1985 and 96-1986 finding accused-appellant Romeo Jalosjos guilty beyond reasonable doubt of two counts of statutory rape, and sentencing him to suffer the penalty of reclusion perpetua for each count, is AFFIRMED. Likewise, the appealed Decision of the Regional Trial Court of Makati, Branch 62 in Criminal Case Nos. 96-1987, 96-1988, 96-1989, 96-1990, 96-1992, and 96-1993, finding accused-appellant guilty beyond reasonable doubt of acts of lasciviousness in six counts, is AFFIRMED with MODIFICATIONS. As modified, accused-appellant is sentenced to suffer, for each count of acts of lasciviousness, the indeterminate penalty of twelve years (12) and one (1) day of reclusion temporal, as minimum, to fifteen (15) years, six (6) months and twenty (20) days of reclusion temporal as maximum. Further, accused-appellant is ordered to pay the victim, Ma. Rosilyn Delantar, the additional amount of P50,000.00 as civil indemnity for each count of statutory rape and acts of lasciviousness. Finally, the award of moral damages for each count of acts of lasciviousness is increased to P50,000.00.

SO ORDERED.

Davide, Jr., CJ., Bellosillo, Melo, Puno, Vitug, Kapunan, Mendoza, Panganiban, Quisumbing, Pardo, Buena, De Leon, Jr., Sandoval-Gutierrez, and Carpio, JJ., concur.

Before the commencement of his term or on June 22, 2007, petitioner filed with the RTC, Makati City, Branch 148, an "Omnibus Motion for Leave of Court to be Allowed to Attend Senate Sessions and Related Requests"[4] (Omnibus Motion). Among his requests were: (a) To be allowed to go to the Senate to attend all official functions of the Senate (whether at the Senate or elsewhere) particularly when the Senate is in session, and to attend the regular and plenary sessions of the Senate, committee hearings, committee meetings, consultations, investigations and hearings in aid of legislation, caucuses, staff meetings, etc., which are normally held at the Senate of the Philippines located at the GSIS Financial Center, Pasay City (usually from Mondays to Thursdays from 8:00 a.m. to 7:00 p.m.);

EN BANC

[G.R. No. 179817, June 27, 2008]

ANTONIO F. TRILLANES IV, PETITIONER, VS. HON. OSCAR PIMENTEL, SR., IN HIS CAPACITY AS PRESIDING JUDGE, REGIONAL TRIAL COURT- BRANCH 148, MAKATI CITY; GEN. HERMOGENES ESPERON, VICE ADM. ROGELIO I. CALUNSAG, MGEN. BENJAMIN DOLORFINO, AND LT. COL. LUCIARDO OBEA, RESPONDENTS.

(b) To be allowed to set up a working area at his place of detention at the Marine Brig, Marine Barracks Manila, Fort Bonifacio, Taguig City, with a personal desktop computer and the appropriate communications equipment (i.e., a telephone line and internet access) in order that he may be able to work there when there are no sessions, meetings or hearings at the Senate or when the Senate is not in session. The costs of setting up the said working area and the related equipment and utility costs can be charged against the budget/allocation of the Office of the accused from the Senate;

DECISION

CARPIO MORALES, J.:

At the wee hours of July 27, 2003, a group of more than 300 heavily armed soldiers led by junior officers of the Armed Forces of the Philippines (AFP) stormed into the Oakwood Premier Apartments in Makati City and publicly demanded the resignation of the President and key national officials.

(c) To be allowed to receive members of his staff at the said working area at his place of detention at the Marine Brig, Marine Barracks Manila, Fort Bonifacio, Taguig City, at reasonable times of the day particularly during working days for purposes of meetings, briefings, consultations and/or coordination, so that the latter may be able to assists (sic) him in the performance and discharge of his duties as a Senator of the Republic;

Later in the day, President Gloria Macapagal Arroyo issued Proclamation No. 427 and General Order No. 4 declaring a state of rebellion and calling out the Armed Forces to suppress the rebellion.[1] A series of negotiations quelled the teeming tension and eventually resolved the impasse with the surrender of the militant soldiers that evening.

In the aftermath of this eventful episode dubbed as the "Oakwood Incident," petitioner Antonio F. Trillanes IV was charged, along with his comrades, with coup d'etat defined under Article 134-A of the Revised Penal Code before the Regional Trial Court (RTC) of Makati. The case was docketed as Criminal Case No. 03-2784, "People v. Capt. Milo D. Maestrecampo, et al."

(d) To be allowed to give interviews and to air his comments, reactions and/or opinions to the press or the media regarding the important issues affecting the country and the public while at the Senate or elsewhere in the performance of his duties as Senator to help shape public policy and in the light of the important role of the Senate in maintaining the system of checks and balance between the three (3) co-equal branches of Government;

Close to four years later, petitioner, who has remained in detention,[2] threw his hat in the political arena and won a seat in the Senate with a six-year term commencing at noon on June 30, 2007.[3]

(e) With prior notice to the Honorable Court and to the accused and his custodians, to be allowed to receive, on Tuesdays and Fridays, reporters and other members of the media who may wish to interview him and/or to get his comments, reactions and/or opinion at his place of confinement at the Marine Brig, Marine Barracks Manila, Fort Bonifacio, Taguig City, particularly when there are no sessions, meetings or hearings at the Senate or when the Senate is not in session; and

present a justiciable controversy, so that a determination thereof would be without practical value and use. Meanwhile, against those not made parties to the case, petitioner cannot ask for reliefs from this Court.[11] Petitioner did not, by way of substitution, implead the police officers currently exercising custodial responsibility over him; and he did not satisfactorily show that they have adopted or continued the assailed actions of the former custodians.[12]

Petitioner reiterates the following grounds which mirror those previously raised in his Motion for Reconsideration filed with the trial court: I.

(f) To be allowed to attend the organizational meeting and election of officers of the Senate and related activities scheduled in the morning (9:00 or 10:00 a.m.) of 23 July 2007 at the Senate of the Philippines located at the GSIS Financial Center, Pasay City.[5] By Order of July 25, 2007,[6] the trial court denied all the requests in the Omnibus Motion. Petitioner moved for reconsideration in which he waived his requests in paragraphs (b), (c) and (f) to thus trim them down to three.[7] The trial court just the same denied the motion by Order of September 18, 2007.[8] THE JURISPRUDENCE CITED BY THE HONORABLE COURT A QUO IS CLEARLY INAPPLICABLE TO THE INSTANT CASE BECAUSE OF THE FOLLOWING REASONS: A.

UNLIKE IN THIS CASE, THE ACCUSED IN THE JALOSJOS CASE WAS ALREADY CONVICTED AT THE TIME HE FILED HIS MOTION. IN THE INSTANT CASE, ACCUSED/PETITIONER HAS NOT BEEN CONVICTED AND, THEREFORE, STILL ENJOYS THE PRESUMPTION OF INNOCENCE;

Hence, the present petition for certiorari to set aside the two Orders of the trial court, and for prohibition and mandamus to (i) enjoin respondents from banning the Senate staff, resource persons and guests from meeting with him or transacting business with him in his capacity as Senator; and (ii) direct respondents to allow him access to the Senate staff, resource persons and guests and permit him to attend all sessions and official functions of the Senate. Petitioner preliminarily prayed for the maintenance of the status quo ante of having been able hitherto to convene his staff, resource persons and guests[9] at the Marine Brig.

B.

THE ACCUSED IN THE JALOJOS (SIC) CASE WAS CHARGED WITH TWO (2) COUNTS OF STATUTORY RAPE AND SIX (6) COUNTS OF ACTS OF LASCIVIOUSNESS, CRIMES INVOLVING MORAL TURPITUDE. HEREIN ACCUSED/PETITIONER IS CHARGED WITH THE OFFENSE OF "COUP D'ETAT", A CHARGE WHICH IS COMMONLY REGARDED AS A POLITICAL OFFENSE;

Impleaded as co-respondents of Judge Oscar Pimentel, Sr. are AFP Chief of Staff, Gen. Hermogenes Esperon (Esperon); Philippine Navy's Flag Officer-in-Command, Vice Admiral Rogelio Calunsag; Philippine Marines' Commandant, Major Gen. Benjamin Dolorfino; and Marine Barracks Manila Commanding Officer, Lt. Col. Luciardo Obea (Obea).

C.

Petitioner later manifested, in his Reply of February 26, 2008, that he has, since November 30, 2007, been in the custody of the Philippine National Police (PNP) Custodial Center following the foiled take-over of the Manila Peninsula Hotel[10] the day before or on November 29, 2007.

THE ACCUSED IN THE JALOSJOS CASE ATTEMPTED TO FLEE PRIOR TO BEING ARRESTED. THE ACCUSED/ PETITIONER VOLUNTARILY SURRENDERED TO THE AUTHORITIES AND AGREED TO TAKE RESPONSIBILITY FOR HIS ACTS AT OAKWOOD;

II. Such change in circumstances thus dictates the discontinuation of the action as against the above-named military officersrespondents. The issues raised in relation to them had ceased to

GEN. ESPERON DID NOT OVERRULE THE RECOMMENDATION OF THE MARINE BRIG'S COMMANDING OFFICER TO ALLOW PETITIONER TO ATTEND THE SENATE SESSIONS;

other circumstances which demonstrate the inapplicability of Jalosjos.[14]

A plain reading of. Jalosjos suggests otherwise, however. III. The distinctions cited by petitioner were not elemental in the pronouncement in Jalosjos that election to Congress is not a reasonable classification in criminal law enforcement as the functions and duties of the office are not substantial distinctions which lift one from the class of prisoners interrupted in their freedom and restricted in liberty of movement.[15]

ACCUSED/PETITIONER SUBMITS THAT THE FACT THAT THE PEOPLE, IN THEIR SOVEREIGN CAPACITY, ELECTED HIM TO THE POSITION OF SENATOR OF THE REPUBLIC PROVIDES THE PROPER LEGAL JUSTIFICATION TO ALLOW HIM TO WORK AND SERVE HIS MANDATE AS A SENATOR;

- AND -

It cannot be gainsaid that a person charged with a crime is taken into custody for purposes of the administration of justice. No less than the Constitution provides: All persons, except those charged with offenses punishable by reclusion perpetua when evidence of guilt is strong, shall, before conviction, be bailable by sufficient sureties, or be released on recognizance as may be provided by law. The right to bail shall not be impaired even when the privilege of the writ of habeas corpus is suspended. Excessive bail shall not be required.[16] (Underscoring supplied) The Rules also state that no person charged with a capital offense,[17] or an offense punishable by reclusion perpetua or life imprisonment, shall be admitted to bail when evidence of guilt is strong, regardless of the stage of the criminal action.[18]

IV.

MOREOVER, THERE ARE ENOUGH PRECEDENTS TO ALLOW LIBERAL TREATMENT OF DETENTION PRISONERS WHO ARE HELD WITHOUT BAIL AS IN THE CASE OF FORMER PRESIDENT JOSEPH "ERAP" ESTRADA AND FORMER ARMM GOV. NUR MISUARI.[13] The petition is bereft of merit.

In attempting to strike a distinction between his case and that of Jalosjos, petitioner chiefly points out that former Rep. Romeo Jalosjos (Jalosjos) was already convicted, albeit his conviction was pending appeal, when he filed a motion similar to petitioner's Omnibus Motion, whereas he (petitioner) is a mere detention prisoner. He asserts that he continues to enjoy civil and political rights since the presumption of innocence is still in his favor.

That the cited provisions apply equally to rape and coup d'etat cases, both being punishable by reclusion perpetua,[19] is beyond cavil. Within the class of offenses covered by the stated range of imposable penalties, there is clearly no distinction as to the political complexion of or moral turpitude involved in the crime charged.

Further, petitioner illustrates that Jalosjos was charged with crimes involving moral turpitude, i.e., two counts of statutory rape and six counts of acts of lasciviousness, whereas he is indicted for coup d'etat which is regarded as a "political offense."

Furthermore, petitioner justifies in his favor the presence of noble causes in expressing legitimate grievances against the rampant and institutionalized practice of graft and corruption in the AFP.

In the present case, it is uncontroverted that petitioner's application for bail and for release on recognizance was denied.[20] The determination that the evidence of guilt is strong, whether ascertained in a hearing of an application for bail[21] or imported from a trial court's judgment of conviction,[22] justifies the detention of an accused as a valid curtailment of his right to provisional liberty. This accentuates the proviso that the denial of the right to bail in such cases is "regardless of the stage of the criminal action." Such justification for confinement with its underlying rationale of public selfdefense[23] applies equally to detention prisoners like petitioner or convicted prisoners-appellants like Jalosjos.

In sum, petitioner's first ground posits that there is a world of difference between his case and that of Jalosjos respecting the type of offense involved, the stage of filing of the motion, and

As the Court observed in Alejano v. Cabuay,[24] it is impractical to draw a line between convicted prisoners and pre-trial detainees for the purpose of maintaining jail security; and while pre-trial detainees do not forfeit their constitutional rights upon confinement, the fact of their detention makes their rights more limited than those of the public.

he would escape ceased to be neither remote nor nil as, in fact, the cause for foreboding became real. The Court was more emphatic in People v. Hon. Maceda:[25] As a matter of law, when a person indicted for an offense is arrested, he is deemed placed under the custody of the law. He is placed in actual restraint of liberty in jail so that he may be bound to answer for the commission of the offense. He must be detained in jail during the pendency of the case against him, unless he is authorized by the court to be released on bail or on recognizance. Let it be stressed that all prisoners whether under preventive detention or serving final sentence can not practice their profession nor engage in any business or occupation, or hold office, elective or appointive, while in detention. This is a necessary consequence of arrest and detention.[26] (Underscoring supplied) These inherent limitations, however, must be taken into account only to the extent that confinement restrains the power of locomotion or actual physical movement. It bears noting that in Jalosjos, which was decided en banc one month after Maceda, the Court recognized that the accused could somehow accomplish legislative results.[27]

Moreover, circumstances indicating probability of flight find relevance as a factor in ascertaining the reasonable amount of bail and in canceling a discretionary grant of bail.[31] In cases involving non-bailable offenses, what is controlling is the determination of whether the evidence of guilt is strong. Once it is established that it is so, bail shall be denied as it is neither a matter of right nor of discretion.[32]

The trial court thus correctly concluded that the presumption of innocence does not carry with it the full enjoyment of civil and political rights.

Petitioner cannot find solace in Montano v. Ocampo[33] to buttress his plea for leeway because unlike petitioner, the therein petitioner, then Senator Justiniano Montano, who was charged with multiple murder and multiple frustrated murder,[34] was able to rebut the strong evidence for the prosecution. Notatu dignum is this Court's pronouncement therein that "if denial of bail is authorized in capital cases, it is only on the theory that the proof being strong, the defendant would flee, if he has the opportunity, rather than face the verdict of the jury."[35] At the time Montano was indicted, when only capital offenses were non-bailable where evidence of guilt is strong,[36] the Court noted the obvious reason that "one who faces a probable death sentence has a particularly strong temptation to flee."[37] Petitioner's petition for bail having earlier been denied, he cannot rely on Montano to reiterate his requests which are akin to bailing him out.

Petitioner is similarly situated with Jalosjos with respect to the application of the presumption of innocence during the period material to the resolution of their respective motions. The Court in Jalosjos did not mention that the presumption of innocence no longer operates in favor of the accused pending the review on appeal of the judgment of conviction. The rule stands that until a promulgation of final conviction is made, the constitutional mandate of presumption of innocence prevails.[28]

In addition to the inherent restraints, the Court notes that petitioner neither denied nor disputed his agreeing to a consensus with the prosecution that media access to him should cease after his proclamation by the Commission on Elections.[29]

Second, petitioner posits that, contrary to the trial court's findings, Esperon did not overrule Obea's recommendation to allow him to attend Senate sessions. Petitioner cites the Comment[38] of Obea that he interposed no objection to such request but recommended that he be transported by the Senate Sergeant-at-Arms with adequate Senate security. And petitioner faults the trial court for deeming that Esperon, despite professing non-obstruction to the performance of petitioner's duties, flatly rejected all his requests, when what Esperon only disallowed was the setting up of a political office inside a military installation owing to AFP's apolitical nature.[39]

Petitioner goes on to allege that unlike Jalosjos who attempted to evade trial, he is not a flight risk since he voluntarily surrendered to the proper authorities and such can be proven by the numerous times he was allowed to travel outside his place of detention.

The effective management of the detention facility has been recognized as a valid objective that may justify the imposition of conditions and restrictions of pre-trial detention.[40] The officer with custodial responsibility over a detainee may undertake such reasonable measures as may be necessary to secure the safety and prevent the escape of the detainee.[41] Nevertheless, while the comments of the detention officers provide guidance on security concerns, they are not binding on the trial court in the same manner that pleadings are not impositions upon a court.

Subsequent events reveal the contrary, however. The assailed Orders augured well when on November 29, 2007 petitioner went past security detail for some reason and proceeded from the courtroom to a posh hotel to issue certain statements. The account, dubbed this time as the "Manila Pen Incident,"[30] proves that petitioner's argument bites the dust. The risk that

Third, petitioner posits that his election provides the legal justification to allow him to serve his mandate, after the people, in their sovereign capacity, elected him as Senator. He argues that denying his Omnibus Motion is tantamount to removing him from office, depriving the people of proper representation,

denying the people's will, repudiating the people's choice, and overruling the mandate of the people.

yet he at the same time, gripes about the granting of house arrest to others.

Petitioner's contention hinges on the doctrine in administrative law that "a public official can not be removed for administrative misconduct committed during a prior term, since his re-election to office operates as a condonation of the officer's previous misconduct to the extent of cutting off the right to remove him therefor."[42]

The assertion is unavailing. The case against petitioner is not administrative in nature. And there is no "prior term" to speak of. In a plethora of cases,[43] the Court categorically held that the doctrine of condonation does not apply to criminal cases. Election, or more precisely, re-election to office, does not obliterate a criminal charge. Petitioner's electoral victory only signifies pertinently that when the voters elected him to the Senate, "they did so with full awareness of the limitations on his freedom of action [and] x x x with the knowledge that he could achieve only such legislative results which he could accomplish within the confines of prison."[44]

Emergency or compelling temporary leaves from imprisonment are allowed to all prisoners, at the discretion of the authorities or upon court orders.[48] That this discretion was gravely abused, petitioner failed to establish. In fact, the trial court previously allowed petitioner to register as a voter in December 2006, file his certificate of candidacy in February 2007, cast his vote on May 14, 2007, be proclaimed as senator-elect, and take his oath of office[49] on June 29, 2007. In a seeming attempt to bind or twist the hands of the trial court lest it be accused of taking a complete turn-around,[50] petitioner largely banks on these prior grants to him and insists on unending concessions and blanket authorizations.

Petitioner's position fails. On the generality and permanence of his requests alone, petitioner's case fails to compare with the species of allowable leaves. Jaloslos succinctly expounds: x x x Allowing accused-appellant to attend congressional sessions and committee meetings for five (5) days or more in a week will virtually make him a free man with all the privileges appurtenant to his position. Such an aberrant situation not only elevates accused-appellant's status to that of a special class, it also would be a mockery of the purposes of the correction system.[51] WHEREFORE, the petition is DISMISSED.

In once more debunking the disenfranchisement argument,[45] it is opportune to wipe out the lingering misimpression that the call of duty conferred by the voice of the people is louder than the litany of lawful restraints articulated in the Constitution and echoed by jurisprudence. The apparent discord may be harmonized by the overarching tenet that the mandate of the people yields to the Constitution which the people themselves ordained to govern all under the rule of law. The performance of legitimate and even essential duties by public officers has never been an excuse to free a person validly in prison. The duties imposed by the "mandate of the people" are multifarious. The accused-appellant asserts that the duty to legislate ranks highest in the hierarchy of government. The accused-appellant is only one of 250 members of the House of Representatives, not to mention the 24 members of the Senate, charged with the duties of legislation. Congress continues to function well in the physical absence of one or a few of its members. x x x Never has the call of a particular duty lifted a prisoner into a different classification from those others who are validly restrained by law.[46] (Underscoring supplied) Lastly, petitioner pleads for the same liberal treatment accorded certain detention prisoners who have also been charged with non-bailable offenses, like former President Joseph Estrada and former Governor Nur Misuari who were allowed to attend "social functions." Finding no rhyme and reason in the denial of the more serious request to perform the duties of a Senator, petitioner harps on an alleged violation of the equal protection clause.

SO ORDERED.

Puno, C.J., Quisumbing, Ynares-Santiago, Carpio, AustriaMartinez, Corona, Azcuna, Tinga, Chico-Nazario, Velasco, Jr., Nachura, Reyes, Leonardo-De Castro, and Brion, JJ., concur.

Republic of the Philippines SUPREME COURT Manila

EN BAN

G.R. No. 174340

October 17, 2006

In arguing against maintaining double standards in the treatment of detention prisoners, petitioner expressly admits that he intentionally did not seek preferential treatment in the form of being placed under Senate custody or house arrest,[47]

IN THE MATTER OF THE PETITION FOR ISSUANCE OF WRIT OF HABEAS CORPUS OF CAMILO L. SABIO, petitioner, J. ERMIN ERNEST LOUIE R. MIGUEL, petitioner-relator,

vs. HONORABLE SENATOR RICHARD GORDON, in his capacity as Chairman, and the HONORABLE MEMBERS OF THE COMMITTEE ON GOVERNMENT CORPORATIONS AND PUBLIC ENTERPRISES and THE COMMITTEE ON PUBLIC SERVICES of the Senate, HONORABLE SENATOR JUAN PONCE-ENRILE, in his official capacity as Member, HONORABLE MANUEL VILLAR, Senate President, SENATE SERGEANT-AT-ARMS, and the SENATE OF THE PHILIPPINES, respondents. DECISION

SANDOVAL-GUTIERREZ, J.:

x -------------------------------------------------------------------------- x

G.R. No. 174318

October 17, 2006

PRESIDENTIAL COMMISSION ON GOOD GOVERNMENT (PCGG) and CAMILO L. SABIO, Chairman, NARCISO S. NARIO, RICARDO M. ABCEDE, TERESO L. JAVIER and NICASIO A. CONTI, Commissioners, MANUEL ANDAL and JULIO JALANDONI, PCGG nominees to Philcomsat Holdings Corporation, petitioners, vs. RICHARD GORDON, in his capacity as Chairman, and MEMBERS OF THE COMMITTEE ON GOVERNMENT CORPORATIONS AND PUBLIC ENTERPRISES, MEMBERS OF THE COMMITTEE ON PUBLIC SERVICES, SENATOR JUAN PONCE-ENRILE, in his capacity as member of both said Committees, MANUEL VILLAR, Senate President, THE SENATE SERGEANT-AT-ARMS, and SENATE OF THE PHILIPPINES, respondents.

Two decades ago, on February 28, 1986, former President Corazon C. Aquino installed her regime by issuing Executive Order (E.O.) No. 1,1 creating the Presidential Commission on Good Government (PCGG). She entrusted upon this Commission the herculean task of recovering the ill-gotten wealth accumulated by the deposed President Ferdinand E. Marcos, his family, relatives, subordinates and close associates.2 Section 4 (b) of E.O. No. 1 provides that: "No member or staff of the Commission shall be required to testify or produce evidence in any judicial, legislative or administrative proceeding concerning matters within its official cognizance." Apparently, the purpose is to ensure PCGG's unhampered performance of its task.3

Today, the constitutionality of Section 4(b) is being questioned on the ground that it tramples upon the Senate's power to conduct legislative inquiry under Article VI, Section 21 of the 1987 Constitution, which reads:

The Senate or the House of Representatives or any of its respective committees may conduct inquiries in aid of legislation in accordance with its duly published rules of procedure. The rights of persons appearing in or affected by such inquiries shall be respected.

x -------------------------------------------------------------------------- x

The facts are undisputed.

G.R. No. 174177

October 17, 2006

PHILCOMSAT HOLDINGS CORPORATIONS, PHILIP G. BRODETT, LUIS K. LOKIN, JR., ROBERTO V. SAN JOSE, DELFIN P. ANGCAO, ROBERTO L. ABAD, ALMA KRISTINA ALOBBA, and JOHNNY TAN, petitioners, vs. SENATE COMMITTEE ON GOVERNMENT CORPORATIONS and PUBLIC ENTERPRISES, its MEMBERS and CHAIRMAN, the HONORABLE SENATOR RICHARD GORDON and SENATE COMMITTEE ON PUBLIC SERVICES, its Members and Chairman, the HONORABLE SENATOR JOKER P. ARROYO, respondents.

On February 20, 2006, Senator Miriam Defensor Santiago introduced Philippine Senate Resolution No. 455 (Senate Res. No. 455),4 "directing an inquiry in aid of legislation on the anomalous losses incurred by the Philippines Overseas Telecommunications Corporation (POTC), Philippine Communications Satellite Corporation (PHILCOMSAT), and PHILCOMSAT Holdings Corporation (PHC) due to the alleged improprieties in their operations by their respective Board of Directors."

The pertinent portions of the Resolution read:

WHEREAS, in the last quarter of 2005, the representation and entertainment expense of the PHC skyrocketed to P4.3 million, as compared to the previous year's mere P106 thousand;

WHEREAS, some board members established wholly owned PHC subsidiary called Telecommunications Center, Inc. (TCI), where PHC funds are allegedly siphoned; in 18 months, over P73 million had been allegedly advanced to TCI without any accountability report given to PHC and PHILCOMSAT;

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

WHEREAS, the Philippine Star, in its 12 February 2002 issue reported that the executive committee of Philcomsat has precipitately released P265 million and granted P125 million loan to a relative of an executive committee member; to date there have been no payments given, subjecting the company to an estimated interest income loss of P11.25 million in 2004;

On August 10, 2006, Senator Gordon issued a Subpoena Ad Testificandum,8 approved by Senate President Manuel Villar, requiring Chairman Sabio and PCGG Commissioners Ricardo Abcede, Nicasio Conti, Tereso Javier and Narciso Nario to appear in the public hearing scheduled on August 23, 2006 and testify on what they know relative to the matters specified in Senate Res. No. 455. Similar subpoenae were issued against the directors and officers of Philcomsat Holdings Corporation, namely: Benito V. Araneta, Philip J. Brodett, Enrique L. Locsin, Manuel D. Andal, Roberto L. Abad, Luis K. Lokin, Jr., Julio J. Jalandoni, Roberto V. San Jose, Delfin P. Angcao, Alma Kristina Alloba and Johnny Tan.9

WHEREAS, there is an urgent need to protect the interest of the Republic of the Philippines in the PHC, PHILCOMSAT, and POTC from any anomalous transaction, and to conserve or salvage any remaining value of the government's equity position in these corporations from any abuses of power done by their respective board of directors;

Again, Chairman Sabio refused to appear. In his letter to Senator Gordon dated August 18, 2006, he reiterated his earlier position, invoking Section 4(b) of E.O. No. 1. On the other hand, the directors and officers of Philcomsat Holdings Corporation relied on the position paper they previously filed, which raised issues on the propriety of legislative inquiry.

WHEREFORE, be it resolved that the proper Senate Committee shall conduct an inquiry in aid of legislation, on the anomalous losses incurred by the Philippine Overseas Telecommunications Corporation (POTC), Philippine Communications Satellite Corporation (PHILCOMSAT), and Philcomsat Holdings Corporations (PHC) due to the alleged improprieties in the operations by their respective board of directors.

Thereafter, Chief of Staff Ma. Carissa O. Coscolluela, under the authority of Senator Gordon, sent another notice10 to Chairman Sabio requiring him to appear and testify on the same subject matter set on September 6, 2006. The notice was issued "under the same authority of the Subpoena Ad Testificandum previously served upon (him) last 16 August 2006."

Adopted. Once more, Chairman Sabio did not comply with the notice. He sent a letter11 dated September 4, 2006 to Senator Gordon reiterating his reason for declining to appear in the public hearing.

(Sgd) MIRIAM DEFENSOR SANTIAGO

On the same date, February 20, 2006, Senate Res. No. 455 was submitted to the Senate and referred to the Committee on Accountability of Public Officers and Investigations and Committee on Public Services. However, on March 28, 2006, upon motion of Senator Francis N. Pangilinan, it was transferred to the Committee on Government Corporations and Public Enterprises.5

This prompted Senator Gordon to issue an Order dated September 7, 2006 requiring Chairman Sabio and Commissioners Abcede, Conti, Javier and Nario to show cause why they should not be cited in contempt of the Senate. On September 11, 2006, they submitted to the Senate their Compliance and Explanation,12 which partly reads:

On May 8, 2006, Chief of Staff Rio C. Inocencio, under the authority of Senator Richard J. Gordon, wrote Chairman Camilo L. Sabio of the PCGG, one of the herein petitioners, inviting him to be one of the resource persons in the public meeting jointly conducted by the Committee on Government Corporations and Public Enterprises and Committee on Public Services. The purpose of the public meeting was to deliberate on Senate Res. No. 455.6

Doubtless, there are laudable intentions of the subject inquiry in aid of legislation. But the rule of law requires that even the best intentions must be carried out within the parameters of the Constitution and the law. Verily, laudable purposes must be carried out by legal methods. (Brillantes, Jr., et al. v. Commission on Elections, En Banc [G.R. No. 163193, June 15, 2004])

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

No member or staff of the Commission shall be required to testify or produce evidence in any judicial legislative or administrative proceeding concerning matters within its official cognizance.

With all due respect, Section 4(b) of E.O. No. 1 constitutes a limitation on the power of legislative inquiry, and a recognition by the State of the need to provide protection to the PCGG in order to ensure the unhampered performance of its duties under its charter. E.O. No. 1 is a law, Section 4(b) of which had not been amended, repealed or revised in any way.

"[T]he issues sought to be investigated by the respondent Committee is one over which jurisdiction had been acquired by the Sandiganbayan. In short, the issue has been pre-empted by that court. To allow the respondent Committee to conduct its own investigation of an issue already before the Sandigabayan would not only pose the possibility of conflicting judgments between a legislative committee and a judicial tribunal, but if the Committee's judgment were to be reached before that of the Sandiganbayan, the possibility of its influence being made to bear on the ultimate judgment of the Sandiganbayan can not be discounted.

xxxxxx

To say the least, it would require both Houses of Congress and Presidential fiat to amend or repeal the provision in controversy. Until then, it stands to be respected as part of the legal system in this jurisdiction. (As held in People v. Veneracion, G.R. Nos. 119987-88, October 12, 1995: Obedience to the rule of law forms the bedrock of our system of justice. If judges, under the guise of religious or political beliefs were allowed to roam unrestricted beyond boundaries within which they are required by law to exercise the duties of their office, then law becomes meaningless. A government of laws, not of men excludes the exercise of broad discretionary powers by those acting under its authority. Under this system, judges are guided by the Rule of Law, and ought to 'protect and enforce it without fear or favor,' 4 [Act of Athens (1955)] resist encroachments by governments, political parties, or even the interference of their own personal beliefs.)

IT IS IN VIEW OF THE FOREGOING CONSIDERATIONS that the Commission decided not to attend the Senate inquiry to testify and produce evidence thereat.

Unconvinced with the above Compliance and Explanation, the Committee on Government Corporations and Public Enterprises and the Committee on Public Services issued an Order13 directing Major General Jose Balajadia (Ret.), Senate SergeantAt-Arms, to place Chairman Sabio and his Commissioners under arrest for contempt of the Senate. The Order bears the approval of Senate President Villar and the majority of the Committees' members.

xxxxxx

On September 12, 2006, at around 10:45 a.m., Major General Balajadia arrested Chairman Sabio in his office at IRC Building, No. 82 EDSA, Mandaluyong City and brought him to the Senate premises where he was detained.

Relevantly, Chairman Sabio's letter to Sen. Gordon dated August 19, 2006 pointed out that the anomalous transactions referred to in the P.S. Resolution No. 455 are subject of pending cases before the regular courts, the Sandiganbayan and the Supreme Court (Pending cases include: a. Samuel Divina v. Manuel Nieto, Jr., et al., CA-G.R. No. 89102; b. Philippine Communications Satellite Corporation v. Manuel Nieto, et al.; c. Philippine Communications Satellite Corporation v. Manuel D. Andal, Civil Case No. 06-095, RTC, Branch 61, Makati City; d. Philippine Communications Satellite Corporation v. PHILCOMSAT Holdings Corporation, et al., Civil Case No. 04-1049) for which reason they may not be able to testify thereon under the principle of sub judice. The laudable objectives of the PCGG's functions, recognized in several cases decided by the Supreme Court, of the PCGG will be put to naught if its recovery efforts will be unduly impeded by a legislative investigation of cases that are already pending before the Sandiganbayan and trial courts.

Hence, Chairman Sabio filed with this Court a petition for habeas corpus against the Senate Committee on Government Corporations and Public Enterprises and Committee on Public Services, their Chairmen, Senators Richard Gordon and Joker P. Arroyo and Members. The case was docketed as G.R. No. 174340.

Chairman Sabio, Commissioners Abcede, Conti, Nario, and Javier, and the PCGG's nominees to Philcomsat Holdings Corporation, Manuel Andal and Julio Jalandoni, likewise filed a petition for certiorari and prohibition against the same respondents, and also against Senate President Manuel Villar, Senator Juan Ponce Enrile, the Sergeant-at-Arms, and the entire Senate. The case was docketed as G.R. No. 174318.

In Bengzon v. Senate Blue Ribbon Committee, (203 SCRA 767, 784 [1991]) the Honorable Supreme Court held:

Meanwhile, Philcomsat Holdings Corporation and its officers and directors, namely: Philip G. Brodett, Luis K. Lokin, Jr., Roberto V. San Jose, Delfin P. Angcao, Roberto L. Abad, Alma Kristina Alobba and Johnny Tan filed a petition for certiorari and prohibition against the Senate Committees on Government Corporations and Public Enterprises and Public Services, their

Chairmen, Senators Gordon and Arroyo, and Members. The case was docketed as G.R. No. 174177.

Commissioners that their refusal to appear before respondent Senate Committees is justified. With the resolution of this issue, all the other issues raised by the parties have become inconsequential.

In G.R. No. 174340 (for habeas corpus) and G.R. No. 174318 (for certiorari and prohibition) Chairman Sabio, Commissioners Abcede, Conti, Nario, and Javier; and the PCGG's nominees Andal and Jalandoni alleged: first, respondent Senate Committees disregarded Section 4(b) of E.O. No. 1 without any justifiable reason; second, the inquiries conducted by respondent Senate Committees are not in aid of legislation; third, the inquiries were conducted in the absence of duly published Senate Rules of Procedure Governing Inquiries in Aid of Legislation; and fourth, respondent Senate Committees are not vested with the power of contempt.

Perched on one arm of the scale of justice is Article VI, Section 21 of the 1987 Constitution granting respondent Senate Committees the power of legislative inquiry. It reads:

The Senate or the House of Representatives or any of its respective committees may conduct inquiries in aid of legislation in accordance with its duly published rules of procedure. The rights of persons appearing in or affected by such inquiries shall be respected.

In G.R. No. 174177, petitioners Philcomsat Holdings Corporation and its directors and officers alleged: first, respondent Senate Committees have no jurisdiction over the subject matter stated in Senate Res. No. 455; second, the same inquiry is not in accordance with the Senate's Rules of Procedure Governing Inquiries in Aid of Legislation; third, the subpoenae against the individual petitioners are void for having been issued without authority; fourth, the conduct of legislative inquiry pursuant to Senate Res. No. 455 constitutes undue encroachment by respondents into justiciable controversies over which several courts and tribunals have already acquired jurisdiction; and fifth, the subpoenae violated petitioners' rights to privacy and against self-incrimination.

On the other arm of the scale is Section 4(b) of E.O. No.1 limiting such power of legislative inquiry by exempting all PCGG members or staff from testifying in any judicial, legislative or administrative proceeding, thus:

No member or staff of the Commission shall be required to testify or produce evidence in any judicial, legislative or administrative proceeding concerning matters within its official cognizance.

In their Consolidated Comment, the above-named respondents countered: first, the issues raised in the petitions involve political questions over which this Court has no jurisdiction; second, Section 4(b) has been repealed by the Constitution; third, respondent Senate Committees are vested with contempt power; fourth, Senate's Rules of Procedure Governing Inquiries in Aid of Legislation have been duly published; fifth, respondents have not violated any civil right of the individual petitioners, such as their (a) right to privacy; and (b) right against self-incrimination; and sixth, the inquiry does not constitute undue encroachment into justiciable controversies.

To determine whether there exists a clear and unequivocal repugnancy between the two quoted provisions that warrants a declaration that Section 4(b) has been repealed by the 1987 Constitution, a brief consideration of the Congress' power of inquiry is imperative.

The Congress' power of inquiry has been recognized in foreign jurisdictions long before it reached our shores through McGrain v. Daugherty,15 cited in Arnault v. Nazareno.16 In those earlier days, American courts considered the power of inquiry as inherent in the power to legislate. The 1864 case of Briggs v. MacKellar17 explains the breath and basis of the power, thus:

During the oral arguments held on September 21, 2006, the parties were directed to submit simultaneously their respective memoranda within a non-extendible period of fifteen (15) days from date. In the meantime, per agreement of the parties, petitioner Chairman Sabio was allowed to go home. Thus, his petition for habeas corpus has become moot. The parties also agreed that the service of the arrest warrants issued against all petitioners and the proceedings before the respondent Senate Committees are suspended during the pendency of the instant cases.14

Crucial to the resolution of the present petitions is the fundamental issue of whether Section 4(b) of E.O. No. 1 is repealed by the 1987 Constitution. On this lone issue hinges the merit of the contention of Chairman Sabio and his

Where no constitutional limitation or restriction exists, it is competent for either of the two bodies composing the legislature to do, in their separate capacity, whatever may be essential to enable them to legislate.It is well-established principle of this parliamentary law, that either house may institute any investigation having reference to its own organization, the conduct or qualification of its members, its proceedings, rights, or privileges or any matter affecting the public interest upon which it may be important that it should have exact information, and in respect to which it would be competent for it to legislate. The right to pass laws, necessarily implies the right to obtain information upon any matter which may become the subject of a law. It is essential to the full and intelligent exercise of the legislative function.In American legislatures the investigation of public matters before committees,

preliminary to legislation, or with the view of advising the house appointing the committee is, as a parliamentary usage, well established as it is in England, and the right of either house to compel witnesses to appear and testify before its committee, and to punish for disobedience has been frequently enforced.The right of inquiry, I think, extends to other matters, in respect to which it may be necessary, or may be deemed advisable to apply for legislative aid.

Remarkably, in Arnault, this Court adhered to a similar theory. Citing McGrain, it recognized that the power of inquiry is "an essential and appropriate auxiliary to the legislative function," thus:

Considering these jurisprudential instructions, we find Section 4(b) directly repugnant with Article VI, Section 21. Section 4(b) exempts the PCGG members and staff from the Congress' power of inquiry. This cannot be countenanced. Nowhere in the Constitution is any provision granting such exemption. The Congress' power of inquiry, being broad, encompasses everything that concerns the administration of existing laws as well as proposed or possibly needed statutes.22 It even extends "to government agencies created by Congress and officers whose positions are within the power of Congress to regulate or even abolish."23 PCGG belongs to this class.

Certainly, a mere provision of law cannot pose a limitation to the broad power of Congress, in the absence of any constitutional basis.

Although there is no provision in the "Constitution expressly investing either House of Congress with power to make investigations and exact testimony to the end that it may exercise its legislative functions advisedly and effectively, such power is so far incidental to the legislative function as to be implied. In other words, the power of inquiry with process to enforce it is an essential and appropriate auxiliary to the legislative function. A legislative body cannot legislate wisely or effectively in the absence of information respecting the conditions which the legislation is intended to affect or change; and where the legislation body does not itself possess the requisite information which is not infrequently true recourse must be had to others who possess it."

Furthermore, Section 4(b) is also inconsistent with Article XI, Section 1 of the Constitution stating that: "Public office is a public trust. Public officers and employees must at all times be accountable to the people, serve them with utmost responsibility, integrity, loyalty, and efficiency, act with patriotism and justice, and lead modest lives."

Dispelling any doubt as to the Philippine Congress' power of inquiry, provisions on such power made their maiden appearance in Article VIII, Section 12 of the 1973 Constitution.18 Then came the 1987 Constitution incorporating the present Article VI, Section 12. What was therefore implicit under the 1935 Constitution, as influenced by American jurisprudence, became explicit under the 1973 and 1987 Constitutions.19

The provision presupposes that since an incumbent of a public office is invested with certain powers and charged with certain duties pertinent to sovereignty, the powers so delegated to the officer are held in trust for the people and are to be exercised in behalf of the government or of all citizens who may need the intervention of the officers. Such trust extends to all matters within the range of duties pertaining to the office. In other words, public officers are but the servants of the people, and not their rulers.24

Notably, the 1987 Constitution recognizes the power of investigation, not just of Congress, but also of "any of its committee." This is significant because it constitutes a direct conferral of investigatory power upon the committees and it means that the mechanisms which the Houses can take in order to effectively perform its investigative function are also available to the committees.20

Section 4(b), being in the nature of an immunity, is inconsistent with the principle of public accountability. It places the PCGG members and staff beyond the reach of courts, Congress and other administrative bodies. Instead of encouraging public accountability, the same provision only institutionalizes irresponsibility and non-accountability. In Presidential Commission on Good Government v. Pea,25 Justice Florentino P. Feliciano characterized as "obiter" the portion of the majority opinion barring, on the basis of Sections 4(a) and (b) of E.O. No. 1, a civil case for damages filed against the PCGG and its Commissioners. He eloquently opined:

It can be said that the Congress' power of inquiry has gained more solid existence and expansive construal. The Court's high regard to such power is rendered more evident in Senate v. Ermita,21 where it categorically ruled that "the power of inquiry is broad enough to cover officials of the executive branch." Verily, the Court reinforced the doctrine in Arnault that "the operation of government, being a legitimate subject for legislation, is a proper subject for investigation" and that "the power of inquiry is co-extensive with the power to legislate."

The above underscored portions are, it is respectfully submitted, clearly obiter. It is important to make clear that the Court is not here interpreting, much less upholding as valid and constitutional, the literal terms of Section 4 (a), (b) of Executive Order No.1. If Section 4 (a) were given its literal import as immunizing the PCGG or any member thereof from civil liability "for anything done or omitted in the discharge of the task contemplated by this Order," the constitutionality of Section 4 (a) would, in my submission, be open to most serious doubt. For so viewed, Section 4 (a) would institutionalize the irresponsibility and non-accountability of members and staff of

the PCGG, a notion that is clearly repugnant to both the 1973 and 1987 Constitution and a privileged status not claimed by any other official of the Republic under the 1987 Constitution. x x x.

xxxxxx

the channels for free political discussion be maintained to the end that the government may perceive and be responsive to the people's will. Yet, this open dialogue can be effective only to the extent that the citizenry is informed and thus able to formulate its will intelligently. Only when the participants in the discussion are aware of the issues and have access to information relating thereto can such bear fruit.

It would seem constitutionally offensive to suppose that a member or staff member of the PCGG could not be required to testify before the Sandiganbayan or that such members were exempted from complying with orders of this Court.

Chavez v. Sandiganbayan26 reiterates the same view. Indeed, Section 4(b) has been frowned upon by this Court even before the filing of the present petitions.

Corollarily, Section 4(b) also runs counter to the following constitutional provisions ensuring the people's access to information:

Consequently, the conduct of inquiries in aid of legislation is not only intended to benefit Congress but also the citizenry. The people are equally concerned with this proceeding and have the right to participate therein in order to protect their interests. The extent of their participation will largely depend on the information gathered and made known to them. In other words, the right to information really goes hand-in-hand with the constitutional policies of full public disclosure and honesty in the public service. It is meant to enhance the widening role of the citizenry in governmental decision-making as well as in checking abuse in the government.28 The cases of Taada v. Tuvera29 and Legaspi v. Civil Service Commission30 have recognized a citizen's interest and personality to enforce a public duty and to bring an action to compel public officials and employees to perform that duty.

Article II, Section 28

Subject to reasonable conditions prescribed by law, the State adopts and implements a policy of full public disclosure of all its transactions involving public interest.

Section 4(b) limits or obstructs the power of Congress to secure from PCGG members and staff information and other data in aid of its power to legislate. Again, this must not be countenanced. In Senate v. Ermita,31 this Court stressed:

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.

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.

These twin provisions of the Constitution seek to promote transparency in policy-making and in the operations of the government, as well as provide the people sufficient information to enable them to exercise effectively their constitutional rights. Armed with the right information, citizens can participate in public discussions leading to the formulation of government policies and their effective implementation. In Valmonte v. Belmonte, Jr.27 the Court explained that an informed citizenry is essential to the existence and proper functioning of any democracy, thus:

A statute may be declared unconstitutional because it is not within the legislative power to enact; or it creates or establishes methods or forms that infringe constitutional principles; or its purpose or effect violates the Constitution or its basic principles.32 As shown in the above discussion, Section 4(b) is inconsistent with Article VI, Section 21 (Congress' power of inquiry), Article XI, Section 1 (principle of public accountability), Article II, Section 28 (policy of full disclosure) and Article III, Section 7 (right to public information).

Significantly, Article XVIII, Section 3 of the Constitution provides: An essential element of these freedoms is to keep open a continuing dialogue or process of communication between the government and the people. It is in the interest of the State that

All existing laws, decrees, executive orders, proclamations, letters of instructions, and other executive issuances not inconsistent with this Constitution shall remain operative until amended, repealed, or revoked.

CHAIRMAN SABIO:

The clear import of this provision is that all existing laws, executive orders, proclamations, letters of instructions and other executive issuances inconsistent or repugnant to the Constitution are repealed.

Your Honor, my father was a judge, died being a judge. I was here in the Supreme Court as Chief of Staff of Justice Feria. I would definitely honor the Supreme Court and the rule of law.

CHIEF JUSTICE PANGANIBAN: Jurisprudence is replete with decisions invalidating laws, decrees, executive orders, proclamations, letters of instructions and other executive issuances inconsistent with the Constitution. In Pelaez v. Auditor General,33 the Court considered repealed Section 68 of the Revised Administrative Code of 1917 authorizing the Executive to change the seat of the government of any subdivision of local governments, upon the approval of the 1935 Constitution. Section 68 was adjudged incompatible and inconsistent with the Constitutional grant of limited executive supervision over local governments. In Islamic Da'wah Council of the Philippines, Inc., v. Office of the Executive Secretary,34 the Court declared Executive Order No. 46, entitled "Authorizing the Office on Muslim Affairs to Undertake Philippine Halal Certification," void for encroaching on the religious freedom of Muslims. In The Province of Batangas v. Romulo,35 the Court declared some provisions of the General Appropriations Acts of 1999, 2000 and 2001 unconstitutional for violating the Constitutional precept on local autonomy. And in Ople v. Torres,36 the Court likewise declared unconstitutional Administrative Order No. 308, entitled "Adoption of a National Computerized Identification Reference System," for being violative of the right to privacy protected by the Constitution.

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

CHAIRMAN SABIO:

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

With his admission, Chairman Sabio is not fully convinced that he and his Commissioners are shielded from testifying before respondent Senate Committees by Section 4(b) of E.O. No. 1. In effect, his argument that the said provision exempts him and his co-respondent Commissioners from testifying before respondent Senate Committees concerning Senate Res. No. 455 utterly lacks merit.

These Decisions, and many others, highlight that the Constitution is the highest law of the land. It is "the basic and paramount law to which all other laws must conform and to which all persons, including the highest officials of the land, must defer. No act shall be valid, however noble its intentions, if it conflicts with the Constitution."37 Consequently, this Court has no recourse but to declare Section 4(b) of E.O. No. 1 repealed by the 1987 Constitution.

Incidentally, an argument repeated by Chairman Sabio is that respondent Senate Committees have no power to punish him and his Commissioners for contempt of the Senate.

The argument is misleading.

Article VI, Section 21 provides:

Significantly, during the oral arguments on September 21, 2006, Chairman Sabio admitted that should this Court rule that Section 4(b) is unconstitutional or that it does not apply to the Senate, he will answer the questions of the Senators, thus:

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.

CHIEF JUSTICE PANGANIBAN: It must be stressed that the Order of Arrest for "contempt of Senate Committees and the Philippine Senate" was approved by Senate President Villar and signed by fifteen (15) Senators. From this, it can be concluded that the Order is under the authority, not only of the respondent Senate Committees, but of the entire Senate.

Okay. Now, if the Supreme Court rules that Sec. 4(b) is unconstitutional or that it does not apply to the Senate, will you answer the questions of the Senators?

At any rate, Article VI, Section 21 grants the power of inquiry not only to the Senate and the House of Representatives, but also to any of their respective committees. Clearly, there is a direct conferral of power to the committees. Father Bernas, in his Commentary on the 1987 Constitution, correctly pointed out its significance:

It should also be noted that the Constitution explicitly recognizes the power of investigation not just of Congress but also of "any of its committees." This is significant because it constitutes a direct conferral of investigatory power upon the committees and it means that the means which the Houses can take in order to effectively perform its investigative function are also available to the Committees.38

This is a reasonable conclusion. The conferral of the legislative power of inquiry upon any committee of Congress must carry with it all powers necessary and proper for its effective discharge. Otherwise, Article VI, Section 21 will be meaningless. The indispensability and usefulness of the power of contempt in a legislative inquiry is underscored in a catena of cases, foreign and local.

The principle that Congress or any of its bodies has the power to punish recalcitrant witnesses is founded upon reason and policy. Said power must be considered implied or incidental to the exercise of legislative power. How could a legislative body obtain the knowledge and information on which to base intended legislation if it cannot require and compel the disclosure of such knowledge and information if it is impotent to punish a defiance of its power and authority? When the framers of the Constitution adopted the principle of separation of powers, making each branch supreme within the realm of its respective authority, it must have intended each department's authority to be full and complete, independently of the other's authority or power. And how could the authority and power become complete if for every act of refusal, every act of defiance, every act of contumacy against it, the legislative body must resort to the judicial department for the appropriate remedy, because it is impotent by itself to punish or deal therewith, with the affronts committed against its authority or dignity.43

In Negros Oriental II Electric Cooperative, Inc. v. Sangguniang Panlungsod of Dumaguete,44 the Court characterized contempt power as a matter of self-preservation, thus:

In the 1821 case of Anderson v. Dunn,39 the function of the Houses of Congress with respect to the contempt power was likened to that of a court, thus:

The exercise by the legislature of the contempt power is a matter of self-preservation as that branch of the government vested with the legislative power, independently of the judicial branch, asserts its authority and punishes contempts thereof. The contempt power of the legislature is, therefore, sui generis x x x.

But the court in its reasoning goes beyond this, and though the grounds of the decision are not very clearly stated, we take them to be: that there is in some cases a power in each House of Congress to punish for contempt; that this power is analogous to that exercised by courts of justice, and that it being the well established doctrine that when it appears that a prisoner is held under the order of a court of general jurisdiction for a contempt of its authority, no other court will discharge the prisoner or make further inquiry into the cause of his commitment. That this is the general ruleas regards the relation of one court to another must be conceded.

Meanwhile, with respect to G.R. No. 174177, the petition of Philcomsat Holdings Corporation and its directors and officers, this Court holds that the respondent Senate Committees' inquiry does not violate their right to privacy and right against selfincrimination.

In McGrain,40 the U.S. Supreme Court held: "Experience has shown that mere requests for such information are often unavailing, and also that information which is volunteered is not always accurate or complete; so some means of compulsion is essential to obtain what is needed." The Court, in Arnault v. Nazareno,41 sustained the Congress' power of contempt on the basis of this observation.

One important limitation on the Congress' power of inquiry is that "the rights of persons appearing in or affected by such inquiries shall be respected." This is just another way of saying that the power of inquiry must be "subject to the limitations placed by the Constitution on government action." As held in Barenblatt v. United States,45 "the Congress, in common with all the other branches of the Government, must exercise its powers subject to the limitations placed by the Constitution on governmental action, more particularly in the context of this case, the relevant limitations of the Bill of Rights."

In Arnault v. Balagtas,42 the Court further explained that the contempt power of Congress is founded upon reason and policy and that the power of inquiry will not be complete if for every contumacious act, Congress has to resort to judicial interference, thus:

First is the right to privacy.

Zones of privacy are recognized and protected in our laws.46 Within these zones, any form of intrusion is impermissible

unless excused by law and in accordance with customary legal process. The meticulous regard we accord to these zones arises not only from our conviction that the right to privacy is a "constitutional right" and "the right most valued by civilized men,"47 but also from our adherence to the Universal Declaration of Human Rights which mandates that, "no one shall be subjected to arbitrary interference with his privacy" and "everyone has the right to the protection of the law against such interference or attacks."48

Belmonte,54 the Court remarked that as public figures, the Members of the former Batasang Pambansa enjoy a more limited right to privacy as compared to ordinary individuals, and their actions are subject to closer scrutiny. Taking this into consideration, the Court ruled that the right of the people to access information on matters of public concern prevails over the right to privacy of financial transactions.

Our Bill of Rights, enshrined in Article III of the Constitution, provides at least two guarantees that explicitly create zones of privacy. It highlights a person's "right to be let alone" or the "right to determine what, how much, to whom and when information about himself shall be disclosed."49 Section 2 guarantees "the right of the people to be secure in their persons, houses, papers and effects against unreasonable searches and seizures of whatever nature and for any purpose." Section 3 renders inviolable the "privacy of communication and correspondence" and further cautions that "any evidence obtained in violation of this or the preceding section shall be inadmissible for any purpose in any proceeding."

Under the present circumstances, the alleged anomalies in the PHILCOMSAT, PHC and POTC, ranging in millions of pesos, and the conspiratorial participation of the PCGG and its officials are compelling reasons for the Senate to exact vital information from the directors and officers of Philcomsat Holdings Corporations, as well as from Chairman Sabio and his Commissioners to aid it in crafting the necessary legislation to prevent corruption and formulate remedial measures and policy determination regarding PCGG's efficacy. There being no reasonable expectation of privacy on the part of those directors and officers over the subject covered by Senate Res. No. 455, it follows that their right to privacy has not been violated by respondent Senate Committees.

In evaluating a claim for violation of the right to privacy, a court must determine whether a person has exhibited a reasonable expectation of privacy and, if so, whether that expectation has been violated by unreasonable government intrusion.50 Applying this determination to these cases, the important inquiries are: first, did the directors and officers of Philcomsat Holdings Corporation exhibit a reasonable expectation of privacy?; and second, did the government violate such expectation?

Anent the right against self-incrimination, it must be emphasized that this right maybe invoked by the said directors and officers of Philcomsat Holdings Corporation only when the incriminating question is being asked, since they have no way of knowing in advance the nature or effect of the questions to be asked of them."55 That this right may possibly be violated or abused is no ground for denying respondent Senate Committees their power of inquiry. The consolation is that when this power is abused, such issue may be presented before the courts. At this juncture, what is important is that respondent Senate Committees have sufficient Rules to guide them when the right against self-incrimination is invoked. Sec. 19 reads:

The answers are in the negative. Petitioners were invited in the Senate's public hearing to deliberate on Senate Res. No. 455, particularly "on the anomalous losses incurred by the Philippine Overseas Telecommunications Corporation (POTC), Philippine Communications Satellite Corporation (PHILCOMSAT), and Philcomsat Holdings Corporations (PHC) due to the alleged improprieties in the operations by their respective board of directors." Obviously, the inquiry focus on petitioners' acts committed in the discharge of their duties as officers and directors of the said corporations, particularly Philcomsat Holdings Corporation. Consequently, they have no reasonable expectation of privacy over matters involving their offices in a corporation where the government has interest. Certainly, such matters are of public concern and over which the people have the right to information.

Sec. 19. Privilege Against Self-Incrimination

A witness can invoke his right against self-incrimination only when a question tends to elicit an answer that will incriminate him is propounded to him. However, he may offer to answer any question in an executive session.

No person can refuse to testify or be placed under oath or affirmation or answer questions before an incriminatory question is asked. His invocation of such right does not by itself excuse him from his duty to give testimony.

This goes to show that the right to privacy is not absolute where there is an overriding compelling state interest. In Morfe v. Mutuc,51 the Court, in line with Whalen v. Roe,52 employed the rational basis relationship test when it held that there was no infringement of the individual's right to privacy as the requirement to disclosure information is for a valid purpose, i.e., to curtail and minimize the opportunities for official corruption, maintain a standard of honesty in public service, and promote morality in public administration.53 In Valmonte v.

In such a case, the Committee, by a majority vote of the members present there being a quorum, shall determine whether the right has been properly invoked. If the Committee decides otherwise, it shall resume its investigation and the question or questions previously refused to be answered shall be repeated to the witness. If the latter continues to refuse to

answer the question, the Committee may punish him for contempt for contumacious conduct.

Manila

EN BANC The same directors and officers contend that the Senate is barred from inquiring into the same issues being litigated before the Court of Appeals and the Sandiganbayan. Suffice it to state that the Senate Rules of Procedure Governing Inquiries in Aid of Legislation provide that the filing or pendency of any prosecution of criminal or administrative action should not stop or abate any inquiry to carry out a legislative purpose.

G.R. No. 167173

December 27, 2007

Let it be stressed at this point that so long as the constitutional rights of witnesses, like Chairman Sabio and his Commissioners, will be respected by respondent Senate Committees, it their duty to cooperate with them in their efforts to obtain the facts needed for intelligent legislative action. The unremitting obligation of every citizen is to respond to subpoenae, to respect the dignity of the Congress and its Committees, and to testify fully with respect to matters within the realm of proper investigation.

STANDARD CHARTERED BANK (Philippine Branch), PAUL SIMON MORRIS, SUNDARA RAMESH, OWEN BELMAN, SANJAY AGGARWAL, RAJAMANI CHANDRASHEKAR, MARIVEL GONZALES, MA. ELLEN VICTOR, CHONA G. REYES, ZENAIDA IGLESIAS, RAMONA BERNAD, MICHAELANGELO AGUILAR, and FERNAND TANSINGCO, Petitioners, vs. SENATE COMMITTEE ON BANKS, FINANCIAL INSTITUTIONS AND CURRENCIES, as represented by its Chairperson, HON. EDGARDO J. ANGARA, Respondent.

In fine, PCGG Chairman Camilo Sabio and Commissioners Ricardo Abcede, Narciso Nario, Nicasio Conti, and Tereso Javier; and Manuel Andal and Julio Jalandoni, PCGG's nominees to Philcomsat Holdings Corporation, as well as its directors and officers, must comply with the Subpoenae Ad Testificandum issued by respondent Senate Committees directing them to appear and testify in public hearings relative to Senate Resolution No. 455.

DECISION

NACHURA, J.:

WHEREFORE, the petition in G.R. No. 174340 for habeas corpus is DISMISSED, for being moot. The petitions in G.R Nos. 174318 and 174177 are likewise DISMISSED.

Before us is a Petition for Prohibition (With Prayer for Issuance of Temporary Restraining Order and/or Injunction) dated and filed on March 11, 2005 by petitioners against respondent Senate Committee on Banks, Financial Institutions and Currencies, as represented by its Chairperson Edgardo J. Angara (respondent).

Section 4(b) of E.O. No. 1 is declared REPEALED by the 1987 Constitution. Respondent Senate Committees' power of inquiry relative to Senate Resolution 455 is upheld. PCGG Chairman Camilo L. Sabio and Commissioners Ricardo Abcede, Narciso Nario, Nicasio Conti and Tereso Javier; and Manuel Andal and Julio Jalandoni, PCGG's nominees to Philcomsat Holdings Corporation, as well as its directors and officers, petitioners in G.R. No. 174177, are ordered to comply with the Subpoenae Ad Testificandum issued by respondent Senate Committees directing them to appear and testify in public hearings relative to Senate Resolution No. 455. SO ORDERED. Panganiban, C.J., Puno, Quisumbing, Ynares-Santiago, Carpio, Austria-Martinez, Corona, Carpio Morales, Callejo, Sr., Azcuna, Chico-Nazario, Tinga, Garcia, and Velasco, JJ., concur.

Petitioner Standard Chartered Bank (SCB)-Philippines is an institution incorporated in England with limited liability and is licensed to engage in banking, trust, and other related operations in the Philippines. Petitioners Paul Simon Morris, Sundara Ramesh, Owen Belman, Sanjay Aggarwal, Rajamani Chandrashekar, Marivel Gonzales, Ma. Ellen Victor, Chona G. Reyes, Zenaida Iglesias, Ramona Bernad, Michaelangelo Aguilar, and Fernand Tansingco are the Chief Executive Officer, Chief Operations Officer, Country Head of Consumer Banking, General Manager for Credit Card and Personal Loans, Chief Financial Officer, Legal and Compliance Officer, former Trust and Investment Services Head, Country Tax Officer, Head of Corporate Affairs, Head of Banking Services, Head of Client Relationships, and the Head of Global Markets of SCBPhilippines, respectively. Respondent, on the other hand, is one of the permanent committees of the Senate of the Philippines.

Republic of the Philippines SUPREME COURT

The petition seeks the issuance of a temporary restraining order (TRO) to enjoin respondent from (1) proceeding with its inquiry pursuant to Philippine Senate (P.S.) Resolution No. 166; (2) compelling petitioners who are officers of petitioner SCB-

Philippines to attend and testify before any further hearing to be conducted by respondent, particularly that set on March 15, 2005; and (3) enforcing any hold-departure order (HDO) and/or putting the petitioners on the Watch List. It also prays that judgment be rendered (1) annulling the subpoenae ad testificandum and duces tecum issued to petitioners, and (2) prohibiting the respondent from compelling petitioners to appear and testify in the inquiry being conducted pursuant to P.S. Resolution No. 166.

WHEREAS, there are complaints against Standard Chartered Bank whose actions have reportedly defrauded hundreds of Filipino investors of billions of pesos through the sale of unregistered securities in the form of high-risk mutual funds falsely advertised and marketed as safe investment havens;

The facts are as follows:

WHEREAS, there are reports that Standard Chartered Bank clearly knew that its actions were violative of Philippine banking and securities laws but cleverly disguised its illegal acts through the use of pro-forma agreements containing waivers of liability in favor of the bank;

On February 1, 2005, Senator Juan Ponce Enrile, Vice Chairperson of respondent, delivered a privilege speech entitled "Arrogance of Wealth"1 before the Senate based on a letter from Atty. Mark R. Bocobo denouncing SCB-Philippines for selling unregistered foreign securities in violation of the Securities Regulation Code (R.A. No. 8799) and urging the Senate to immediately conduct an inquiry, in aid of legislation, to prevent the occurrence of a similar fraudulent activity in the future. Upon motion of Senator Francis Pangilinan, the speech was referred to respondent. Prior to the privilege speech, Senator Enrile had introduced P.S. Resolution No. 166,2 to wit:

WHEREAS, there are reports that in the early stages of conducting these questionable activities, the Bangko Sentral ng Pilipinas warned and eventually fined Standard Chartered Bank a measly P30,000 for violating Philippine banking laws;

WHEREAS, the particular operations of Standard Chartered Bank may constitute "conducting business in an unsafe and unsound manner," punishable under Section 37 of Republic Act No. 7653 and should have drawn the higher penalty of revocation of its quasi-banking license;

RESOLUTION

WHEREAS, Republic Act No. 8791 or the "General Banking Act of 2000" deems a particular act or omission as conducting business in an unsafe and unsound manner as follows:

DIRECTING THE COMMITTEE ON BANKS, FINANCIAL INSTITUTIONS AND CURRENCIES, TO CONDUCT AN INQUIRY, IN AID OF LEGISLATION, INTO THE ILLEGAL SALE OF UNREGISTERED AND HIGH-RISK SECURITIES BY STANDARD CHARTERED BANK, WHICH RESULTED IN BILLIONS OF PESOS OF LOSSES TO THE INVESTING PUBLIC

"Section 56.2 The act or omission has resulted or may result in material loss or damage or abnormal risk to the institution's depositors, creditors, investors, stockholders or to the Bangko Sentral or to the public in general."

WHEREAS, Republic Act No. 7721, otherwise known as the "Law Liberalizing the Entry and Scope of Operations of Foreign Banks in the Philippines," was approved on May 18, 1994 to promote greater participation of foreign banks in the Philippine Banking Industry that will stimulate economic growth and serve as a channel for the flow of funds into the economy;

WHEREAS, the sale of unregistered securities is also a clear violation of Republic Act No. 8799 or "The Securities Regulation Code of 2000" which states:

WHEREAS, to promote greater competition in the Philippine Banking Industry, foreign banks were accorded the same privileges, allowed to perform the same functions and subjected to the same limitations under relevant banking laws imposed upon domestic banks;

"Section 8.1 Securities shall not be sold or offered for sale or distribution within the Philippines, without a registration statement duly filed with and approved by the Commission. Prior to such sale, information on the securities, in such form and with such substance as the Commission may prescribe, shall be made available to each prospective purchaser."

WHEREAS, Standard Chartered Bank was among the foreign banks granted the privilege to do business in our country under Republic Act No. 7721;

WHEREAS, the Securities and Exchange Commission (SEC) reportedly issued a Cease-and-Desist Order (CDO) against Standard Chartered Bank for the sale of these unregistered securities but the case was reportedly settled administratively and dismissed after Standard Chartered Bank paid a fine of P7 Million;

WHEREAS, the SEC reportedly made an official finding that Standard Chartered Bank actively engaged in promoting and marketing the so-called "Global Third Party Mutual Funds" to the investing public and even set revenue quotas for the sale of these funds;

WHEREAS, existing laws including the Securities Regulation Code seem to be inadequate in preventing the sale of unregistered securities and in effectively enforcing the registration rules intended to protect the investing public from fraudulent practices;

Respondent then proceeded with the investigation proper. Towards the end of the hearing, petitioners, through counsel, made an Opening Statement4 that brought to the attention of respondent the lack of proper authorization from affected clients for the bank to make disclosures of their accounts and the lack of copies of the accusing documents mentioned in Senator Enrile's privilege speech, and reiterated that there were pending court cases regarding the alleged sale in the Philippines by SCBPhilippines of unregistered foreign securities.

WHEREAS, the regulatory intervention by the SEC and BSP likewise appears inadequate in preventing the conduct of proscribed activities in a manner that would protect the investing public;

The February 28, 2005 hearing was adjourned without the setting of the next hearing date. However, petitioners were later served by respondent with subpoenae ad testificandum and duces tecum to compel them to attend and testify at the hearing set on March 15, 2005. Hence, this petition.

The grounds relied upon by petitioners are as follows: WHEREAS, there is a need for remedial legislation to address the situation, having in mind the imposition of proportionate penalties to offending entities and their directors, officers and representatives among other additional regulatory measures;

I.

Now, therefore, BE IT RESOLVED, AS IT IS HEREBY RESOLVED, to direct the Committee on Banks, Currencies, and Financial Institutions, to conduct an inquiry, in aid of legislation, into the reported sale of unregistered and high-risk securities by Standard Chartered Bank which resulted in billions of losses to the investing public.

Acting on the referral, respondent, through its Chairperson, Senator Edgardo J. Angara, set the initial hearing on February 28, 2005 to investigate, in aid of legislation, the subject matter of the speech and resolution filed by Senator Enrile.

THE COMMITTEE ACTED WITHOUT JURISDICTION AND/OR ACTED WITH GRAVE ABUSE OF DISCRETION AMOUNTING TO LACK OF JURISDICTION IN CONDUCTING AN INVESTIGATION, PURPORTEDLY IN AID OF LEGISLATION, BUT IN REALITY PROBING INTO THE ISSUE OF WHETHER THE STANDARD CHARTERED BANK HAD SOLD UNREGISTERED FOREIGN SECURITIES IN THE PHILIPPINES. SAID ISSUE HAS LONG BEEN THE SUBJECT OF CRIMINAL AND CIVIL ACTIONS NOW PENDING BEFORE THE COURT OF APPEALS, REGIONAL TRIAL COURT OF PASIG CITY, METROPOLITAN TRIAL COURT OF MAKATI CITY AND THE PROSECUTOR'S OFFICE OF MAKATI CITY.

II. Respondent invited petitioners, among others, to attend the hearing, requesting them to submit their written position paper. Petitioners, through counsel, submitted to respondent a letter3 dated February 24, 2005 presenting their position, particularly stressing that there were cases pending in court allegedly involving the same issues subject of the legislative inquiry, thereby posing a challenge to the jurisdiction of respondent to continue with the inquiry.

On February 28, 2005, respondent commenced the investigation. Senator Enrile inquired who among those invited as resource persons were present and who were absent. Thereafter, Senator Enrile moved that subpoenae be issued to those who did not attend the hearing and that the Senate request the Department of Justice, through the Bureau of Immigration and Deportation, to issue an HDO against them and/or include them in the Bureaus Watch List. Senator Juan Flavier seconded the motion and the motion was approved.

THE COMMITTEE ACTED IN GRAVE ABUSE OF DISCRETION AMOUNTING TO LACK OF JURISDICTION BY CONDUCTING AN INVESTIGATION, PURPORTEDLY "IN AID OF LEGISLATION," BUT IN REALITY IN "AID OF COLLECTION" BY A HANDFUL OF TWO (2) CLIENTS OF STANDARD CHARTERED BANK OF LOSSES WHICH WERE FOR THEIR ACCOUNT AND RISK. AT ANY RATE, SUCH COLLECTION IS WITHIN THE PROVINCE OF THE COURT RATHER THAN OF THE LEGISLATURE.

III.

THE COMMITTEE ACTED WITHOUT JURISDICTION AND/OR ACTED WITH GRAVE ABUSE OF DISCRETION AMOUNTING TO LACK OF JURISDICTION IN COMPELLING PETITIONERS, SOME OF WHOM ARE RESPONDENTS IN THE PENDING CRIMINAL AND CIVIL ACTIONS BROUGHT BY SAID CLIENTS, IN VIOLATION OF PETITIONERS RIGHT AGAINST SELF-INCRIMINATION AND RIGHT TO PURSUE AND DEFEND THEIR CAUSE IN COURT RATHER THAN ENGAGE IN TRIAL BY PUBLICITY A CLEAR VIOLATION OF DUE PROCESS, RIGHT TO PRIVACY AND TO TRAVEL.

(e) Criminal Case No. 332034, entitled "People of the Philippines vs. Manuel V. Baviera," pending before Branch 64 of the Metropolitan Trial Court of Makati City. Petitioner Morris is the private complainant in this information for extortion or blackmail against Mr. Baviera for demanding the payment of US$2 Million with the threat to EXPOSE THE BANK'S "LARGE SCALE SCAM" CONSISTING [OF] ILLEGAL SELLING OF UNREGISTERED FOREIGN SECURITIES BY THE BANK, before various government offices, such as the Department of Justice, the BIR, Bangko Sentral ng Pilipinas, Regional Trial Courts, and both houses of Congress.

IV.

THE COMMITTEE ACTED IN GRAVE ABUSE OF DISCRETION AMOUNTING TO LACK OF JURISDICTION BY DISREGARDING ITS OWN RULES.5

Petitioners argue that respondent has no jurisdiction to conduct the inquiry because its subject matter is the very same subject matter of the following cases, to wit:

(f) Criminal Case No. 331395, entitled "People of the Philippines vs. Manuel V. Baviera," pending before Branch 64 of the Metropolitan Trial Court of Makati City. Petitioners Victor and Chona Reyes are the private complainants in this information for perjury committed by Mr. Baviera in securing a hold departure order against the petitioners herein from the Department of Justice for their alleged involvement in syndicated estafa and swindling BY SELLING UNREGISTERED FOREIGN SECURITIES.

(a) CA-G.R. SP No. 85078, entitled "Manuel V. Baviera vs. Hon. Esperanza P. Rosario, et al., pending before the 9th Division of the Court of Appeals. In the petition, Mr. Baviera seeks to annul and set aside the dismissal by the Department of Justice of his complaint against Standard Chartered Bank and its officers accusing them of SELLING UNREGISTERED FOREIGN SECURITIES IN VIOLATION OF P.D. NO. 1869 (SYNDICATED ESTAFA) AND ARTICLE 315 OF THE REVISED PENAL CODE.

(g) I.S. No. 2004-B-2279-80, entitled "Aurelio Litonjua III and Aurelio Litonjua, Jr. vs. Antonette de los Reyes, et al.," pending before the Office of the Prosecutor, Makati City. This is a criminal complaint accusing SCB and its officers of estafa for SELLING UNREGISTERED FOREIGN SECURITIES.6

(b) CA-G.R. SP No. 86200, entitled "Manuel V. Baviera vs. Hon. Rafael Buenaventura, et al.", pending before the 15th Division of the Court of Appeals. In the petition, Mr. Baviera seeks to annul and set aside the termination for lack of probable cause by the Anti-Money Laundering Council ("AMLC") of the investigation of Standard Chartered Bank for money laundering activities BY SELLING UNREGISTERED FOREIGN SECURITIES.

Citing Bengzon, Jr. v. Senate Blue Ribbon Committee,7 the petitioners claim that since the issue of whether or not SCBPhilippines illegally sold unregistered foreign securities is already preempted by the courts that took cognizance of the foregoing cases, the respondent, by this investigation, would encroach upon the judicial powers vested solely in these courts.

The argument is misplaced. Bengzon does not apply squarely to petitioners case.

(c) CA-G.R. SP No. 87328, entitled "Manuel V. Baviera vs. Hon. Esperanza Paglinawan Rozario, et al.," pending before the 16th Division of the Court of Appeals. The petition seeks to annul and set aside the dismissal by the Department of Justice of Mr. Baviera's complaint accusing SCB and its officers of violation of the Securities Regulation Code by SELLING UNREGISTERED FOREIGN SECURITIES.

It is true that in Bengzon, the Court declared that the issue to be investigated was one over which jurisdiction had already been acquired by the Sandiganbayan, and to allow the [Senate Blue Ribbon] Committee to investigate the matter would create the possibility of conflicting judgments; and that the inquiry into the same justiciable controversy would be an encroachment on the exclusive domain of judicial jurisdiction that had set in much earlier.

(d) Civil Case No. 70173, entitled "Mr. Noel G. Sanchez, et al. vs. Standard Chartered Bank," pending before Branch 155 of the Regional Trial Court of Pasig City. Plaintiff seeks damages and recovery of their investment accusing the bank of SELLING UNREGISTERED FOREIGN SECURITIES.

To the extent that, in the case at bench, there are a number of cases already pending in various courts and administrative bodies involving the petitioners, relative to the alleged sale of unregistered foreign securities, there is a resemblance between this case and Bengzon. However, the similarity ends there.

Central to the Courts ruling in Bengzon -- that the Senate Blue Ribbon Committee was without any constitutional mooring to conduct the legislative investigation -- was the Courts determination that the intended inquiry was not in aid of legislation. The Court found that the speech of Senator Enrile, which sought such investigation contained no suggestion of any contemplated legislation; it merely called upon the Senate to look into possible violations of Section 5, Republic Act No. 3019. Thus, the Court held that the requested probe failed to comply with a fundamental requirement of Section 21, Article VI of the Constitution, which states:

foreign securities x x x." This fallacy is made more glaring when we consider that, at the conclusion of his privilege speech, Senator Enrile urged the Senate "to immediately conduct an inquiry, in aid of legislation, so as to prevent the occurrence of a similar fraudulent activity in the future."

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.

Indeed, the mere filing of a criminal or an administrative complaint before a court or a quasi-judicial body should not automatically bar the conduct of legislative investigation. Otherwise, it would be extremely easy to subvert any intended inquiry by Congress through the convenient ploy of instituting a criminal or an administrative complaint. Surely, the exercise of sovereign legislative authority, of which the power of legislative inquiry is an essential component, cannot be made subordinate to a criminal or an administrative investigation.

As succinctly stated in the landmark case Arnault v. Nazareno8

Accordingly, we stopped the Senate Blue Ribbon Committee from proceeding with the legislative investigation in that case.

Unfortunately for the petitioners, this distinguishing factual milieu in Bengzon does not obtain in the instant case. P.S. Resolution No. 166 is explicit on the subject and nature of the inquiry to be (and already being) conducted by the respondent Committee, as found in the last three Whereas clauses thereof, viz.:

[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.

WHEREAS, existing laws including the Securities Regulation Code seem to be inadequate in preventing the sale of unregistered securities and in effectively enforcing the registration rules intended to protect the investing public from fraudulent practices;

Neither can the petitioners claim that they were singled out by the respondent Committee. The Court notes that among those invited as resource persons were officials of the Securities and Exchange Commission (SEC) and the Bangko Sentral ng Pilipinas (BSP). These officials were subjected to the same critical scrutiny by the respondent relative to their separate findings on the illegal sale of unregistered foreign securities by SCB-Philippines. It is obvious that the objective of the investigation was the quest for remedies, in terms of legislation, to prevent the recurrence of the allegedly fraudulent activity.

WHEREAS, the regulatory intervention by the SEC and BSP likewise appears inadequate in preventing the conduct of proscribed activities in a manner that would protect the investing public;

WHEREAS, there is a need for remedial legislation to address the situation, having in mind the imposition of proportionate penalties to offending entities and their directors, officers and representatives among other additional regulatory measures; (emphasis supplied)

Still, petitioners insist that the inquiry conducted by respondent was, in fact, "in aid of collection." They claim that Atty. Bocobo and Manuel Baviera, the latter a party to the pending court cases cited by petitioners, were only seeking a friendly forum so that they could recover their investments from SCB-Philippines; and that the respondent has allowed itself to be used as the conveniently available vehicle to effect this purpose.

The unmistakable objective of the investigation, as set forth in the said resolution, exposes the error in petitioners allegation that the inquiry, as initiated in a privilege speech by the very same Senator Enrile, was simply "to denounce the illegal practice committed by a foreign bank in selling unregistered

However, as correctly pointed out by respondent in its Comment on the petition, Atty. Bocobo did not file a complaint before the Senate for the purpose of recovering his investment. On the contrary, and as confirmed during the initial hearing on February 28, 2005, his letter-complaint humbly requested the Senate to conduct an inquiry into the purportedly illegal activities of SCB-Philippines, with the end view of preventing

the future occurrence of any similar fraudulent activity by the banks in general.9 Baviera, on the other hand, was not a "complainant" but merely a witness in the investigation, invited to testify on the alleged illegal sale of unregistered foreign securities by SCB-Philippines, being one of the supposed victims thereof.

legislature as one of the three independent and coordinate branches of government.12

The Court further notes that when it denied petitioners prayer for the issuance of a TRO to restrain the hearing set on March 15, 2005,10 respondent proceeded with the investigation. On the said date, outraged by petitioners imputation that it was conducting the investigation "in aid of collection," respondent held petitioners, together with their counsel, Atty. Reynaldo Geronimo, in contempt and ordered their detention for six hours.

In this case, petitioners imputation that the investigation was "in aid of collection" is a direct challenge against the authority of the Senate Committee, as it ascribes ill motive to the latter. In this light, we find the contempt citation against the petitioners reasonable and justified.

Petitioners filed a Motion for Partial Reconsideration of this Courts Resolution dated March 14, 2005 only with respect to the denial of the prayer for the issuance of a TRO and/or writ of preliminary injunction, alleging that their being held in contempt was without legal basis, as the phrase "in aid of collection" partakes of an absolutely privileged allegation in the petition.

Furthermore, it is axiomatic that the power of legislative investigation includes the power to compel the attendance of witnesses. Corollary to the power to compel the attendance of witnesses is the power to ensure that said witnesses would be available to testify in the legislative investigation. In the case at bench, considering that most of the officers of SCB-Philippines are not Filipino nationals who may easily evade the compulsive character of respondents summons by leaving the country, it was reasonable for the respondent to request the assistance of the Bureau of Immigration and Deportation to prevent said witnesses from evading the inquiry and defeating its purpose. In any event, no HDO was issued by a court. The BID instead included them only in the Watch List, which had the effect of merely delaying petitioners intended travel abroad for five (5) days, provided no HDO is issued against them.13

We do not agree. The Court has already expounded on the essence of the contempt power of Congress and its committees in this wise

The principle that Congress or any of its bodies has the power to punish recalcitrant witnesses is founded upon reason and policy. Said power must be considered implied or incidental to the exercise of legislative power. How could a legislative body obtain the knowledge and information on which to base intended legislation if it cannot require and compel the disclosure of such knowledge and information, if it is impotent to punish a defiance of its power and authority? When the framers of the Constitution adopted the principle of separation of powers, making each branch supreme within the realm of its respective authority, it must have intended each departments authority to be full and complete, independently of each others 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 affronts committed against its authority or dignity.11

With respect to the right of privacy which petitioners claim respondent has violated, suffice it to state that privacy is not an absolute right. While it is true that Section 21, Article VI of the Constitution, guarantees respect for the rights of persons affected by the legislative investigation, not every invocation of the right to privacy should be allowed to thwart a legitimate congressional inquiry. In Sabio v. Gordon,14 we have held that the right of the people to access information on matters of public concern generally prevails over the right to privacy of ordinary financial transactions. In that case, we declared that the right to privacy is not absolute where there is an overriding compelling state interest. Employing the rational basis relationship test, as laid down in Morfe v. Mutuc,15 there is no infringement of the individuals right to privacy as the requirement to disclosure information is for a valid purpose, in this case, to ensure that the government agencies involved in regulating banking transactions adequately protect the public who invest in foreign securities. Suffice it to state that this purpose constitutes a reason compelling enough to proceed with the assailed legislative investigation.16

The exercise by Congress or by any of its committees of the power to punish contempt is based on the principle of selfpreservation. As the branch of the government vested with the legislative power, independently of the judicial branch, it can assert its authority and punish contumacious acts against it. Such power is sui generis, as it attaches not to the discharge of legislative functions per se, but to the sovereign character of the

As regards the issue of self-incrimination, the petitioners, officers of SCB-Philippines, are not being indicted as accused in a criminal proceeding. They were summoned by respondent merely as resource persons, or as witnesses, in a legislative inquiry. As distinguished by this Court

[An] accused occupies a different tier of protection from an ordinary witness. Whereas an ordinary witness may be compelled to take the witness stand and claim the privilege as each question requiring an incriminating answer is shot at him,

an accused may altogether refuse to take the witness stand and refuse to answer any and all questions.17

is still up to the prosecutorial agencies and the courts to determine the liabilities of the offender.

Concededly, this right of the accused against self-incrimination is extended to respondents in administrative investigations that partake of the nature of or are analogous to criminal proceedings. The privilege has consistently been held to extend to all proceedings sanctioned by law; and to all cases in which punishment is sought to be visited upon a witness, whether a party or not.18

However, in this case, petitioners neither stand as accused in a criminal case nor will they be subjected by the respondent to any penalty by reason of their testimonies. Hence, they cannot altogether decline appearing before respondent, although they may invoke the privilege when a question calling for an incriminating answer is propounded.19

Finally, petitioners sought anew, in their Manifestation and Motion21 dated June 21, 2006, the issuance by this Court of a TRO and/or writ of preliminary injunction to prevent respondent from submitting its Committee Report No. 75 to the Senate in plenary for approval. However, 16 days prior to the filing of the Manifestation and Motion, or on June 5, 2006, respondent had already submitted the report to the Senate in plenary. While there is no showing that the said report has been approved by the Senate, the subject of the Manifestation and Motion has inescapably become moot and academic.

WHEREFORE, the Petition for Prohibition is DENIED for lack of merit. The Manifestation and Motion dated June 21, 2006 is, likewise, DENIED for being moot and academic. SO ORDERED.

Petitioners argument, that the investigation before respondent may result in a recommendation for their prosecution by the appropriate government agencies, such as the Department of Justice or the Office of the Ombudsman, does not persuade.

ANTONIO EDUARDO B. NACHURA Associate Justice WE CONCUR: REYNATO S. PUNO

As held in Sinclair v. United States20 --

Chief Justice On leave

It may be conceded that Congress is without authority to compel disclosures for the purpose of aiding the prosecution of pending suits; but the authority of that body, directly or through its Committees, to require pertinent disclosures in aid of its own constitutional power is not abridged because the information sought to be elicited may also be of use in such suits. x x x It is plain that investigation of the matters involved in suits brought or to be commenced under the Senate resolution directing the institution of suits for the cancellation of the leases might directly aid in respect of legislative action.

LEONARDO A. QUISUMBING Associate Justice Associate Justice ANGELINA SANDOVAL-GUTIERREZ Associate Justice Associate Justice MA. ALICIA AUSTRIA-MARTINEZ ANTONIO T. CARPIO CONSUELO YNARES-SANTIAGO

The prosecution of offenders by the prosecutorial agencies and the trial before the courts is for the punishment of persons who transgress the law. The intent of legislative inquiries, on the other hand, is to arrive at a policy determination, which may or may not be enacted into law.

Associate Justice Associate Justice

RENATO C. CORONA

CONCHITA CARPIO MORALES Associate Justice ADOLFO S. AZCUNA

Except only when it exercises the power to punish for contempt, the respondent, as with the other Committees of the Senate or of the House of Representatives, cannot penalize violators even if there is overwhelming evidence of criminal culpability. Other than proposing or initiating amendatory or remedial legislation, respondent can only recommend measures to address or remedy whatever irregularities may be unearthed during the investigation, although it may include in its Report a recommendation for the criminal indictment of persons who may appear liable. At best, the recommendation, along with the evidence, contained in such a Report would be persuasive, but it

Associate Justice DANTE O. TINGA Associate Justice Associate Justice PRESBITERO J. VELASCO, JR. Associate Justice RUBEN T. REYES MINITA V. CHICO-NAZARIO

Associate Justice TERESITA J. LEONARDO-DE CASTRO Associate Justice CERTIFICATION Pursuant to Section 13, Article VIII of the Constitution, I certify that the conclusions in the above decision had been reached in consultation before the case was assigned to the writer of the opinion of the Court. REYNATO S. PUNO Chief Justice

FERDINAND GAITE, and COUNSELS FOR THE DEFENSE OF LIBERTIES (CODAL) represented by ATTY. REMEDIOS BALBIN, Petitioners, vs. EDUARDO ERMITA, in his capacity as Executive Secretary and alter-ego of President Gloria Macapagal-Arroyo, Respondent.

x-------------------------x

G.R. No. 169660

April 20, 2006

Republic of the Philippines SUPREME COURT Manila

FRANCISCO I. CHAVEZ, Petitioner, vs. EDUARDO R. ERMITA, in his capacity as Executive Secretary, AVELINO J. CRUZ, JR., in his capacity as Secretary of Defense, and GENEROSO S. SENGA, in his capacity as AFP Chief of Staff, Respondents.

EN BANC

x-------------------------x G.R. No. 169777* April 20, 2006

G.R. No. 169667 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.

April 20, 2006

ALTERNATIVE LAW GROUPS, INC. (ALG), Petitioner, vs. HON. EDUARDO R. ERMITA, in his capacity as Executive Secretary, Respondent.

x-------------------------x

G.R. No. 169834

April 20, 2006

PDP- LABAN, Petitioner, x-------------------------x vs. EXECUTIVE SECRETARY EDUARDO R. ERMITA, Respondent.

G.R. No. 169659

April 20, 2006

BAYAN MUNA represented by DR. REYNALDO LESACA, JR., Rep. SATUR OCAMPO, Rep. CRISPIN BELTRAN, Rep. RAFAEL MARIANO, Rep. LIZA MAZA, Rep. TEODORO CASINO, Rep. JOEL VIRADOR, COURAGE represented by

x-------------------------x

G.R. No. 171246

April 20, 2006

JOSE ANSELMO I. CADIZ, FELICIANO M. BAUTISTA, ROMULO R. RIVERA, JOSE AMOR AMORANDO, ALICIA A. RISOS-VIDAL, FILEMON C. ABELITA III, MANUEL P. LEGASPI, J. B. JOVY C. BERNABE, BERNARD L. DAGCUTA, ROGELIO V. GARCIA, and the INTEGRATED BAR FOR THE PHILIPPINES, Petitioners, vs. HON. EXECUTIVE SECRETARY EDUARDO R. ERMITA, Respondent.

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).

DECISION

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.

CARPIO MORALES, J.: The Senate Committee on National Defense and Security likewise issued invitations2 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 WireTapping 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.

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 coequal 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 dutybound 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.

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."

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,

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."

Executive privilege covers all confidential or classified information between the President and the public officers covered by this executive order, including:

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."

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);

Senate President Drilon likewise received on September 28, 2005 a letter6 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.

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).

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:

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);

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.

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:

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.

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

SECTION. 2. Nature, Scope and Coverage of 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;

(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.

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

Secretary Romulo L. Neri.10 NorthRail President Cortes sent personal regrets likewise citing E.O. 464.11 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)

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.

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 letter9 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.

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.

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.

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.

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

In G.R. No. 169667, petitioner Alternative Law Groups, Inc.12 (ALG), alleging that as a coalition of 17 legal resource nongovernmental 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 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.

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.

All the petitions pray for the issuance of a Temporary Restraining Order enjoining respondents from implementing, enforcing, and observing E.O. 464.

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 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

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.

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.

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.

Petitioners Bayan Muna et al. in G.R. No. 169659, after their motion for extension to file memorandum27 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

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

Art. XI, Sec. 133 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.

Art. III, Sec. 734

Art. III, Sec. 435 Standing Art. XIII, Sec. 16 36 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.

Art. II, Sec. 2837

Respondents Executive Secretary Ermita et al., on the other hand, pray in their consolidated memorandum38 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

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

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.

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

Essential requisites for judicial review 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.

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

Invoking this Courts ruling in National Economic Protectionism Association v. Ongpin42 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 legislation45 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

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.

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.

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.

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

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.

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 rights51 and to the maintenance of the balance of power among the three branches of the government through the principle of checks and balances.52

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. 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:

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.

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)

The power of inquiry

The Congress power of inquiry is expressly recognized in Section 21 of Article VI of the Constitution which reads:

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.

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)

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."

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.

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.

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.

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.

Executive privilege

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.

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.

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.

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."

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.

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:

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.

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)

Ruling that the balance favored the President, the Court declined to enforce the subpoena. 76 The entry in Blacks Law Dictionary on "executive privilege" is similarly instructive regarding the scope of the doctrine. In this jurisdiction, the doctrine of executive privilege was recognized by this Court in Almonte v. Vasquez.77 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:

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 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)

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.

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.

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.

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.

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.

Validity of Section 1 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?

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.

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)

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.

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:

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. 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.

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.

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.

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 Constitution86 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.

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.

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

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 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:

The foregoing opinion was not the two Commissioners alone. From the above-quoted exchange, Commissioner Maambongs

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)

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.

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.

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.

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

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.

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.

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.

Ultimately, the power of Congress to compel the appearance of executive officials under Section 21 and the lack of it under Section 22 find their basis in the principle of separation of powers. While the executive branch is a co-equal branch of the legislature, it cannot frustrate the power of Congress to legislate by refusing to comply with its demands for information.

Validity of Sections 2 and 3

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.

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.

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.

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.

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.

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.

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:

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:

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)

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)

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.

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

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."

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

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.

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)

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:

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: 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

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)

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.

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

In fine, Section 3 and Section 2(b) of E.O. 464 must be invalidated.

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)

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.

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:

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.

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

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.

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.

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.

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.

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.

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:

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."

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)

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.

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.

Right to Information

Implementation of E.O. 464 prior to its publication

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.

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)

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.

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.

CONCHITA CARPIO MORALES Associate Justice

WE CONCUR:

ARTEMIO V. PANGANIBAN Conclusion Chief Justice

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.

(ON LEAVE) REYNATO S. PUNO Associate Justice CONSUELO YNARES- SANTIAGO

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

Asscociate Justice LEONARDO A. QUISUMBING Associate Justice Asscociate Justice ANGELINA SANDOVAL-GUTIERREZ

[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

ANTONIO T. CARPIO Associate Justice Asscociate Justice RENATO C. CORONA Associate Justice ADOLFO S. AZCUNA MA. ALICIA AUSTRIA-MARTINEZ

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.

Asscociate Justice ROMEO J. CALLEJO, SR. Associate Justice Asscociate Justice MINITA V. CHICO-NAZARIO DANTE O. TINGA

Associate Justice Asscociate Justice

CANCIO C. GARCIA In Criminal Case No. 16698 filed before the Sandiganbayan, petitioner was indicted thusly:

PRESBITERO J. VELASCO, JR. Associate Justice That on or about October 17, 1988, or sometime prior or subsequent thereto, in Manila, Philippines and within the jurisdiction of this Honorable Court, accused MIRIAM DEFENSOR-SANTIAGO, a public officer, being then the Commissioner of the Commission on Immigration and Deportation, with evident bad faith and manifest partiality in the exercise of her official functions, did then and there willfully, unlawfully and criminally approve the application for legalization of the stay of the following aliens: Jhamtani Shalini Narendra, Ting Siok Hun, Ching Suat Liong Ting, Cu Kui Pein Uy, Cu Kui Pwe Uy, Hong Shao Guan, Hong Xiao Yuan, Xu Li Xuan, Qui Ming Xia Ong, Wu Sui Xin Quiu, Wu Hong Guan Qui @ Betty Go, Wu Hong Ru Qui @ Mary Go Xu Yin Yin Kua, Hong Shao Hua Xu, Hong Shao Wei Xu, Lu Shing Qing, Lu Shi Tian, Lu Se Chong, Shi Qing Yu, Xu Angun @ Xu An Cin, Xu Pinting, Wang Xiu Jin, Cai Pian Pian, Cai Wen Xu, Cai Min Min, Cai Ping Ping, Choi Kin Kwok @ Bernardo Suarez, Yen Liang Ju @ Jeslyn Gan, Cai Yan Nan, Yen Ling Chien @ Chrismayne Gan, So Chen Yueh-O, Cai Ya Rong, who arrived in the Philippines after January 1, 1984 in violation of Executive Order no. 324 dated April 13, 1988 which prohibits the legalization of said disqualified aliens knowing fully well that said aliens are disqualified, thereby giving unwarranted benefits to said aliens whose stay in the Philippines was unlawfully legalized by said accused.[1]

CERTIFICATION

Pursuant to Article VIII, Section 13 of the Constitution, it is hereby certified that the conclusions in the above Resolution were reached in consultation before the case was assigned to the writer of the opinion of the Court.

ARTEMIO V. PANGANIBAN Chief Justice

EN BANC [G.R. No. 128055. April 18, 2001]

MIRIAM DEFENSOR SANTIAGO, petitioner, vs. SANDIGANBAYAN, FRANCIS E. GARCHITORENA, JOSE S. BALAJADIA AND MINITA V. CHICO-NAZARIO, AS PRESIDING JUSTICE AND MEMBERS OF THE FIRST DIVISION, respondents. DECISION VITUG, J.:

Two other criminal cases, one for violation of the provisions of Presidential Decree No. 46 and the other for libel, were filed with the Regional Trial Court of Manila, docketed, respectively, No. 91-94555 and no. 91-94897.

The Court is called upon to review the act of the Sandiganbayan, and how far it can go, in ordering the preventive suspension of petitioner, Mme. Senator Miriam Defensor-Santiago, in connection with pending criminal cases filed against her for alleged violation of Republic Act No. 3019, as amended, otherwise known as the Anti-Graft and Corrupt Practices Act.

The instant case arose from complaints filed by a group of employees of the Commission of Immigration and Deportation (CID) against petitioner, then CID Commissioner, for alleged violation of the Anti-Graft and Corrupt Practices Act. The investigating panel, that took over the case from Investigator Gualberto dela Llana after having been constituted by the Deputy Ombudsman for Luzon upon petitioners request, came up with a resolution which it referred, for approval, to the Office of the Special Prosecutor (OSP) and the Ombudsman. In his Memorandum, dated 26 April 1991, the Ombudsman directed the OSP to file the appropriate informations against petitioner. On 13 May 1991, OSP submitted to the Ombudsman the informations for clearance; approved, forthwith, three informations were filed on even date.

Pursuant to the information filed with the Sandiganbayan, Presiding Justice Francis E. Garchitorena issued an order for the arrest of petitioner, fixing the bail at Fifteen Thousand (P15,000.00) Pesos. Petitioner posted a cash bail without need for physical appearance as she was then recuperating from injuries sustained in a vehicular accident. The Sandiganbayan granted her provisional liberty until 05 June 1991 or until her physical condition would warrant her physical appearance in court. Upon manifestation by the Ombudsman, however, that petitioner was able to come unaided to his office on 20 May 1991, Sandiganbayan issued an order setting the arraignment on 27 May 1991.

Meanwhile, petitioner moved for the cancellation of her cash bond and prayed that she be allowed provisional liberty upon a recognizance.

On 24 May 1991, petitioner filed, concurrently, a Petition for Certiorari with Prohibition and Preliminary Injunction before the Court, docketed G.R. No. 99289-90, seeking to enjoin the

Sandiganbayan from proceeding with Criminal Case No. 16698 and a motion before the Sandiganbayan to meanwhile defer her arraignment. The Court taking cognizance of the petition issued a temporary restraining order.

The Sandiganbayan, thus, informed, issued an order deferring petitioners arraignment and the consideration of her motion to cancel the cash bond until further advice from the court.

Initially, the Court issued a temporary restraining order directing Presiding Justice Garchitorena to cease and desist from sitting in the case, as well as from enforcing the 11th March 1993 resolution ordering petitioner to post bail bonds for the 32 amended informations, and from proceeding with her arraignment on 12 April 1993 until the matter of his disqualification would have been resolved by the Court.

On 13 January 1992, the Court rendered its decision dismissing the petition and lifting the temporary restraining order. The subsequent motion for reconsideration filed by petitioner proved unavailing.

On 02 December 1993, the Court, in its decision in G.R. 109266, directed the OSP and Ombudsman to consolidate the 32 amended informations. Conformably therewith, all the 32 informations were consolidated into one information under Criminal Case No. 16698.

On 06 July 1992, in the wake of media reports announcing petitioners intention to accept a fellowship from the John F. Kennedy School of Government at Harvard University, the Sandiganbayan issued an order to enjoin petitioner from leaving the country.

Petitioner, then filed with the Sandiganbayan a Motion to Redetermine probable Cause and to dismiss or quash said information. Pending the resolution of this incident, the prosecution filed on 31 July 1995 with the Sandiganbayan a motion to issue an order suspending petitioner.

On 15 October 1992, petitioner moved to inhibit Sandiganbayan Presiding Justice Garchitorena from the case and to defer her arraignment pending action on her motion to inhibit. On 09 November 1992, her motion was denied by the Sandiganbayan. The following day, she filed anew a Petition for Certiorari and Prohibition with urgent Prayer for Preliminary Injunction with the Court, docketed G.R. No. 99289-90. At the same time, petitioner filed a motion for bill of particulars with the Sandiganbayan asseverating that the names of the aliens whose applications she purportedly approved and thereby supposedly extended undue advantage were conspicuously omitted in the complaint.

On 03 August 1995, the Sandiganbayan resolved to allow the testimony of one Rodolfo Pedellaga (Pedellaga). The presentation was scheduled on 15 September 1995.

In the interim, the Sandiganbayan directed petitioner to file her opposition to the 31st July 1995 motion for the prosecution within fifteen (15) days from receipt thereof.

The Court, in its resolution of 12 November 1992, directed the Sandiganbayan to reset petitioners arraignment not later than five days from receipt of notice thereof.

On 18 August 1995, petitioner submitted to the Sandiganbayan a motion for reconsideration of its 03rd August 1995 order which would allow the testimony of Pedellaga. The incident, later denied by the Sandiganbayan, was elevated to the Court via a Petition for Review on Certiorari, entitled Miriam DefensorSantiago vs. Sandiganbayan, docketed G.R. No. 123792.

On 07 December 1992, the OSP and the Ombudsman filed with the Sandiganbayan a motion to admit thirty-two amended informations. Petitioner moved for the dismissal of the 32 informations. The court, in its 11th March 1993 resolution, denied her motion to dismiss the said informations and directed her to post bail on the criminal cases, docketed Criminal Case No. 18371-18402, filed against her.

On 22 August 1995, petitioner filed her opposition to the motion of the prosecution to suspend her. On 25 January 1996, the Sandiganbayan resolved:

Unrelenting, petitioner, once again came to this Court via a Petition for Certiorari, docketed G.R. No. 109266, assailing the 03rd March 1993 resolution of the Sandiganbayan which resolved not to disqualify its Presiding Justice, as well as its 14th March 1993 resolution admitting the 32 Amended Informations, and seeking the nullification thereof.

WHEREFORE, for all the foregoing, the Court hereby grants the motion under consideration and hereby suspends the accused Miriam Defensor-Santiago from her position as Senator of the Republic of the Philippines and from any other government position she may be holding at present or hereafter. Her suspension shall be for ninety (90) days only and shall take effect immediately upon notice.

Let a copy of this Resolution be furnished to the Hon. Ernesto Maceda, Senate President, Senate of the Philippines, Executive House, Taft Ave., Manila, through the Hon. Secretary of the Senate, for the implementation of the suspension herein

ordered. The Secretary of the Senate shall inform this court of the action taken thereon within five (5) days from receipt hereof.

The provision of suspension pendente lite applies to all persons indicted upon a valid information under the Act, whether they be appointive or elective officials; or permanent or temporary employees, or pertaining to the career or non-career service.[4]

The said official shall likewise inform this Court of the actual date of implementation of the suspension order as well as the expiry of the ninetieth day thereof so that the same may be lifted at the time.[2]

Hence, the instant recourse. The petition assails the authority of the Sandiganbayan to decree a ninety-day preventive suspension of Mme. Miriam Defensor-Santiago, a Senator of the Republic of the Philippines, from any government position, and furnishing a copy thereof to the Senate of the Philippines for the implementation of the suspension order.

It would appear, indeed, to be a ministerial duty of the court to issue an order of suspension upon determination of the validity of the information filed before it. Once the information is found to be sufficient in form and substance, the court is bound to issue an order of suspension as a matter of course, and there seems to be no ifs and buts about it.[5] Explaining the nature of the preventive suspension, the Court in the case of Bayot vs. Sandiganbayan[6] observed:

The authority of the Sandiganbayan to order the preventive suspension of an incumbent public official charged with violation of the provisions of Republic Act No. 3019 has both legal and jurisprudential support. Section 13 of the statute provides:

x x x It is not a penalty because it is not imposed as a result of judicial proceedings. In fact, if acquitted, the official concerned shall be entitled to reinstatement and to the salaries and benefits which he failed to receive during suspension.[7]

SEC. 13. Suspension and loss of benefits. any incumbent public officer against whom any criminal prosecution under a valid information under this Act or under Title 7, Book II of the Revised Penal Code or for any offense involving fraud upon government or public funds or property whether as a simple or as a complex offense and in whatever stage of execution and mode of participation, is pending in court, shall be suspended from office. Should he be convicted by final judgment, he shall lose all retirement or gratuity benefits under any law, but if he is acquitted, he shall be entitled to reinstatement and to the salaries and benefits which he failed to receive during suspension, unless in the meantime administrative proceedings have been filed against him.

In issuing the preventive suspension of petitioner, the Sandiganbayan merely adhered to the clear an unequivocal mandate of the law, as well as the jurisprudence in which the Court has, more than once, upheld Sandiganbayans authority to decree the suspension of public officials and employees indicted before it.

Section 13 of Republic Act No. 3019 does not state that the public officer concerned must be suspended only in the office where he is alleged to have committed the acts with which he has been charged. Thus, it has been held that the use of the word office would indicate that it applies to any office which the officer charged may be holding, and not only the particular office under which he stands accused.[8]

In the event that such convicted officer, who may have already been separated from the service, has already received such benefits he shall be liable to restitute the same to the Government. (As amended by BP Blg. 195, March 16, 1982).

En passan, while the imposition of suspension is not automatic or self-operative as the validity of the information must be determined in a pre-suspension hearing, there is no hard and fast rule as to the conduct thereof. It has been said that-

In the relatively recent case of Segovia vs. Sandiganbayan,[3] the Court reiterated:

The validity of Section 13, R.A. 3019, as amended --- treating of the suspension pendente lite of an accused public officer --- may no longer be put at issue, having been repeatedly upheld by this Court.

xxx xxx

xxx

x x x No specific rules need be laid down for such presuspension hearing. Suffice it to state that the accused should be given a fair and adequate opportunity to challenge the VALIDITY OF THE CRIMINAL PROCEEDINGS against him, e.g. that he has not been afforded the right of due preliminary investigation; that the acts for which he stands charged do not constitute a violation of the provisions of Republic Act 3019 or the bribery provisions of the revised Penal Code which would warrant his mandatory suspension from office under section 13 of the Act; or he may present a motion to quash the information on any of the grounds provided for in Rule 117 of the Rules of Court x x x.

xxx xxx

xxx

Likewise, he is accorded the right to challenge the propriety of his prosecution on the ground that the acts for which he is charged do not constitute a violation of Rep. Act 3019, or of the provisions on bribery of the Revised Penal Code, and the right to present a motion to quash the information on any other grounds provided in Rule 117 of the Rules of Court.

the Sandiganbayan (First Division) and to declare Presiding Justice Garchitorena disqualified from acting in said criminal case, and the resolution, dated 14 March 1993, which deemed as filed the 32 amended informations against her; and (4) in Miriam Defensor Santiago vs. Sandiganbayan,[14] petitioner assailed the denial by the Sandiganbayan of her motion for her reconsideration from its 03rd August 1995 order allowing the testimony of Pedellaga. In one of these cases,[15] the Court declared:

However, a challenge to the validity of the criminal proceedings on the ground that the acts for which the accused is charged do not constitute a violation of the provisions of Rep. Act 3019, or of the provisions on bribery of the revised Penal Code, should be treated only in the same manner as a challenge to the criminal proceeding by way of a motion to quash on the ground provided in Paragraph (a), section 2 of Rule 117 of the Rules of Court, i.e., that the facts charged do not constitute an offense. In other words, a resolution of the challenge to the validity of the criminal proceeding, on such ground, should be limited to an inquiry whether the facts alleged in the information, if hypothetically admitted, constitute the elements of an offense punishable under Rep. Act 3019 or the provisions on bribery of the Revised Penal Code.[9]

We note that petitioner had previously filed two petitions before us involving Criminal Case No. 16698 (G.R. Nos. 9928999290; G.R. No. 107598). Petitioner has not explained why she failed to raise the issue of the delay in the preliminary investigation and the filing of the information against her in those petitions. A piece-meal presentation of issues, like the splitting of causes of action, is self-defeating.

The law does not require that the guilt of the accused must be established in a pre-suspension proceeding before trial on the merits proceeds. Neither does it contemplate a proceeding to determine (1) the strength of the evidence of culpability against him, (2) the gravity of the offense charged, or (3) whether or not his continuance in office could influence the witnesses or pose a threat to the safety and integrity of the records an other evidence before the court could have a valid basis in decreeing preventive suspension pending the trial of the case. All it secures to the accused is adequate opportunity to challenge the validity or regularity of the proceedings against him, such as, that he has not been afforded the right to due preliminary investigation, that the acts imputed to him do not constitute a specific crime warranting his mandatory suspension from office under Section 13 of Republic Act No. 3019, or that the information is subject to quashal on any of the grounds set out in Section 3, Rule 117, of the Revised Rules on Criminal procedure.[10]

Petitioner next claims that the Amended informations did not charge any offense punishable under Section 3 (e) of R.A. No. 3019 because the official acts complained of therein were authorized under Executive Order No. 324 and that the Board of Commissioners of the Bureau of Investigation adopted the policy of approving applications for legalization of spouses and unmarried, minor children of qualified aliens even though they had arrived in the Philippines after December 31 1983. She concludes that the Sandiganbayan erred in not granting her motion to quash the informations (Rollo, pp. 25-31).

In a motion to quash, the accused admits hypothetically the allegations of fact in the information (People vs. Supnad, 7 SCRA 603 [1963]). Therefore, petitioner admitted hypothetically in her motion that:

(1) She was a public officer;

(2) She approved the application for legalization of the stay of aliens, who arrived in the Philippines after January 1, 1984;

The instant petition is not the first time that an incident relating to petitioners case before the Sandiganbayan has been brought to this Court. In previous occasions, the Court has been called upon the resolve several other matters on the subject. Thus: (1) In Santiago vs. Vasquez,[11] petitioner sought to enjoin the Sandiganbayan from proceeding with Criminal case No. 16698 for violation of Republic Act No. 3019; (2) in Santiago vs. Vasquez,[12] petitioner sought the nullification of the hold departure order issued by the Sandiganbayan via a Motion to Restrain the Sandiganbayan from Enforcing its Hold Departure Order with Prayer for Issuance of a Temporary Restraining Order and/or Preliminary Injunction, with Motion to set Pending Incident for Hearing; (3) in Santiago vs. Garchitorena,[13] petitioner sought the nullification of the resolution, dated 03 March 1993, in Criminal Case No. 16698 of

(3) Those aliens were disqualified;

(4) She was cognizant of such fact; and

(5) She acted in evident bad faith and manifest partiality in the execution of her official functions.

The foregoing allegations of fact constitute the elements of the offense defined in Section 3 (e) of R.A. No. 3019.[16]

The pronouncement, upholding the validity of the information filed against petitioner, behooved Sandiganbayan to discharge its mandated duty to forthwith issue the order of preventive suspension.

The order of suspension prescribed by Republic Act No. 3019 is distinct from the power of Congress to discipline its own ranks under the Constitution which provides that each-

x x x 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, suspend or expel a Member. A penalty of suspension, when imposed, shall not exceed sixty days.[17]

abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of the Government. The provision allowing the Court to look into any possible grave abuse of discretion committed by any government instrumentality has evidently been couched in general terms in order to make it malleable to judicial interpretation in the light of any emerging milieu. In its normal concept, the term has been said to imply an arbitrary, despotic, capricious or whimsical exercise of judgment amounting to lack or excess of jurisdiction. When the question, however, pertains to an affair internal to either of Congress or the Executive, the Court subscribes to the view[19] that unless an infringement of any specific Constitutional proscription thereby inheres the Court should not deign substitute its own judgment over that of any of the other two branches of government. It is an impairment or a clear disregard of a specific constitutional precept or provision that can unbolt the steel door for judicial intervention. If any part of the Constitution is not, or ceases to be, responsive to contemporary needs, it is the people, not the Court, who must promptly react in the manner prescribed by the Charter itself.

The suspension contemplated in the above constitutional provision is a punitive measure that is imposed upon determination by the Senate or the house of Representatives, as the case may be, upon an erring member. Thus, in its resolution in the case of Ceferino Paredes, Jr., vs. Sandiganbayan, et al.,[18] the Court affirmed the order of suspension of Congressman Paredes by the Sandiganbayan, despite his protestations on the encroachment by the court on the prerogatives of congress. The Court ruled:

Republic Act No. 3019 does not exclude from its coverage the members of Congress and that, therefore, the Sandiganbayan did not err in thus decreeing the assailed preventive suspension order.

x x x. Petitioners invocation of Section 16 (3), Article VI of the Constitution which deals with the power of each House of Congress inter alia to punish its Members for disorderly behavior, and suspend or expel a Member by a vote of twothirds of all its Members subject to the qualification that the penalty of suspension, when imposed, should not exceed sixty days is unavailing, as it appears to be quite distinct from the suspension spoken of in Section 13 of RA 3019, which is not a penalty but a preliminary, preventive measure, prescinding from the fact that the latter is not being imposed on petitioner for misbehavior as a Member of the House of Representatives.

Attention might be called to the fact that Criminal Case No. 16698 has been decided by the First Division of the Sandiganbayan on 06 December 1999, acquitting herein petitioner. The Court, nevertheless, deems it appropriate to render this decision for future guidance on the significant issue raised by petitioner.

WHEREFORE, the instant petition for certiorari is DISMISSED. No costs.

SO ORDERED.

The doctrine of separation of powers by itself may not be deemed to have effectively excluded members of Congress from Republic Act No. 3019 nor from its sanctions. The maxim simply recognizes each of the three co-equal and independent, albeit coordinate, branches of the government the Legislative, the Executive and the Judiciary has exclusive prerogatives and cognizance within its own sphere of influence and effectively prevents one branch from unduly intruding into the internal affairs of either branch.

Davide, Jr., C.J., Bellosillo, Melo, Puno, Kapunan, Mendoza, Panganiban, Quisumbing, Pardo, Buena, Gonzaga-Reyes, Ynares-Santiago, De Leon, Jr., and Sandoval-Gutierrez, JJ., concur.

REPUBLIC ACT No. 3019

ANTI-GRAFT AND CORRUPT PRACTICES ACT Parenthetically, it might be well to elaborate a bit. Section 1, Article VIII, of the 1987 Constitution, empowers the Court to act not only in the settlement of actual controversies involving rights which are legally demandable and enforceable, but also in the determination of whether or not there has been a grave

Section 1. Statement of policy. It is the policy of the Philippine Government, in line with the principle that a public office is a public trust, to repress certain acts of public officers and private

persons alike which constitute graft or corrupt practices or which may lead thereto.

manner or capacity, has secured or obtained, or will secure or obtain, any Government permit or license, in consideration for the help given or to be given, without prejudice to Section thirteen of this Act.

Section 2. Definition of terms. As used in this Act, that term (d) Accepting or having any member of his family accept employment in a private enterprise which has pending official business with him during the pendency thereof or within one year after its termination.

(a) "Government" includes the national government, the local governments, the government-owned and governmentcontrolled corporations, and all other instrumentalities or agencies of the Republic of the Philippines and their branches.

(b) "Public officer" includes elective and appointive officials and employees, permanent or temporary, whether in the classified or unclassified or exempt service receiving compensation, even nominal, from the government as defined in the preceding subparagraph.

(e) Causing any undue injury to any party, including the Government, or giving any private party any unwarranted benefits, advantage or preference in the discharge of his official administrative or judicial functions through manifest partiality, evident bad faith or gross inexcusable negligence. This provision shall apply to officers and employees of offices or government corporations charged with the grant of licenses or permits or other concessions.

(c) "Receiving any gift" includes the act of accepting directly or indirectly a gift from a person other than a member of the public officer's immediate family, in behalf of himself or of any member of his family or relative within the fourth civil degree, either by consanguinity or affinity, even on the occasion of a family celebration or national festivity like Christmas, if the value of the gift is under the circumstances manifestly excessive.

(f) Neglecting or refusing, after due demand or request, without sufficient justification, to act within a reasonable time on any matter pending before him for the purpose of obtaining, directly or indirectly, from any person interested in the matter some pecuniary or material benefit or advantage, or for the purpose of favoring his own interest or giving undue advantage in favor of or discriminating against any other interested party.

(d) "Person" includes natural and juridical persons, unless the context indicates otherwise.

(g) Entering, on behalf of the Government, into any contract or transaction manifestly and grossly disadvantageous to the same, whether or not the public officer profited or will profit thereby.

Section 3. Corrupt practices of public officers. In addition to acts or omissions of public officers already penalized by existing law, the following shall constitute corrupt practices of any public officer and are hereby declared to be unlawful:

(a) Persuading, inducing or influencing another public officer to perform an act constituting a violation of rules and regulations duly promulgated by competent authority or an offense in connection with the official duties of the latter, or allowing himself to be persuaded, induced, or influenced to commit such violation or offense.

(h) Director or indirectly having financing or pecuniary interest in any business, contract or transaction in connection with which he intervenes or takes part in his official capacity, or in which he is prohibited by the Constitution or by any law from having any interest.

(b) Directly or indirectly requesting or receiving any gift, present, share, percentage, or benefit, for himself or for any other person, in connection with any contract or transaction between the Government and any other part, wherein the public officer in his official capacity has to intervene under the law.

(i) Directly or indirectly becoming interested, for personal gain, or having a material interest in any transaction or act requiring the approval of a board, panel or group of which he is a member, and which exercises discretion in such approval, even if he votes against the same or does not participate in the action of the board, committee, panel or group.

Interest for personal gain shall be presumed against those public officers responsible for the approval of manifestly unlawful, inequitable, or irregular transaction or acts by the board, panel or group to which they belong.

(c) Directly or indirectly requesting or receiving any gift, present or other pecuniary or material benefit, for himself or for another, from any person for whom the public officer, in any

(j) Knowingly approving or granting any license, permit, privilege or benefit in favor of any person not qualified for or

not legally entitled to such license, permit, privilege or advantage, or of a mere representative or dummy of one who is not so qualified or entitled.

pursuant to law, nor to any act lawfully performed in an official capacity or in the exercise of a profession.

(k) Divulging valuable information of a confidential character, acquired by his office or by him on account of his official position to unauthorized persons, or releasing such information in advance of its authorized release date.

Section 6. Prohibition on Members of Congress. It shall be unlawful hereafter for any Member of the Congress during the term for which he has been elected, to acquire or receive any personal pecuniary interest in any specific business enterprise which will be directly and particularly favored or benefited by any law or resolution authored by him previously approved or adopted by the Congress during the same term.

The person giving the gift, present, share, percentage or benefit referred to in subparagraphs (b) and (c); or offering or giving to the public officer the employment mentioned in subparagraph (d); or urging the divulging or untimely release of the confidential information referred to in subparagraph (k) of this section shall, together with the offending public officer, be punished under Section nine of this Act and shall be permanently or temporarily disqualified in the discretion of the Court, from transacting business in any form with the Government.

The provision of this section shall apply to any other public officer who recommended the initiation in Congress of the enactment or adoption of any law or resolution, and acquires or receives any such interest during his incumbency.

Section 4. Prohibition on private individuals. (a) It shall be unlawful for any person having family or close personal relation with any public official to capitalize or exploit or take advantage of such family or close personal relation by directly or indirectly requesting or receiving any present, gift or material or pecuniary advantage from any other person having some business, transaction, application, request or contract with the government, in which such public official has to intervene. Family relation shall include the spouse or relatives by consanguinity or affinity in the third civil degree. The word "close personal relation" shall include close personal friendship, social and fraternal connections, and professional employment all giving rise to intimacy which assures free access to such public officer.

It shall likewise be unlawful for such member of Congress or other public officer, who, having such interest prior to the approval of such law or resolution authored or recommended by him, continues for thirty days after such approval to retain such interest.

(b) It shall be unlawful for any person knowingly to induce or cause any public official to commit any of the offenses defined in Section 3 hereof.

Section 7. Statement of assets and liabilities. Every public officer, within thirty days after the approval of this Act or after assuming office, and within the month of January of every other year thereafter, as well as upon the expiration of his term of office, or upon his resignation or separation from office, shall prepare and file with the office of the corresponding Department Head, or in the case of a Head of Department or chief of an independent office, with the Office of the President, or in the case of members of the Congress and the officials and employees thereof, with the Office of the Secretary of the corresponding House, a true detailed and sworn statement of assets and liabilities, including a statement of the amounts and sources of his income, the amounts of his personal and family expenses and the amount of income taxes paid for the next preceding calendar year: Provided, That public officers assuming office less than two months before the end of the calendar year, may file their statements in the following months of January.

Section 5. Prohibition on certain relatives. It shall be unlawful for the spouse or for any relative, by consanguinity or affinity, within the third civil degree, of the President of the Philippines, the Vice-President of the Philippines, the President of the Senate, or the Speaker of the House of Representatives, to intervene, directly or indirectly, in any business, transaction, contract or application with the Government: Provided, That this section shall not apply to any person who, prior to the assumption of office of any of the above officials to whom he is related, has been already dealing with the Government along the same line of business, nor to any transaction, contract or application already existing or pending at the time of such assumption of public office, nor to any application filed by him the approval of which is not discretionary on the part of the official or officials concerned but depends upon compliance with requisites provided by law, or rules or regulations issued

Section 8. Dismissal due to unexplained wealth. If in accordance with the provisions of Republic Act Numbered One thousand three hundred seventy-nine, a public official has been found to have acquired during his incumbency, whether in his name or in the name of other persons, an amount of property and/or money manifestly out of proportion to his salary and to his other lawful income, that fact shall be a ground for dismissal or removal. Properties in the name of the spouse and unmarried children of such public official may be taken into consideration, when their acquisition through legitimate means cannot be satisfactorily shown. Bank deposits shall be taken into consideration in the enforcement of this section, notwithstanding any provision of law to the contrary.

Section 9. Penalties for violations. (a) Any public officer or private person committing any of the unlawful acts or omissions enumerated in Sections 3, 4, 5 and 6 of this Act shall be punished with imprisonment for not less than one year nor more than ten years, perpetual disqualification from public office, and confiscation or forfeiture in favor of the Government of any prohibited interest and unexplained wealth manifestly out of proportion to his salary and other lawful income.

Section 14. Exception. Unsolicited gifts or presents of small or insignificant value offered or given as a mere ordinary token of gratitude or friendship according to local customs or usage, shall be excepted from the provisions of this Act.

Any complaining party at whose complaint the criminal prosecution was initiated shall, in case of conviction of the accused, be entitled to recover in the criminal action with priority over the forfeiture in favor of the Government, the amount of money or the thing he may have given to the accused, or the value of such thing.

Nothing in this Act shall be interpreted to prejudice or prohibit the practice of any profession, lawful trade or occupation by any private person or by any public officer who under the law may legitimately practice his profession, trade or occupation, during his incumbency, except where the practice of such profession, trade or occupation involves conspiracy with any other person or public official to commit any of the violations penalized in this Act.

(b) Any public officer violation any of the provisions of Section 7 of this Act shall be punished by a fine of not less than one hundred pesos nor more than one thousand pesos, or by imprisonment not exceeding one year, or by both such fine and imprisonment, at the discretion of the Court.

Section 15. Separability clause. If any provision of this Act or the application of such provision to any person or circumstances is declared invalid, the remainder of the Act or the application of such provision to other persons or circumstances shall not be affected by such declaration.

The violation of said section proven in a proper administrative proceeding shall be sufficient cause for removal or dismissal of a public officer, even if no criminal prosecution is instituted against him.

Section 16. Effectivity. This Act shall take effect on its approval, but for the purpose of determining unexplained wealth, all property acquired by a public officer since he assumed office shall be taken into consideration. Approved: August 17, 1960

Section 10. Competent court. Until otherwise provided by law, all prosecutions under this Act shall be within the original jurisdiction of the proper Court of First Instance.

ABAKADA GROUP PARTY LIST vs. ERMITA (DIGEST) (From San Beda Law Journal Case Update) FACTS:

Section 11. Prescription of offenses. All offenses punishable under this Act shall prescribe in ten years.

G.R. No. 168056 Before RA 9337 took effect, petitioners ABAKADA GURO PartyList et al filed a petition for prohibition questioning the constitutionality of Section 4, 5, and 6 of RA 9337 amending Sections 106, 107, and 108respectively of the NIRC. These questioned provisions contain a uniform proviso authorizing the President upon recommendation of the Secretary of Finance, to raise the VAT rate to 12% effective January 1, 2006 after certain conditions provided for in the law have been satisfied to wit:(i)VAT collection as a percentage of GDP of the previous year exceeds 2 4/5 % or (ii)National government deficit as a percentage of GDP of the previous year exceeds 1 %Petitioners argue that the law is unconstitutional as it constitutesabandonment by Congress of its exclusive authority to fix the rate of taxesunder Article VI Section 28(2) of the 1987 Constitution.They contend that delegating to the President the legislative power totax is contrary to republicanism. They insist that accountability,responsibility, and transparency should dictate the actions of Congress andthey should not pass so the President the decision to impose taxes. Theyalso argue that the law also effectively nullified the Presidents power of control, which includes the authority to set aside and nullify the acts of her subordinates like the Secretary of Finance by mandating the

Section 12. Termination of office. No public officer shall be allowed to resign or retire pending an investigation, criminal or administrative, or pending a prosecution against him, for any offense under this Act or under the provisions of the Revised Penal Code on bribery.

Section 13. Suspension and loss of benefits. Any public officer against whom any criminal prosecution under a valid information under this Act or under the provisions of the Revised Penal Code on bribery is pending in court, shall be suspended from office. Should he be convicted by final judgment, he shall lose all retirement or gratuity benefits under any law, but if he is acquitted, he shall be entitled to reinstatement and to the salaries and benefits which he failed to receive during suspension, unless in the meantime administrative proceedings have been filed against him.

fixing of the tax rate by the President upon the recommendation of the Secretary of Finance.