Liberty of abode and of travel

Art III, Sec. 6

G.R. No. 88211 September 15, 1989
FERDINAND E. MARCOS, IMELDA R. MARCOS, FERDINAND R. MARCOS, JR., IRENE M. ARANETA, IMEE MANOTOC,
TOMAS MANOTOC, GREGORIO ARANETA, PACIFICO E. MARCOS, NICANOR YIGUEZ and PHILIPPINE CONSTITUTION
ASSOCIATION (PHILCONSA), represented by its President, CONRADO F. ESTRELLA, petitioners,
vs.
HONORABLE RAUL MANGLAPUS, CATALINO MACARAIG, SEDFREY ORDOEZ, MIRIAM DEFENSOR SANTIAGO, FIDEL
RAMOS, RENATO DE VILLA, in their capacity as Secretary of Foreign Affairs, Executive Secretary, Secretary of Justice,
Immigration Commissioner, Secretary of National Defense and Chief of Staff, respectively, respondents.

CORTES, J.:
Before the Court is a contreversy of grave national importance. While ostensibly only legal issues are involved, the Court's decision
in this case would undeniably have a profound effect on the political, economic and other aspects of national life.
We recall that in February 1986, Ferdinand E. Marcos was deposed from the presidency via the non-violent "people power"
revolution and forced into exile. In his stead, Corazon C. Aquino was declared President of the Republic under a revolutionary
government. Her ascension to and consilidation of power have not been unchallenged. The failed Manila Hotel coup in 1986 led by
political leaders of Mr. Marcos, the takeover of television station Channel 7 by rebel troops led by Col. Canlas with the support of
"Marcos loyalists" and the unseccessful plot of the Marcos spouses to surreptitiously return from Hawii with mercenaries aboard an
aircraft chartered by a Lebanese arms dealer [Manila Bulletin, January 30, 1987] awakened the nation to the capacity of the
Marcoses to stir trouble even from afar and to the fanaticism and blind loyalty of their followers in the country. The ratification of the
1987 Constitution enshrined the victory of "people power" and also clearly reinforced the constitutional moorings of Mrs. Aquino's
presidency. This did not, however, stop bloody challenges to the government. On August 28, 1987, Col. Gregorio Honasan, one of
the major players in the February Revolution, led a failed coup that left scores of people, both combatants and civilians, dead.
There were several other armed sorties of lesser significance, but the message they conveyed was the same a split in the ranks
of the military establishment that thraetened civilian supremacy over military and brought to the fore the realization that civilian
government could be at the mercy of a fractious military.
But the armed threats to the Government were not only found in misguided elements and among rabid followers of Mr. Marcos.
There are also the communist insurgency and the seccessionist movement in Mindanao which gained ground during the rule of Mr.
Marcos, to the extent that the communists have set up a parallel government of their own on the areas they effectively control while
the separatist are virtually free to move about in armed bands. There has been no let up on this groups' determination to wrest
power from the govermnent. Not only through resort to arms but also to through the use of propaganda have they been successful
in dreating chaos and destabilizing the country.
Nor are the woes of the Republic purely political. The accumulated foreign debt and the plunder of the nation attributed to Mr.
Marcos and his cronies left the economy devastated. The efforts at economic recovery, three years after Mrs. Aquino assumed
office, have yet to show concrete results in alleviating the poverty of the masses, while the recovery of the ill-gotten wealth of the
Marcoses has remained elusive.
Now, Mr. Marcos, in his deathbed, has signified his wish to return to the Philipppines to die. But Mrs. Aquino, considering the dire
consequences to the nation of his return at a time when the stability of government is threatened from various directions and the
economy is just beginning to rise and move forward, has stood firmly on the decision to bar the return of Mr. Marcos and his family.
The Petition
This case is unique. It should not create a precedent, for the case of a dictator forced out of office and into exile after causing
twenty years of political, economic and social havoc in the country and who within the short space of three years seeks to return, is
in a class by itself.
This petition for mandamus and prohibition asks the Courts to order the respondents to issue travel documents to Mr. Marcos and
the immediate members of his family and to enjoin the implementation of the President's decision to bar their return to the
Philippines.
The Issue
Th issue is basically one of power: whether or not, in the exercise of the powers granted by the Constitution, the President may
prohibit the Marcoses from returning to the Philippines.
According to the petitioners, the resolution of the case would depend on the resolution of the following issues:
1. Does the President have the power to bar the return of former President Marcos and family to the Philippines?

a. Is this a political question?

2. Assuming that the President has the power to bar former President Marcos and his family from returning to the
Philippines, in the interest of "national security, public safety or public health
a. Has the President made a finding that the return of former President Marcos and his family to the Philippines is
a clear and present danger to national security, public safety or public health?
b. Assuming that she has made that finding
(1) Have the requirements of due process been complied with in making such finding?
(2) Has there been prior notice to petitioners?
(3) Has there been a hearing?
(4) Assuming that notice and hearing may be dispensed with, has the President's decision,
including the grounds upon which it was based, been made known to petitioners so that they
may controvert the same?
c. Is the President's determination that the return of former President Marcos and his family to the Philippines is a
clear and present danger to national security, public safety, or public health a political question?
d. Assuming that the Court may inquire as to whether the return of former President Marcos and his family is a
clear and present danger to national security, public safety, or public health, have respondents established such
fact?
3. Have the respondents, therefore, in implementing the President's decision to bar the return of former President
Marcos and his family, acted and would be acting without jurisdiction, or in excess of jurisdiction, or with grave
abuse of discretion, in performing any act which would effectively bar the return of former President Marcos and
his family to the Philippines? [Memorandum for Petitioners, pp. 5-7; Rollo, pp. 234-236.1
The case for petitioners is founded on the assertion that the right of the Marcoses to return to the Philippines is guaranteed under
the following provisions of the Bill of Rights, to wit:
Section 1. No person shall be deprived of life, liberty, or property without due process of law, nor shall any person
be denied the equal protection of the laws.
xxx xxx xxx
Section 6. The liberty of abode and of changing the same within the limits prescribed by law shall not be impaired
except upon lawful order of the court. Neither shall the right to travel be impaired except in the interest of national
security, public safety, or public health, as may be provided by law.
The petitioners contend that the President is without power to impair the liberty of abode of the Marcoses because only a court may
do so "within the limits prescribed by law." Nor may the President impair their right to travel because no law has authorized her to
do so. They advance the view that before the right to travel may be impaired by any authority or agency of the government, there
must be legislation to that effect.
The petitioners further assert that under international law, the right of Mr. Marcos and his family to return to the Philippines is
guaranteed.
The Universal Declaration of Human Rights provides:
Article 13. (1) Everyone has the right to freedom of movement and residence within the borders of each state.
(2) Everyone has the right to leave any country, including his own, and to return to his country.
Likewise, the International Covenant on Civil and Political Rights, which had been ratified by the Philippines, provides:
Article 12
1) Everyone lawfully within the territory of a State shall, within that territory, have the right to liberty of movement
and freedom to choose his residence.
2) Everyone shall be free to leave any country, including his own.

3) The above-mentioned rights shall not be subject to any restrictions except those which are provided by law, are
necessary to protect national security, public order (order public), public health or morals or the rights and
freedoms of others, and are consistent with the other rights recognized in the present Covenant.
4) No one shall be arbitrarily deprived of the right to enter his own country.
On the other hand, the respondents' principal argument is that the issue in this case involves a political question which is nonjusticiable. According to the Solicitor General:
As petitioners couch it, the question involved is simply whether or not petitioners Ferdinand E. Marcos and his
family have the right to travel and liberty of abode. Petitioners invoke these constitutional rights in vacuo without
reference to attendant circumstances.
Respondents submit that in its proper formulation, the issue is whether or not petitioners Ferdinand E. Marcos
and family have the right to return to the Philippines and reside here at this time in the face of the determination
by the President that such return and residence will endanger national security and public safety.
It may be conceded that as formulated by petitioners, the question is not a political question as it involves merely
a determination of what the law provides on the matter and application thereof to petitioners Ferdinand E. Marcos
and family. But when the question is whether the two rights claimed by petitioners Ferdinand E. Marcos and
family impinge on or collide with the more primordial and transcendental right of the State to security and safety of
its nationals, the question becomes political and this Honorable Court can not consider it.
There are thus gradations to the question, to wit:
Do petitioners Ferdinand E. Marcos and family have the right to return to the Philippines and reestablish their
residence here? This is clearly a justiciable question which this Honorable Court can decide.
Do petitioners Ferdinand E. Marcos and family have their right to return to the Philippines and reestablish their
residence here even if their return and residence here will endanger national security and public safety? this is
still a justiciable question which this Honorable Court can decide.
Is there danger to national security and public safety if petitioners Ferdinand E. Marcos and family shall return to
the Philippines and establish their residence here? This is now a political question which this Honorable Court
can not decide for it falls within the exclusive authority and competence of the President of the Philippines.
[Memorandum for Respondents, pp. 9-11; Rollo, pp. 297-299.]
Respondents argue for the primacy of the right of the State to national security over individual rights. In support thereof, they cite
Article II of the Constitution, to wit:
Section 4. The prime duty of the Government is to serve and protect the people. The Government may call upon
the people to defend the State and, in the fulfillment thereof, all citizens may be required, under conditions
provided by law, to render personal, military, or civil service.
Section 5. The maintenance of peace and order, the protection of life, liberty, and property, and the promotion of
the general welfare are essential for the enjoyment by all the people of the blessings of democracy.
Respondents also point out that the decision to ban Mr. Marcos and family from returning to the Philippines for reasons of national
security and public safety has international precedents. Rafael Trujillo of the Dominican Republic, Anastacio Somoza Jr. of
Nicaragua, Jorge Ubico of Guatemala, Fulgencio batista of Cuba, King Farouk of Egypt, Maximiliano Hernandez Martinez of El
Salvador, and Marcos
Perez
Jimenez of Venezuela were among the deposed dictators whose return to their homelands was prevented by their governments.
[See Statement of Foreign Affairs Secretary Raul S. Manglapus, quoted in Memorandum for Respondents, pp. 26-32; Rollo, pp.
314-319.]
The parties are in agreement that the underlying issue is one of the scope of presidential power and its limits. We, however, view
this issue in a different light. Although we give due weight to the parties' formulation of the issues, we are not bound by its narrow
confines in arriving at a solution to the controversy.
At the outset, we must state that it would not do to view the case within the confines of the right to travel and the import of the
decisions of the U.S. Supreme Court in the leading cases of Kent v. Dulles [357 U.S. 116, 78 SCt 1113, 2 L Ed. 2d 1204] and Haig
v. Agee [453 U.S. 280, 101 SCt 2766, 69 L Ed. 2d 640) which affirmed the right to travel and recognized exceptions to the exercise
thereof, respectively.
It must be emphasized that the individual right involved is not the right to travel from the Philippines to other countries or within the
Philippines. These are what the right to travel would normally connote. Essentially, the right involved is the right to return to one's
country, a totally distinct right under international law, independent from although related to the right to travel. Thus, the Universal
Declaration of Humans Rights and the International Covenant on Civil and Political Rights treat the right to freedom of movement
and abode within the territory of a state, the right to leave a country, and the right to enter one's country as separate and distinct
rights. The Declaration speaks of the "right to freedom of movement and residence within the borders of each state" [Art. 13(l)]
separately from the "right to leave any country, including his own, and to return to his country." [Art. 13(2).] On the other hand, the
Covenant guarantees the "right to liberty of movement and freedom to choose his residence" [Art. 12(l)] and the right to "be free to
leave any country, including his own." [Art. 12(2)] which rights may be restricted by such laws as "are necessary to protect national

security, public order, public health or morals or enter qqqs own country" of which one cannot be "arbitrarily deprived." [Art. 12(4).] It
would therefore be inappropriate to construe the limitations to the right to return to one's country in the same context as those
pertaining to the liberty of abode and the right to travel.
The right to return to one's country is not among the rights specifically guaranteed in the Bill of Rights, which treats only of the
liberty of abode and the right to travel, but it is our well-considered view that the right to return may be considered, as a generally
accepted principle of international law and, under our Constitution, is part of the law of the land [Art. II, Sec. 2 of the Constitution.]
However, it is distinct and separate from the right to travel and enjoys a different protection under the International Covenant of Civil
and Political Rights, i.e., against being "arbitrarily deprived" thereof [Art. 12 (4).]
Thus, the rulings in the cases Kent and Haig which refer to the issuance of passports for the purpose of effectively exercising the
right to travel are not determinative of this case and are only tangentially material insofar as they relate to a conflict between
executive action and the exercise of a protected right. The issue before the Court is novel and without precedent in Philippine, and
even in American jurisprudence.
Consequently, resolution by the Court of the well-debated issue of whether or not there can be limitations on the right to travel in the
absence of legislation to that effect is rendered unnecessary. An appropriate case for its resolution will have to be awaited.
Having clarified the substance of the legal issue, we find now a need to explain the methodology for its resolution. Our resolution of
the issue will involve a two-tiered approach. We shall first resolve whether or not the President has the power under the
Constitution, to bar the Marcoses from returning to the Philippines. Then, we shall determine, pursuant to the express power of the
Court under the Constitution in Article VIII, Section 1, whether or not the President acted arbitrarily or with grave abuse of discretion
amounting to lack or excess of jurisdiction when she determined that the return of the Marcose's to the Philippines poses a serious
threat to national interest and welfare and decided to bar their return.
Executive Power
The 1987 Constitution has fully restored the separation of powers of the three great branches of government. To recall the words of
Justice Laurel in Angara v. Electoral Commission [63 Phil. 139 (1936)], "the Constitution has blocked but with deft strokes and in
bold lines, allotment of power to the executive, the legislative and the judicial departments of the government." [At 157.1 Thus, the
1987 Constitution explicitly provides that "[the legislative power shall be vested in the Congress of the Philippines" Art VI, Sec. 11,
"[t]he executive power shall bevested in the President of the Philippines" [Art. VII, Sec. 11, and "[te judicial power shall be vested in
one Supreme Court and in such lower courts as may be established by law" [Art. VIII, Sec. 1.] These provisions not only establish a
separation of powers by actual division [Angara v. Electoral Commission, supra] but also confer plenary legislative, executive and
judicial powers subject only to limitations provided in the Constitution. For as the Supreme Court in Ocampo v. Cabangis [15 Phil.
626 (1910)] pointed out "a grant of the legislative power means a grant of all legislative power; and a grant of the judicial power
means a grant of all the judicial power which may be exercised under the government." [At 631-632.1 If this can be said of the
legislative power which is exercised by two chambers with a combined membership of more than two hundred members and of the
judicial power which is vested in a hierarchy of courts, it can equally be said of the executive power which is vested in one official
the President.
As stated above, the Constitution provides that "[t]he executive power shall be vested in the President of the Philippines." [Art. VII,
Sec. 1]. However, it does not define what is meant by executive power" although in the same article it touches on the exercise of
certain powers by the President, i.e., the power of control over all executive departments, bureaus and offices, the power to execute
the laws, the appointing power, the powers under the commander-in-chief clause, the power to grant reprieves, commutations and
pardons, the power to grant amnesty with the concurrence of Congress, the power to contract or guarantee foreign loans, the power
to enter into treaties or international agreements, the power to submit the budget to Congress, and the power to address Congress
[Art. VII, Sec. 14-23].
The inevitable question then arises: by enumerating certain powers of the President did the framers of the Constitution intend that
the President shall exercise those specific powers and no other? Are these se enumerated powers the breadth and scope of
"executive power"? Petitioners advance the view that the President's powers are limited to those specifically enumerated in the
1987 Constitution. Thus, they assert: "The President has enumerated powers, and what is not enumerated is impliedly denied to
her. Inclusion unius est exclusio alterius[Memorandum for Petitioners, p. 4- Rollo p. 233.1 This argument brings to mind the
institution of the U.S. Presidency after which ours is legally patterned.**
Corwin, in his monumental volume on the President of the United States grappled with the same problem. He said:
Article II is the most loosely drawn chapter of the Constitution. To those who think that a constitution ought to
settle everything beforehand it should be a nightmare; by the same token, to those who think that constitution
makers ought to leave considerable leeway for the future play of political forces, it should be a vision realized.
We encounter this characteristic of Article 11 in its opening words: "The executive power shall be vested in a
President of the United States of America." . . .. [The President: Office and Powers, 17871957, pp. 3-4.]
Reviewing how the powers of the U.S. President were exercised by the different persons who held the office from Washington to
the early 1900's, and the swing from the presidency by commission to Lincoln's dictatorship, he concluded that "what the
presidency is at any particular moment depends in important measure on who is President." [At 30.]
This view is shared by Schlesinger who wrote in The Imperial Presidency:
For the American Presidency was a peculiarly personal institution. it remained of course, an agency of
government subject to unvarying demands and duties no remained, of cas President. But, more than most
agencies of government, it changed shape, intensity and ethos according to the man in charge. Each President's
distinctive temperament and character, his values, standards, style, his habits, expectations, Idiosyncrasies,
compulsions, phobias recast the WhiteHouse and pervaded the entire government. The executive branch, said

Clark Clifford, was a chameleon, taking its color from the character and personality of the President. The thrust of
the office, its impact on the constitutional order, therefore altered from President to President. Above all, the way
each President understood it as his personal obligation to inform and involve the Congress, to earn and hold the
confidence of the electorate and to render an accounting to the nation and posterity determined whether he
strengthened or weakened the constitutional order. [At 212- 213.]
We do not say that the presidency is what Mrs. Aquino says it is or what she does but, rather, that the consideration of tradition and
the development of presidential power under the different constitutions are essential for a complete understanding of the extent of
and limitations to the President's powers under the 1987 Constitution. The 1935 Constitution created a strong President with
explicitly broader powers than the U.S. President. The 1973 Constitution attempted to modify the system of government into the
parliamentary type, with the President as a mere figurehead, but through numerous amendments, the President became even more
powerful, to the point that he was also the de facto Legislature. The 1987 Constitution, however, brought back the presidential
system of government and restored the separation of legislative, executive and judicial powers by their actual distribution among
three distinct branches of government with provision for checks and balances.
It would not be accurate, however, to state that "executive power" is the power to enforce the laws, for the President is head of state
as well as head of government and whatever powers inhere in such positions pertain to the office unless the Constitution itself
withholds it. Furthermore, the Constitution itself provides that the execution of the laws is only one of the powers of the President. It
also grants the President other powers that do not involve the execution of any provision of law, e.g., his power over the country's
foreign relations.
On these premises, we hold the view that although the 1987 Constitution imposes limitations on the exercise ofspecific powers of
the President, it maintains intact what is traditionally considered as within the scope of "executive power." Corollarily, the powers of
the President cannot be said to be limited only to the specific powers enumerated in the Constitution. In other words, executive
power is more than the sum of specific powers so enumerated,
It has been advanced that whatever power inherent in the government that is neither legislative nor judicial has to be executive.
Thus, in the landmark decision of Springer v. Government of the Philippine Islands, 277 U.S. 189 (1928), on the issue of who
between the Governor-General of the Philippines and the Legislature may vote the shares of stock held by the Government to elect
directors in the National Coal Company and the Philippine National Bank, the U.S. Supreme Court, in upholding the power of the
Governor-General to do so, said:
...Here the members of the legislature who constitute a majority of the "board" and "committee" respectively, are
not charged with the performance of any legislative functions or with the doing of anything which is in aid of
performance of any such functions by the legislature. Putting aside for the moment the question whether the
duties devolved upon these members are vested by the Organic Act in the Governor-General, it is clear that they
are not legislative in character, and still more clear that they are not judicial. The fact that they do not fall within
the authority of either of these two constitutes logical ground for concluding that they do fall within that of the
remaining one among which the powers of government are divided ....[At 202-203; Emphasis supplied.]
We are not unmindful of Justice Holmes' strong dissent. But in his enduring words of dissent we find reinforcement for the view that
it would indeed be a folly to construe the powers of a branch of government to embrace only what are specifically mentioned in the
Constitution:
The great ordinances of the Constitution do not establish and divide fields of black and white. Even the more
specific of them are found to terminate in a penumbra shading gradually from one extreme to the other. ....
xxx xxx xxx
It does not seem to need argument to show that however we may disguise it by veiling words we do not and
cannot carry out the distinction between legislative and executive action with mathematical precision and divide
the branches into watertight compartments, were it ever so desirable to do so, which I am far from believing that it
is, or that the Constitution requires. [At 210- 211.]
The Power Involved
The Constitution declares among the guiding principles that "[t]he prime duty of theGovernment is to serve and protect the people"
and that "[t]he maintenance of peace and order,the protection of life, liberty, and property, and the promotion of the general welfare
are essential for the enjoyment by all the people of the blessings of democracy." [Art. II, Secs. 4 and 5.]
Admittedly, service and protection of the people, the maintenance of peace and order, the protection of life, liberty and property, and
the promotion of the general welfare are essentially ideals to guide governmental action. But such does not mean that they are
empty words. Thus, in the exercise of presidential functions, in drawing a plan of government, and in directing implementing action
for these plans, or from another point of view, in making any decision as President of the Republic, the President has to consider
these principles, among other things, and adhere to them.
Faced with the problem of whether or not the time is right to allow the Marcoses to return to the Philippines, the President is, under
the Constitution, constrained to consider these basic principles in arriving at a decision. More than that, having sworn to defend and
uphold the Constitution, the President has the obligation under the Constitution to protect the people, promote their welfare and
advance the national interest. It must be borne in mind that the Constitution, aside from being an allocation of power is also a social
contract whereby the people have surrendered their sovereign powers to the State for the common good. Hence, lest the officers of
the Government exercising the powers delegated by the people forget and the servants of the people become rulers, the

Constitution reminds everyone that "[s]overeignty resides in the people and all government authority emanates from them." [Art. II,
Sec. 1.]
The resolution of the problem is made difficult because the persons who seek to return to the country are the deposed dictator and
his family at whose door the travails of the country are laid and from whom billions of dollars believed to be ill-gotten wealth are
sought to be recovered. The constitutional guarantees they invoke are neither absolute nor inflexible. For the exercise of even the
preferred freedoms of speech and ofexpression, although couched in absolute terms, admits of limits and must be adjusted to the
requirements of equally important public interests [Zaldivar v. Sandiganbayan, G.R. Nos. 79690-707, October 7, 1981.]
To the President, the problem is one of balancing the general welfare and the common good against the exercise of rights of certain
individuals. The power involved is the President's residual power to protect the general welfare of the people. It is founded on the
duty of the President, as steward of the people. To paraphrase Theodore Roosevelt, it is not only the power of the President but
also his duty to do anything not forbidden by the Constitution or the laws that the needs of the nation demand [See Corwin, supra,
at 153]. It is a power borne by the President's duty to preserve and defend the Constitution. It also may be viewed as a power
implicit in the President's duty to take care that the laws are faithfully executed [see Hyman, The American President, where the
author advances the view that an allowance of discretionary power is unavoidable in any government and is best lodged in the
President].
More particularly, this case calls for the exercise of the President's powers as protector of the peace. RossiterThe American
Presidency].The power of the President to keep the peace is not limited merely to exercising the commander-in-chief powers in
times of emergency or to leading the State against external and internal threats to its existence. The President is not only clothed
with extraordinary powers in times of emergency, but is also tasked with attending to the day-to-day problems of maintaining peace
and order and ensuring domestic tranquility in times when no foreign foe appears on the horizon. Wide discretion, within the bounds
of law, in fulfilling presidential duties in times of peace is not in any way diminished by the relative want of an emergency specified
in the commander-in-chief provision. For in making the President commander-in-chief the enumeration of powers that follow cannot
be said to exclude the President's exercising as Commander-in- Chief powers short of the calling of the armed forces, or
suspending the privilege of the writ of habeas corpus or declaring martial law, in order to keep the peace, and maintain public order
and security.
That the President has the power under the Constitution to bar the Marcose's from returning has been recognized by memembers
of the Legislature, and is manifested by the Resolution proposed in the House of Representatives and signed by 103 of its
members urging the President to allow Mr. Marcos to return to the Philippines "as a genuine unselfish gesture for true national
reconciliation and as irrevocable proof of our collective adherence to uncompromising respect for human rights under the
Constitution and our laws." [House Resolution No. 1342, Rollo, p. 321.1 The Resolution does not question the President's power to
bar the Marcoses from returning to the Philippines, rather, it appeals to the President's sense of compassion to allow a man to
come home to die in his country.
What we are saying in effect is that the request or demand of the Marcoses to be allowed to return to the Philippines cannot be
considered in the light solely of the constitutional provisions guaranteeing liberty of abode and the right to travel, subject to certain
exceptions, or of case law which clearly never contemplated situations even remotely similar to the present one. It must be treated
as a matter that is appropriately addressed to those residual unstated powers of the President which are implicit in and correlative
to the paramount duty residing in that office to safeguard and protect general welfare. In that context, such request or demand
should submit to the exercise of a broader discretion on the part of the President to determine whether it must be granted or denied.
The Extent of Review
Under the Constitution, judicial power includes the duty to determine whether or not there has been a grave abuse of discretion
amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of the Government." [Art. VIII, Sec. 1] Given
this wording, we cannot agree with the Solicitor General that the issue constitutes a political question which is beyond the
jurisdiction of the Court to decide.
The present Constitution limits resort to the political question doctrine and broadens the scope of judicial inquiry into areas which
the Court, under previous constitutions, would have normally left to the political departments to decide. But nonetheless there
remain issues beyond the Court's jurisdiction the determination of which is exclusively for the President, for Congress or for the
people themselves through a plebiscite or referendum. We cannot, for example, question the President's recognition of a foreign
government, no matter how premature or improvident such action may appear. We cannot set aside a presidential pardon though it
may appear to us that the beneficiary is totally undeserving of the grant. Nor can we amend the Constitution under the guise of
resolving a dispute brought before us because the power is reserved to the people.
There is nothing in the case before us that precludes our determination thereof on the political question doctrine. The deliberations
of the Constitutional Commission cited by petitioners show that the framers intended to widen the scope of judicial review but they
did not intend courts of justice to settle all actual controversies before them. When political questions are involved, the Constitution
limits the determination to whether or not there has been a grave abuse of discretion amounting to lack or excess of jurisdiction on
the part of the official whose action is being questioned. If grave abuse is not established, the Court will not substitute its judgment
for that of the official concerned and decide a matter which by its nature or by law is for the latter alone to decide. In this light, it
would appear clear that the second paragraph of Article VIII, Section 1 of the Constitution, defining "judicial power," which
specifically empowers the courts to determine whether or not there has been a grave abuse of discretion on the part of any branch
or instrumentality of the government, incorporates in the fundamental law the ruling inLansang v. Garcia [G.R. No. L-33964,
December 11, 1971, 42 SCRA 4481 that:]
Article VII of the [1935] Constitution vests in the Executive the power to suspend the privilege of the writ of
habeas corpus under specified conditions. Pursuant to the principle of separation of powers underlying our
system of government, the Executive is supreme within his own sphere. However, the separation of powers,
under the Constitution, is not absolute. What is more, it goes hand in hand with the system of checks and
balances, under which the Executive is supreme, as regards the suspension of the privilege, but only if and when
he acts within the sphere alloted to him by the Basic Law, and the authority to determine whether or not he has so
acted is vested in the Judicial Department, which, in this respect, is, in turn, constitutionally supreme. In the
exercise of such authority, the function of the Court is merely to check not to supplant the Executive, or to
ascertain merely whether he has gone beyond the constitutional limits of his jurisdiction, not to exercise the power
vested in him or to determine the wisdom of his act [At 479-480.]

Accordingly, the question for the Court to determine is whether or not there exist factual bases for the President to conclude that it
was in the national interest to bar the return of the Marcoses to the Philippines. If such postulates do exist, it cannot be said that she
has acted, or acts, arbitrarily or that she has gravely abused her discretion in deciding to bar their return.
We find that from the pleadings filed by the parties, from their oral arguments, and the facts revealed during the briefing in
chambers by the Chief of Staff of the Armed Forces of the Philippines and the National Security Adviser, wherein petitioners and
respondents were represented, there exist factual bases for the President's decision..
The Court cannot close its eyes to present realities and pretend that the country is not besieged from within by a well-organized
communist insurgency, a separatist movement in Mindanao, rightist conspiracies to grab power, urban terrorism, the murder with
impunity of military men, police officers and civilian officials, to mention only a few. The documented history of the efforts of the
Marcose's and their followers to destabilize the country, as earlier narrated in this ponencia bolsters the conclusion that the return of
the Marcoses at this time would only exacerbate and intensify the violence directed against the State and instigate more chaos.
As divergent and discordant forces, the enemies of the State may be contained. The military establishment has given assurances
that it could handle the threats posed by particular groups. But it is the catalytic effect of the return of the Marcoses that may prove
to be the proverbial final straw that would break the camel's back. With these before her, the President cannot be said to have acted
arbitrarily and capriciously and whimsically in determining that the return of the Marcoses poses a serious threat to the national
interest and welfare and in prohibiting their return.
It will not do to argue that if the return of the Marcoses to the Philippines will cause the escalation of violence against the State, that
would be the time for the President to step in and exercise the commander-in-chief powers granted her by the Constitution to
suppress or stamp out such violence. The State, acting through the Government, is not precluded from taking pre- emptive action
against threats to its existence if, though still nascent they are perceived as apt to become serious and direct. Protection of the
people is the essence of the duty of government. The preservation of the State the fruition of the people's sovereignty is an
obligation in the highest order. The President, sworn to preserve and defend the Constitution and to see the faithful execution the
laws, cannot shirk from that responsibility.
We cannot also lose sight of the fact that the country is only now beginning to recover from the hardships brought about by the
plunder of the economy attributed to the Marcoses and their close associates and relatives, many of whom are still here in the
Philippines in a position to destabilize the country, while the Government has barely scratched the surface, so to speak, in its efforts
to recover the enormous wealth stashed away by the Marcoses in foreign jurisdictions. Then, We cannot ignore the continually
increasing burden imposed on the economy by the excessive foreign borrowing during the Marcos regime, which stifles and
stagnates development and is one of the root causes of widespread poverty and all its attendant ills. The resulting precarious state
of our economy is of common knowledge and is easily within the ambit of judicial notice.
The President has determined that the destabilization caused by the return of the Marcoses would wipe away the gains achieved
during the past few years and lead to total economic collapse. Given what is within our individual and common knowledge of the
state of the economy, we cannot argue with that determination.
WHEREFORE, and it being our well-considered opinion that the President did not act arbitrarily or with grave abuse of discretion in
determining that the return of former President Marcos and his family at the present time and under present circumstances poses a
serious threat to national interest and welfare and in prohibiting their return to the Philippines, the instant petition is hereby
DISMISSED.
SO ORDERED.

G.R. No. L-14639

March 25, 1919

ZACARIAS VILLAVICENCIO, ET AL., petitioners,

vs.
JUSTO LUKBAN, ET AL., respondents.
Alfonso Mendoza for petitioners.
City Fiscal Diaz for respondents.
MALCOLM, J.:
The annals of juridical history fail to reveal a case quite as remarkable as the one which this application forhabeas corpus submits
for decision. While hardly to be expected to be met with in this modern epoch of triumphant democracy, yet, after all, the cause
presents no great difficulty if there is kept in the forefront of our minds the basic principles of popular government, and if we give
expression to the paramount purpose for which the courts, as an independent power of such a government, were constituted. The
primary question is Shall the judiciary permit a government of the men instead of a government of laws to be set up in the
Philippine Islands?
Omitting much extraneous matter, of no moment to these proceedings, but which might prove profitable reading for other
departments of the government, the facts are these: The Mayor of the city of Manila, Justo Lukban, for the best of all reasons, to
exterminate vice, ordered the segregated district for women of ill repute, which had been permitted for a number of years in the city
of Manila, closed. Between October 16 and October 25, 1918, the women were kept confined to their houses in the district by the
police. Presumably, during this period, the city authorities quietly perfected arrangements with the Bureau of Labor for sending the
women to Davao, Mindanao, as laborers; with some government office for the use of the coastguard cutters Corregidor and Negros,
and with the Constabulary for a guard of soldiers. At any rate, about midnight of October 25, the police, acting pursuant to orders
from the chief of police, Anton Hohmann and the Mayor of the city of Manila, Justo Lukban, descended upon the houses, hustled
some 170 inmates into patrol wagons, and placed them aboard the steamers that awaited their arrival. The women were given no
opportunity to collect their belongings, and apparently were under the impression that they were being taken to a police station for
an investigation. They had no knowledge that they were destined for a life in Mindanao. They had not been asked if they wished to
depart from that region and had neither directly nor indirectly given their consent to the deportation. The involuntary guests were

received on board the steamers by a representative of the Bureau of Labor and a detachment of Constabulary soldiers. The two
steamers with their unwilling passengers sailed for Davao during the night of October 25.
The vessels reached their destination at Davao on October 29. The women were landed and receipted for as laborers by Francisco
Sales, provincial governor of Davao, and by Feliciano Yigo and Rafael Castillo. The governor and the hacendero Yigo, who
appear as parties in the case, had no previous notification that the women were prostitutes who had been expelled from the city of
Manila. The further happenings to these women and the serious charges growing out of alleged ill-treatment are of public interest,
but are not essential to the disposition of this case. Suffice it to say, generally, that some of the women married, others assumed
more or less clandestine relations with men, others went to work in different capacities, others assumed a life unknown and
disappeared, and a goodly portion found means to return to Manila.
To turn back in our narrative, just about the time the Corregidor and the Negros were putting in to Davao, the attorney for the
relatives and friends of a considerable number of the deportees presented an application forhabeas corpus to a member of the
Supreme Court. Subsequently, the application, through stipulation of the parties, was made to include all of the women who were
sent away from Manila to Davao and, as the same questions concerned them all, the application will be considered as including
them. The application set forth the salient facts, which need not be repeated, and alleged that the women were illegally restrained of
their liberty by Justo Lukban, Mayor of the city of Manila, Anton Hohmann, chief of police of the city of Manila, and by certain
unknown parties. The writ was made returnable before the full court. The city fiscal appeared for the respondents, Lukban and
Hohmann, admitted certain facts relative to sequestration and deportation, and prayed that the writ should not be granted because
the petitioners were not proper parties, because the action should have been begun in the Court of First Instance for Davao,
Department of Mindanao and Sulu, because the respondents did not have any of the women under their custody or control, and
because their jurisdiction did not extend beyond the boundaries of the city of Manila. According to an exhibit attached to the answer
of the fiscal, the 170 women were destined to be laborers, at good salaries, on the haciendas of Yigo and Governor Sales. In open
court, the fiscal admitted, in answer to question of a member of the court, that these women had been sent out of Manila without
their consent. The court awarded the writ, in an order of November 4, that directed Justo Lukban, Mayor of the city of Manila, Anton
Hohmann, chief of police of the city of Manila, Francisco Sales, governor of the province of Davao, and Feliciano Yigo,
an hacendero of Davao, to bring before the court the persons therein named, alleged to be deprived of their liberty, on December 2,
1918.
Before the date mentioned, seven of the women had returned to Manila at their own expense. On motion of counsel for petitioners,
their testimony was taken before the clerk of the Supreme Court sitting as commissioners. On the day named in the order,
December 2nd, 1918, none of the persons in whose behalf the writ was issued were produced in court by the respondents. It has
been shown that three of those who had been able to come back to Manila through their own efforts, were notified by the police and
the secret service to appear before the court. The fiscal appeared, repeated the facts more comprehensively, reiterated the stand
taken by him when pleading to the original petition copied a telegram from the Mayor of the city of Manila to the provincial governor
of Davao and the answer thereto, and telegrams that had passed between the Director of Labor and the attorney for that Bureau
then in Davao, and offered certain affidavits showing that the women were contained with their life in Mindanao and did not wish to
return to Manila. Respondents Sales answered alleging that it was not possible to fulfill the order of the Supreme Court because the
women had never been under his control, because they were at liberty in the Province of Davao, and because they had married or
signed contracts as laborers. Respondent Yigo answered alleging that he did not have any of the women under his control and
that therefore it was impossible for him to obey the mandate. The court, after due deliberation, on December 10, 1918, promulgated
a second order, which related that the respondents had not complied with the original order to the satisfaction of the court nor
explained their failure to do so, and therefore directed that those of the women not in Manila be brought before the court by
respondents Lukban, Hohmann, Sales, and Yigo on January 13, 1919, unless the women should, in written statements voluntarily
made before the judge of first instance of Davao or the clerk of that court, renounce the right, or unless the respondents should
demonstrate some other legal motives that made compliance impossible. It was further stated that the question of whether the
respondents were in contempt of court would later be decided and the reasons for the order announced in the final decision.
Before January 13, 1919, further testimony including that of a number of the women, of certain detectives and policemen, and of
the provincial governor of Davao, was taken before the clerk of the Supreme Court sitting as commissioner and the clerk of the
Court of First Instance of Davao acting in the same capacity. On January 13, 1919, the respondents technically presented before
the Court the women who had returned to the city through their own efforts and eight others who had been brought to Manila by the
respondents. Attorneys for the respondents, by their returns, once again recounted the facts and further endeavored to account for
all of the persons involved in the habeas corpus. In substance, it was stated that the respondents, through their representatives and
agents, had succeeded in bringing from Davao with their consent eight women; that eighty-one women were found in Davao who,
on notice that if they desired they could return to Manila, transportation fee, renounced the right through sworn statements; that fiftynine had already returned to Manila by other means, and that despite all efforts to find them twenty-six could not be located. Both
counsel for petitioners and the city fiscal were permitted to submit memoranda. The first formally asked the court to find Justo
Lukban, Mayor of the city of Manila, Anton Hohmann, chief of police of the city of Manila, Jose Rodriguez and Fernando Ordax,
members of the police force of the city of Manila, Feliciano Yigo, an hacendero of Davao, Modesto Joaquin, the attorney for the
Bureau of Labor, and Anacleto Diaz, fiscal of the city of Manila, in contempt of court. The city fiscal requested that the replica al
memorandum de los recurridos, (reply to respondents' memorandum) dated January 25, 1919, be struck from the record.
In the second order, the court promised to give the reasons for granting the writ of habeas corpus in the final decision. We will now
proceed to do so.
One fact, and one fact only, need be recalled these one hundred and seventy women were isolated from society, and then at
night, without their consent and without any opportunity to consult with friends or to defend their rights, were forcibly hustled on
board steamers for transportation to regions unknown. Despite the feeble attempt to prove that the women left voluntarily and
gladly, that such was not the case is shown by the mere fact that the presence of the police and the constabulary was deemed
necessary and that these officers of the law chose the shades of night to cloak their secret and stealthy acts. Indeed, this is a fact
impossible to refute and practically admitted by the respondents.
With this situation, a court would next expect to resolve the question By authority of what law did the Mayor and the Chief of
Police presume to act in deporting by duress these persons from Manila to another distant locality within the Philippine Islands? We
turn to the statutes and we find
Alien prostitutes can be expelled from the Philippine Islands in conformity with an Act of congress. The Governor-General can order
the eviction of undesirable aliens after a hearing from the Islands. Act No. 519 of the Philippine Commission and section 733 of the
Revised Ordinances of the city of Manila provide for the conviction and punishment by a court of justice of any person who is a
common prostitute. Act No. 899 authorizes the return of any citizen of the United States, who may have been convicted of vagrancy,

to the homeland. New York and other States have statutes providing for the commitment to the House of Refuge of women
convicted of being common prostitutes. Always a law! Even when the health authorities compel vaccination, or establish a
quarantine, or place a leprous person in the Culion leper colony, it is done pursuant to some law or order. But one can search in
vain for any law, order, or regulation, which even hints at the right of the Mayor of the city of Manila or the chief of police of that city
to force citizens of the Philippine Islands and these women despite their being in a sense lepers of society are nevertheless not
chattels but Philippine citizens protected by the same constitutional guaranties as are other citizens to change their domicile from
Manila to another locality. On the contrary, Philippine penal law specifically punishes any public officer who, not being expressly
authorized by law or regulation, compels any person to change his residence.
In other countries, as in Spain and Japan, the privilege of domicile is deemed so important as to be found in the Bill of Rights of the
Constitution. Under the American constitutional system, liberty of abode is a principle so deeply imbedded in jurisprudence and
considered so elementary in nature as not even to require a constitutional sanction. Even the Governor-General of the Philippine
Islands, even the President of the United States, who has often been said to exercise more power than any king or potentate, has
no such arbitrary prerogative, either inherent or express. Much less, therefore, has the executive of a municipality, who acts within a
sphere of delegated powers. If the mayor and the chief of police could, at their mere behest or even for the most praiseworthy of
motives, render the liberty of the citizen so insecure, then the presidents and chiefs of police of one thousand other municipalities of
the Philippines have the same privilege. If these officials can take to themselves such power, then any other official can do the
same. And if any official can exercise the power, then all persons would have just as much right to do so. And if a prostitute could be
sent against her wishes and under no law from one locality to another within the country, then officialdom can hold the same club
over the head of any citizen.
Law defines power. Centuries ago Magna Charta decreed that "No freeman shall be taken, or imprisoned, or be disseized of his
freehold, or liberties, or free customs, or be outlawed, or exiled, or any other wise destroyed; nor will we pass upon him nor
condemn him, but by lawful judgment of his peers or by the law of the land. We will sell to no man, we will not deny or defer to any
man either justice or right." (Magna Charta, 9 Hen., 111, 1225, Cap. 29; 1 eng. stat. at Large, 7.) No official, no matter how high, is
above the law. The courts are the forum which functionate to safeguard individual liberty and to punish official transgressors. "The
law," said Justice Miller, delivering the opinion of the Supreme Court of the United States, "is the only supreme power in our system
of government, and every man who by accepting office participates in its functions is only the more strongly bound to submit to that
supremacy, and to observe the limitations which it imposes upon the exercise of the authority which it gives." (U.S. vs. Lee [1882],
106 U.S., 196, 220.) "The very idea," said Justice Matthews of the same high tribunal in another case, "that one man may be
compelled to hold his life, or the means of living, or any material right essential to the enjoyment of life, at the mere will of another,
seems to be intolerable in any country where freedom prevails, as being the essence of slavery itself." (Yick Wo vs. Hopkins [1886],
118 U.S., 356, 370.) All this explains the motive in issuing the writ of habeas corpus, and makes clear why we said in the very
beginning that the primary question was whether the courts should permit a government of men or a government of laws to be
established in the Philippine Islands.
What are the remedies of the unhappy victims of official oppression? The remedies of the citizen are three: (1) Civil action; (2)
criminal action, and (3) habeas corpus.
The first is an optional but rather slow process by which the aggrieved party may recoup money damages. It may still rest with the
parties in interest to pursue such an action, but it was never intended effectively and promptly to meet any such situation as that
now before us.
As to criminal responsibility, it is true that the Penal Code in force in these Islands provides:
Any public officer not thereunto authorized by law or by regulations of a general character in force in the Philippines who
shall banish any person to a place more than two hundred kilometers distant from his domicile, except it be by virtue of the
judgment of a court, shall be punished by a fine of not less than three hundred and twenty-five and not more than three
thousand two hundred and fifty pesetas.
Any public officer not thereunto expressly authorized by law or by regulation of a general character in force in the
Philippines who shall compel any person to change his domicile or residence shall suffer the penalty of destierro and a fine
of not less than six hundred and twenty-five and not more than six thousand two hundred and fifty pesetas. (Art. 211.)
We entertain no doubt but that, if, after due investigation, the proper prosecuting officers find that any public officer has violated this
provision of law, these prosecutors will institute and press a criminal prosecution just as vigorously as they have defended the same
official in this action. Nevertheless, that the act may be a crime and that the persons guilty thereof can be proceeded against, is no
bar to the instant proceedings. To quote the words of Judge Cooley in a case which will later be referred to "It would be a
monstrous anomaly in the law if to an application by one unlawfully confined, ta be restored to his liberty, it could be a sufficient
answer that the confinement was a crime, and therefore might be continued indefinitely until the guilty party was tried and punished
therefor by the slow process of criminal procedure." (In the matter of Jackson [1867], 15 Mich., 416, 434.) The writ of habeas
corpus was devised and exists as a speedy and effectual remedy to relieve persons from unlawful restraint, and as the best and
only sufficient defense of personal freedom. Any further rights of the parties are left untouched by decision on the writ, whose
principal purpose is to set the individual at liberty.
Granted that habeas corpus is the proper remedy, respondents have raised three specific objections to its issuance in this instance.
The fiscal has argued (l) that there is a defect in parties petitioners, (2) that the Supreme Court should not a assume jurisdiction,
and (3) that the person in question are not restrained of their liberty by respondents. It was finally suggested that the jurisdiction of
the Mayor and the chief of police of the city of Manila only extends to the city limits and that perforce they could not bring the
women from Davao.
The first defense was not presented with any vigor by counsel. The petitioners were relatives and friends of the deportees. The way
the expulsion was conducted by the city officials made it impossible for the women to sign a petition for habeas corpus. It was
consequently proper for the writ to be submitted by persons in their behalf. (Code of Criminal Procedure, sec. 78; Code of Civil
Procedure, sec. 527.) The law, in its zealous regard for personal liberty, even makes it the duty of a court or judge to grant a writ
of habeas corpus if there is evidence that within the court's jurisdiction a person is unjustly imprisoned or restrained of his liberty,
though no application be made therefor. (Code of Criminal Procedure, sec. 93.) Petitioners had standing in court.

The fiscal next contended that the writ should have been asked for in the Court of First Instance of Davao or should have been
made returnable before that court. It is a general rule of good practice that, to avoid unnecessary expense and inconvenience,
petitions for habeas corpus should be presented to the nearest judge of the court of first instance. But this is not a hard and fast
rule. The writ of habeas corpus may be granted by the Supreme Court or any judge thereof enforcible anywhere in the Philippine
Islands. (Code of Criminal Procedure, sec. 79; Code of Civil Procedure, sec. 526.) Whether the writ shall be made returnable before
the Supreme Court or before an inferior court rests in the discretion of the Supreme Court and is dependent on the particular
circumstances. In this instance it was not shown that the Court of First Instance of Davao was in session, or that the women had
any means by which to advance their plea before that court. On the other hand, it was shown that the petitioners with their
attorneys, and the two original respondents with their attorney, were in Manila; it was shown that the case involved parties situated
in different parts of the Islands; it was shown that the women might still be imprisoned or restrained of their liberty; and it was shown
that if the writ was to accomplish its purpose, it must be taken cognizance of and decided immediately by the appellate court. The
failure of the superior court to consider the application and then to grant the writ would have amounted to a denial of the benefits of
the writ.
The last argument of the fiscal is more plausible and more difficult to meet. When the writ was prayed for, says counsel, the parties
in whose behalf it was asked were under no restraint; the women, it is claimed, were free in Davao, and the jurisdiction of the mayor
and the chief of police did not extend beyond the city limits. At first blush, this is a tenable position. On closer examination,
acceptance of such dictum is found to be perversive of the first principles of the writ of habeas corpus.
A prime specification of an application for a writ of habeas corpus is restraint of liberty. The essential object and purpose of the writ
of habeas corpus is to inquire into all manner of involuntary restraint as distinguished from voluntary, and to relieve a person
therefrom if such restraint is illegal. Any restraint which will preclude freedom of action is sufficient. The forcible taking of these
women from Manila by officials of that city, who handed them over to other parties, who deposited them in a distant region, deprived
these women of freedom of locomotion just as effectively as if they had been imprisoned. Placed in Davao without either money or
personal belongings, they were prevented from exercising the liberty of going when and where they pleased. The restraint of liberty
which began in Manila continued until the aggrieved parties were returned to Manila and released or until they freely and truly
waived his right.
Consider for a moment what an agreement with such a defense would mean. The chief executive of any municipality in the
Philippines could forcibly and illegally take a private citizen and place him beyond the boundaries of the municipality, and then,
when called upon to defend his official action, could calmly fold his hands and claim that the person was under no restraint and that
he, the official, had no jurisdiction over this other municipality. We believe the true principle should be that, if the respondent is
within the jurisdiction of the court and has it in his power to obey the order of the court and thus to undo the wrong that he has
inflicted, he should be compelled to do so. Even if the party to whom the writ is addressed has illegally parted with the custody of a
person before the application for the writ is no reason why the writ should not issue. If the mayor and the chief of police, acting
under no authority of law, could deport these women from the city of Manila to Davao, the same officials must necessarily have the
same means to return them from Davao to Manila. The respondents, within the reach of process, may not be permitted to restrain a
fellow citizen of her liberty by forcing her to change her domicile and to avow the act with impunity in the courts, while the person
who has lost her birthright of liberty has no effective recourse. The great writ of liberty may not thus be easily evaded.
It must be that some such question has heretofore been presented to the courts for decision. Nevertheless, strange as it may seem,
a close examination of the authorities fails to reveal any analogous case. Certain decisions of respectable courts are however very
persuasive in nature.
A question came before the Supreme Court of the State of Michigan at an early date as to whether or not a writ ofhabeas
corpus would issue from the Supreme Court to a person within the jurisdiction of the State to bring into the State a minor child
under guardianship in the State, who has been and continues to be detained in another State. The membership of the Michigan
Supreme Court at this time was notable. It was composed of Martin, chief justice, and Cooley, Campbell, and Christiancy, justices.
On the question presented the court was equally divided. Campbell, J., with whom concurred Martin, C. J., held that the writ should
be quashed. Cooley, J., one of the most distinguished American judges and law-writers, with whom concurred Christiancy, J., held
that the writ should issue. Since the opinion of Justice Campbell was predicated to a large extent on his conception of the English
decisions, and since, as will hereafter appear, the English courts have taken a contrary view, only the following eloquent passages
from the opinion of Justice Cooley are quoted:
I have not yet seen sufficient reason to doubt the power of this court to issue the present writ on the petition which was laid
before us. . . .
It would be strange indeed if, at this late day, after the eulogiums of six centuries and a half have been expended upon the
Magna Charta, and rivers of blood shed for its establishment; after its many confirmations, until Coke could declare in his
speech on the petition of right that "Magna Charta was such a fellow that he will have no sovereign," and after the
extension of its benefits and securities by the petition of right, bill of rights and habeas corpus acts, it should now be
discovered that evasion of that great clause for the protection of personal liberty, which is the life and soul of the whole
instrument, is so easy as is claimed here. If it is so, it is important that it be determined without delay, that the legislature
may apply the proper remedy, as I can not doubt they would, on the subject being brought to their notice. . . .
The second proposition that the statutory provisions are confined to the case of imprisonment within the state seems
to me to be based upon a misconception as to the source of our jurisdiction. It was never the case in England that the
court of king's bench derived its jurisdiction to issue and enforce this writ from the statute. Statutes were not passed to give
the right, but to compel the observance of rights which existed. . . .
The important fact to be observed in regard to the mode of procedure upon this writ is, that it is directed to and served
upon, not the person confined, but his jailor. It does not reach the former except through the latter. The officer or person
who serves it does not unbar the prison doors, and set the prisoner free, but the court relieves him by compelling the
oppressor to release his constraint. The whole force of the writ is spent upon the respondent, and if he fails to obey it, the
means to be resorted to for the purposes of compulsion are fine and imprisonment. This is the ordinary mode of affording
relief, and if any other means are resorted to, they are only auxiliary to those which are usual. The place of confinement is,
therefore, not important to the relief, if the guilty party is within reach of process, so that by the power of the court he can
be compelled to release his grasp. The difficulty of affording redress is not increased by the confinement being beyond the
limits of the state, except as greater distance may affect it. The important question is, where the power of control
exercised? And I am aware of no other remedy. (In the matter of Jackson [1867], 15 Mich., 416.)

The opinion of Judge Cooley has since been accepted as authoritative by other courts. (Rivers vs. Mitchell [1881], 57 Iowa, 193;
Breene vs. People [1911], Colo., 117 Pac. Rep., 1000; Ex parte Young [1892], 50 Fed., 526.)
The English courts have given careful consideration to the subject. Thus, a child had been taken out of English by the respondent.
A writ of habeas corpus was issued by the Queen's Bench Division upon the application of the mother and her husband directing
the defendant to produce the child. The judge at chambers gave defendant until a certain date to produce the child, but he did not
do so. His return stated that the child before the issuance of the writ had been handed over by him to another; that it was no longer
in his custody or control, and that it was impossible for him to obey the writ. He was found in contempt of court. On appeal, the
court, through Lord Esher, M. R., said:
A writ of habeas corpus was ordered to issue, and was issued on January 22. That writ commanded the defendant to have
the body of the child before a judge in chambers at the Royal Courts of Justice immediately after the receipt of the writ,
together with the cause of her being taken and detained. That is a command to bring the child before the judge and must
be obeyed, unless some lawful reason can be shown to excuse the nonproduction of the child. If it could be shown that by
reason of his having lawfully parted with the possession of the child before the issuing of the writ, the defendant had no
longer power to produce the child, that might be an answer; but in the absence of any lawful reason he is bound to
produce the child, and, if he does not, he is in contempt of the Court for not obeying the writ without lawful excuse. Many
efforts have been made in argument to shift the question of contempt to some anterior period for the purpose of showing
that what was done at some time prior to the writ cannot be a contempt. But the question is not as to what was done
before the issue of the writ. The question is whether there has been a contempt in disobeying the writ it was issued by not
producing the child in obedience to its commands. (The Queen vs. Bernardo [1889], 23 Q. B. D., 305. See also to the
same effect the Irish case of In re Matthews, 12 Ir. Com. Law Rep. [N. S.], 233; The Queen vs. Barnardo, Gossage's Case
[1890], 24 Q. B. D., 283.)
A decision coming from the Federal Courts is also of interest. A habeas corpus was directed to the defendant to have before the
circuit court of the District of Columbia three colored persons, with the cause of their detention. Davis, in his return to the writ, stated
on oath that he had purchased the negroes as slaves in the city of Washington; that, as he believed, they were removed beyond the
District of Columbia before the service of the writ of habeas corpus, and that they were then beyond his control and out of his
custody. The evidence tended to show that Davis had removed the negroes because he suspected they would apply for a writ
of habeas corpus. The court held the return to be evasive and insufficient, and that Davis was bound to produce the negroes, and
Davis being present in court, and refusing to produce them, ordered that he be committed to the custody of the marshall until he
should produce the negroes, or be otherwise discharged in due course of law. The court afterwards ordered that Davis be released
upon the production of two of the negroes, for one of the negroes had run away and been lodged in jail in Maryland. Davis
produced the two negroes on the last day of the term. (United States vs. Davis [1839], 5 Cranch C.C., 622, Fed. Cas. No. 14926.
See also Robb vs. Connolly [1883], 111 U.S., 624; Church on Habeas, 2nd ed., p. 170.)
We find, therefore, both on reason and authority, that no one of the defense offered by the respondents constituted a legitimate bar
to the granting of the writ of habeas corpus.
There remains to be considered whether the respondent complied with the two orders of the Supreme Court awarding the writ
of habeas corpus, and if it be found that they did not, whether the contempt should be punished or be taken as purged.
The first order, it will be recalled, directed Justo Lukban, Anton Hohmann, Francisco Sales, and Feliciano Yigo to present the
persons named in the writ before the court on December 2, 1918. The order was dated November 4, 1918. The respondents were
thus given ample time, practically one month, to comply with the writ. As far as the record discloses, the Mayor of the city of Manila
waited until the 21st of November before sending a telegram to the provincial governor of Davao. According to the response of the
attorney for the Bureau of Labor to the telegram of his chief, there were then in Davao women who desired to return to Manila, but
who should not be permitted to do so because of having contracted debts. The half-hearted effort naturally resulted in none of the
parties in question being brought before the court on the day named.
For the respondents to have fulfilled the court's order, three optional courses were open: (1) They could have produced the bodies
of the persons according to the command of the writ; or (2) they could have shown by affidavit that on account of sickness or
infirmity those persons could not safely be brought before the court; or (3) they could have presented affidavits to show that the
parties in question or their attorney waived the right to be present. (Code of Criminal Procedure, sec. 87.) They did not produce the
bodies of the persons in whose behalf the writ was granted; they did not show impossibility of performance; and they did not
present writings that waived the right to be present by those interested. Instead a few stereotyped affidavits purporting to show that
the women were contended with their life in Davao, some of which have since been repudiated by the signers, were appended to
the return. That through ordinary diligence a considerable number of the women, at least sixty, could have been brought back to
Manila is demonstrated to be found in the municipality of Davao, and that about this number either returned at their own expense or
were produced at the second hearing by the respondents.
The court, at the time the return to its first order was made, would have been warranted summarily in finding the respondents guilty
of contempt of court, and in sending them to jail until they obeyed the order. Their excuses for the non-production of the persons
were far from sufficient. The, authorities cited herein pertaining to somewhat similar facts all tend to indicate with what exactitude
a habeas corpus writ must be fulfilled. For example, in Gossage's case, supra, the Magistrate in referring to an earlier decision of
the Court, said: "We thought that, having brought about that state of things by his own illegal act, he must take the consequences;
and we said that he was bound to use every effort to get the child back; that he must do much more than write letters for the
purpose; that he must advertise in America, and even if necessary himself go after the child, and do everything that mortal man
could do in the matter; and that the court would only accept clear proof of an absolute impossibility by way of excuse." In other
words, the return did not show that every possible effort to produce the women was made by the respondents. That the court
forebore at this time to take drastic action was because it did not wish to see presented to the public gaze the spectacle of a clash
between executive officials and the judiciary, and because it desired to give the respondents another chance to demonstrate their
good faith and to mitigate their wrong.
In response to the second order of the court, the respondents appear to have become more zealous and to have shown a better
spirit. Agents were dispatched to Mindanao, placards were posted, the constabulary and the municipal police joined in rounding up
the women, and a steamer with free transportation to Manila was provided. While charges and counter-charges in such a bitterly
contested case are to be expected, and while a critical reading of the record might reveal a failure of literal fulfillment with our
mandate, we come to conclude that there is a substantial compliance with it. Our finding to this effect may be influenced somewhat

by our sincere desire to see this unhappy incident finally closed. If any wrong is now being perpetrated in Davao, it should receive
an executive investigation. If any particular individual is still restrained of her liberty, it can be made the object of separate habeas
corpus proceedings.
Since the writ has already been granted, and since we find a substantial compliance with it, nothing further in this connection
remains to be done.
The attorney for the petitioners asks that we find in contempt of court Justo Lukban, Mayor of the city of Manila, Anton Hohmann,
chief of police of the city of Manila, Jose Rodriguez, and Fernando Ordax, members of the police force of the city of Manila,
Modesto Joaquin, the attorney for the Bureau of Labor, Feliciano Yigo, anhacendero of Davao, and Anacleto Diaz, Fiscal of the
city of Manila.
The power to punish for contempt of court should be exercised on the preservative and not on the vindictive principle. Only
occasionally should the court invoke its inherent power in order to retain that respect without which the administration of justice
must falter or fail. Nevertheless when one is commanded to produce a certain person and does not do so, and does not offer a valid
excuse, a court must, to vindicate its authority, adjudge the respondent to be guilty of contempt, and must order him either
imprisoned or fined. An officer's failure to produce the body of a person in obedience to a writ of habeas corpus when he has power
to do so, is a contempt committed in the face of the court. (Ex parte Sterns [1888], 77 Cal., 156; In re Patterson [1888], 99 N. C.,
407.)
With all the facts and circumstances in mind, and with judicial regard for human imperfections, we cannot say that any of the
respondents, with the possible exception of the first named, has flatly disobeyed the court by acting in opposition to its authority.
Respondents Hohmann, Rodriguez, Ordax, and Joaquin only followed the orders of their chiefs, and while, under the law of public
officers, this does not exonerate them entirely, it is nevertheless a powerful mitigating circumstance. The hacendero Yigo appears
to have been drawn into the case through a misconstruction by counsel of telegraphic communications. The city fiscal, Anacleto
Diaz, would seem to have done no more than to fulfill his duty as the legal representative of the city government. Finding him
innocent of any disrespect to the court, his counter-motion to strike from the record the memorandum of attorney for the petitioners,
which brings him into this undesirable position, must be granted. When all is said and done, as far as this record discloses, the
official who was primarily responsible for the unlawful deportation, who ordered the police to accomplish the same, who made
arrangements for the steamers and the constabulary, who conducted the negotiations with the Bureau of Labor, and who later, as
the head of the city government, had it within his power to facilitate the return of the unfortunate women to Manila, was Justo
Lukban, the Mayor of the city of Manila. His intention to suppress the social evil was commendable. His methods were unlawful. His
regard for the writ of habeas corpus issued by the court was only tardily and reluctantly acknowledged.
It would be possible to turn to the provisions of section 546 of the Code of Civil Procedure, which relates to the penalty for
disobeying the writ, and in pursuance thereof to require respondent Lukban to forfeit to the parties aggrieved as much as P400
each, which would reach to many thousands of pesos, and in addition to deal with him as for a contempt. Some members of the
court are inclined to this stern view. It would also be possible to find that since respondent Lukban did comply substantially with the
second order of the court, he has purged his contempt of the first order. Some members of the court are inclined to this merciful
view. Between the two extremes appears to lie the correct finding. The failure of respondent Lukban to obey the first mandate of the
court tended to belittle and embarrass the administration of justice to such an extent that his later activity may be considered only
as extenuating his conduct. A nominal fine will at once command such respect without being unduly oppressive such an amount
is P100.
In resume as before stated, no further action on the writ of habeas corpus is necessary. The respondents Hohmann, Rodriguez,
Ordax, Joaquin, Yigo, and Diaz are found not to be in contempt of court. Respondent Lukban is found in contempt of court and
shall pay into the office of the clerk of the Supreme Court within five days the sum of one hundred pesos (P100). The motion of the
fiscal of the city of Manila to strike from the record the Replica al Memorandum de los Recurridos of January 25, 1919, is granted.
Costs shall be taxed against respondents. So ordered.
In concluding this tedious and disagreeable task, may we not be permitted to express the hope that this decision may serve to
bulwark the fortifications of an orderly government of laws and to protect individual liberty from illegal encroachment.

Information and access to official records

Art III, Sec. 7.
G.R. No. 130716 December 9, 1998
FRANCISCO I. CHAVEZ, petitioner,
vs.
PRESIDENTIAL COMMISSION ON GOOD GOVERNMENT (PCGG) and MAGTANGGOL GUNIGUNDO (in his capacity as

chairman of the PCGG), respondents, GLORIA A. JOPSON, CELNAN A. JOPSON, SCARLET A. JOPSON, and TERESA A.
JOPSON, petitioners-in-intervention.

PANGANIBAN, J.:
Petitioner asks this Court to define the nature and the extent of the people's constitutional right to information on matters of public
concern. Does this right include access to the terms of government negotiations prior to their consummation or conclusion? May the
government, through the Presidential Commission on Good Government (PCGG), be required to reveal the proposed terms of a
compromise agreement with the Marcos heirs as regards their alleged ill-gotten wealth? More specifically, are the "General
Agreement" and "Supplemental Agreement," both dated December 28, 1993 and executed between the PCGG and the Marcos
heirs, valid and binding?
The Case
These are the main questions raised in this original action seeking (1) to prohibit and "[e]njoin respondents [PCGG and its
chairman] from privately entering into, perfecting and/or executing any greement with the heirs of the late President Ferdinand E.
Marcos . . . relating to and concerning the properties and assets of Ferdinand Marcos located in the Philippines and/or abroad
including the so-called Marcos gold hoard"; and (2) to "[c]ompel respondent[s] to make public all negotiations and agreement, be
they ongoing or perfected, and all documents related to or relating to such negotiations and agreement between the PCGG and the
Marcos heirs." 1
The Facts
Petitioner Francisco I. Chavez, as "taxpayer, citizen and former government official who initiated the prosecution of the Marcoses
and their cronies who committed unmitigated plunder of the public treasury and the systematic subjugation of the country's
economy," alleges that what impelled him to bring this action were several news reports 2 bannered in a number of broadsheets
sometime in September 1997. These news items referred to (1) the alleged discovery of billions of dollars of Marcos assets
deposited in various coded accounts in Swiss banks; and (2) the reported execution of a compromise, between the government
(through PCGG) and the Marcos heirs, on how to split or share these assets.
Petitioner, invoking his constitutional right to information 3 and the correlative duty of the state to disclose publicly all its transactions
involving the national interest, 4 demands that respondents make public any and all negotiations and agreements pertaining to
PCGG's task of recovering the Marcoses' ill-gotten wealth. He claims that any compromise on the alleged billions of ill-gotten wealth
involves an issue of "paramount public interest," since it has a "debilitating effect on the country's economy" that would be greatly
prejudicial to the national interest of the Filipino people. Hence, the people in general have a right to know the transactions or deals
being contrived and effected by the government.
Respondents, on the other hand, do not deny forging a compromise agreement with the Marcos heirs. They claim, though, that
petitioner's action is premature, because there is no showing that he has asked the PCGG to disclose the negotiations and the
Agreements. And even if he has, PCGG may not yet be compelled to make any disclosure, since the proposed terms and
conditions of the Agreements have not become effective and binding.
Respondents further aver that the Marcos heirs have submitted the subject Agreements to the Sandiganbayan for its approval in
Civil Case No. 141, entitled Republic v. Heirs of Ferdinand E. Marcos, and that the Republic opposed such move on the principal
grounds that (1) said Agreements have not been ratified by or even submitted to the President for approval, pursuant to Item No. 8
of the General Agreement; and (2) the Marcos heirs have failed to comply with their undertakings therein, particularly the collation
and submission of an inventory of their assets. The Republic also cited an April 11, 1995 Resolution in Civil Case No. 0165, in
which the Sandiganbayan dismissed a similar petition filed by the Marcoses' attorney-in-fact.
Furthermore, then President Fidel V. Ramos, in his May 4, 1998 Memorandum 5 to then PCGG Chairman Magtanggol Gunigundo,
categorically stated:
This is to reiterate my previous position embodied in the Palace Press Release of 6 April 1995 that I have not
authorized you to approve the Compromise Agreements of December 28, 1993 or any agreement at all with the
Marcoses, and would have disapproved them had they been submitted to me.
The Full Powers of Attorney of March 1994 and July 4, 1994, did not authorize you to approve said Agreements,
which I reserve for myself as President of the Republic of the Philippines.
The assailed principal Agreement 6 reads:
GENERAL AGREEMENT
KNOW ALL MEN BY THESE PRESENTS:
This Agreement entered into this 28th day of December, 1993, by and between

The Republic of the Philippines, through the Presidential Commission on Good Government
(PCGG), a governmental agency vested with authority defined under Executive Orders Nos. 1,
2 and 14, with offices at the philcomcen Building, Pasig, Metro Manila, represented by its
Chairman referred to as FIRST PARTY,
and
Estate of Ferdinand E. Marcos, represented by Imelda Romualdez Marcos and Ferdinand R.
Marcos, Jr., all of legal age, and with address at c/o No. 154 Lopez Rizal St., Mandaluyong,
Metro Manila, and Imelda Romualdez Marcos, Imee Marcos Manotoc, Ferdinand E. Marcos,
Jr., and Irene Marcos Araneta, hereinafter collectively referred to as the PRIVATE PARTY.
W I T N E S S E T H:
WHEREAS, the PRIVATE PARTY has been impelled by their sense of nationalism and love of country and of the
entire Filipino people, and their desire to set up a foundation and finance impact projects like installation of power
plants in selected rural areas and initiation of other community projects for the empowerment of the people;
WHEREAS, the FIRST PARTY has obtained a judgment from the Swiss Federal Tribunal of December 21, 1990,
that the $356 million belongs in principle to the Republic of the Philippines provided certain conditionalities are
met, but even after 7 years, the FIRST PARTY has not been able to procure a final judgment of conviction against
the PRIVATE PARTY;
WHEREAS, the FIRST PARTY is desirous of avoiding a long-drawn out litigation which, as proven by the past 7
years, is consuming money, time and effort, and is counter-productive and ties up assets which the FIRST PARTY
could otherwise utilize for its Comprehensive Agrarian Reform Program, and other urgent needs;
WHEREAS, His Excellency, President Fidel V. Ramos, has adopted a policy of unity and reconciliation in order to
bind the nation's wounds and start the process of rebuilding this nation as it goes on to the twenty-first century;
WHEREAS, this Agreement settles all claims and counterclaims which the parties may have against one another,
whether past, present, or future, matured or inchoate.
NOW, THEREFORE, for and in consideration of the mutual covenants set forth herein, the parties agree as
follows:
1. The parties will collate all assets presumed to be owned by, or held by
other parties for the benefit of, the PRIVATE PARTY for purposes of
determining the totality of the assets covered by the settlement. The subject
assets shall be classified by the nature thereof, namely: (a) real estate; (b)
jewelry; (c) paintings and other works of art; (d) securities; (e) funds on
deposit; (f) precious metals, if any, and (g) miscellaneous assets or assets
which could not appropriately fall under any of the preceding classification.
The list shall be based on the full disclosure of the PRIVATE PARTY to insure
its accuracy.
2. Based on the inventory, the FIRST PARTY shall determine which shall be
ceded to the FIRST PARTY, and which shall be assigned to/retained by the
PRIVATE PARTY. The assets of the PRIVATE PARTY shall be net of and
exempt from, any form of taxes due the Republic of the Philippines. However,
considering the unavailability of all pertinent and relevant documents and
information as to balances and ownership, the actual specification of assets
to be retained by the PRIVATE PARTY shall be covered by supplemental
agreements which shall form part of this Agreement.
3. Foreign assets which the PRIVATE PARTY shall fully disclose but which
are held by trustees, nominees, agents or foundations are hereby waived
over by the PRIVATE PARTY in favor of the FIRST PARTY. For this purpose,
the parties shall cooperate in taking the appropriate action, judicial and/or
extrajudicial, to recover the same for the FIRST PARTY.
4. All disclosures of assets made by the PRIVATE PARTY shall not be used
as evidence by the FIRST PARTY in any criminal, civil, tax or administrative
case, but shall be valid and binding against said PARTY for use by the FIRST
PARTY in withdrawing any account and/or recovering any asset. The
PRIVATE PARTY withdraws any objection to the withdrawal by and/or
release to the FIRST PARTY by the Swiss banks and/or Swiss authorities of
the $356 million, its accrued interests, and/or any other account; over which
the PRIVATE PARTY waives any right, interest or participation in favor of the

FIRST PARTY. However, any withdrawal or release of any account

aforementioned by the FIRST PARTY shall be made in the presence of any
authorized representative of the PRIVATE PARTY.
5. The trustees, custodians, safekeepers, depositaries, agents, nominees,
administrators, lawyers, or any other party acting in similar capacity in behalf
of the PRIVATE PARTY are hereby informed through this General Agreement
to insure that it is fully implemented and this shall serve as absolute authority
from both parties for full disclosure to the FIRST PARTY of said assets and
for the FIRST PARTY to withdraw said account and/or assets and any other
assets which the FIRST PARTY on its own or through the help of the
PRIVATE PARTY/their trustees, etc., may discover.
6. Any asset which may be discovered in the future as belonging to the
PRIVATE PARTY or is being held by another for the benefit of the PRIVATE
PARTY and which is not included in the list per No. 1 for whatever reason
shall automatically belong to the FIRST PARTY, and the PRIVATE PARTY in
accordance with No. 4 above, waives any right thereto.
7. This Agreement shall be binding on and inure to the benefit of, the parties
and their respective legal representatives, successors and assigns and shall
supersede any other prior agreement.
8. The PARTIES shall submit this and any other implementing Agreements to
the President of the Philippines for approval. In the same manner, the
PRIVATE PARTY shall provide the FIRST PARTY assistance by way of
testimony or deposition on any information it may have that could shed light
on the cases being pursued by the FIRST PARTY against other parties. The
FIRST PARTY shall desist from instituting new suits already subject of this
Agreement against the PRIVATE PARTY and cause the dismissal of all other
cases pending in the Sandiganbayan and in other courts.
9. In case of violation by the PRIVATE PARTY of any of the conditions herein
contained, the PARTIES shall be restored automatically to the status
quo ante the signing of this Agreement.
For purposes of this Agreement, the PRIVATE PARTY shall be represented by Atty. Simeon M. Mesina, Jr., as
their only Attorney-in-Fact.
IN WITNESS WHEREOF, the parties have signed this instrument this 28th day of December, 1993, in Makati,
Metro Manila.
PRESIDENTIAL COMMISSION ON
GOOD GOVERNMENT
By:
[Sgd.] MAGTANGGOL C. GUNIGUNDO
Chairman
ESTATE OF FERDINAND E. MARCOS,
IMELDA R. MARCOS, MA. IMELDA
MARCOS-MANOTOC, FERDINAND R.
MARCOS, JR., & IRENE MARCOSARANETA
By:
[Sgd.] IMELDA ROMUALDEZ-MARCOS
[Sgd.] MA. IMELDA MARCOS-MANOTOC

FERDINAND R. MARCOS, JR. 7

[Sgd.] IRENE MARCOS-ARANETA
Assisted by:
[Sgd.] ATTY. SIMEON M. MESINA, JR.
Counsel & Attorney-in-Fact
Petitioner also denounces this supplement to the above Agreement: 8
SUPPLEMENTAL AGREEMENT
This Agreement entered into this 28th day of December, 1993, by and between
The Republic of the Philippines, through the Presidential Commission on Good Government
(PCGG), a governmental agency vested with authority defined under Executive Orders Nos. 1,
2 and 14, with offices at the Philcomcen Building, Pasig, Metro Manila, represented by its
Chairman Magtanggol C. Gunigundo, hereinafter referred to as the FIRST PARTY,
and
Estate of Ferdinand E. Marcos, represented by Imelda Romualdez Marcos and Ferdinand R.
Marcos, Jr., all of legal age, and with address at c/o No. 154 Lopez Rizal St., Mandaluyong,
Metro Manila, and Imelda Romualdez Marcos, Imee Marcos Manotoc, Ferdinand E. Marcos,
Jr., and Irene Marcos Araneta, hereinafter collectively referred to as the PRIVATE PARTY.
W I T N E S S E T H:
The parties in this case entered into a General Agreement dated Dec. 28, 1993;
The PRIVATE PARTY expressly reserve their right to pursue their interest and/or sue over local
assets located in the Philippines against parties other than the FIRST PARTY.
The parties hereby agree that all expenses related to the recovery and/or withdrawal of all
assets including lawyers' fees, agents' fees, nominees' service fees, bank charges, traveling
expenses and all other expenses related thereto shall be for the account of the PRIVATE
PARTY.
In consideration of the foregoing, the parties hereby agree that the PRIVATE PARTY shall be entitled to the
equivalent of 25% of the amount that may be eventually withdrawn from said $356 million Swiss deposits.
IN WITNESS WHEREOF, the parties have signed this instrument this 28th day of December, 1993, in Makati,
Metro Manila.
PRESIDENTIAL COMMISSION ON
GOOD GOVERNMENT
By:
[Sgd.] MAGTANGGOL C. GUNIGUNDO
Chairman
ESTATE OF FERDINAND E. MARCOS,
IMELDA R. MARCOS, MA. IMELDA
MARCOS-MANOTOC, FERDINAND R.
MARCOS, JR., & IRENE MARCOSARANETA

By:
[Sgd.] IMELDA ROMUALDEZ-MARCOS
[Sgd.] MA. IMELDA MARCOS-MANOTOC
FERDINAND R. MARCOS, JR. 9
[Sgd.] IRENE MARCOS-ARANETA
Assisted by:
[Sgd.] ATTY. SIMEON M. MESINA, JR.
Counsel & Attorney-in-Fact
Acting on a motion of petitioner, the Court issued a Temporary Restraining Order 10 dated March 23, enjoining respondents, their
agents and/or representatives from "entering into, or perfecting and/or executing any agreement with the heirs of the late President
Ferdinand E. Marcos relating to and concerning their ill-gotten wealth."
Issues
The Oral Argument, held on March 16, 1998, focused on the following issues:
(a) Procedural:
(1) Whether or not the petitioner has the personality or legal standing to file the instant petition; and
(2) Whether or not this Court is the proper court before which this action may be filed.
(b) Substantive:
(1) Whether or not this Court could require the PCGG to disclose to the public the details of any agreement,
perfected or not, with the Marcoses; and
(2) Whether or not there exist any legal restraints against a compromise agreement between the Marcoses and
the PCGG relative to the Marcoses' ill-gotten wealth. 11
After their oral presentations, the parties filed their respective memoranda.
On August 19, 1998, Gloria, Celnan, Scarlet and Teresa, all surnamed Jopson, filed before the Court a Motion for Intervention,
attaching thereto their Petition in Intervention. They aver that they are "among the 10,000 claimants whose right to claim from the
Marcos Family and/or the Marcos Estate is recognized by the decision in In re Estate of Ferdinand Marcos, Human Rights
Litigation, Maximo Hilao, et al., Class Plaintiffs No. 92-15526, U.S. Court of Appeals for the 9th Circuit US App. Lexis 14796, June
16, 1994 and the Decision of the Swiss Supreme Court of December 10, 1997." As such, they claim to have personal and direct
interest in the subject matter of the instant case, since a distribution or disposition of the Marcos properties may adversely affect
their legitimate claims. In a minute Resolution issued on August 24, 1998, the Court granted their motion to intervene and required
the respondents to comment thereon. The September 25, 1998 Comment 12 of the solicitor general on said motion merely reiterated
his aforecited arguments against the main petition. 13
The Court's Ruling
The petition id imbued with merit.
First Procedural Issue:
Petitioner's Standing
Petitioner, on the one hand, explains that as a taxpayer and citizen, he has the legal personality to file the instant petition. He
submits that since ill-gotten wealth "belongs to the Filipino people and [is], in truth hand in fact, part of the public treasury," any
compromise in relation to it would constitute a diminution of the public funds, which can be enjoined by a taxpayer whose interest is
for a full, if not substantial, recovery of such assets.
Besides, petitioner emphasize, the matter of recovering the ill-gotten wealth of the Marcoses is an issue "of transcendental
importance the public." He asserts that ordinary taxpayers have a right to initiate and prosecute actions questioning the validity of

acts or orders of government agencies or instrumentalities, if the issues raised are "of paramount public interest;" and if they
"immeasurably affect the social, economic, and moral well-being of the people."
Moreover, the mere fact that he is a citizen satisfies the requirement of personal interest, when the proceeding involves the
assertion of a public right, 14 such as in this case. He invokes several decisions 15 of this Court which have set aside the procedural
matter of locus standi, when the subject of the case involved public interest.
On the other hand, the solicitor general, on behalf of respondents, contends that petitioner has no standing to institute the present
action, because no expenditure of public funds is involved and said petitioner has no actual interest in the alleged agreement.
Respondents further insist that the instant petition is premature, since there is no showing that petitioner has requested PCGG to
disclose any such negotiations and agreements; or that, if he has, the Commission has refused to do so.
Indeed, the arguments cited by petitioner constitute the controlling decisional rule as regards his legal standing to institute the
instant petition. Access to public documents and records is a public right, and the real parties in interest are the people
themselves. 16
In Taada v. Tuvera, 17 the Court asserted that when the issue concerns a public a right and the object of mandamus is to obtain the
enforcement of a public duty, the people are regarded as the real parties in interest; and because it is sufficient that petitioner is a
citizen and as such is interested in the execution of the laws, he need not show that he has any legal or special interest in the result
of the action. 18 In the aforesaid case, the petitioners sought to enforce their right to be informed on matters of public concern, a
right then recognized in Section 6, Article IV of the 1973 Constitution, 19 in connection with the rule that laws in order to be valid and
enforceable must be published in the Official Gazette or otherwise effectively promulgated. In ruling for the petitioners' legal
standing, the Court declared that the right they sought to be enforced "is a public right recognized by no less than the fundamental
law of the land."
Legaspi v. Civil Service Commission, 20 while reiterating Taada, further declared that "when a mandamus proceeding involves the
assertion of a public right, the requirement of personal interest is satisfied by the mere fact that petitioner is a citizen and, therefore,
part of the general 'public' which possesses the right." 21
Further, in Albano v. Reyes, 22 we said that while expenditure of public funds may not have been involved under the questioned
contract for the development, the management and the operation of the Manila International Container Terminal, "public interest
[was] definitely involved considering the important role [of the subject contract] . . . in the economic development of the country and
the magnitude of the financial consideration involved." We concluded that, as a consequence, the disclosure provision in the
Constitution would constitute sufficient authority for upholding the petitioner's standing.
Similarly, the instant petition is anchored on the right of the people to information and access to official records, documents and
papers a right guaranteed under Section 7, Article III of the 1987 Constitution. Petitioner, a former solicitor general, is a Filipino
citizen. Because of the satisfaction of the two basic requisites laid down by decisional law to sustain petitioner's legal standing, i.e.
(1) the enforcement of a public right (2) espoused by a Filipino citizen, we rule that the petition at bar should be allowed.
In any event, the question on the standing of Petitioner Chavez is rendered moot by the intervention of the Jopsons, who are
among the legitimate claimants to the Marcos wealth. The standing of the Jopsons is not seriously contested by the solicitor
general. Indeed, said petitioners-intervenors have a legal interest in the subject matter of the instant case, since a distribution or
disposition of the Marcoses' ill-gotten properties may adversely affect the satisfaction of their claims.
Second Procedural Issue:
The Court's Jurisdiction
Petitioner asserts that because this petition is an original action for mandamus and one that is not intended to delay any proceeding
in the Sandiganbayan, its having been filed before this Court was proper. He invokes Section 5, Article VIII of the Constitution,
which confers upon the Supreme Court original jurisdiction over petitions for prohibition and mandamus.
The solicitor general, on the other hand, argues that the petition has been erroneously brought before this Court, since there is
neither a justiciable controversy nor a violation of petitioner's rights by the PCGG. He alleges that the assailed agreements are
already the very lis mota in Sandiganbayan Civil Case No. 0141, which has yet to dispose of the issue; thus, this petition is
premature. Furthermore, respondents themselves have opposed the Marcos heirs' motion, filed in the graft court, for the approval of
the subject Agreements. Such opposition belies petitioner's claim that the government, through respondents, has concluded a
settlement with the Marcoses as regards their alleged ill-gotten assets.
In Taada and Legaspi, we upheld therein petitioners' resort to a mandamus proceeding, seeking to enforce a public right as well as
to compel performance of a public duty mandated by no less than the fundamental law. 23Further, Section 5, Article VIII of the
Constitution, expressly confers upon the Supreme Court original jurisdiction over petitions for certiorari, prohibition, mandamus, quo
warranto and habeas corpus.
Respondents argue that petitioner should have properly sought relief before the Sandiganbayan, particularly in Civil Case No. 0141,
in which the enforcement of the compromise Agreements is pending resolution. There may seem to be some merit in such
argument, if petitioner is merely seeking to enjoin the enforcement of the compromise and/or to compel the PCGG to disclose to the
public the terms contained in said Agreements. However, petitioner is here seeking the public disclose of "all negotiations and

agreement, be they ongoing or perfected, and documents related to or relating to such negotiations and agreement between the
PCGG and the Marcos heirs."
In other words, this petition is not confined to the Agreements that have already been drawn, but likewise to any other ongoing or
future undertaking towards any settlement on the alleged Marcos loot. Ineluctably, the core issue boils down to the precise
interpretation, in terms of scope, of the twin constitutional provisions on "public transactions." This broad and prospective relief
sought by the instant petition brings it out of the realm of Civil Case No. 0141.
First Substantive Issue:
Public Disclosure of Terms of
Any Agreement, Perfected or Not
In seeking the public disclosure of negotiations and agreements pertaining to a compromise settlement with the Marcoses as
regards their alleged ill-gotten wealth, petitioner invokes the following provisions of the Constitution:
Sec. 7 [Article III]. 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.
Sec. 28 [Article II]. 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.
Respondents' opposite view is that the above constitutional provisions refer to completed and operative official acts, not to those
still being considered. As regards the assailed Agreements entered into by the PCGG with the Marcoses, there is yet no right of
action that has accrued, because said Agreements have not been approved by the President, and the Marcos heirs have failed to
fulfill their express undertaking therein. Thus, the Agreements have not become effective. Respondents add that they are not aware
of any ongoing negotiation for another compromise with the Marcoses regarding their alleged ill-gotten assets.
The "information" and the "transactions" referred to in the subject provisions of the Constitution have as yet no defined scope and
extent. There are no specific laws prescribing the exact limitations within which the right may be exercised or the correlative state
duty may be obliged. However, the following are some of the recognized restrictions: (1) national security matters and intelligence
information, (2) trade secrets and banking transactions, (3) criminal matters, and (4) other confidential information.
Limitations to the Right:
(1) National Security Matters
At the very least, 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. 24 But where there is no
need to protect such state secrets, the privilege may not be invoked to withhold documents and other information, 25 provided that
they are examined "in strict confidence" and given "scrupulous protection."
Likewise, information on inter-government exchanges prior to the conclusion of treaties and executive agreements may be subject
to reasonable safeguards for the sake of national interest. 26
(2) Trade Secrets and
Banking Transactions
The drafters of the Constitution also unequivocally affirmed that, aside from national security matters and intelligence information,
trade or industrial secrets (pursuant to the Intellectual Property Code 27 and other related laws) as well as banking transactions
(pursuant to the Secrecy of Bank Deposits Act 28) are also exempted from compulsory disclosure. 29
(3) Criminal Matters
Also excluded are classified law enforcement matters, such as those relating to the apprehension, the prosecution and the
detention of criminals, 30 which courts may nor inquire into prior to such arrest, detention and prosecution. Efforts at effective law
enforcement would be seriously jeopardized by free public access to, for example, police information regarding rescue operations,
the whereabouts of fugitives, or leads on covert criminal activities.
(4) Other Confidential
Information

The Ethical Standards Act 31 further prohibits public officials and employees from using or divulging "confidential or classified
information officially known to them by reason of their office and not made available to the public." 32
Other acknowledged limitations to information access include diplomatic correspondence, closed door Cabinet meetings and
executive sessions of either house of Congress, as well as the internal deliberations of the Supreme Court. 33
Scope: Matters of Public Concern and
Transactions Involving Public Interest
In Valmonte v. Belmonte Jr., 34 the Court emphasized that the information sought must be "matters of public concern," access to
which may be limited by law. Similarly, the state policy of full public disclosure extends only to "transactions involving public interest"
and may also be "subject to reasonable conditions prescribed by law." As to the meanings of the terms "public interest" and "public
concern," the Court, in Legaspi v. Civil Service Commission, 35 elucidated:
In determining whether or not a particular information is of public concern there is no rigid test which can be
applied. "Public concern" like "public interest" is a term that eludes exact definition. Both terms embrace a broad
spectrum of subjects which the public may want to know, either because these directly affect their lives, or simply
because such matters naturally arouse the interest of an ordinary citizen. In the final analysis, it is for the courts to
determine on a case by case basis whether the matter at issue is of interest or importance, as it relates to or
affects the public.
Considered a public concern in the above-mentioned case was the "legitimate concern of citizens to ensure that government
positions requiring civil service eligibility are occupied only by persons who are eligibles." So was the need to give the general
public adequate notification of various laws that regulate and affect the actions and conduct of citizens, as held in Taada. Likewise
did the "public nature of the loanable funds of the GSIS and the public office held by the alleged borrowers (members of the defunct
Batasang Pambansa)" qualify the information sought in Valmonte as matters of public interest and concern. In Aquino-Sarmiento v.
Morato, 36 the Court also held that official acts of public officers done in pursuit if their official functions are public in character;
hence, the records pertaining to such official acts and decisions are within the ambit of the constitutional right of access to public
records.
Under Republic Act No. 6713, public officials and employees are mandated to "provide information on their policies and procedures
in clear and understandable language, [and] ensure openness of information, public consultations and hearings whenever
appropriate . . .," except when "otherwise provided by law or when required by the public interest." In particular, the law mandates
free public access, at reasonable hours, to the annual performance reports of offices and agencies of government and governmentowned or controlled corporations; and the statements of assets, liabilities and financial disclosures of all public officials and
employees. 37
In general, writings coming into the hands of public officers in connection with their official functions must be accessible to the
public, consistent with the policy of transparency of governmental affairs. This principle is aimed at affording the people an
opportunity to determine whether those to whom they have entrusted the affairs of the government are honesty, faithfully and
competently performing their functions as public servants. 38 Undeniably, the essence of democracy lies in the free flow of
thought; 39 but thoughts and ideas must be well-informed so that the public would gain a better perspective of vital issues
confronting them and, thus, be able to criticize as well as participate in the affairs of the government in a responsible, reasonable
and effective manner. Certainly, it is by ensuring an unfettered and uninhibited exchange of ideas among a well-informed public that
a government remains responsive to the changes desired by the people. 40
The Nature of the Marcoses'
Alleged Ill-Gotten Wealth
We now come to the immediate matter under consideration.
Upon the departure from the country of the Marcos family and their cronies in February 1986, the new government headed by
President Corazon C. Aquino was specifically mandated to "[r]ecover ill-gotten properties amassed by the leaders and supporters of
the previous regime and [to] protect the interest of the people through orders of sequestration or freezing of assets or
accounts." 41 Thus, President Aquino's very first executive orders (which partook of the nature of legislative enactments) dealt with
the recovery of these alleged ill-gotten properties.
Executive Order No. 1, promulgated on February 28, 1986, only two (2) days after the Marcoses fled the country, created the
PCGG which was primarily tasked to assist the President in the recovery of vast government resources allegedly amassed by
former President Marcos, his immediate family, relatives and close associates both here and abroad.
Under Executive Order No. 2, issued twelve (12) days later, all persons and entities who had knowledge or possession of ill-gotten
assets and properties were warned and, under pain of penalties prescribed by law, prohibited from concealing, transferring or
dissipating them or from otherwise frustrating or obstructing the recovery efforts of the government.

On May 7, 1986, another directive (EO No. 14) was issued giving additional powers to the PCGG which, taking into account the
overriding considerations of national interest and national survival, required it to achieve expeditiously and effectively its vital task of
recovering ill-gotten wealth.
With such pronouncements of our government, whose authority emanates from the people, there is no doubt that the recovery of
the Marcoses' alleged ill-gotten wealth is a matter of public concern and imbued with public interest. 42 We may also add that "illgotten wealth," by its very nature, assumes a public character. Based on the aforementioned Executive Orders, "ill-gotten wealth"
refers to assets and properties purportedly acquired, directly or indirectly, by former President Marcos, his immediate family,
relatives and close associates through or as a result of their improper or illegal use of government funds or properties; or their
having taken undue advantage of their public office; or their use of powers, influences or relationships, "resulting in their unjust
enrichment and causing grave damage and prejudice to the Filipino people and the Republic of the Philippines." Clearly, the assets
and properties referred to supposedly originated from the government itself. To all intents and purposes, therefore, they belong to
the people. As such, upon reconveyance they will be returned to the public treasury, subject only to the satisfaction of positive
claims of certain persons as may be adjudged by competent courts. Another declared overriding consideration for the expeditious
recovery of ill-gotten wealth is that it may be used for national economic recovery.
We believe the foregoing disquisition settles the question of whether petitioner has a right to respondents' disclosure of any
agreement that may be arrived at concerning the Marcoses' purported ill-gotten wealth.
Access to Information
on Negotiating Terms
But does the constitutional provision likewise guarantee access to information regarding ongoing negotiations or proposals prior to
the final agreement? This same clarification was sought and clearly addressed by the constitutional commissioners during their
deliberations, which we quote hereunder: 43
MR. SUAREZ. And when we say "transactions" which should be distinguished from contracts, agreements, or
treaties or whatever, does the Gentleman refer to the steps leading to the consummation of the contract, or does
he refer to the contract itself?
MR. OPLE. The "transactions" used here, I suppose, is generic and, therefore, it can cover both steps leading to
a contract, and already a consummated contract, Mr. Presiding Officer.
MR. SUAREZ. This contemplates inclusion of negotiations leading to the consummation of the transaction?
MR. OPLE. Yes, subject to reasonable safeguards on the national interest.
Considering the intent of the Constitution, we believe that it is incumbent upon the PCGG and its officers, as well as other
government representatives, to disclose sufficient public information on any proposed settlement they have decided to take up with
the ostensible owners and holders of ill-gotten wealth. Such information, though, must pertain to definite propositions of the
government, not necessarily to intra-agency or inter-agency recommendations or communications 44 during the stage when
common assertions are still in the process of being formulated or are in the "exploratory" stage. There is a need, of course, to
observe the same restrictions on disclosure of information in general, as discussed earlier such as on matters involving national
security, diplomatic or foreign relations, intelligence and other classified information.
Second Substantive Issue:
Legal Restraints on a Marcos-PCGG Compromise
Petitioner lastly contends that any compromise agreement between the government and the Marcoses will be a virtual condonation
of all the alleged wrongs done by them, as well as an unwarranted permission to commit graft and corruption.
Respondents, for their part, assert that there is no legal restraint on entering into a compromise with the Marcos heirs, provided the
agreement does not violate any law.
Prohibited Compromises
In general, the law encourages compromises in civil cases, except with regard to the following matters: (1) the civil status of
persons, (2) the validity of a marriage or a legal separation, (3) any ground for legal separation, (4) future support, (5) the
jurisdiction of courts, and (6) future legitimate. 45 And like any other contract, the terms and conditions of a compromise must not be
contrary to law, morals, good customs, public policy or public order. 46 A compromise is binding and has the force of law between
the parties, 47 unless the consent of a party is vitiated such as by mistake, fraud, violence, intimidation or undue influence or
when there is forgery, or if the terms of the settlment are so palpably unconscionable. In the latter instances, the agreement may be
invalidated by the courts. 48
Effect of Compromise

on Civil Actions
One of the consequences of a compromise, and usually its primary object, is to avoid or to end a litigation. 49 In fact, the law urges
courts to persuade the parties in a civil case to agree to a fair settlement. 50 As an incentive, a court may mitigate damages to be
paid by a losing party who shows a sincere desire to compromise. 51
In Republic & Campos Jr. v. Sandiganbayan, 52 which affirmed the grant by the PCGG of civil and criminal immunity to Jose Y.
Campos and the family, the Court held that in the absence an express prohibition, the rule on compromises in civil actions under the
Civil Code is applicable to PCGG cases. Such principle is pursuant to the objectives of EO No. 14 particularly the just and
expeditious recovery of ill-gotten wealth, so that it may be used to hasten economic recovery. The same principle was upheld
in Benedicto v. Board of Administrators of Television Stations RPN, BBC and IBC 53 andRepublic v. Benedicto, 54 which ruled in
favor of the validity of the PCGG compromise agreement with Roberto S. Benedicto.
Immunity from
Criminal Prosecution
However, any compromise relating to the civil liability arising from an offense does not automatically terminate the criminal
proceeding against or extinguish the criminal liability of the malefactor. 55 While a compromise in civil suits is expressly authorized
by law, there is no similar general sanction as regards criminal liability. The authority must be specifically conferred. In the present
case, the power to grant criminal immunity was confered on PCGG by Section 5 of EO No. 14, as amended by EO No. 14-A, whci
provides:
Sec. 5. The President Commission on Good Government is authorized to grant immunity from criminal
prosecution to any person who provides information or testifies in any investigation conducted by such
Commission to establish the unlawful manner in which any respondent, defendant or accused has acquired or
accumulated the property or properties in question in any case where such information or testimony is necessary
to ascertain or prove the latter's guilt or his civil liability. The immunity thereby granted shall be continued to
protect the witness who repeats such testimony before the Sandiganbayan when required to do so by the latter or
by the Commission.
The above provision specifies that the PCGG may exercise such authority under these conditions: (1) the person to whom criminal
immunity is granted provides information or testifies in an investigation conducted by the Commission; (2) the information or
testimony pertains to the unlawful manner in which the respondent, defendant or accused acquired or accumulated ill-gotten
property; and (3) such information or testimony is necessary to ascertain or prove guilt or civil liability of such individual. From the
wording of the law, it can be easily deducted that the person referred to is a witness in the proceeding, not the principal respondent,
defendant or accused.
Thus, in the case of Jose Y. Campos, the grant of both civil and criminal immunity to him and his family was "[i]n consideration of
the full cooperation of Mr. Jose Y. Campos [with] this Commission, his voluntary surrender of the properties and assets []
disclosed and declared by him to belong to deposed President Ferdinand E. Marcos [] to the Government of the Republic of the
Philippines[;] his full, complete and truthful disclosures[;] and his commitment to pay a sum of money as determined by the
Philippine Government." 56 Moreover, the grant of criminal immunity to the Camposes and the Benedictos was limited to acts and
omissions prior to February 25, 1996. At the time such immunity was granted, no criminal cases have yet been filed against them
before the competent court.
Validity of the PCGG-Marcos
Compromise Agreements
Going now to the subject General and Supplemental Agreements between the PCGG and the Marcos heirs, a cursory perusal
thereof reveals serious legal flaws. First, the Agreements do not conform to the above requirements of EO Nos. 14 and 14-A. We
believe that criminal immunity under Section 5 cannot be granted to the Marcoses, who are the principal defendants in the spate of
ill-gotten wealth cases now pending before the Sandiganbayan. As stated earlier, the provision is applicable mainly to witnesses
who provide information or testify against a respondent, defendant or accused in an ill-gotten wealth case.
While the General Agreement states that the Marcoses "shall provide the [government] assistance by way of testimony or
deposition on any information [they] may have that could shed light on the cases being pursued by the [government] against other
parties," 57 the clause does not fully comply with the law. Its inclusion in the Agreement may have been only an afterthought,
conceived in pro forma compliance with Section 5 of EO No. 14, as amended. There is no indication whatsoever that any of the
Marcos heirs has indeed provided vital information against any respondent or defendant as to the manner in which the latter may
have unlawfully acquired public property.
Second, under Item No. 2 of the General Agreement, the PCGG commits to exempt from all forms of taxes the properties to be
retained by the Marcos heirs. This is a clear violation of the Construction. The power to tax and to grant tax exemptions is vested in
the Congress and, to a certain extent, in the local legislative bodies. 58 Section 28 (4), Article VI of the Constitution, specifically
provides: "No law granting any tax exemption shall be passed without the concurrence of a majority of all the Member of the
Congress." The PCGG has absolutely no power to grant tax exemptions, even under the cover of its authority to compromise illgotten wealth cases.

Even granting that Congress enacts a law exempting the Marcoses form paying taxes on their properties, such law will definitely not
pass the test of the equal protection clause under the Bill of Rights. Any special grant of tax exemption in favor only of the Marcos
heirs will constitute class legislation. It will also violate the constitutional rule that "taxation shall be uniform and equitable." 59
Neither can the stipulation be construed to fall within the power of the commissioner of internal revenue to compromise taxes. Such
authority may be exercised only when (1) there is reasonable doubt as to the validity of the claim against the taxpayer, and (2) the
taxpayer's financial position demonstrates a clear inability to pay. 60 Definitely, neither requisite is present in the case of the
Marcoses, because under the Agreement they are effectively conceding the validity of the claims against their properties, part of
which they will be allowed to retain. Nor can the PCGG grant of tax exemption fall within the power of the commissioner to abate or
cancel a tax liability. This power can be exercised only when (1) the tax appears to be unjustly or excessively assessed, or (2) the
administration and collection costs involved do not justify the collection of the tax due. 61 In this instance, the cancellation of tax
liability is done even before the determination of the amount due. In any event, criminal violations of the Tax Code, for which legal
actions have been filed in court or in which fraud is involved, cannot be compromised. 62
Third, the government binds itself to cause the dismissal of all cases against the Marcos heirs, pending before the Sandiganbayan
and other court. 63 This is a direct encroachment on judicial powers, particularly in regard to criminal jurisdiction. Well-settled is the
doctrine that once a case has been filed before a court of competent jurisdiction, the matter of its dismissal or pursuance lies within
the full discretion and control of the judge. In a criminal case, the manner in which the prosecution is handled, including the matter
of whom to present as witnesses, may lie within the sound discretion of the government prosecution; 64 but the court decides, based
on the evidence proffered, in what manner it will dispose of the case. Jurisdiction, once acquired by the trial court, is not lost despite
a resolution, even by the justice secretary, to withdraw the information or to dismiss the complaint. 65 The prosecution's motion to
withdraw or to dismiss is not the least binding upon the court. On the contrary, decisional rules require the trial court to make its own
evaluation of the merit of the case, because granting such motion is equivalent to effecting a disposition of the case itself. 66
Thus, the PCGG, as the government prosecutor of ill-gotten wealth cases, cannot guarantee the dismissal of all such criminal cases
against the Marcoses pending in the courts, for said dismissal is not within its sole power and discretion.
Fourth, the government also waives all claims and counterclaims, "whether past, present, or future, matured or inchoate," against
the Marcoses. 67 Again, this ill-encompassing stipulation is contrary to law. Under the Civil Code, an action for future fraud may not
be waived. 68 The stipulation in the Agreement does not specify the exact scope of future claims against the Marcoses that the
government thereby relinquishes. Such vague and broad statement may well be interpreted to include all future illegal acts of any of
the Marcos heirs, practically giving them a license to perpetrate fraud against the government without any liability at all. This is a
palpable violation of the due process and equal protection guarantees of the Constitution. It effectively ensconces the Marcoses
beyond the reach of the law. It also sets a dangerous precedent for public accountability. It is a virtual warrant for public officials to
amass public funds illegally, since there is an open option to compromise their liability in exchange for only a portion of their illgotten wealth.
Fifth, the Agreements do not provide for a definite or determinable period within which the parties shall fulfill their respective
prestations. It may take a lifetime before the Marcoses submit an inventory of their total assets.
Sixth, the Agreements do not state with specificity the standards for determining which assets shall be forfeited by the government
and which shall be retained by the Marcoses. While the Supplemental Agreement provides that the Marcoses shall be entitled to 25
per cent of the $356 million Swiss deposits (less government recovery expenses), such sharing arrangement pertains only to the
said deposits. No similar splitting scheme is defined with respect to the other properties. Neither is there, anywhere in the
Agreements, a statement of the basis for the 25-75 percent sharing ratio. Public officers entering into an arrangement appearing to
be manifestly and grossly disadvantageous to the government, in violation of the Ati-Graft and Corruption Practice Act, 69 invite their
indictment for corruption under the said law.
Finally, the absence of then President Ramos' approval of the principal Agreement, an express condition therein, renders the
compromise incomplete and unenforceable. Nevertheless, as detailed above, even if such approval were obtained, the Agreements
would still not be valid.
From the foregoing disquisition, it is crystal clear to the Court that the General and Supplemental Agreements, both dated
December 28, 1993, which the PCGG entered into with the Marcos heirs, are violative of the Constitution and the laws
aforementioned.
WHEREFORE, the petition is GRANTED. The General and Supplemental Agreement dated December 28, 1993, which PCGG and
the Marcos heirs entered into are hereby declared NULL AND VOID for being contrary to law and the Constitution. Respondent
PCGG, its officers and all government functionaries and officials who are or may be directly ot indirectly involved in the recovery of
the alleged ill-gotten wealth of the Marcoses and their associates are DIRECTED to disclose to the public the terms of any
proposed compromise settlment, as well as the final agreement, relating to such alleged ill-gotten wealth, in accordance with the
discussions embodied in this Decision. No pronouncement as to cost.
SO ORDERED.
G.R. No. 180643

March 25, 2008

ROMULO L. NERI, petitioner,

vs.

SENATE COMMITTEE ON ACCOUNTABILITY OF PUBLIC OFFICERS AND INVESTIGATIONS, SENATE COMMITTEE ON

TRADE AND COMMERCE, AND SENATE COMMITTEE ON NATIONAL DEFENSE AND SECURITY, respondents.
DECISION
LEONARDO-DE CASTRO, J.:
At bar is a petition for certiorari under Rule 65 of the Rules of Court assailing the show cause Letter1 dated November 22, 2007 and
contempt Order2 dated January 30, 2008 concurrently issued by respondent
Senate Committees on Accountability of Public Officers and Investigations,3 Trade and Commerce,4 and National Defense and
Security5 against petitioner Romulo L. Neri, former Director General of the National Economic and Development Authority (NEDA).
The facts, as culled from the pleadings, are as follows:
On April 21, 2007, the Department of Transportation and Communication (DOTC) entered into a contract with Zhong Xing
Telecommunications Equipment (ZTE) for the supply of equipment and services for the National Broadband Network (NBN) Project
in the amount of U.S. $ 329,481,290 (approximately P16 Billion Pesos). The Project was to be financed by the People's Republic of
China.
In connection with this NBN Project, various Resolutions were introduced in the Senate, as follows:
(1) P.S. Res. No. 127, introduced by Senator Aquilino Q. Pimentel, Jr., entitled RESOLUTION DIRECTING THE BLUE
RIBBON COMMITTEE AND THE COMMITTEE ON TRADE AND INDUSTRY TO INVESTIGATE, IN AID OF
LEGISLATION, THE CIRCUMSTANCES LEADING TO THE APPROVAL OF THE BROADBAND CONTRACT WITH ZTE
AND THE ROLE PLAYED BY THE OFFICIALS CONCERNED IN GETTING IT CONSUMMATED AND TO MAKE
RECOMMENDATIONS TO HALE TO THE COURTS OF LAW THE PERSONS RESPONSIBLE FOR ANY ANOMALY IN
CONNECTION THEREWITH AND TO PLUG THE LOOPHOLES, IF ANY IN THE BOT LAW AND OTHER PERTINENT
LEGISLATIONS.
(2) P.S. Res. No. 144, introduced by Senator Mar Roxas, entitled RESOLUTION URGING PRESIDENT GLORIA
MACAPAGAL ARROYO TO DIRECT THE CANCELLATION OF THE ZTE CONTRACT
(3) P.S. Res. No. 129, introduced by Senator Panfilo M. Lacson, entitled RESOLUTION DIRECTING THE COMMITTEE
ON NATIONAL DEFENSE AND SECURITY TO CONDUCT AN INQUIRY IN AID OF LEGISLATION INTO THE NATIONAL
SECURITY IMPLICATIONS OF AWARDING THE NATIONAL BROADBAND NETWORK CONTRACT TO THE CHINESE
FIRM ZHONG XING TELECOMMUNICATIONS EQUIPMENT COMPANY LIMITED (ZTE CORPORATION) WITH THE
END IN VIEW OF PROVIDING REMEDIAL LEGISLATION THAT WILL PROTECT OUR NATIONAL SOVEREIGNTY,
SECURITY AND TERRITORIAL INTEGRITY.
(4) P.S. Res. No. 136, introduced by Senator Miriam Defensor Santiago, entitled RESOLUTION DIRECTING THE
PROPER SENATE COMMITTEE TO CONDUCT AN INQUIRY, IN AID OF LEGISLATION, ON THE LEGAL AND
ECONOMIC JUSTIFICATION OF THE NATIONAL BROADBAND NETWORK (NBN) PROJECT OF THE NATIONAL
GOVERNMENT.
At the same time, the investigation was claimed to be relevant to the consideration of three (3) pending bills in the Senate, to wit:
1. Senate Bill No. 1793, introduced by Senator Mar Roxas, entitled AN ACT SUBJECTING TREATIES, INTERNATIONAL
OR EXECUTIVE AGREEMENTS INVOLVING FUNDING IN THE PROCUREMENT OF INFRASTRUCTURE PROJECTS,
GOODS, AND CONSULTING SERVICES TO BE INCLUDED IN THE SCOPE AND APPLICATION OF PHILIPPINE
PROCUREMENT LAWS, AMENDING FOR THE PURPOSE REPUBLIC ACT NO. 9184, OTHERWISE KNOWN AS THE
GOVERNMENT PROCUREMENT REFORM ACT, AND FOR OTHER PURPOSES;
2. Senate Bill No. 1794, introduced by Senator Mar Roxas, entitled AN ACT IMPOSING SAFEGUARDS IN
CONTRACTING LOANS CLASSIFIED AS OFFICIAL DEVELOPMENT ASSISTANCE, AMENDING FOR THE PURPOSE
REPUBLIC ACT NO. 8182, AS AMENDED BY REPUBLIC ACT NO. 8555, OTHERWISE KNOWN AS THE OFFICIAL
DEVELOPMENT ASSISTANCE ACT OF 1996, AND FOR OTHER PURPOSES; and
3. Senate Bill No. 1317, introduced by Senator Miriam Defensor Santiago, entitled AN ACT MANDATING
CONCURRENCE TO INTERNATIONAL AGREEMENTS AND EXECUTIVE AGREEMENTS.
Respondent Committees initiated the investigation by sending invitations to certain personalities and cabinet officials involved in the
NBN Project. Petitioner was among those invited. He was summoned to appear and testify on September 18, 20, and 26 and
October 25, 2007. However, he attended only the September 26 hearing, claiming he was "out of town" during the other dates.
In the September 18, 2007 hearing, businessman Jose de Venecia III testified that several high executive officials and power
brokers were using their influence to push the approval of the NBN Project by the NEDA. It appeared that the Project was initially
approved as a Build-Operate-Transfer (BOT) project but, on March 29, 2007, the NEDA acquiesced to convert it into a governmentto-government project, to be financed through a loan from the Chinese Government.

On September 26, 2007, petitioner testified before respondent Committees for eleven (11) hours. He disclosed that then
Commission on Elections (COMELEC) Chairman Benjamin Abalos offered him P200 Million in exchange for his approval of the
NBN Project. He further narrated that he informed President Arroyo about the bribery attempt and that she instructed him not to
accept the bribe. However, when probed further on what they discussed about the NBN Project, petitioner refused to answer,
invoking "executive privilege". In particular, he refused to answer the questions on (a) whether or not President Arroyo followed up
the NBN Project,6 (b) whether or not she directed him to prioritize it,7 and (c) whether or not she directed him to approve.8
Unrelenting, respondent Committees issued a Subpoena Ad Testificandum to petitioner, requiring him to appear and testify on
November 20, 2007.
However, in the Letter dated November 15, 2007, Executive Secretary Eduardo R. Ermita requested respondent Committees to
dispense with petitioner's testimony on the ground of executive privilege. The pertinent portion of the letter reads:
With reference to the subpoena ad testificandum issued to Secretary Romulo Neri to appear and testify again on 20
November 2007 before the Joint Committees you chair, it will be recalled that Sec. Neri had already testified and
exhaustively discussed the ZTE / NBN project, including his conversation with the President thereon last 26 September
2007.
Asked to elaborate further on his conversation with the President, Sec. Neri asked for time to consult with his superiors in
line with the ruling of the Supreme Court in Senate v. Ermita, 488 SCRA 1 (2006).
Specifically, Sec. Neri sought guidance on the possible invocation of executive privilege on the following questions, to wit:
a) Whether the President followed up the (NBN) project?
b) Were you dictated to prioritize the ZTE?
c) Whether the President said to go ahead and approve the project after being told about the alleged
bribe?
Following the ruling in Senate v. Ermita, the foregoing questions fall under conversations and correspondence between the
President and public officials which are considered executive privilege (Almonte v. Vasquez, G.R. 95637, 23 May
1995; Chavez v. PEA, G.R. 133250, July 9, 2002). Maintaining the confidentiality of conversations of the President is
necessary in the exercise of her executive and policy decision making process. The expectation of a President to the
confidentiality of her conversations and correspondences, like the value which we accord deference for the privacy of all
citizens, is the necessity for protection of the public interest in candid, objective, and even blunt or harsh opinions in
Presidential decision-making. Disclosure of conversations of the President will have a chilling effect on the President, and
will hamper her in the effective discharge of her duties and responsibilities, if she is not protected by the confidentiality of
her conversations.
The context in which executive privilege is being invoked is that the information sought to be disclosed might impair our
diplomatic as well as economic relations with the People's Republic of China. Given the confidential nature in which these
information were conveyed to the President, he cannot provide the Committee any further details of these conversations,
without disclosing the very thing the privilege is designed to protect.
In light of the above considerations, this Office is constrained to invoke the settled doctrine of executive privilege as refined
in Senate v. Ermita, and has advised Secretary Neri accordingly.
Considering that Sec. Neri has been lengthily interrogated on the subject in an unprecedented 11-hour hearing, wherein he
has answered all questions propounded to him except the foregoing questions involving executive privilege, we therefore
request that his testimony on 20 November 2007 on the ZTE / NBN project be dispensed with.
On November 20, 2007, petitioner did not appear before respondent Committees. Thus, on November 22, 2007, the latter issued
the show cause Letter requiring him to explain why he should not be cited in contempt. The Letter reads:
Since you have failed to appear in the said hearing, the Committees on Accountability of Public Officers and Investigations
(Blue Ribbon), Trade and Commerce and National Defense and Security require you to show cause why you should not be
cited in contempt under Section 6, Article 6 of the Rules of the Committee on Accountability of Public Officers and
Investigations (Blue Ribbon).
The Senate expects your explanation on or before 2 December 2007.
On November 29, 2007, petitioner replied to respondent Committees, manifesting that it was not his intention to ignore the Senate
hearing and that he thought the only remaining questions were those he claimed to be covered by executive privilege, thus:
It was not my intention to snub the last Senate hearing. In fact, I have cooperated with the task of the Senate in its inquiry
in aid of legislation as shown by my almost 11 hours stay during the hearing on 26 September 2007. During said hearing, I
answered all the questions that were asked of me, save for those which I thought was covered by executive privilege, and

which was confirmed by the Executive Secretary in his Letter 15 November 2007. In good faith, after that exhaustive
testimony, I thought that what remained were only the three questions, where the Executive Secretary claimed executive
privilege. Hence, his request that my presence be dispensed with.
Be that as it may, should there be new matters that were not yet taken up during the 26 September 2007 hearing, may I be
furnished in advance as to what else I need to clarify, so that as a resource person, I may adequately prepare myself.
In addition, petitioner submitted a letter prepared by his counsel, Atty. Antonio R. Bautista, stating, among others that: (1) his
(petitioner) non-appearance was upon the order of the President; and (2) his conversation with President Arroyo dealt with delicate
and sensitive national security and diplomatic matters relating to the impact of the bribery scandal involving high government
officials and the possible loss of confidence of foreign investors and lenders in the Philippines. The letter ended with a reiteration of
petitioner's request that he "be furnished in advance" as to what else he needs to clarify so that he may adequately prepare for the
hearing.
In the interim, on December 7, 2007, petitioner filed with this Court the present petition for certiorari assailing the show
cause Letter dated November 22, 2007.
Respondent Committees found petitioner's explanations unsatisfactory. Without responding to his request for advance notice of the
matters that he should still clarify, they issued the Order dated January 30, 2008, citing him in contempt of respondent Committees
and ordering his arrest and detention at the Office of the Senate Sergeant-At-Arms until such time that he would appear and give
his testimony. The said Order states:
ORDER
For failure to appear and testify in the Committee's hearing on Tuesday, September 18, 2007; Thursday, September 20,
2007; Thursday, October 25, 2007; and Tuesday, November 20, 2007, despite personal notice and Subpoenas Ad
Testificandum sent to and received by him, which thereby delays, impedes and obstructs, as it has in fact delayed,
impeded and obstructed the inquiry into the subject reported irregularities, AND for failure to explain satisfactorily why he
should not be cited for contempt (Neri letter of 29 November 2007), herein attached) ROMULO L. NERI is hereby cited in
contempt of this (sic) Committees and ordered arrested and detained in the Office of the Senate Sergeant-AtArms until such time that he will appear and give his testimony.
The Sergeant-At-Arms is hereby directed to carry out and implement this Order and make a return hereof within twenty
four (24) hours from its enforcement.
SO ORDERED.
On the same date, petitioner moved for the reconsideration of the above Order.9 He insisted that he has not shown "any
contemptible conduct worthy of contempt and arrest." He emphasized his willingness to testify on new matters, however,
respondent Committees did not respond to his request for advance notice of questions. He also mentioned the petition
for certiorari he filed on December 7, 2007. According to him, this should restrain respondent Committees from enforcing the show
cause Letter "through the issuance of declaration of contempt" and arrest.
In view of respondent Committees' issuance of the contempt Order, petitioner filed on February 1, 2008 aSupplemental Petition for
Certiorari (With Urgent Application for TRO/Preliminary Injunction), seeking to restrain the implementation of the said contempt
Order.
On February 5, 2008, the Court issued a Status Quo Ante Order (a) enjoining respondent Committees from implementing
their contempt Order, (b) requiring the parties to observe the status quo prevailing prior to the issuance of the assailed order, and
(c) requiring respondent Committees to file their comment.
Petitioner contends that respondent Committees' show cause Letter and contempt Order were issued with grave abuse of
discretion amounting to lack or excess of jurisdiction. He stresses that his conversations with President Arroyo are "candid
discussions meant to explore options in making policy decisions." According to him, these discussions "dwelt on the impact
of the bribery scandal involving high government officials on the country's diplomatic relations and economic and military
affairs and the possible loss of confidence of foreign investors and lenders in the Philippines." He also emphasizes that his
claim of executive privilege is upon the order of the President and within the parameters laid down in Senate v. Ermita10 and United
States v. Reynolds.11 Lastly, he argues that he is precluded from disclosing communications made
to him in official confidence under Section 712 of Republic Act No. 6713, otherwise known as Code of Conduct and Ethical
Standards for Public Officials and Employees, and Section 2413 (e) of Rule 130 of the Rules of Court.
Respondent Committees assert the contrary. They argue that (1) petitioner's testimony is material and pertinent in the investigation
conducted in aid of legislation; (2) there is no valid justification for petitioner to claim executive privilege; (3) there is no abuse of
their authority to order petitioner's arrest; and (4) petitioner has not come to court with clean hands.
In the oral argument held last March 4, 2008, the following issues were ventilated:

1. What communications between the President and petitioner Neri are covered by the principle of 'executive privilege'?
1.a Did Executive Secretary Ermita correctly invoke the principle of executive privilege, by order of the President,
to cover (i) conversations of the President in the exercise of her executive and policy decision-making
and (ii) information, which might impair our diplomatic as well as economic relations with the People's Republic of
China?
1.b. Did petitioner Neri correctly invoke executive privilege to avoid testifying on his conversations with the
President on the NBN contract on his assertions that the said conversations "dealt with delicate and sensitive
national security and diplomatic matters relating to the impact of bribery scandal involving high
government officials and the possible loss of confidence of foreign investors and lenders in the
Philippines" x x x within the principles laid down in Senate v. Ermita (488 SCRA 1 [2006])?
1.c Will the claim of executive privilege in this case violate the following provisions of the Constitution:
Sec. 28, Art. II (Full public disclosure of all transactions involving public interest)
Sec. 7, Art. III (The right of the people to information on matters of public concern)
Sec. 1, Art. XI (Public office is a public trust)
Sec. 17, Art. VII (The President shall ensure that the laws be faithfully executed)
and the due process clause and the principle of separation of powers?
2. What is the proper procedure to be followed in invoking executive privilege?
3. Did the Senate Committees gravely abuse their discretion in ordering the arrest of petitioner for non-compliance with the
subpoena?
After the oral argument, the parties were directed to manifest to the Court within twenty-four (24) hours if they are amenable to the
Court's proposal of allowing petitioner to immediately resume his testimony before the Senate Committees to answer the other
questions of the Senators without prejudice to the decision on the merits of this pending petition. It was understood that petitioner
may invoke executive privilege in the course of the Senate Committees proceedings, and if the respondent Committees disagree
thereto, the unanswered questions will be the subject of a supplemental pleading to be resolved along with the three (3) questions
subject of the present petition.14 At the same time, respondent Committees were directed to submit several pertinent documents.15
The Senate did not agree with the proposal for the reasons stated in the Manifestation dated March 5, 2008. As to the required
documents, the Senate and respondent Committees manifested that they would not be able to submit the latter's "Minutes of all
meetings" and the "Minute Book" because it has never been the "historical and traditional legislative practice to keep them."16 They
instead submitted the Transcript of Stenographic Notes of respondent Committees' joint public hearings.
On March 17, 2008, the Office of the Solicitor General (OSG) filed a Motion for Leave to Intervene and to Admit Attached
Memorandum, founded on the following arguments:
(1) The communications between petitioner and the President are covered by the principle of "executive privilege."
(2) Petitioner was not summoned by respondent Senate Committees in accordance with the law-making body's power to
conduct inquiries in aid of legislation as laid down in Section 21, Article VI of the Constitution and Senate v. Ermita.
(3) Respondent Senate Committees gravely abused its discretion for alleged non-compliance with theSubpoena dated
November 13, 2007.
The Court granted the OSG's motion the next day, March 18, 2008.
As the foregoing facts unfold, related events transpired.
On March 6, 2008, President Arroyo issued Memorandum Circular No. 151, revoking Executive Order No. 464 and Memorandum
Circular No. 108. She advised executive officials and employees to follow and abide by the Constitution, existing laws and
jurisprudence, including, among others, the case of Senate v. Ermita17 when they are invited to legislative inquiries in aid of
legislation.
At the core of this controversy are the two (2) crucial queries, to wit:
First, are the communications elicited by the subject three (3) questions covered by executive privilege?

And second, did respondent Committees commit grave abuse of discretion in issuing the contempt Order?
We grant the petition.
At the outset, a glimpse at the landmark case of Senate v. Ermita18 becomes imperative. Senate draws in bold strokes the
distinction between the legislative and oversight powers of the Congress, as embodied under Sections 21 and 22, respectively, of
Article VI of the Constitution, to wit:
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.
SECTION 22. The heads of department may upon their own initiative, with the consent of the President, or upon the
request of either House, or 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.
Senate cautions that while the above provisions are closely related and complementary to each other, they should not be
considered as pertaining to the same power of Congress. Section 21 relates to the power to conduct inquiries in aid of legislation.
Its aim is to elicit information that may be used for legislation. On the other hand, Section 22 pertains to the power to conduct a
question hour, the objective of which is to obtain information in pursuit of Congress' oversight function.19 Simply stated, while both
powers allow Congress or any of its committees to conduct inquiry, their objectives are different.
This distinction gives birth to another distinction with regard to the use of compulsory process. Unlike in Section 21,
Congress cannot compel the appearance of executive officials under Section 22. The Court's pronouncement in Senate v.
Ermita20 is clear:
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 onlyrequest their appearance. Nonetheless, when the inquiry in which
Congress requires their appearance is 'in aid of legislation' under Section 21, the appearance is mandatory for the same
reasons stated in Arnault.
In fine, the oversight function of Congress may be facilitated by compulsory process only to the extent that it is
performed in pursuit of legislation. This is consistent with the intent discerned from the deliberations of the
Constitutional Commission
Ultimately, the power of Congress to compel the appearance of executive officials under section 21 and the lack of it under
Section 22 find their basis in the principle of separation of powers. While the executive branch is a co-equal branch of the
legislature, it cannot frustrate the power of Congress to legislate by refusing to comply with its demands for information.
(Emphasis supplied.)
The availability of the power of judicial review to resolve the issues raised in this case has also been settled inSenate v. Ermita,
when it held:
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 Court's certiorari powers under Section 1, Article VIII of the Constitution.
Hence, this decision.
I
The Communications Elicited by the Three (3) Questions are Covered by Executive Privilege
We start with the basic premises where the parties have conceded.
The power of Congress to conduct inquiries in aid of legislation is broad. This is based on the proposition that 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.21 Inevitably, adjunct thereto is the compulsory process to enforce it. But, the power, broad as it is, has limitations.
To be valid, it is imperative that it is done in accordance with the Senate or House duly published rules of procedure and that the
rights of the persons appearing in or affected by such inquiries be respected.

The power extends even to executive officials and the only way for them to be exempted is through a valid claim of executive
privilege.22 This directs us to the consideration of the question -- is there a recognized claim of executive privilege despite the
revocation of E.O. 464?
A- There is a Recognized Claim
of Executive Privilege Despite the
Revocation of E.O. 464
At this juncture, it must be stressed that the revocation of E.O. 464 does not in any way diminish our concept of executive privilege.
This is because this concept has Constitutional underpinnings. Unlike the United States which has further accorded the concept
with statutory status by enacting the Freedom of Information Act23 and theFederal Advisory Committee Act,24 the Philippines has
retained its constitutional origination, occasionally interpreted only by this Court in various cases. The most recent of these is the
case of Senate v. Ermita where this Court declared unconstitutional substantial portions of E.O. 464. In this regard, it is worthy to
note that Executive Ermita's Letter dated November 15, 2007 limits its bases for the claim of executive privilege to Senate v.
Ermita, Almonte v. Vasquez,25 and Chavez v. PEA.26 There was never a mention of E.O. 464.
While these cases, especially Senate v. Ermita,27 have comprehensively discussed the concept of executive privilege, we deem it
imperative to explore it once more in view of the clamor for this Court to clearly define the communications covered by executive
privilege.
The Nixon and post-Watergate cases established the broad contours of the presidential communications privilege.28 In United
States v. Nixon,29 the U.S. Court recognized a great public interest in preserving "the confidentiality of conversations that take
place in the President's performance of his official duties." It thus considered presidential communications as "presumptively
privileged." Apparently, the presumption is founded on the "President's generalized interest in confidentiality." The privilege is
said to be necessary to guarantee the candor of presidential advisors and to provide "the President and those who assist him
with freedom 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."
In In Re: Sealed Case,30 the U.S. Court of Appeals delved deeper. It ruled that there are two (2) kinds of executive privilege; one is
the presidential communications privilege and, the other is the deliberative process privilege. The former pertains to
"communications, documents or other materials that reflect presidential decision-making and deliberations and that the
President believes should remain confidential." The latter includes 'advisory opinions, recommendations and deliberations
comprising part of a process by which governmental decisions and policies are formulated."
Accordingly, they are characterized by marked distinctions. Presidential communications privilege applies todecision-making of
the President while, the deliberative process privilege, to decision-making of executive officials. The first is rooted in the
constitutional principle of separation of power and the President's unique constitutional role; the second on common law privilege.
Unlike the deliberative process privilege, thepresidential communications privilege applies to documents in their entirety,
and covers final and post-decisional materials as well as pre-deliberative ones 31 As a consequence, congressional or judicial
negation of the presidential communications privilege is always subject to greater scrutiny than denial of thedeliberative
process privilege.
Turning on who are the officials covered by the presidential communications privilege, In Re: Sealed Caseconfines the privilege
only to White House Staff that has "operational proximity" to direct presidential decision-making. Thus, the privilege is meant to
encompass only those functions that form the core of presidential authority, involving what the court characterized as
"quintessential and non-delegable Presidential power," such as commander-in-chief power, appointment and removal power, the
power to grant pardons and reprieves, the sole-authority to receive ambassadors and other public officers, the power to negotiate
treaties, etc.32
The situation in Judicial Watch, Inc. v. Department of Justice33 tested the In Re: Sealed Case principles. There, while the
presidential decision involved is the exercise of the President's pardon power, a non-delegable, core-presidential function, the
Deputy Attorney General and the Pardon Attorney were deemed to be too remote from the President and his senior White House
advisors to be protected. The Court conceded that
functionally those officials were performing a task directly related to the President's pardon power, but concluded that an
organizational test was more appropriate for confining the potentially broad sweep that would result from the In Re: Sealed
Case's functional test. The majority concluded that, the lesser protections of the deliberative process privilege would suffice. That
privilege was, however, found insufficient to justify the confidentiality of the 4,341 withheld documents.
But more specific classifications of communications covered by executive privilege are made in older cases. Courts ruled early that
the Executive has a right to withhold documents that might reveal military or state secrets,34 identity of government informers
in some circumstances,,35 and information related to pending investigations.36 An area where the privilege is highly revered is
in foreign relations. In United States v. Curtiss-Wright Export Corp.37 the U.S. Court, citing President George Washington,
pronounced:
The nature of foreign negotiations requires caution, and their success must often depend on secrecy, and even when
brought to a conclusion, a full disclosure of all the measures, demands, or eventual concessions which may have been
proposed or contemplated would be extremely impolitic, for this might have a pernicious influence on future negotiations or
produce immediate inconveniences, perhaps danger and mischief, in relation to other powers. The necessity of such
caution and secrecy was one cogent reason for vesting the power of making treaties in the President, with the advice and

consent of the Senate, the principle on which the body was formed confining it to a small number of members. To admit,
then, a right in the House of Representatives to demand and to have as a matter of course all the papers respecting a
negotiation with a foreign power would be to establish a dangerous precedent.
Majority of the above jurisprudence have found their way in our jurisdiction. In Chavez v. PCGG38, this Court held that there is a
"governmental privilege against public disclosure with respect to state secrets regarding military, diplomatic and other security
matters." In Chavez v. PEA,39 there is also a recognition of the confidentiality of Presidential conversations, correspondences, and
discussions in closed-door Cabinet meetings. In Senate v. Ermita, the concept of presidential communications privilege is fully
discussed.
As may be gleaned from the above discussion, the claim of executive privilege is highly recognized in cases where the subject of
inquiry relates to a power textually committed by the Constitution to the President, such as the area of military and foreign relations.
Under our Constitution, the President is the repository of the commander-in-chief,40 appointing,41 pardoning,42 and
diplomatic43 powers. Consistent with the doctrine of separation of powers, the information relating to these powers may enjoy
greater confidentiality than others.
The above cases, especially, Nixon, In Re Sealed Case and Judicial Watch, somehow provide the elements ofpresidential
communications privilege, to wit:
1) The protected communication must relate to a "quintessential and non-delegable presidential power."
2) The communication must be authored or "solicited and received" by a close advisor of the President or the President
himself. The judicial test is that an advisor must be in "operational proximity" with the President.
3) The presidential communications privilege remains a qualified privilege that may be overcome by a showing of
adequate need, such that the information sought "likely contains important evidence" and by the unavailability of the
information elsewhere by an appropriate investigating authority.44
In the case at bar, Executive Secretary Ermita premised his claim of executive privilege on the ground that the communications
elicited by the three (3) questions "fall under conversation and correspondence between the President and public officials"
necessary in "her executive and policy decision-making process" and, that "the information sought to be disclosed might impair our
diplomatic as well as economic relations with the People's Republic of China." Simply put, the bases are presidential
communications privilege and executive privilege on matters relating to diplomacy or foreign relations.
Using the above elements, we are convinced that, indeed, the communications elicited by the three (3) questions are covered by
the presidential communications privilege. First, the communications relate to a "quintessential and non-delegable power" of the
President, i.e. the power to enter into an executive agreement with other countries. This authority of the President to enter
into executive agreements without the concurrence of the Legislature has traditionally been recognized in Philippine
jurisprudence.45 Second, the communications are "received" by a close advisor of the President. Under the "operational proximity"
test, petitioner can be considered a close advisor, being a member of President Arroyo's cabinet. And third, there is no adequate
showing of a compelling need that would justify the limitation of the privilege and of the unavailability of the information elsewhere
by an appropriate investigating authority.
The third element deserves a lengthy discussion.
United States v. Nixon held that a claim of executive privilege is subject to balancing against other interest. In other words,
confidentiality in executive privilege is not absolutely protected by the Constitution. The U.S. Court held:
[N]either the doctrine of separation of powers, nor the need for confidentiality of high-level communications, without more,
can sustain an absolute, unqualified Presidential privilege of immunity from judicial process under all circumstances.
The foregoing is consistent with the earlier case of Nixon v. Sirica,46 where it was held that presidential communications are
presumptively privileged and that the presumption can be overcome only by mere showing of public need by the branch seeking
access to conversations. The courts are enjoined to resolve the competing interests of the political branches of the government "in
the manner that preserves the essential functions of each Branch."47 Here, the record is bereft of any categorical explanation from
respondent Committees to show a compelling or citical need for the answers to the three (3) questions in the enactment of a law.
Instead, the questions veer more towards the exercise of the legislative oversight function under Section 22 of Article VI rather than
Section 21 of the same Article. Senate v. Ermita ruled that the "the oversight function of Congress may be facilitated by
compulsory process only to the extent that it is performed in pursuit of legislation." It is conceded that it is difficult to draw
the line between an inquiry in aid of legislation and an inquiry in the exercise of oversight function of Congress. In this regard, much
will depend on the content of the questions and the manner the inquiry is conducted.
Respondent Committees argue that a claim of executive privilege does not guard against a possible disclosure of a crime or
wrongdoing. We see no dispute on this. It is settled in United States v. Nixon48 that "demonstrated, specific need for evidence
in pending criminal trial" outweighs the President's "generalized interest in confidentiality." However, the present case's distinction
with the Nixon case is very evident. In Nixon, there is a pending criminal proceeding where the information is requested and it is the
demands of due process of law and the fair administration of criminal justice that the information be disclosed. This is the reason
why the U.S. Court was quick to "limit the scope of its decision." It stressed that it is "not concerned here with the balance
between the President's generalized interest in confidentiality x x x and congressional demands for information." Unlike in

Nixon, the information here is elicited, not in a criminal proceeding, but in a legislative inquiry. In this regard, Senate v. Ermita
stressed that the validity of the claim of executive privilege depends not only on the ground invoked but, also, on the procedural
setting or the context in which the claim is made. Furthermore, in Nixon, the President did not interpose any claim of need to
protect military, diplomatic or sensitive national security secrets. In the present case, Executive Secretary Ermita categorically
claims executive privilege on the grounds of presidential communications privilege in relation to her executive and policy
decision-making process and diplomatic secrets.
The respondent Committees should cautiously tread into the investigation of matters which may present a conflict of interest that
may provide a ground to inhibit the Senators participating in the inquiry if later on an impeachment proceeding is initiated on the
same subject matter of the present Senate inquiry. Pertinently, in Senate Select Committee on Presidential Campaign Activities v.
Nixon,49 it was held that since an impeachment proceeding had been initiated by a House Committee, the Senate Select
Committee's immediate oversight need for five presidential tapes should give way to the House Judiciary Committee which has the
constitutional authority to inquire into presidential impeachment. The Court expounded on this issue in this wise:
It is true, of course, that the Executive cannot, any more than the other branches of government, invoke a general
confidentiality privilege to shield its officials and employees from investigations by the proper governmental institutions into
possible criminal wrongdoing. The Congress learned this as to its own privileges in Gravel v. United States, as did the
judicial branch, in a sense, in Clark v. United States, and the executive branch itself in Nixon v. Sirica. But under Nixon v.
Sirica, the showing required to overcome the presumption favoring confidentiality turned, not on the nature of the
presidential conduct that the subpoenaed material might reveal, but, instead, on the nature and appropriateness of the
function in the performance of which the material was sought, and the degree to which the material was
necessary to its fulfillment. Here also our task requires and our decision implies no judgment whatever
concerning possible presidential involvement in culpable activity. On the contrary, we think the sufficiency of the
Committee's showing must depend solely on whether the subpoenaed evidence is demonstrably critical to the
responsible fulfillment of the Committee's functions.
In its initial briefs here, the Committee argued that it has shown exactly this. It contended that resolution, on the basis of
the subpoenaed tapes, of the conflicts in the testimony before it 'would aid in a determination whether legislative
involvement in political campaigns is necessary' and 'could help engender the public support needed for basic reforms in
our electoral system.' Moreover, Congress has, according to the Committee, power to oversee the operations of the
executive branch, to investigate instances of possible corruption and malfeasance in office, and to expose the results of its
investigations to public view. The Committee says that with respect to Watergate-related matters, this power has been
delegated to it by the Senate, and that to exercise its power responsibly, it must have access to the subpoenaed tapes.
We turn first to the latter contention. In the circumstances of this case, we need neither deny that the Congress may have,
quite apart from its legislative responsibilities, a general oversight power, nor explore what the lawful reach of that power
might be under the Committee's constituent resolution. Since passage of that resolution, the House Committee on the
Judiciary has begun an inquiry into presidential impeachment. The investigative authority of the Judiciary Committee with
respect to presidential conduct has an express constitutional source. x x x We have been shown no evidence indicating
that Congress itself attaches any particular value to this interest. In these circumstances, we think the need for
the tapes premised solely on an asserted power to investigate and inform cannot justify enforcement of the
Committee's subpoena.
The sufficiency of the Committee's showing of need has come to depend, therefore, entirely on whether the subpoenaed
materials are critical to the performance of its legislative functions. There is a clear difference between Congress'
legislative tasks and the responsibility of a grand jury, or any institution engaged in like functions. While fact-finding by a
legislative committee is undeniably a part of its task, legislative judgments normally depend more on the
predicted consequences of proposed legislative actions and their political acceptability, than on precise
reconstruction of past events; Congress frequently legislates on the basis of conflicting information provided in its
hearings. In contrast, the responsibility of the grand jury turns entirely on its ability to determine whether there is probable
cause to believe that certain named individuals did or did not commit specific crimes. If, for example, as in Nixon v. Sirica,
one of those crimes is perjury concerning the content of certain conversations, the grand jury's need for the most precise
evidence, the exact text of oral statements recorded in their original form, is undeniable. We see no comparable need in
the legislative process, at least not in the circumstances of this case. Indeed, whatever force there might once have
been in the Committee's argument that the subpoenaed materials are necessary to its legislative judgments has been
substantially undermined by subsequent events. (Emphasis supplied)
Respondent Committees further contend that the grant of petitioner's claim of executive privilege violates the constitutional
provisions on the right of the people to information on matters of public concern.50 We might have agreed with such contention if
petitioner did not appear before them at all. But petitioner made himself available to them during the September 26 hearing, where
he was questioned for eleven (11) hours. Not only that, he expressly manifested his willingness to answer more questions from the
Senators, with the exception only of those covered by his claim of executive privilege.
The right to public information, like any other right, is subject to limitation. Section 7 of Article III provides:
The right of the people to information on matters of public concern shall be recognized. Access to official records, and to
documents, and papers pertaining to official acts, transactions, or decisions, as well as to government research data used
as basis for policy development, shall be afforded the citizen, subject to such limitations as may be provided by law.
The provision itself expressly provides the limitation, i.e. as may be provided by law. Some of these laws are Section 7 of
Republic Act (R.A.) No. 6713,51 Article 22952 of the Revised Penal Code, Section 3 (k)53 of R.A. No. 3019, and Section 24(e)54 of

Rule 130 of the Rules of Court. These are in addition to what our body of jurisprudence classifies as confidential55 and what our
Constitution considers as belonging to the larger concept of executive privilege. Clearly, there is a recognized public interest in the
confidentiality of certain information. We find the information subject of this case belonging to such kind.
More than anything else, though, the right of Congress or any of its Committees to obtain information in aid of legislation cannot be
equated with the people's right to public information. The former cannot claim that every legislative inquiry is an exercise of the
people's right to information. The distinction between such rights is laid down in Senate v. Ermita:
There are, it bears noting, clear distinctions between the right of Congress to information which underlies the power of
inquiry and the right of 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, 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.
The members of respondent Committees should not invoke as justification in their exercise of power a right properly belonging to
the people in general. This is because when they discharge their power, they do so as public officials and members of Congress.
Be that as it may, the right to information must be balanced with and should give way, in appropriate cases, to constitutional
precepts particularly those pertaining to delicate interplay of executive-legislative powers and privileges which is the subject of
careful review by numerous decided cases.
B- The Claim of Executive Privilege
is Properly Invoked
We now proceed to the issue -- whether the claim is properly invoked by the President. Jurisprudence teaches that for the
claim to be properly invoked, there must be a formal claim of privilege, lodged by the head of the department which has control over
the matter."56 A formal and proper claim of executive privilege requires a "precise and certain reason" for preserving their
confidentiality.57
The Letter dated November 17, 2007 of Executive Secretary Ermita satisfies the requirement. It serves as the formal claim of
privilege. There, he expressly states that "this Office is constrained to invoke the settled doctrine of executive privilege as
refined in Senate v. Ermita, and has advised Secretary Neri accordingly." Obviously, he is referring to the Office of the
President. That is more than enough compliance. InSenate v. Ermita, a less categorical letter was even adjudged to be sufficient.
With regard to the existence of "precise and certain reason," we find the grounds relied upon by Executive Secretary Ermita specific
enough so as not "to leave respondent Committees in the dark on how the requested information could be classified as privileged."
The case of Senate v. Ermita only requires that an allegation be made "whether the information demanded involves military or
diplomatic secrets, closed-door Cabinet meetings, etc." The particular ground must only be specified. The enumeration is not even
intended to be comprehensive."58 The following statement of grounds satisfies the requirement:
The context in which executive privilege is being invoked is that the information sought to be disclosed might impair our
diplomatic as well as economic relations with the People's Republic of China. Given the confidential nature in which these
information were conveyed to the President, he cannot provide the Committee any further details of these conversations,
without disclosing the very thing the privilege is designed to protect.
At any rate, as held further in Senate v. Ermita, 59 the Congress must not require the executive to state the reasons for the claim
with such particularity as to compel disclosure of the information which the privilege is meant to protect. This is a matter of respect
to a coordinate and co-equal department.
II
Respondent Committees Committed Grave Abuse of Discretion
in Issuing the Contempt Order
Grave abuse of discretion means "such capricious and whimsical exercise of judgment as is equivalent to lack of jurisdiction, or, in
other words where the power is exercised in an arbitrary or despotic manner by reason of passion or personal hostility and it must
be so patent and gross as to amount to an evasion of positive duty or to a virtual refusal to perform the duty enjoined or to act at all
in contemplation of law."60
It must be reiterated that when respondent Committees issued the show cause Letter dated November 22, 2007, petitioner replied
immediately, manifesting that it was not his intention to ignore the Senate hearing and that he thought the only remaining questions
were the three (3) questions he claimed to be covered by executive privilege. In addition thereto, he submitted Atty. Bautista's letter,
stating that his non-appearance was upon the order of the President and specifying the reasons why his conversations with
President Arroyo are covered by executive privilege. Both correspondences include an expression of his willingness to testify
again, provided he "be furnished in advance" copies of the questions. Without responding to his request for advance list of
questions, respondent Committees issued the Order dated January 30, 2008, citing him in contempt of respondent Committees and
ordering his arrest and detention at the Office of the Senate Sergeant-At-Arms until such time that he would appear and give his

testimony. Thereupon, petitioner filed a motion for reconsideration, informing respondent Committees that he had filed the present
petition for certiorari.
Respondent Committees committed grave abuse of discretion in issuing the contempt Order in view of five (5) reasons.
First, there being a legitimate claim of executive privilege, the issuance of the contempt Order suffers from constitutional infirmity.
Second, respondent Committees did not comply with the requirement laid down in Senate v. Ermita that the invitations should
contain the "possible needed statute which prompted the need for the inquiry," along with "the usual indication of the subject of
inquiry and the questions relative to and in furtherance thereof." Compliance with this requirement is imperative, both under
Sections 21 and 22 of Article VI of the Constitution. This must be so to ensure that the rights of both persons appearing in or
affected by such inquiry are respected as mandated by said Section 21 and by virtue of the express language of Section 22.
Unfortunately, despite petitioner's repeated demands, respondent Committees did not send him an advance list of questions.
Third, a reading of the transcript of respondent Committees' January 30, 2008 proceeding reveals that only a minority of the
members of the Senate Blue Ribbon Committee was present during the deliberation. 61 Section 18 of the Rules of Procedure
Governing Inquiries in Aid of Legislation provides that:
"The Committee, by a vote of majority of all its members, may punish for contempt any witness before it who disobeys
any order of the Committee or refuses to be sworn or to testify or to answer proper questions by the Committee or any of
its members."
Clearly, the needed vote is a majority of all the members of the Committee. Apparently, members who did not actually participate in
the deliberation were made to sign the contempt Order. Thus, there is a cloud of doubt as to the validity of the contempt Order
dated January 30, 2008. We quote the pertinent portion of the transcript, thus:
THE CHAIRMAN (SEN. CAYETANO, A). For clarification. x x x The Chair will call either a caucus or will ask the
Committee on Rules if there is a problem. Meaning, if we do not have the sufficient numbers. But if we have a
sufficient number, we will just hold a caucus to be able to implement that right away becauseAgain, our Rules
provide that any one held in contempt and ordered arrested, need the concurrence of a majority of all members of
the said committee and we have three committees conducting this.
So thank you very much to the members
SEN. PIMENTEL. Mr. Chairman.
THE CHAIRMAN (SEN. CAYETANO,A). May I recognize the Minority Leader and give him the floor, Senator
Pimentel.
SEN. PIMENTEL. Mr. Chairman, there is no problem, I think, with consulting the other committees. But I am of the
opinion that the Blue Ribbon Committee is the lead committee, and therefore, it should have preference in
enforcing its own decisions. Meaning to say, it is not something that is subject to consultation with other
committees. I am not sure that is the right interpretation. I think that once we decide here, we enforce what we
decide, because otherwise, before we know it, our determination is watered down by delay and, you know, the socalled "consultation" that inevitably will have to take place if we follow the premise that has been explained.
So my suggestion, Mr. Chairman, is the Blue Ribbon Committee should not forget it's the lead committee here, and
therefore, the will of the lead committee prevails over all the other, you, know reservations that other committees might
have who are only secondary or even tertiary committees, Mr. Chairman.
THE CHAIRMAN (SEN. CAYETANO, A.) Thank you very much to the Minority Leader. And I agree with the wisdom of his
statements. I was merely mentioning that under Section 6 of the Rules of the Committee and under Section 6, "The
Committee by a vote of a majority of all its members may punish for contempt any witness before it who disobeys any
order of the Committee."
So the Blue Ribbon Committee is more than willing to take that responsibility. But we only have six members here
today, I am the seventh as chair and so we have not met that number. So I am merely stating that, sir, that when we
will prepare the documentation, if a majority of all members sign and I am following the Sabio v. Gordon rule wherein I do
believe, if I am not mistaken, Chairman Gordon prepared the documentation and then either in caucus or in session asked
the other members to sign. And once the signatures are obtained, solely for the purpose that Secretary Neri or Mr. Lozada
will not be able to legally question our subpoena as being insufficient in accordance with law.
SEN. PIMENTEL. Mr. Chairman, the caution that the chair is suggesting is very well-taken. But I'd like to advert to the fact
that the quorum of the committee is only two as far as I remember. Any two-member senators attending a Senate
committee hearing provide that quorum, and therefore there is more than a quorum demanded by our Rules as far as we
are concerned now, and acting as Blue Ribbon Committee, as Senator Enrile pointed out. In any event, the signatures that
will follow by the additional members will only tend to strengthen the determination of this Committee to put its foot forward
put down on what is happening in this country, Mr. Chairman, because it really looks terrible if the primary Committee of
the Senate, which is the Blue Ribbon Committee, cannot even sanction people who openly defy, you know, the summons

of this Committee. I know that the Chair is going through an agonizing moment here. I know that. But nonetheless, I think
we have to uphold, you know, the institution that we are representing because the alternative will be a disaster for all of us,
Mr. Chairman. So having said that, I'd like to reiterate my point.
THE CHAIRMAN (SEN. CAYETANO, A.) First of all, I agree 100 percent with the intentions of the Minority Leader. But let
me very respectfully disagree with the legal requirements. Because, yes, we can have a hearing if we are only two
but both under Section 18 of the Rules of the Senate and under Section 6 of the Rules of the Blue Ribbon
Committee, there is a need for a majority of all members if it is a case of contempt and arrest. So, I am simply trying
to avoid the court rebuking the Committee, which will instead of strengthening will weaken us. But I do agree, Mr. Minority
Leader, that we should push for this and show the executive branch that the well-decided the issue has been decided
upon the Sabio versus Gordon case. And it's very clear that we are all allowed to call witnesses. And if they refure or they
disobey not only can we cite them in contempt and have them arrested. x x x 62
Fourth, we find merit in the argument of the OSG that respondent Committees likewise violated Section 21 of Article VI of the
Constitution, requiring that the inquiry be in accordance with the "duly published rules of procedure." We quote the OSG's
explanation:
The phrase 'duly published rules of procedure' requires the Senate of every Congress to publish its rules of procedure
governing inquiries in aid of legislation because every Senate is distinct from the one before it or after it. Since Senatorial
elections are held every three (3) years for one-half of the Senate's membership, the composition of the Senate also
changes by the end of each term. Each Senate may thus enact a different set of rules as it may deem fit. Not having
published its Rules of Procedure, the subject hearings in aid of legislation conducted by the 14 th Senate, are
therefore, procedurally infirm.
And fifth, respondent Committees' issuance of the contempt Order is arbitrary and precipitate. It must be pointed out that
respondent Committees did not first pass upon the claim of executive privilege and inform petitioner of their ruling. Instead, they
curtly dismissed his explanation as "unsatisfactory" and simultaneously issued the Order citing him in contempt and ordering his
immediate arrest and detention.
A fact worth highlighting is that petitioner is not an unwilling witness. He manifested several times his readiness to testify before
respondent Committees. He refused to answer the three (3) questions because he was ordered by the President to claim executive
privilege. It behooves respondent Committees to first rule on the claim of executive privilege and inform petitioner of their finding
thereon, instead of peremptorily dismissing his explanation as "unsatisfactory." Undoubtedly, respondent Committees' actions
constitute grave abuse of discretion for being arbitrary and for denying petitioner due process of law. The same quality afflicted their
conduct when they (a) disregarded petitioner's motion for reconsideration alleging that he had filed the present petition before this
Court and (b) ignored petitioner's repeated request for an advance list of questions, if there be any aside from the three (3)
questions as to which he claimed to be covered by executive privilege.
Even the courts are repeatedly advised to exercise the power of contempt judiciously and sparingly with utmost self-restraint with
the end in view of utilizing the same for correction and preservation of the dignity of the court, not for retaliation or
vindication.63 Respondent Committees should have exercised the same restraint, after all petitioner is not even an ordinary witness.
He holds a high position in a co-equal branch of government.
In this regard, it is important to mention that many incidents of judicial review could have been avoided if powers are discharged
with circumspection and deference. Concomitant with the doctrine of separation of powers is the mandate to observe respect to a
co-equal branch of the government.
One last word.
The Court was accused of attempting to abandon its constitutional duty when it required the parties to consider a proposal that
would lead to a possible compromise. The accusation is far from the truth. The Court did so, only to test a tool that other
jurisdictions find to be effective in settling similar cases, to avoid a piecemeal consideration of the questions for review and to avert
a constitutional crisis between the executive and legislative branches of government.
In United States v. American Tel. & Tel Co.,64 the court refrained from deciding the case because of its desire to avoid a resolution
that might disturb the balance of power between the two branches and inaccurately reflect their true needs. Instead, it remanded
the record to the District Court for further proceedings during which the parties are required to negotiate a settlement. In the
subsequent case of United States v. American Tel. &Tel Co.,65 it was held that "much of this spirit of compromise is reflected in the
generality of language found in the Constitution." It proceeded to state:
Under this view, the coordinate branches do not exist in an exclusively adversary relationship to one another when a
conflict in authority arises. Rather each branch should take cognizance of an implicit constitutional mandate to seek
optimal accommodation through a realistic evaluation of the needs of the conflicting branches in the particular fact
situation.
It thereafter concluded that: "The Separation of Powers often impairs efficiency, in terms of dispatch and the immediate
functioning of government. It is the long-term staying power of government that is enhanced by the mutual
accommodation required by the separation of powers."

In rendering this decision, the Court emphasizes once more that the basic principles of constitutional law cannot be subordinated to
the needs of a particular situation. As magistrates, our mandate is to rule objectively and dispassionately, always mindful of Mr.
Justice Holmes' warning on the dangers inherent in cases of this nature, thus:
"some accident of immediate and overwhelming interestappeals to the feelings and distorts the judgment. These
immediate interests exercise a kind of hydraulic pressure which makes what previously was clear seem doubtful, and
before which even well settled principles of law will bend."66
In this present crusade to "search for truth," we should turn to the fundamental constitutional principles which underlie our tripartite
system of government, where the Legislature enacts the law, the Judiciary interprets it and the Executive implements it. They are
considered separate, co-equal, coordinate and supreme within their respective spheres but, imbued with a system of checks and
balances to prevent unwarranted exercise of power. The Court's mandate is to preserve these constitutional principles at all times
to keep the political branches of government within constitutional bounds in the exercise of their respective powers and
prerogatives, even if it be in the search for truth. This is the only way we can preserve the stability of our democratic institutions and
uphold the Rule of Law.
WHEREFORE, the petition is hereby GRANTED. The subject Order dated January 30, 2008, citing petitioner Romulo L. Neri in
contempt of the Senate Committees and directing his arrest and detention, is hereby nullified.
SO ORDERED.
G.R. No. 180643

September 4, 2008

(Romulo L. Neri, petitioner, v. Senate Committee on Accountability of Public Officers and Investigations, Senate
Committee on Trade and Commerce, and Senate Committee on National Defense and Security, respondents.)
SEPARATE OPINION
REYES, R.T., .J.:
I AM one of two Justices who only concurred in the result of the majority decision penned by esteemed colleague, Justice Teresita
Leonardo-De Castro. I again effectively do so now in the resolution of the motion for reconsideration through this separate opinion.
It has become necessary for me to clarify for the record my position on the issues of executive privilege and the contempt and
arrest powers of the Senate.
As expected, given the highly-politicized complexion of the case, the Court ruling received a mixed reaction of praise and flak. My
kind of concurrence and that of Justice Leonardo A. Quisumbing did not escape criticism. An article1 erroneously described Our
vote as "unclear," casting doubt on the final verdict of the Neri petition. Another item2 wrongly branded us as mere "straddlers,"
sitting on both sides of the fence and coming up with a decision only at the last minute.
A sad commentary of the times is when a Justice takes a stand which flatters the political opposition, it is hailed as courageous;
when the stand benefits the administration, it is hounded as cowardly. But judicial independence is neither here nor there. For me, it
is judicial action that is right and reasonable, taken without fear or favor, unmindful of incidental consequences.
I thus take exceptions to the unfounded criticisms.
For one, a concurrence in the result is not unprecedented. Several justices in this Court\f1\rquote s long history had voted in a
similar fashion. Then Chief Justice Ramon Aquino voted in the same manner in the 1985 case of Reformina v. Tomol, Jr.,3 a case
tackling the proper interest rate in an action for damages for injury to persons and loss of property.
In the 2001 landmark case of Estrada v. Desierto,4 involving the twin issues of the resignation of deposed President Joseph Estrada
and the legitimacy of the assumption of President Gloria Macapagal-Arroyo as his successor, Justices Kapunan, Pardo, Buena,
Ynares-Santiago and Sandoval-Gutierrez concurred in the result of the decision penned by Chief Justice Reynato S. Puno.5 In
2006, Chief Justice Panganiban voted similarly in Republic v. Hong,6 a case revisiting the mandatory requirement of a "credible
witness" in a naturalization proceeding under Commonwealth Act 473.
For another, there should be no point of confusion. A concurrence in the result is a favorable vote for the decision crafted by
the ponente. It simply means that I agreed in the outcome or disposition of the case, but not necessarily on all the grounds given in
the ponencia. I concurred with the weightier reasons stated in the majority decision to grant the petition for certiorari and to quash
the Senate arrest and contempt order against petitioner, Secretary Neri. However, I did not share some of the reasoning of
the ponente.
If an unqualified vote of concurrence is allowed on a majority decision or dissenting opinion, there is no reason why a vote in the
result should be treated differently, much less proscribed.
Now, on the merits of respondents\rquote motion for reconsideration which merely restates their arguments against the petition
focusing on executive privilege invoked on three (3) questions.7 For the guidance of the Bench, the Bar and the Academe, I opt to
correlate my position with those of the other Justices, with due respect to them. To be sure, Our decision and resolution in this case
will continue to be the subject of legal scrutiny, public debate and academic discussion.

I
The proper basis of executive privilege in the
Neri petition is only presidential
communication privilege; executive privilege
based on diplomacy and foreign relations is not valid for lack of specificity.
Ang tamang batayan ng pribilehiyo ng Pangulo sa petisyon ni Neri ay ang pampangulong pribilehiyo sa komunikasyon;
ang pampangulong pribilehiyo sa diplomasya at ugnayang panlabas ay di angkop dahil sa kawalan ng pagtitiyak.
The majority decision sustained executive privilege on two grounds: (a) under the presidential communication privilege; and (2)
executive privilege on matters relating to diplomacy or foreign relations.8
I agree with the ponente that the three questions are covered by the presidential communication privilege. But I disagree that they
are covered by executive privilege on matters affecting diplomacy or foreign relations.
Ako\rquote y sumasang-ayon sa ponente na ang tatlong katanungan ay saklaw ng pampangulong pribilehiyo sa
komunikasyon. Subalit hindi ako sang-ayon na ang mga ito ay sakop ng pampangulong pribilehiyo sa diplomasya o
ugnayang panlabas.
The distinction between presidential communication privilege and executive privilege based ondiplomacy and foreign
relations is important because they are two different categories of executive privilege recognized by
jurisprudence.9 The first pertains to those communications between the President and her close advisors relating to official or state
matters; the second are those matters that have a direct bearing on the conduct of our external affairs with other nations, in this
case the Republic of China.
The two categories of executive privilege have different rationale. Presidential communication privilege is grounded on the
paramount need for candor between the President and her close advisors. It gives the President and those assisting her sufficient
freedom to interact without fear of undue public scrutiny. On the other hand, executive privilege on matters concerning our
diplomatic or foreign relations is akin to state secret privilege which, when divulged, will unduly impair our external relations with
other countries.10
The distinction is vital because of the need for specificity in claiming the privilege. Senate of thePhilippines v. Ermita11 mandates
that a claim of privilege must specify the grounds relied upon by the claimant.12 The degree of specificity required obviously
depends on the nature of the information to be disclosed.13
As to presidential communication privilege, the requirement of specificity is not difficult to meet. This kind of privilege easily passes
the test. As long as the subject matter pertains to a communication between the President and her close advisor concerning official
or state matters, the requirement is complied with.
There is no dispute that petitioner Neri is a close advisor of the President, being then the Chairman of the National Economic and
Development Authority. The transaction involved the NBN-ZTE broadband deal, a government contract which is an official or state
matter. Hence, the conversation between the President and petitioner Neri is covered by the presidential communication privilege.
Of course, there is a presumption that every communication between the President and her close advisor pertains to an official or
state matter. The burden is on the party seeking disclosure to prove that the communication is not in an official capacity.
The fact of conversation is the trigger of the presidential communication privilege. There is no need to give specifics or particulars of
the contents of the conversation because that will obviously divulge the very matter which the privilege is meant to protect. It will be
an illusory privilege if a more stringent standard is required.14
In contrast, a relatively higher standard of specificity is required for a claim of executive privilege based on diplomacy or foreign
relations. As in state secrets, this type of executive privilege is content based.15 This means that the claim is dependent on the very
content of the information sought to be disclosed. To adequately assess the validity of the claim, there is a need for the court,
usually in closed session, to become privy to the information. This will enable the court to sufficiently assess whether or not the
information claimed to be privileged will actually impair our diplomatic or foreign relations with other countries. It is the content of the
information and its effect that trigger the privilege. To be sure, a generalized claim of privilege will not pass the more stringent test of
specificity.
In the case at bar, the letter16 of Secretary Eduardo Ermita to the Senate dated November 15, 2007 asserting executive privilege
contained a mere general allegation that the conversation between the President and petitioner Neri "might" impair our diplomatic
relations with the Republic of China. There is no explanation how the contents of the conversation will actually impair our diplomatic
relations. Absent sufficient explanation or specifics, We cannot assess the validity of the claim of executive privilege.
Obviously, bare assertion without more will not pass the more stringent test of specificity. It is in this context that I agree with the
dissenting justices17 that the claim of privilege based on diplomacy or foreign relations must be struck down as devoid of basis.

It may be noted that Justice Tinga is not also persuaded by the claim of executive privilege based on diplomacy or foreign relations.
He said:
Petitioner Neri also cites diplomatic and state secrets as basis for the claim of executive privilege, alluding for example to
the alleged adverse impact of disclosure on national security and on our diplomatic relations with China. The argument
hews closely to the state secrets privilege. The problem for petitioner Neri though is that unless he informs this Court the
contents of his questioned conversations with the President, the Court would have no basis to accept his claim that
diplomatic and state secrets would indeed be compromised by divulging the same in a public Senate hearing.
Indeed, if the claim of executive privilege is predicated on the particular content of the information, such as the state
secrets privilege, which the claimant refuses to divulge, there is no way to assess the validity of the claim unless the court
judging the case becomes privy to such information. If the claimant fails or refuses to divulge such information, I submit
that the courts may not pronounce such information as privileged on content-based grounds, such as the state secrets
privilege. Otherwise, there simply would be no way to dispute such claim of executive privilege. All the claimant would
need to do is to invoke the state secrets privilege even if no state secret is at all involved, and the court would then have
no way of ascertaining whether the claim has been validly raised, absent judicial disclosure of such information.18
There is qualified presumption of presidential communication privilege.
Mayroong kwalipikadong pagpapalagay sa pampangulong pribilehiyo sa komunikasyon.
American jurisprudence19 bestows a qualified presumption in favor of presidential communication privilege. This means that the
initial point is against disclosure of the contents of the communication between the President and her close advisors. The burden of
proof is on the agency or body seeking disclosure to show compelling reasons to overcome the presumption.
Respondent Senate Committees, however, insist that there should be no presumption in favor of presidential communication
privilege. It banks on this Court\rquote s statement in Senate of the Philippines v. Ermita20 that "the extraordinary character of the
exemption (executive privilege) indicates that the presumption inclines heavily against executive secrecy and in favor of
disclosure."21It is argued that the dicta in Ermita is contrary and even antithetical22 to the qualified presumption under American
jurisprudence. Respondents likewise cite several provisions of the 1987 Philippine Constitution favoring public disclosure over
secrecy23 in its attempt to reverse the presumption.
I cannot agree with respondents. The Court\rquote s statement in Ermita must be read in its proper context. It is merely a general
statement in favor of public disclosure and against government secrecy. To be sure, transparency of government actions is a
laudable virtue of a republican system of government such as ours. After all, a public office is a public trust. A well informed citizenry
is essential in a democratic and republican government.
But not all privileges or those that prevent disclosure of government actions are objectionable. Executive privilege is not an evil that
should be thwarted and waylaid at every turn. Common sense and public policy require a certain degree of secrecy of some
essential government actions. Presidential communication privilege is one of them. The President and her close advisor should be
given enough leeway to candidly discuss official and state matters without fear of undue public scrutiny. The President cannot
effectively govern in a fishbowl where her every action is dissected and scrutinized. Even the Senate itself enjoys the same
privilege in the discharge of its constitutional functions. Internal workings of the Senate Committees, which include deliberations
between the Senators and their staffs in crafting a bill, are generally beyond judicial scrutiny.
The Court\rquote s dicta in Senate of the Philippines v. Ermita should not be unduly emasculated as basis for a general argument in
favor of full disclosure of all governmental actions, much less as foundation for a presumption against presidential communication
privilege. To my mind, it was not the intention of this Court to reverse the qualified presumption of presidential communication under
American jurisprudence. Quite the contrary, the Court in Ermita, by citing the case of Almonte v. Vasquez, adopted the qualified
presumption of presidential communication privilege. Almonte quoted several American cases which favored the qualified
presumption of presidential communication privilege.24 As discussed by Chief Justice Reynato Puno in his dissenting opinion:
A hard look at Senate v. Ermita ought to yield the conclusion that it bestowed a qualified presumption in favor of the
presidential communications privilege. As shown in the previous discussion, U.S. v. Nixon, as well as the other related
Nixon cases Sirica and Senate Select Committee on Presidential Campaign Activities, et al. v. Nixon in the D.C. Court of
Appeals, as well as subsequent cases, all recognize that there is a presumptive privilege in favor of presidential
communications. The Almonte case quoted U.S. v. Nixon and recognized a presumption in favor of confidentiality of
presidential communications.
The statement in Senate v. Ermita that the "extraordinary character of the exemptions indicates that the presumption
inclines heavily against executive secrecy and in favor of disclosure" must therefore be read to mean that there is a
general disfavor of government privileges as held in In Re Subpoena for Nixon, especially considering the bias of the 1987
Philippine Constitution towards full public disclosure and transparency in government.
In fine, Senate v. Ermita recognized the presidential communications privilege in U.S. v. Nixonand the qualified
presumptive status that the U.S. High Court gave that privilege. Thus, respondent Senate Committees\rquote argument
that the burden is on petitioner to overcome a presumption against executive privilege cannot be sustained.25

At any rate, it is now settled that there is a qualified presumption in favor of presidential communication privilege. The majority
decision26 expressly recognized the presumption. Even Justices Ynares-Santiago27 and Carpio,28 in their separate dissenting
opinions, agree that the presumption exists. Justice Carpio Morales29 presented a different formulation of the privilege, but she
nevertheless acknowledges the presumption. In other words, the three questions directed to petitioner are presumptively privileged
because they pertain to the contents of his conversation with the President. Sa madaling salita, ang tatlong tanong sa
petisyoner ay ipinapalagay na may angking pribilehiyo dahil ito\rquote y tungkol sa usapan nila ng Pangulo.
Presidential communication privilege is not absolute; it is rebuttable.
Ang pampangulong pribilehiyo sa komunikasyon ay hindi ganap; ito\rquote y maaaring salungatin.
The fact that presidential communication is privileged is not the end of the matter. It is merely the starting point of the inquiry.
In Senate of the Philippines v. Ermita, this Court stated:
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.30
All Justices31 agree that the presumption in favor of presidential communication privilege isrebuttable. The agency or body seeking
disclosure must present compelling reasons to overcome the presumption. Justice Nachura stated the delicate balancing test in
this manner:
Because the foundation of the privilege is the protection of the public interest, any demand for disclosure of information or
materials over which the privilege has been invoked must, likewise, be anchored on the public interest. Accordingly, judicial
recognition of the validity of the claimed privilege depends upon "a weighing of the public interest protected by the privilege
against the public interest that would be served by disclosure in a particular case." While a "demonstrated specific need"
for material may prevail over a generalized assertion of privilege, whoever seeks the disclosure must make "a showing of
necessity sufficient to outweigh the adverse effects the production would engender.32
The Senate power of investigation in aid of legislation is different from its oversight function.
Ang kapangyarihan ng Senado na magsiyasat kaakibat ng tungkulin sa paggawa ng batas ay kaiba sa gawain nito ng
pagsubaybay.
The context or procedural setting in which executive privilege is claimed is vital in the courts\rquote assessment of the privilege.
Since executive privilege has constitutional underpinnings, the degree of proof required to overcome the presumption must likewise
have constitutional support. Here, the context or setting of the executive privilege is a joint Senate Committee33 investigation in
aid of legislation.
There is a statement in the majority decision that respondent Senate Committees were exercising their oversight function,34 instead
of their legislative powers35 in asking the three questions to Secretary Neri.36 The characterization of the Senate power as one in the
exercise of its oversight, instead of legislative, function has severe repercussions because of this Court\rquote s dicta in Ermitathat
the Senate\rquote s oversight function "may be facilitated by compulsory process only to the extent that it is performed in pursuit of
legislation." In exercising its oversight function, the Senate may only request the appearance of a public official. In contrast, it
may compel appearance when it is exercising its power of investigation in aid of legislation.
On this score, I part way with the majority decision. To be sure, it is difficult to draw a line between the oversight function and the
legislative function of the Senate. Nonetheless, there is sufficient evidence on record that the Senate Committees were actually
exercising their legislative power rather than their oversight function in conducting the NBN-ZTE investigation. Various
resolutions,37 privilege speeches38 and bills39 were filed in the Senate in connection with the NBN-ZTE contract. Petitioner\rquote s
counsel, Atty. Antonio Bautista, even concedes that the investigation conducted by the Senate Committees were in aid of
legislation.40
While there is a perception in some quarters that respondents\rquote investigation is being carried too far or for some other
motives, We cannot but accord respondents the benefit of the doubt.
The principle of separation of powers requires that We give due respect to the Senate assertion that it was exercising its legislative
power in conducting the NBN-ZTE investigation. It is not for this Court to challenge, much less second guess, the purpose of the
NBN-ZTE investigation or the motives of the Senators in probing the NBN-ZTE deal. We must presume a legislative purpose from
the investigation because of the various pending bills filed in the Senate. At any rate, it is settled that the improper motives of some
Senators, if any, will not vitiate the Senate\rquote s investigation as long as the presumed legislative purpose is being served by the
work of the Senate Committees.41
Rebutting the presumption: executive privilege is honored in civil, but not in criminal proceedings.
Ang pribilehiyo ay iginagalang sa kasong sibil, ngunit hindi sa kasong kriminal.

Given that a claim of presidential communication privilege was invoked by Secretary Neri in a Senate investigation in aid of
legislation, it is necessary to examine how a similar claim of executive privilege fared in other contexts, particularly in criminal and
civil proceedings, in order to gain insight on the evidence needed to rebut the qualified presumption.
There is a consensus among the Justices of this Court that a claim of executive privilege cannot succeed in a criminal proceeding.
The reason is simple. The right of the accused to due process of law requires nothing less than full disclosure. When vital
information that may exculpate the accused from a crime is withheld from the courts, the wheels of justice will be stymied and the
constitutional right of the accused to due process of law becomes illusory. It is the crucial need for the information covered by the
privilege and the dire consequences of nondisclosure on the discharge of an essential judicial function which trumps executive
privilege.
The leading case on executive privilege in a criminal proceeding is U.S. v. Nixon.42 It involved a sub poena duces tecum to then
United States President Richard Nixon and his staff to produce tape recordings and documents in connection with the Watergate
scandal. Ruling that executive privilege cannot prevail in a criminal proceeding, the Supreme Court of the United States stated:
The interest in preserving confidentiality is weighty indeed and entitled to great respect. However, we cannot conclude that
advisers will be moved to temper the candor of their remarks by the infrequent occasions of disclosure because of the
possibility that such conversations will be called for in the context of criminal prosecution.
On the other hand, the allowance of the privilege to withhold evidence that is demonstrably relevant in a criminal trial
would cut deeply into the guarantee of due process of law and gravely impair the basic function of the courts.
President\rquote s acknowledged need for confidentiality in the communications of his office is general in nature, whereas
the constitutional need for production of relevant evidence in a criminal proceeding is specific and central to the fair
adjudication of a particular criminal case in the administration of justice. Without access to specific facts a criminal
prosecution may be totally frustrated. The President\rquote s broad interest in confidentiality of communications will not be
vitiated by disclosure of a limited number of conversations preliminarily shown to have some bearing on the pending
criminal case.43
I hasten to point out, however, that in this case, there is yet no criminal proceeding, hence, the vital ruling on Nixon does not square
with Neri.
Again, in contrast, executive privilege is generally honored in a civil proceeding. The need for information in a civil case is not as
significant or does not have the same stakes as in a criminal trial. Unlike the accused in a criminal trial, the defendant in a civil case
will not lose his life or liberty when information covered by executive privilege is left undisclosed to the courts. Moreover, there is the
exacting duty of the courts to prove the guilt of the accused beyond reasonable doubt. But mere preponderance of evidence is
required in a civil case to deliver a verdict for either party. That burden may be hurdled even without a full disclosure of information
covered by the executive privilege.
The leading case on executive privilege in a civil proceeding is Cheney v. US District Court of the District of Columbia.44 It involved
discovery orders against Vice President Cheney and other federal officials and members of the National Energy Policy
Development Group. Differentiating the earlier case of Nixon, the Supreme Court of the United States in Cheney held that the claim
of executive privilege will be honored in a civil proceeding because it does not share the same "constitutional dimension" as in a
criminal trial, thus:
The Court of Appeals dismissed these separation of powers concerns. Relying on United States v. Nixon, it held that even
though respondents\rquote discovery requests are overbroad and "go well beyond FACA\rquote s requirements," the Viceand his former colleagues on the NEPDG "shall bear the burden" of invoking privilege with narrow specificity and objecting
to the discovery requests with "detailed precision." In its view, this result was required by Nixon\rquote s rejection of an
"absolute, unqualified presidential privilege of immunity from judicial process under all circumstances." x x x
The analysis, however, overlooks fundamental differences in the two cases. Nixon involves the proper balance between
the Executive\rquote s interest in the confidentiality of its communication and the "constitutional need for production of
relevant evidence in a criminal proceeding." The Court\rquote s decision was explicit that it was "not \'85 concerned with
the balance between the President\rquote s generalized interest in confidentiality and the need for relevant evidence in
civil litigation \'85 We address only the conflict between the President\rquote s assertion of a generalized privilege of
confidentiality and the constitutional need for relevant evidence in criminal trials."
The distinction Nixon drew between criminal and civil proceedings is not just a matter of formalism. x x x In light of the
"fundamental" and "comprehensive" need for "every man\rquote s evidence" in the criminal justice system, not only must
the Executive Branch first assert privilege to resist disclosure, but privilege claims that shield information from a grand jury
proceeding or a criminal trial are not to be "expansively construed, for they are in derogation of the search for truth." The
need for information for use in civil cases, while far from negligible, does not share the urgency or significance of the
criminal subpoena requests in Nixon. As Nixon recognized, the right to the production of relevant evidence in civil
proceedings does not have the same "constitutional dimensions."45
Nixon and Cheney present a stark contrast in the court\rquote s assessment of executive privilege in two different procedural
settings. While the privilege was honored in a civil proceeding, it was held unavailing in a criminal trial. It is arguable that in both
cases, there is a compelling need for the information covered by the privilege. After all, the courts may be unable to deliver a fair
verdict without access to the information covered by the privilege.

I submit that the distinction lies on the effect of non-disclosure on the efficient discharge of the court\rquote s judicial
function. The court may not adjudge the guilt of the accused beyond reasonable doubt in a criminal trial without the information
covered by the privilege. The information may, in fact, exculpate the accused from the crime. In contrast, the court may render
judgment in a civil case even absent the information covered by the privilege. The required burden of proof may still be hurdled
even without access to the information.
In short, if the body or agency seeking disclosure may efficiently discharge its constitutional duty even without access to the
information, the privilege will be honored. If, on the other hand, the privilege substantially impairs the performance of that body or
agency\rquote s constitutional duty, the information covered by the privilege will be disclosed to enable that agency to comply with
its constitutional duty.
There are two significant tests for rebutting the qualified presumption of presidential communication privilege.
May dalawang makahulugang panukat sa pagsalungat ng kwalipikadong pagpapalagay sa pampangulong pribilehiyo sa
komunikasyon.
The majority decision ruled that the qualified presumption of presidential communication privilege may be overturned only by a
showing of public need by the branch seeking access to conversation.46
Chief Justice Puno opines that the test must center on the efficient discharge of the constitutional functions of the President vis-vis the Senate. Using the "function impairment test," the Court weighs how the disclosure of the withheld information would impair
the President\rquote s ability to perform her constitutional duties more than nondisclosure would impair the other branch\rquote s
ability to perform its constitutional functions.47 The test entails an initial assessment of the strength of the qualified presumption
which shall then be weighed against the adverse effects of non-disclosure on the constitutional function of the agency seeking the
information.
Justice Carpio Morales agrees that the proper test must focus on the effect of non-disclosure on the discharge of the Senate\rquote
s constitutional duty of enacting laws, thus:
Thus, a government agency that seeks to overcome a claim of the presidential communications privilege must be able to
demonstrate that access to records of presidential conversations, or to testimony pertaining thereto, is vital to the
responsible performance of that agency\rquote s official functions.48
In his separate concurring opinion, Justice Tinga highlights that the "claim of executive privilege should be tested against the
function of the legislative inquiry, which is to acquire insight and information for the purpose of legislation. He simplifies the issue in
this manner: would the divulgence of the sought-after information impede or prevent the Senate from enacting legislation?49
Justice Nachura tersely puts it that to hurdle the presumption the Senate must show "how and why the desired information
"is demonstrably critical to the responsible fulfillment of the Committees\rquote functions."50
Justice Consuelo Ynares-Santiago, on the other hand, asserts that the proper test should not only be confined to the consequences
of disclosure or non-disclosure on the constitutional functions of the President and the Senate, but must involve a holistic
assessment of "public interest." She notes that "grave implications on public accountability and government transparency" are
factors that must be taken into account in resolving a claim of executive privilege.51
The seemingly different tests submitted by the concurring and dissenting justices are but motions of the same type of balancing act
which this Court must undertake in resolving the issue of executive privilege. The "public interest" test propounded by Justice
Ynares-Santiago emphasizes the general basis in resolving the issue, which is public interest. The "balancing test" espoused by
the majority justices and Justice Carpio Morales, and the "function impairment test" of Chief Justice Puno, on the other hand,
underscore the main factor in resolving the conflict, which is to assess the consequence of non-disclosure on the effective
discharge of the constitutional function of the branch or agency seeking the information.
The "balancing test" and the "function impairment test" approximate the test applied by the Supreme Court of the United States
in Nixon and Cheney. An analysis of Nixon and Cheney reveals that the test must be anchored on two points. One, the compelling
need for the information covered by the privilege by the body or agency seeking disclosure. Two, the effect of non-disclosure on the
efficient discharge of the constitutional function of the body or agency seeking the information.
Both requisites must concur although the two may overlap. If there is a compelling need for the information, it is more likely that the
agency seeking disclosure cannot effectively discharge its constitutional function without the required information. Disclosure is
precisely sought by that agency in order for it to effectively discharge its constitutional duty. But it may also be true that there is a
compelling need for the information but the agency or body seeking disclosure may still effectively discharge its constitutional duty
even without the information. The presence of alternatives or adequate substitutes for the information may render disclosure of the
information unnecessary.
The starting point is against disclosure of the contents of the communication between the President and her close advisors because
of the qualified presumption of presidential communication privilege. The burden is on the party seeking disclosure to prove
a compelling need for the information. But mere compelling need is insufficient. The branch or agency seeking the information
must also show that it cannot effectively discharge its constitutional function without access to the information covered by the
privilege.

The degree of impairment of the constitutional function of the agency seeking disclosure must besignificant or substantial as to
render it unable to efficiently discharge its constitutional duty. In Nixon, the harm occasioned by non-disclosure was held to "cut
deeply into the guarantee of due process of law and gravely impair the basic function of the courts." In contrast, the harm in a civil
proceeding was held to be only minor or insignificant, which rendered disclosure unnecessary.
Application of the twin tests - paglalapat ng kambal na panukat
Applying the same dual tests, the qualified presumption of the presidential communication privilege may be rebutted only upon
showing by the Senate of a compelling need for the contents of the conversation between the President and Secretary Neri. The
Senate must also prove that it cannot effectively discharge its legislative function without the information covered by the
privilege.
The presidential communication privilege was invoked in a joint Senate investigation in aid of legislation. The main purpose of the
NBN-ZTE investigation is to aid the Senators in crafting pertinent legislation. The constitutional duty involved in this case is the
lawmaking function of the Senate.
Using the function impairment test, Chief Justice Puno concludes that the Senate had adequately shown a compelling need for the
contents of the conversation between the President and Secretary Neri. The Chief Justice points out that there is no effective
substitute for the information because it provides the factual basis "in crafting specific legislation pertaining to procurement and
concurring in executive agreements."52
Justice Carpio Morales also observes that the Senate had adequately presented a compelling need for the information because it is
"apparently unavailable anywhere else."53 Justice Carpio Morales holds "it would be unreasonable to expect respondent
Committees to merely hypothesize on the alternative responses and come up with legislation on that basis."54
I take a different view. To my mind, the Senate failed to present a case of compelling need for the information covered by the
privilege. It must be borne in mind that Secretary Neri is only one of the many witnesses in the NBN-ZTE investigation. In fact, he
had already testified lengthily for eleven (11) hours. Numerous resource persons and witnesses have testified before and after him.
The list includes Rodolfo "Jun" Lozada, Jr., Jose De Venecia IV, Chairman Benjamin Abalos, technical consultants Leo San Miguel
and Dante Madriaga. To date, the Senate Committees had conducted a total of twelve hearings on the NBN-ZTE investigation.
Given the sheer abundance of information, both consistent and conflicting, I find that the Senate Committees have more than
enough inputs and insights which would enable its members to craft proper legislation in connection with its investigation on the
NBN-ZTE deal. I do not see how the contents of the conversation between Secretary Neri and the President, which is presumptively
privileged, could possibly add more light to the law-making capability of the Senate. At the most, the conversation will only bolster
what had been stated by some witnesses during the Senate investigation.
I do not share the opinion that the entire talk between the President and Secretary Neri is essential because it provides
the factual backdrop in crafting amendments to the procurement laws. The testimony of numerous witnesses and resource persons
is already sufficient to provide a glimpse, if not a fair picture, of the whole NBN-ZTE contract. The Senators may even assume,
rightly or wrongly, based on the numerous testimonies, that there was an anomaly on the NBN ZTE contract and craft the
necessary remedial legislation.
Unlike in a criminal trial, this is not a case where a precise reconstruction of past events is essential to the efficient discharge of a
constitutional duty. The Senate is not a court or a prosecutorial agency where a meticulous or painstaking recollection of events is
essential to determine the precise culpability of an accused. The Senate may still enact laws even without access to the contents of
the conversation between the President and Secretary Neri. As correctly noted by Justice Nachura, "legislative judgments normally
depend more on the predicted consequences of proposed legislative actions and their political acceptability, than on precise
reconstruction of past events" and that "it is not uncommon for some legislative measures to be fashioned on the strength of certain
assumptions that may have no solid factual precedents."55
Even granting that the Senate had presented a case of compelling need for the information covered by the executive privilege, the
Senate nonetheless failed to prove the second element of "substantial impairment" of its constitutional lawmaking function. It is hard
to imagine how an affirmative or negative answer to the three questions posed to petitioner Neri would hinder the Senate from
crafting a law amending the Build Operate and Transfer (BOT) Law or the Official Development and Assistance (ODA) Act. The
Senate may also cobble a law subjecting executive agreements to Senate concurrence even without access to the conversation
between the President and Secretary Neri.
In fine, the qualified presumption in favor of presidential communication privilege was not successfully rebutted. First, the Senate
failed to prove a compelling need for the information covered by the privilege. Second, the constitutional function of the Senate to
enact laws will not be substantially impaired if the information covered by the privilege is left undisclosed. For these twin reasons, I
concur with the ponente\rquote s decision honoring presidential communication privilege in the NBN-ZTE Senate investigation.
Gamit ang panukat ng "balancing test" at "function impairment test," matibay ang aking pasiya na hindi matagumpay na
nasalungat ang kwalipikadong pagpapalagay (qualified presumption) sa pampangulong pribilehiyo sa komunikasyon.
Executive privilege and crime - pampangulong pribilehiyo at krimen

The Senate also asserts that executive privilege cannot be used to conceal a crime. It is claimed that the conversation between the
President and Secretary Neri pertained to an attempted bribery by then COMELEC chairman Benjamin Abalos to Secretary Neri.
The alleged crime committed by Chairman Abalos will be shielded and concealed if the content of the conversation between the
President and Secretary Neri is left undisclosed. It is also claimed that the President herself and his husband may have been
complicit in the commission of a crime in approving the NBN-ZTE contract.
That executive privilege cannot be invoked to conceal a crime is well-settled. All Justices of this Court agree on that basic postulate.
The privilege covers only the official acts of the President. It is not within the sworn duty of the President to hide or conceal a
crime.56 Hence, the privilege is unavailing to cover up an offense.
But We cannot lightly assume a criminal conduct. In the same manner that We give due respect to the Senate when it asserts that it
is conducting an investigation in aid of legislation, so too must We accord the same level of courtesy to the President when she
asserts her presidential communication privilege.
It must be stressed that the Senate is conducting the NBN-ZTE investigation only in aid of legislation. Its main goal is to gain
insights on how to better craft pertinent laws. Its investigation is not, ought not to be, a fishing expedition to incriminate the
President or for other purpose.
The Senate is not a prosecutorial agency. That duty belongs to the Ombudsman and the Department of Justice. Or the House of
Representatives if impeachment is desired. That the concerned Senators or other sectors do not trust these institutions is altogether
another matter. But the Court should not be pressured or faulted if it declines to deviate from the more specific norm ordained by
the Constitution and the rule of law.
Much has been said about the need to ferret out the truth in the reported anomaly on the aborted NBN-ZTE broadband deal. But
can the truth be fairly ascertained in a Senate investigation where there is no rule of evidence? Where even double hearsay
testimony is allowed and chronicled by media? Where highly partisan politics come into play? May not the true facts be unveiled
through other resource persons, including a namesake (Ruben Caesar Reyes)?
II
On the contempt and arrest order - ang order ng pagsuway at pag-aresto
On the second issue, the majority decision invalidated the arrest and contempt order against petitioner Neri on five (5) counts,
namely: (a) valid invocation of executive privilege; (b) lack of publication of the Senate Rules of Procedure; (c) failure to furnish
petitioner Neri with advance list of questions and proposed statutes which prompted its investigation; (d) lack of majority vote to cite
for contempt; and (e) arbitrary and precipitate issuance of the contempt order. The first and the last are interrelated.
I concur with the majority decision but on a single ground: valid invocation of executive privilege.
A. Because of valid invocation of executive privilege, the Senate order of contempt and arrest is baseless, hence, invalid.
Dahil sa pasiya ng nakakarami sa Hukuman na balido ang imbokasyon ni Neri ng pampangulong pribilehiyo, ang order ng
Senado sa kanyang pagsuway at pag-aresto ay walang batayan kaya hindi balido.
The Senate declared petitioner Neri in contempt because he refused to divulge the full contents of his conversation with the
President. It is his refusal to answer the three questions covered by the presidential communication privilege which led to the
issuance of the contempt and later the arrest order against him.
I note that the Senate order of contempt against Secretary Neri stated as its basis his failure to appear in four slated hearings,
namely: September 18, 2007, September 20, 2007, October 25, 2007 and November 20, 2007.57 But Secretary Neri attended the
Senate hearing on September 26, 2007where he was grilled for more than eleven (11) hours. The October 25, 2007 hearing was
moved to November 20, 2007 when the Senate issued a subpoena ad testificandum to Secretary Neri to further testify on the NBNZTE deal.
Before the slated November 20 hearing, Secretary Ermita wrote to the Senate requesting it to dispense with the testimony of
Secretary Neri on the ground of executive privilege. The Senate did not act on the request of Secretary Ermita. Secretary Neri did
not attend the November 20, 2007 hearing.
The Senate erroneously cited Secretary Neri for contempt for failing to appear on the September 18 and 20, 2007 hearings. His
failure to attend the two hearings is already a non-issue because he did attend and testified in the September 26, 2007 hearing. If
the Senate wanted to cite him for contempt for his absence during the two previous hearings, it could have done so on September
26, 2007, when he testified in the Senate. The Senate cannot use his absence in the September 18 and 20 hearings as basis for
citing Secretary Neri in contempt.
The main reason for the contempt and arrest order against Secretary Neri is his failure to divulge his conversation with the
President. As earlier discussed, We ruled that Secretary Neri correctly invoked presidential communication privilege. Since
he cannot be compelled by the Senate to divulge part of his conversation with the President which included the three questions

subject of the petition forcertiorari, the contempt and arrest order against him must be declared invalid as it is baseless. Petitioner,
however, may still be compelled by the Senate to testify on other matters not covered by the presidential communication privilege.
B. The Senate does not need to republish its Rules of Procedure Governing Inquiries in Aid of Legislation.
Hindi kailangan na muling ipalathala ng Senado ang Tuntunin sa Prosidyur sa Pagsisiyasat Tulong sa Paggawa ng Batas.
Justice Leonardo-De Castro sustained the position of the Office of the Solicitor General that non-publication of the Senate Rules of
Procedure is fatal to the contempt and arrest order against Secretary Neri, thus:
We find merit in the argument of the OSG that respondent Committees likewise violated Section 21 of Article VI of the
Constitution, requiring that the inquiry be in accordance with the "duly published rules of procedure." We quote the
OSG\rquote s explanation:
"The phrase \lquote duly published rules of procedure\rquote requires the Senate of every Congress to publish its
rules of procedure governing inquiries in aid of legislation because every Senate is distinct from the one before it
or after it. Since Senatorial elections are held every three (3) years for one-half of the Senate\rquote s
membership, the composition of the Senate also changes by the end of each term. Each Senate may thus enact
a different set of rules as it may deem fit. Not having published its Rules of Procedure, the subject hearings
in aid of legislation conducted by the 14th Senate, are therefore, procedurally infirm."58
Justice Carpio agreed with Justice Leonardo-De Castro. In his separate opinion, Justice Carpio held that the Senate is not a
continuing body under the 1987 Constitution because only half of its members continue to the next Congress, hence, it does not
have a quorum to do business, thus:
The Constitution requires that the Legislature publish its rules of procedure on the conduct of legislative inquiries in aid of
legislation. There is no dispute that the last publication of the Rules of Procedure of the Senate Governing the Inquiries in
Aid of Legislation was on 1 December 2006 in the Philippine Star and Philippine Daily Inquirer during the 13th Congress.
There is also no dispute that the Rules of Procedure have not been published in newspapers of general circulation during
the current 14th Congress. However, the Rules of Procedure have been published continuously in the website of the
Senate since at least the 13th Congress. In addition, the Senate makes the Rules of Procedure available to the public in
pamphlet form.
In Arnault v. Nazareno, decided under the 1935 Constitution, this Court ruled that "the Senate of the Philippines is a
continuing body whose members are elected for a term of six years and so divided that the seats of only one-third become
vacant every two years, two-thirds always continuing into the next Congress save as vacancies may occur thru death
or resignation." To act as a legislative body, the Senate must have a quorum, which is a majority of its membership. Since
the Senate under the 1935 Constitution always had two-thirds of its membership filled up except for vacancies arising from
death or resignation, the Senate always maintained a quorum to act as a legislative body. Thus, the Senate under the
1935 Constitution continued to act as a legislative body even after the expiry of the term of one-third of its members. This
is the rationale in holding that the Senate under the 1935 Constitution was a continuing legislative body.
The present Senate under the 1987 Constitution is no longer a continuing legislative body. The present Senate has
twenty-four members, twelve of whom are elected every three years for a term of six years each. Thus, the term of twelve
Senators expires every three years, leaving less than a majority of Senators to continue into the next Congress. The
1987 Constitution, like the 1935 Constitution, requires a majority of Senators to "constitute a quorum to do business."
Applying the same reasoning in Arnault v. Nazareno, the Senate under the 1987 Constitution is not a continuing body
because less than majority of the Senators continue into the next Congress. The consequence is that the Rules of
Procedure must be republished by the Senate after every expiry of the term of twelve Senators.
The publication of the Rules of Procedure in the website of the Senate, or in pamphlet form available at the Senate, is not
sufficient under the Taada v. Tuvera ruling which requires publication either in the Official Gazette or in a newspaper of
general circulation. The Rules of Procedure even provide that the rules "shall take effect seven (7) days after publication in
two (2) newspapers of general circulation," precluding any other form of publication. Publication in accordance
with Taada is mandatory to comply with the due process requirement because theRules of Procedure put a person\rquote
s liberty at risk. A person who violates the Rules of Procedure could be arrested and detained by the Senate.
Due process requires that "fair notice" be given to citizens before rules that put their liberty at risk take effect. The failure of
the Senate to publish its Rules of Procedure as required in Section 22, Article VI of the Constitution renders the Rules of
Procedure void. Thus, the Senate cannot enforce its Rules of Procedure.59
Chief Justice Puno, on the other hand, points out that the Senate has been considered a continuing body by custom, tradition and
practice. The Chief Justice cautions on the far-reaching implication of the Senate Rules of Procedure being declared invalid and
unenforceable. He says:
The Senate Rules of Procedure Governing Inquiries in Aid of Legislation is assailed as invalid allegedly for failure to be republished. It is contended that the said rules should be re-published as the Senate is not a continuing body, its
membership changing every three years. The assumption is that there is a new Senate after every such election and it
should not be bound by the rules of the old. We need not grapple with this contentious issue which has far-reaching

consequences to the Senate. The precedents and practice of the Senate should instead guide the Court in resolving the
issue. For one, the Senators have traditionally considered the Senate as a continuing body despite the change of a part of
its membership after an election. It is for this reason that the Senate does not cease its labor during the period of such
election. Its various Committees continue their work as its officials and employees. For another, the Rules of the Senate is
silent on the matter of re-publication. Section 135, Rule L of the Rules of the Senate provides that, "if there is no Rule
applicable to a specific case, the precedents of the Legislative Department of the Philippines shall be resorted to x x x." It
appears that by tradition, custom and practice, the Senate does not re-publish its rules especially when the same has not
undergone any material change. In other words, existing rules which have already undergone publication should be
deemed adopted and continued by the Senate regardless of the election of some new members. Their re-publication is
thus an unnecessary ritual. We are dealing with internal rules of a co-equal branch of government and unless they clearly
violate the Constitution, prudence dictates we should be wary of striking them down. The consequences of striking down
the rules involved in the case at bar may spawn serious and unintended problems for the Senate.60
True it is that, as the Constitution mandates, the Senate may only conduct an investigation in aid of legislation pursuant to its
duly published rules of procedure. Without publication, the Senate Rules of Procedure Governing Inquiries in Aid of Legislation is
ineffective. Thus, unless and until said publication is done, the Senate cannot enforce its own rules of procedure, including its power
to cite a witness in contempt under Section 18.
But the Court can take judicial notice that the Senate Rules of Procedure Governing Inquiries in Aid of Legislation was published on
August 20 and 21, 1992 in the Philippine Daily Inquirer and Philippine Star during the 9th Congress.
The Senate again published its said rules on December 1, 2006 in the Philippine Star and Philippine Daily Inquirer during the 13th
Congress. That the Senate published its rules of procedure twice more than complied with the Constitutional requirement.
I submit that the Senate remains a continuing body under the 1987 Constitution. That the Senate is a continuing body is premised
on the staggered terms of its members, the idea being to ensure stability of governmental policies. This is evident from the
deliberations of the framers of the Constitution, thus:
"MR RODRIGO. x x x
I would like to state that in the United States Federal Congress, the term of the members of the Lower House is only two
years. We have been used to a term of four years here but I think three years is long enough. But they will be allowed to
run for reelection any number of times. In this way, we remedy the too frequent elections every two years. We will have
elections every three years under the scheme and we will have a continuing Senate. Every election, 12 of 24
Senators will be elected, so that 12 Senators will remain in the Senate. In other words, we will have a continuing
Senate.61
xxxx
MR DAVIDE. This is just a paragraph of that section that will follow what has earlier been approved. It reads: "OF THE
SENATORS ELECTED IN THE ELECTION IN 1992, THE FIRST TWELVE OBTAINING THE HIGHEST NUMBER OF
VOTES SHALL SERVE FOR SIX YEARS AND THE REMAINING TWELVE FOR THREE YEARS."
This is to start the staggering of the Senate to conform to the idea of a continuing Senate.
THE PRESIDING OFFICER (Mr. Rodrigo). What does the Committee say?
MR SUAREZ. The Committee accepts the Davide proposal, Mr. Presiding Officer.62
The Senate does not cease to be a continuing body merely because only half of its members continue to the next Congress. To my
mind, even a lesser number of Senators continuing into the next Congress will still make the Senate a continuing body. The Senate
must be viewed as a collective body. It is an institution quite apart from the Senators composing it. The Senate as an institution
cannot be equated to its present occupants. It is indivisible. It is not the sum total of all sitting Senators at any given time. Senators
come and go but the very institution of the Senate remains. It is this indivisible institution which should be viewed as continuing.
The argument that the Senate is not a continuing body because it lacks quorum to do business after every midterm or presidential
elections is flawed. It does not take into account that the term of office of a Senator is fixed by the Constitution. There is no vacancy
in the office of outgoing Senators during midterm or presidential elections. Article VI, Section 4 of the 1987 Constitution provides:
The term of office of the Senators shall be six years and shall commence, unless otherwise provided by law, at noon on
the thirtieth day of June next following their election.
The term of a Senator starts at noon of June 30 next following their election and shall end before noon of June 30 six years after.
The constitutional provision aims to prevent a vacuum in the office of an outgoing Senator during elections, which is fixed under the
Constitution unless changed by law on the second Monday of May,63 until June 30 when the Senators-elect assume their office.
There is no vacuum created because at the time an outgoing Senator\rquote s term ends, the term of a Senator-elect begins.

The same principle holds true for the office of the President. A president-elect does not assume office until noon of June 30 next
following a presidential election. An outgoing President does not cease to perform the duties and responsibilities of a President
merely because the people had chosen his/her new successor. Until her term expires, an outgoing President has the constitutional
duty to discharge the powers and functions of a President unless restricted64 by the Constitution.
In fine, the Senate is a continuing body as it continues to have a full or at least majority membership65even during elections until the
assumption of office of the Senators-elect. The Senate as an institution does not cease to have a quorum to do business even
during elections. It is to be noted that the Senate is not in session during an election until the opening of a new Congress for
practical reasons. This does not mean, however, that outgoing Senators cease to perform their duties as Senators of the Republic
during such elections. When the President proclaims martial law or suspends the writ of habeas corpus, for example, the Congress
including the outgoing Senators are required to convene if not in session within 24 hours in accordance with its rules without need
of call.66
The Constitutional provision requiring publication of Senate rules is contained in Section 21, Article VI of the 1987 Constitution,
which reads:
The Senate or the House of Representatives or any of its respective Committees may conductinquiries in aid of
legislation in accordance with its duly published rules of procedure. The rights of persons appearing in or affected by
such inquiries shall be respected.
The above provision only requires a "duly published" rule of procedure for inquiries in aid of legislation. It is silent on republication.
There is nothing in the constitutional provision that commands that every new Congress must publish its rules of procedure.
Implicitly, republication is necessary only when there is an amendment or revision to the rules. This is required under the due
process clause of the Constitution.
The Senate in the 13th Congress caused the publication of the Rules of Procedure Governing Inquiries in Aid of Legislation. The
present Senate (14th Congress) adopted the same rules of procedure in the NBN-ZTE investigation. It does not need to republish
said rules of procedure because it is not shown that a substantial amendment or revision was made since its last publication that
would affect the rights of persons appearing before it.
On a more practical note, there is little to be gained in requiring a new Congress to cause the republication of the rules of procedure
which has not been amended or revised. The exercise is simply a waste of government funds. Worse, it unduly burdens and
hinders the Senate from discharging its constitutional duties. Publication takes time and during the interregnum, it cannot be
gainsaid that the Senate is barred or restricted from conducting an investigation in aid of legislation.
I agree with the Chief Justice that this Court must be wary of the far-reaching consequences of a case law invalidating the Senate
rules of procedure for lack of republication. Our ruling in this petition will not only affect the NBN-ZTE investigation, but all other
Senate investigations conducted under the 10th, 11th, 12th, and the present 14th Congress, for which no republication of the rules
has been done. These investigations have been the basis of several bills and laws passed in the Senate and the House of
Representatives. Putting a doubt on the authority, effectivity and validity of these proceedings is imprudent and unwise. This Court
should really be cautious in making a jurisprudential ruling that will unduly strangle the internal workings of a co-equal branch and
needlessly burden the discharge of its constitutional duty.
C. The Senate failed to furnish petitioner with a list of possible questions and needed statutes prompting the inquiry. But
the lapse was sufficiently cured.
Nagkulang ang Senado na bigyan ang petisyuner ng listahan ng mga itatanong sa kanya at mga panukalang batas na
nagtulak sa pagsisiyasat. Subalit ang kakulangan ay nalunasan ng sapat.
In Senate v. Ermita,67 the Court issued a guideline to the Senate to furnish a witness, prior to its investigation, an advance list of
proposed questions and possible needed statutes which prompted the need for the inquiry. The requirement of prior notice will
dispel doubts and speculations on the real nature and purpose of its investigation. Records show the Senate failed to comply with
that guideline. It did not furnish petitioner Neri an advance list of the required questions and bills which prompted the NBN-ZTE
investigation. Thus, the Senate committed a procedural error.
The majority decision held that the procedural error invalidated the contempt and arrest order against petitioner Neri, thus:
x x x Respondent Committees did not comply with the requirement laid down in Senate v. Ermita that the invitations should
contain the "possible needed statute which prompted the need for the inquiry," along with "the usual indication of the
subject of inquiry and the questions relative to and in furtherance thereof." Compliance with this requirement is imperative,
both under Sections 21 and 22 of Article VI of the Constitution. This must be so to ensure that the rights of both
persons appearing in or affected by such inquiry are respected as mandated by said Section 21 and by virtue of the
express language of Section 22. Unfortunately, despite petitioner\rquote s repeated demands, respondent Committees did
not send him an advance list of questions.68
Nevertheless, I disagree with the majority on this point. I do not think that such procedural lapse per se has a substantial effect on
the resolution of the validity of the Senate contempt and arrest order. The defect is relatively minor when viewed in light of the
serious issues raised in the NBN-ZTE investigation. More importantly, the procedural lapse was sufficiently cured when petitioner

was apprised of the context of the investigation and the pending bills in connection with the NBN-ZTE inquiry when he appeared
before the respondent Senate committees.
If this were a case of a witness suffering undue prejudice or substantial injury because of unfair questioning during a Senate
investigation, I would not hesitate to strike down a contempt and arrest order against a recalcitrant witness. But this is not the
situation here. Petitioner neither suffered any undue prejudice nor substantial injury. He was not ambushed by the Senators with a
barrage of questions regarding a contract in which he had little or no prior knowledge. Quite the contrary, petitioner knew or ought
to know that the Senators will query him on his participation and knowledge of the NBN-ZTE deal. This was clear from the letter of
the Senate to petitioner requesting his presence and attendance during its investigation.
At any rate, this case should serve as an eye-opener to the Senate to faithfully comply with Our directive in Ermita. To prevent
future claims of unfair surprise and questioning, the Senate, in its future investigations, ought to furnish a witness an advance list of
questions and the pending bills which prompted its investigation.
D. There was a majority vote under Section 18 of the pertinent Senate Rules of Procedure.
Nagkaroon ng boto ng nakararami ayon sa Seksiyon 18 ng nauukol na Tuntunin ng Senado.
Section 18 of the Senate Rules Governing Inquiries in Aid of Legislation provides:
Sec. 18. Contempt. - The Committee, by a vote of a majority of all its members, may punish for contempt any witness
before it who disobeys any order of the Committee or refuses to be sworn or to testify or to answer a proper question by
the Committee or any of its members, or testifying, testifies falsely or evasively. A contempt of the Committee shall be
deemed a contempt of the Senate. Such witness may be ordered by the Committee to be detained in such place as it may
designate under the custody of the Sergeant-at-Arms until he agrees to produce the required documents, or to be sworn or
to testify, or otherwise purge himself of that contempt.
The majority decision held that the required majority vote under Section 18 of the said Senate Rules of Procedure was not met. In
her ponencia, Justice Leonardo-De Castro notes that members of the Senate Committees who were absent during the Senate
investigations were made to sign the contempt order. The ponente cites the transcript of records during the Senate investigation
where Senator Aquilino Pimentel raised the issue to Senator Alan Peter Cayetano during interpellation, thus:
THE CHAIRMAN (SEN. CAYETANO, A). May I recognize the Minority Leader and give him the floor, Senator Pimentel.
SEN. PIMENTEL. Mr. Chairman, there is no problem, I think, with consulting the other committees. But I am of the opinion
that the Blue Ribbon Committee is the lead committee, and therefore, it should have preference in enforcing its own
decisions. Meaning to say, it is not something that is subject to consultation with other committees. I am not sure that is the
right interpretation. I think that once we decide here, we enforce what we decide, because otherwise, before we know it,
our determination is watered down by delay and, you know, the so-called "consultation" that inevitably will have to take
place if we follow the premise that has been explained.
So my suggestion, Mr. Chairman, is the Blue Ribbon Committee should not forget it\rquote s the lead committee here, and
therefore, the will of the lead committee prevails over all the other, you, know reservations that other committees might
have who are only secondary or even tertiary committees, Mr. Chairman.
THE CHAIRMAN (SEN. CAYETANO, A.). Thank you very much to the Minority Leader. And I agree with the wisdom of his
statements. I was merely mentioning that under Section 6 of the Rules of the Committee and under Section 6, "The
Committee by a vote of a majority of all its members may punish for contempt any witness before it who disobeys any
order of the Committee."
So the Blue Ribbon Committee is more than willing to take that responsibility. But we only have six members here
today, I am the seventh as chair and so we have not met that number. So I am merely stating that, sir, that when we
will prepare the documentation, if a majority of all members sign and I am following the Sabio v. Gordon rule wherein I do
believe, if I am not mistaken, Chairman Gordon prepared the documentation and then either in caucus or in session asked
the other members to sign. And once the signatures are obtained, solely for the purpose that Secretary Neri or Mr. Lozada
will not be able to legally question our subpoena as being insufficient in accordance with law.69
Justice Arturo Brion particularly agrees with the ponente. In his separate concurring opinion, Justice Brion cites the admission of
Senators Francis Pangilinan and Rodolfo Biazon during the Oral Argument that the required majority vote under Section 18 was not
complied with, thus:
That the Senate committees engaged in shortcuts in ordering the arrest of Neri is evident from the record of the arrest
order. The interpellations by Justices Tinga and Velasco of Senators Rodolfo G. Biazon (Chair of the Committee on
National Defense and Security) and Francis N. Pangilinan (Senate Majority Leader) yielded the information that none of
the participating Committees (National Defense and Security, Blue Ribbon, and Trade and Commerce) registered enough
votes to approve the citation of contempt and the arrest order. An examination of the Order dated 30 January 2008 shows
that only Senators Alan Peter Cayetano, Aquino III, Legarda, Honasan and Lacson (of 17 regular members) signed for the
Blue Ribbon Committee; only Senators Roxas, Pia Cayetano, Escudero and Madrigal for the Trade and Commerce
Committee (that has 9 regular members); and only Senators Biazon, and Pimentel signed for the National Defense and

Security Committee (that has 19 regular members). Senate President Manny Villar, Senator Aquilino Pimentel as Minority
Floor Leader, Senator Francis Pangilinan as Majority Floor Leader, and Senator Jinggoy Ejercito Estrada as Pro Tempore,
all signed as ex-officio members of the Senate standing committees but their votes, according to Senator Biazon\rquote s
testimony, do not count in the approval of committee action.70
Chief Justice Puno has a different view. Citing the Certification71 issued by the Senate\rquote s Deputy Secretary for Legislation, the
Chief Justice concludes that the required majority vote was sufficiently met. The Chief Justice adds that even if the votes of the ex
officio members of the Senate Committee were counted, the majority requirement for each of the respondent Senate Committees
was still satisfied.72
I share the view of the Chief Justice on this point.
The divergence of opinion between the majority decision and Chief Justice Puno pertains to the voting procedure of the Senate. It
involves two issues: (a) whether or not the vote to cite a witness for contempt under Section 18 of the Senate Rules requires actual
physical presence during the Senate investigation; and (b) whether or not the votes of the ex officio members of respondent Senate
Committees should be counted under Section 18 of the Senate Rules.
The twin issues involve an interpretation of the internal rules of the Senate. It is settled that the internal rules of a co-equal branch
are within its sole and exclusive discretion. Section 16, Article VI of the 1987 Constitution provides:
Each House may determine the Rules of its proceedings, punish its members for disorderly behavior, and with the
concurrence of two-thirds of all its members, suspend or expel a member. A penalty of suspension, when imposed, shall
not exceed sixty days.
In Avelino v. Cuenco,73 this Court by a vote of 6-4 refused to assume jurisdiction over a petition questioning the election of Senator
Cuenco as Senate President for lack of quorum. The case cropped up when then Senate President Avelino walked out of the
Senate halls followed by nine other Senators, leaving only twelve senators in the session hall. The remaining twelve Senators
declared the position of the Senate President vacant and unanimously designated Senator Cuenco as the Acting Senate President.
Senator Avelino questioned the election, among others, for lack of quorum. Refusing to assume jurisdiction, this Court held:
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 revolution. No state of things has been proved that might change the temper of the Filipino people as a (sic)
peaceful and law-abiding citizens. And we should not allow ourselves to be stampeded into a rash action inconsistent with
the claim that should characterize judicial deliberations.74
The same principle should apply here. We must not lightly intrude into the internal rules of a co-equal branch. The doctrine of
separation of powers demands no less than a prudent refusal to interfere with the internal affairs of the Senate. The issues of lack
of quorum and the inclusion of the votes of the ex officio members are beyond this Court\rquote s judicial review.
Apart from jurisprudence, common sense also requires that We should accord the same privilege and respect to a co-equal branch.
If this Court allows Justices who are physically absent from its sessions to cast their vote on a petition, there is no reason to treat
the Senators differently. It is also common knowledge that even members of the House of Representatives cast their vote on a bill
without taking part in its deliberations and sessions. Certainly, what is sauce for the goose is sauce for the gander. If it is
allowed in the House of Representatives, it should be allowed in the Senate. Kung ito\rquote y pinapayagan sa Mababang
Kapulungan, dapat payagan din sa Mataas na Kapulungan.
Avelino v. Cuenco was decided under the 1935 Constitution. Judicial power has been expanded under the present 1987
Constitution.75 Even if We resolve the twin issues under Our expanded jurisdiction, Section 18 of the Senate Rules is sufficiently
complied with. The section is silent on proper voting procedure in the Senate. It merely provides that the Senate may cite a witness
in contempt by "majority vote of all its members." Clearly, as long as the majority vote is garnered, irrespective of the mode on how
it is done, whether by mere signing of the contempt order or otherwise, the requirement is met. Here, it is clear that a majority of the
members of the respective Senate Committees voted to cite petitioner Neri in contempt.
The required majority vote under Section 18 was sufficiently met if We include the votes of the ex officio members of the respective
Senate Committees. Section 18 does not distinguish between the votes of permanent and ex officio members. Interpreting the
Section, the votes of the ex officiomembers of the respective Committees should be counted in determining the quorum and the
required majority votes. Ubi lex non distinguit nec nos distinguire debemus. When the law does not distinguish, we must not
distinguish. Kapag ang batas ay di nagtatangi, di tayo dapat magtangi.
Conclusion
Summing up, I affirm my stand to grant the petition for certiorari. The Senate cannot compel petitioner Neri to answer the three
questions subject of the petition for certiorari or to divulge the contents of his pertinent conversation with the President on the
ground of presidential communication privilege.
I also affirm my position to quash the Senate contempt and arrest order against petitioner on the ground of valid invocation of
presidential communication privilege, although (a) it is unnecessary to re-publish Senate Rules of Procedure Governing Inquiries
in Aid of Legislation, (b) the Senate failure to furnish petitioner with a list of questions was cured, and (c) there was a majority vote.

Sa kabuuan, pinagtitibay ko ang aking paninindigan upang payagan ang petisyon para sa certiorari. Hindi mapipilit ng
Senado si petisyuner Neri na sagutin ang tatlong tanong sa petisyon o ibunyag ang laman ng kaugnay na usapan nila ng
Pangulo, dahil sa pampangulong pribilehiyo sa komunikasyon.
Pinaninindigan ko rin ang aking posisyon upang pawalang-saysay ang order ng Senado sa pagsuway at pag-aresto sa
petisyuner, dahil sa tamang imbokasyon ng nasabing pribilehiyo,bagama\rquote t (a) hindi na kailangan ang muling
paglalathala ng mga Tuntunin sa Prosidyur ng Senado sa Pagsisiyasat Tulong sa Paggawa ng Batas, (b) nalunasan ang
pagkukulang ng Senado na bigyan ang petisyuner ng listahan ng mga tanong, at (c) nagkaroon ngnakararaming boto.
Accordingly, I vote to deny respondents\rquote motion for reconsideration.
RUBEN T. REYES
Associate Justice
G.R. No. 165036

July 5, 2010

HAZEL MA. C. ANTOLIN, Petitioner,

vs.
ABELARDO T. DOMONDON, JOSE A. GANGAN, and VIOLETA J. JOSEF, Respondents.
x - - - - - - - - - - - - - - - - - - - - - - -x
G.R. No. 175705
HAZEL MA. C. ANTOLIN Petitioner,
vs.
ANTONIETA FORTUNA-IBE, Respondent.
DECISION
DEL CASTILLO, J.:
Examinations have a two-fold purpose. First, they are summative; examinations are intended to assess and record what and how
much the students have learned. Second, and perhaps more importantly, they are formative; examinations are intended to be part
and parcel of the learning process. In a perfect system, they are tools for learning. In view of the pedagogical aspect of national
examinations, the need for all parties to fully ventilate their respective positions, and the view that government transactions can only
be improved by public scrutiny, we remand these cases to the trial court for further proceedings.
Factual Antecedents
Petitioner took the accountancy licensure examinations (the Certified Public Accountant [CPA] Board Exams) conducted by the
Board of Accountancy (the Board) in October 1997.1 The examination results were released on October 29, 1997; out of 6,481
examinees, only 1,171 passed. Unfortunately, petitioner did not make it. When the results were released, she received failing
grades in four out of the seven subjects.2
Subject

Petitioners Grade

Theory of Accounts

65 %

Business Law

66 %

Management Services

69 %

Auditing Theory

82 %

Auditing Problems

70 %

Practical Accounting I

68 %

Practical Accounting II

77 %

Convinced that she deserved to pass the examinations, she wrote to respondent Abelardo T. Domondon (Domondon), Acting
Chairman of the Board of Accountancy, and requested that her answer sheets be re-corrected.3 On November 3, 1997, petitioner
was shown her answer sheets, but these consisted merely of shaded marks, so she was unable to determine why she failed the
exam.4 Thus, on November 10, 1997, she again wrote to the Board to request for copies of (a) the questionnaire in each of the
seven subjects (b) her answer sheets; (c) the answer keys to the questionnaires, and (d) an explanation of the grading system used
in each subject (collectively, the Examination Papers).5
Acting Chairman Domondon denied petitioners request on two grounds: first, that Section 36, Article III of the Rules and
Regulations Governing the Regulation and Practice of Professionals, as amended by Professional Regulation Commission (PRC)
Resolution No. 332, series of 1994, only permitted access to the petitioners answer sheet (which she had been shown previously),
and that reconsideration of her examination result was only proper under the grounds stated therein:

Sec. 36 An examinee shall be allowed to have access or to go over his/her test papers or answer sheets on a date not later than
thirty (30) days from the official release of the results of the examination. Within ten (10) days from such date, he/she may file
his/her request for reconsideration of ratings. Reconsideration of rating shall be effected only on grounds of mechanical error in the
grading of his/her testpapers or answer sheets, or malfeasance.6lawph!l
Second, Acting Chairman Domondon clarified that the Board was precluded from releasing the Examination Papers (other than
petitioners answer sheet) by Section 20, Article IV of PRC Resolution No. 338, series of 1994, which provides:
Sec. 20. Illegal, Immoral, Dishonorable, Unprofessional Acts The hereunder acts shall constitute prejudicial, illegal, grossly
immoral, dishonorable, or unprofessional conduct:
A. Providing, getting, receiving, holding, using or reproducing questions
xxxx
3. that have been given in the examination except if the test bank for the subject has on deposit at least two thousand (2,000)
questions.7
After a further exchange of correspondence,8 the Board informed petitioner that an investigation was conducted into her exam and
there was no mechanical error found in the grading of her test papers.9
Proceedings before the Regional Trial Court
Undeterred, on January 12, 1998, petitioner filed a Petition for Mandamus with Damages against the Board of Accountancy and its
members10 before the Regional Trial Court (RTC) of Manila. The case was raffled to Branch 33, and docketed as Civil Case No. 9886881. The Petition included a prayer for the issuance of a preliminary mandatory injunction ordering the Board of Accountancy and
its members (the respondents) to furnish petitioner with copies of the Examination Papers. Petitioner also prayed that final judgment
be issued ordering respondents to furnish petitioner with all documents and other materials as would enable her to determine
whether respondents fairly administered the examinations and correctly graded petitioners performance therein, and, if warranted,
to issue to her a certificate of registration as a CPA.11
On February 5, 1998, respondents filed their Opposition to the Application for a Writ of Preliminary Mandatory Injunction, and
argued, inter alia, that petitioner was not entitled to the relief sought, that the respondents did not have the duty to furnish petitioner
with copies of the Examination Papers, and that petitioner had other plain, speedy, adequate remedy in the ordinary course of law,
namely, recourse to the PRC.12 Respondents also filed their Answer with Compulsory Counterclaim in the main case, which asked
that the Petition for Mandamus with Damages be dismissed for lack of merit on the following grounds: (1) petitioner failed to
exhaust administrative remedies; (2) the petition stated no cause of action because there was no ministerial duty to release the
information demanded; and (3) the constitutional right to information on matters of public concern is subject to limitations provided
by law, including Section 20, Article IV, of PRC Resolution No. 338, series of 1994.13
On March 3, 1998, petitioner filed an Amended Petition (which was admitted by the RTC), where she included the following
allegation in the body of her petition:
The allegations in this amended petition are meant only to plead a cause of action for access to the documents requested, not for
re-correction which petitioner shall assert in the proper forum depending on, among others, whether she finds sufficient error in the
documents to warrant such or any other relief. None of the allegations in this amended petition, including those in the following
paragraphs, is made to assert a cause of action for re-correction.14
If only to underscore the fact that she was not asking for a re-checking of her exam, the following prayer for relief was deleted from
the Amended Petition: "and, if warranted, to issue to her a certificate of registration as a CPA."
On June 23, 1998, respondents filed a Manifestation and Motion to Dismiss Application for Writ of Preliminary Mandatory Injunction,
on the ground that petitioner had taken and passed the May 1998 CPA Licensure Examination and had taken her oath as a
CPA.15 Petitioner filed her Opposition on July 8, 1998.16 Subsequently, on October 29, 1998, respondents filed their Answer with
Counterclaim to the amended petition. They reiterated their original allegations and further alleged that there was no cause of action
because at the time the Amended Petition was admitted, they had ceased to be members of the Board of Accountancy and they
were not in possession of the documents sought by the petitioner.17
Ruling of the Regional Trial Court
In an Order dated October 16, 1998, the trial court granted respondents Motion to Dismiss Petitioners Application for a Writ of
Preliminary Mandatory Injunction (not the main case), ruling that the matter had become moot since petitioner passed the May CPA
Licensure 1998 Examination and had already taken her oath as a CPA.18
Undaunted, petitioner sought and obtained leave to file a Second Amended Petition for Mandamus with Damages19 where she
finally impleaded the PRC as respondent and included the following plea in her prayer:
WHEREFORE, petitioner respectfully prays that:
xxxx
2. Judgment be issued

(a) commanding respondents to give petitioner all documents and other materials as would enable her to determine whether
respondents fairly administered the same examinations and correctly graded petitioners performance therein and, if warranted, to
make the appropriate revisions on the results of her examination.(Emphasis ours)
On June 21, 2002, the trial court dismissed the petition on the ground that the petition had already become moot, since petitioner
managed to pass the 1998 CPA Board examinations.20 Petitioner sought reconsideration21which was granted by the trial court in its
Omnibus Order22 dated November 11, 2002. The Omnibus Order provides in part:
On the motion for reconsideration filed by the petitioner, the Court is inclined to reconsider its Order dismissing the petition. The
Court agrees with the petitioner that the passing of the petitioner in the subsequent CPA examination did not render the petition
moot and academic because the relief "and if warranted, to issue to her a certificate of registration as Certified Public Accountant"
was deleted from the original petition. As regard the issue of whether the petitioner has the constitutional right to have access to the
questioned documents, the Court would want first the parties to adduce evidence before it can resolve the issue so that it can make
a complete determination of the rights of the parties.
The Court would also want the Professional Regulation Commission to give its side of the case the moment it is impleaded as a
respondent in the Second Amended Petition for Mandamus filed by the petitioner which this Court is inclined to grant.
As to the Motion for Conservatory Measures filed by the petitioner, the Court denies the same. It is clear that the PRC has in
custody the documents being requested by the petitioner. It has also an adequate facility to preserve and safeguard the documents.
To be sure that the questioned documents are preserved and safeguarded, the Court will order the PRC to preserve and safeguard
the documents and make them available anytime the Court or petitioner needs them.
WHEREFORE, the Order of this Court dated June 20, 2002 is reconsidered and set aside. The Professional Regulation
Commission is ordered to preserve and safeguard the following documents:
a) Questionnaire in each of the seven subjects comprising the Accountancy Examination of October, 1997;
b) Petitioners Answer Sheets; and
c) Answer keys to the questionnaires.
SO ORDERED.23
Respondents filed a motion for reconsideration which was denied.24
Proceedings before the Court of Appeals
The RTC Decisions led to the filing of three separate petitions for certiorari before the Court of Appeals (CA):
(a) CA-GR SP No. 76498, a petition filed by respondents Domondon, Gangan, and Josef on April 11, 2003;
(b) CA-GR SP No. 76546, a petition filed by respondent Ibe on April 30, 2003; and
(c) CA-GR SP No. 76545, a petition filed by the Board of Accountancy and PRC.
It is the first two proceedings that are pending before us. In both cases, the CA set aside the RTC Decisions and ordered the
dismissal of Civil Case No. 98-8681.
Ruling of the Court of Appeals
In its December 11, 2006 Decision25 in CA-GR SP No. 76546, the CA ruled that the petition has become moot in view of petitioners
eventual passing of the 1998 CPA Board Exam. In CA-GR SP No. 76498, the CA found, in a Decision dated February 16,
2004,26 that (i) Section 20, Article IV of PRC Resolution No. 338 constituted a valid limitation on petitioners right to information and
access to government documents; (ii) the Examination Documents were not of public concern, because petitioner merely sought
review of her failing marks; (iii) it was not the ministerial or mandatory function of the respondents to review and reassess the
answers to examination questions of a failing examinee; (iv) the case has become moot, since petitioner already passed the May
1998 CPA Board Examinations and took her oath as a CPA; and (v) petitioner failed to exhaust administrative remedies, because,
having failed to secure the desired outcome from the respondents, she did not elevate the matter to the PRC before seeking judicial
intervention.27
CA-GR SP No. 76498 and CA-GR SP No. 76546 were brought before us by the petitioner and docketed as G.R. Nos. 165036 and
175705, respectively. The cases were then consolidated, in view of the similarity of the factual antecedents and issues, and to avoid
the possibility of conflicting decisions by different divisions of this Court.28
Issues
Before us, petitioner argues that she has a right to obtain copies of the examination papers so she can determine for herself why
and how she failed and to ensure that the Board properly performed its duties. She argues that the Constitution29 as well as the
Code of Conduct and Ethical Standards for Public Officials and Employees30support her right to demand access to the Examination
Papers. Furthermore, she claims that there was no need to exhaust administrative remedies, since no recourse to the PRC was

available, and only a pure question of law is involved in this case. Finally, she claims that her demand for access to documents was
not rendered moot by her passing of the 1998 CPA Board Exams.
Our Ruling
Propriety of Writ of Mandamus
At the very outset let us be clear of our ruling. Any claim for re-correction or revision of her 1997 examination cannot be compelled
by mandamus. This much was made evident by our ruling in Agustin-Ramos v. Sandoval,31where we stated:
After deliberating on the petition in relation to the other pleadings filed in the proceedings at bar, the Court resolved to DENY said
petition for lack of merit. The petition at bar prays for the setting aside of the Order of respondent Judge dismissing petitioners
mandamus action to compel the other respondents (Medical Board of Examiners and the Professional Regulation Commission) "to
reconsider, recorrect and/or rectify the board ratings of the petitioners from their present failing grades to higher or passing
marks." The function of reviewing and re-assessing the petitioners answers to the examination questions, in the light of the facts
and arguments presented by them x x x is a discretionary function of the Medical Board, not a ministerial and mandatory one,
hence, not within the scope of the writ of mandamus. The obvious remedy of the petitioners from the adverse judgment by the
Medical Board of Examiners was an appeal to the Professional Regulation Commission itself, and thence to the Court of Appeals;
and since they did not apply for relief to the Commission prior to their institution of the special civil action of mandamus in the
Regional Trial Court, the omission was fatal to the action under the familiar doctrine requiring exhaustion of administrative
remedies. Apart from the obvious undesirability of a procedure which would allow Courts to substitute their judgment for that of
Government boards in the determination of successful examinees in any administered examination an area in which courts have
no expertise and the circumstance that the law declares the Court of Appeals to be the appropriate review Court, the Regional
Trial Court was quite correct in refusing to take cognizance of an action seeking reversal of the quasi-judicial action taken by the
Medical Board of Examiners.32 (Emphasis ours)
For a writ of mandamus to issue, the applicant must have a well-defined, clear, and certain legal right to the thing demanded. The
corresponding duty of the respondent to perform the required act must be equally clear.33No such clarity exists here; neither does
petitioners right to demand a revision of her examination results. And despite petitioners assertions that she has not made any
demand for re-correction, the most cursory perusal of her Second Amended Petition and her prayer that the respondents "make the
appropriate revisions on the results of her examination" belies this claim.
Like the claimants in Agustin, the remedy of petitioner from the refusal of the Board to release the Examination Papers should have
been through an appeal to the PRC. Undoubtedly, petitioner had an adequate remedy from the Boards refusal to provide her with
copies of the Examination Papers. Under Section 5(a) of Presidential Decree No. 223,34 the PRC has the power to promulgate rules
and regulations to implement policies for the regulation of the accounting profession.35 In fact, it is one such regulation (PRC
Resolution No. 338) that is at issue in this case. In addition, under Section 5(c), the PRC has the power to
review, coordinate, integrate and approve the policies, resolutions, rules and regulations, orders or decisions promulgated by the
various Boards with respect to the profession or occupation under their jurisdictions including the results of their licensure
examinations but their decisions on administrative cases shall be final and executory unless appealed to the Commission within
thirty (30) days from the date of promulgation thereof.
Petitioner posits that no remedy was available because the PRCs power to "review" and "approve" in Section 5(c) only refers to
appeals in decisions concerning administrative investigations36 and not to instances where documents are being requested. Not
only is this position myopic and self-serving, it is bereft of either statutory or jurisprudential basis. The PRCs quasi-legislative and
enforcement powers, encompassing its authority to review and approve "policies, resolutions, rules and regulations, orders, or
decisions" cover more than administrative investigations conducted pursuant to its quasi-judicial powers.37 More significantly, since
the PRC itself issued the resolution questioned by the petitioner here, it was in the best position to resolve questions addressed to
its area of expertise. Indeed, petitioner could have saved herself a great deal of time and effort had she given the PRC the
opportunity to rectify any purported errors committed by the Board.
One of the reasons for exhaustion of administrative remedies is our well-entrenched doctrine on separation of powers, which
enjoins upon the Judiciary a becoming policy of non-interference with matters falling primarily (albeit not exclusively) within the
competence of other departments.38 Courts, for reasons of law, comity and convenience, should not entertain suits unless the
available administrative remedies have first been resorted to and the proper authorities have been given an appropriate opportunity
to act and correct their alleged errors, if any, committed in the administrative forum. 39
However, the principle of exhaustion of administrative remedies is subject to exceptions, among which is when only a question of
law is involved.40 This is because issues of law such as whether petitioner has a constitutional right to demand access to the
Examination Papers - cannot be resolved with finality by the administrative officer.41
Issues of Mootness
We now turn to the question of whether the petition has become moot in view of petitioners having passed the 1998 CPA
examination. An issue becomes moot and academic when it ceases to present a justiciable controversy, so that a declaration on the
issue would be of no practical use or value.42
In this jurisdiction, any citizen may challenge any attempt to obstruct the exercise of his or her right to information and may seek its
enforcement by mandamus.43 And since every citizen possesses the inherent right to be informed by the mere fact of
citizenship,44 we find that petitioners belated passing of the CPA Board Exams does not automatically mean that her interest in the
Examination Papers has become mere superfluity. Undoubtedly, the constitutional question presented, in view of the likelihood that
the issues in this case will be repeated, warrants review.45
The crux of this case is whether petitioner may compel access to the Examination Documents through mandamus. As always, our
inquiry must begin with the Constitution. Section 7, Article III provides:
Sec.7. The right of the people to information on matters of public concern shall be recognized. Access to official records, and to
documents, and papers pertaining to official acts, transactions, or decisions, as well 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.
Together with the guarantee of the right to information, Section 28, Article II promotes full disclosure and transparency in
government, viz:

Sec. 28. Subject to reasonable conditions prescribed by law, the State adopts and implements a policy of full public disclosure of all
its transactions involving public interest.
Like all the constitutional guarantees, the right to information is not absolute. The people's right to information is limited to "matters
of public concern," and is further "subject to such limitations as may be provided by law." Similarly, the State's policy of full
disclosure is limited to "transactions involving public interest," and is "subject to reasonable conditions prescribed by law". The
Court has always grappled with the meanings of the terms "public interest" and "public concern." As observed in Legaspi v. Civil
Service Commission:46
In determining whether x x x a particular information is of public concern there is no rigid test which can be applied. "Public concern"
like "public interest" is a term that eludes exact definition. Both terms embrace a broad spectrum of subjects which the public may
want to know, either because these directly affect their lives, or simply because such matters naturally arouse the interest of an
ordinary citizen. In the final analysis, it is for the courts to determine on a case by case basis whether the matter at issue is of
interest or importance, as it relates to or affects the public.
We have also recognized the need to preserve a measure of confidentiality on some matters, such as national security, trade
secrets and banking transactions, criminal matters, and other confidential matters.47
We are prepared to concede that national board examinations such as the CPA Board Exams are matters of public concern. The
populace in general, and the examinees in particular, would understandably be interested in the fair and competent administration
of these exams in order to ensure that only those qualified are admitted into the accounting profession. And as with all matters
pedagogical, these examinations could be not merely quantitative means of assessment, but also means to further improve the
teaching and learning of the art and science of accounting.
On the other hand, we do realize that there may be valid reasons to limit access to the Examination Papers in order to properly
administer the exam. More than the mere convenience of the examiner, it may well be that there exist inherent difficulties in the
preparation, generation, encoding, administration, and checking of these multiple choice exams that require that the questions and
answers remain confidential for a limited duration. However, the PRC is not a party to these proceedings. They have not been given
an opportunity to explain the reasons behind their regulations or articulate the justification for keeping the Examination Documents
confidential. In view of the far-reaching implications of this case, which may impact on every board examination administered by the
PRC, and in order that all relevant issues may be ventilated, we deem it best to remand these cases to the RTC for further
proceedings.
IN VIEW OF THE FOREGOING, the petitions are GRANTED. The December 11, 2006 and February 16, 2004 Decisions of the
Court of Appeals in CA-GR SP No. 76546 and CA-GR SP No. 76498, respectively, are hereby SET ASIDE. The November 11, 2002
and January 30, 2003 Orders of the Regional Trial Court of Manila, Branch 33, in Civil Case No. 98-86881 are AFFIRMED. The
case is remanded to the Regional Trial Court for further proceedings.
SO ORDERED.
Right to Form Associations
Art. III, Sec. 8
G.R. No. L-60403 August 3, 1983
ALLIANCE OF GOVERNMENT WORKERS (AGW); PNB-FEMA BANK EMPLOYEES ASSOCIATION (AGW); KAISAHAN AT
KAPATIRAN NG MGA MANGAGAWA AT KAWANI NG MWSS (AGW); BALARA EMPLOYEES ASSOCIATION (AGW); GSIS
WORKERS ASSOCIATION (AGW); SSS EMPLOYEES ASSOCIATION (AGW); PVTA EMPLOYEES ASSOCIATION (AGW);
NATIONAL ALLIANCE OF TEACHERS AND OFFICE WORKERS (AGW); , petitioners,
vs.
THE HONORABLE MINISTER OF LABOR and EMPLOYMENT, PHILIPPINE NATIONAL BANK (PNB); METROPOLITAN
WATERWORKS and SEWERAGE SYSTEM (MWSS); GOVERNMENT SERVICE INSURANCE SYSTEM (GSIS); SOCIAL
SECURITY SYSTEM (SSS); PHILIPPINE VIRGINIA TOBACCO ADMINISTRATION (PVTA) PHILIPPINE NORMAL COLLEGE
(PNC); POLYTECHNIC UNIVERSITY OF THE PHILIPPINES (PUP),respondents.
The Solicitor General for MOLE, PNB, SSS, PNC and PUP.
Oliver Gesmundo for petitioners.
Jesus C. Gentiles for petitioner SSSEA-AGW.

GUTIERREZ, JR., J.:

Are the branches, agencies, subdivisions, and instrumentalities of the Government, including government owned or controlled
corporations included among the 4 "employers"" under Presidential Decree No. 851 which are required to pay an their employees
receiving a basic salary of not more than P1,000.00 a month, a thirteenth (13th) month pay not later than December 24 of every
year?
Petitioner Alliance of Government Workers (AGW) is a registered labor federation while the other petitioners are its affiliate unions
with members from among the employees of the following offices, schools, or government owned or controlled corporations:

1. Philippine National Bank (PNB) Escolta Street, Manila

2. Metropolitan Waterworks and Sewerage System (MWSS) Katipunan Road, Balara, Quezon City
3. Government Service Insurance System (GSIS) Arroceros Street, Manila
4. Social Security System (SSS) East Avenue, Quezon City
5. Philippine Virginia Tobacco Administration (PVTA) Consolacion Building, Cubao, Quezon City
6. Philippine Normal College (PNC) Ayala Boulevard, Manila
7. Polytechnic University of the Philippines (PUP) Hippodromo Street, Sta. Mesa, Manila
On February 28, 1983, the Philippine Government Employees Association (PGEA) filed a motion to come in as an additional
petitioner.
Presidential Decree No. 851 provides in its entirety:
WHEREAS, it is necessary to further protect the level of real f wages from the ravage of world-wide inflation;
WHEREAS, there has been no increase case in the legal minimum wage rates since 1970;
WHEREAS, the Christmas season is an opportune time for society to show its concern for the plight of the
working masses so they may properly celebrate Christmas and New Year.
NOW, THEREFORE, I, FERDINAND E. MARCOS, by virtue of the powers vested in me by the Constitution do
hereby decree as follows:
SECTION 1. All employers are hereby required to pay all their employees receiving a basic salary of not more
than Pl,000 a month, regardless of the nature of their employment, a 13th-month pay not later than December 24
of every year.
SECTION 2. Employers already paying their employees a 13th-month pay or its equivalent are not covered by
this Decree.
SECTION 3. This Decree shall take effect immediately. Done in the City of Manila, this 16th day of December
1975.
According to the petitioners, P.D. No. 851 requires all employers to pay the 13th-month pay to their employees with one sole
exception found in Section 2 which states that "(E)mployers already paying their employees a 13th month pay or its equivalent are
not covered by this Decree. " The petitioners contend that Section 3 of the Rules and Regulations Implementing Presidential
Decree No. 851 included other types of employers not exempted by the decree. They state that nowhere in the decree is the
secretary, now Minister of Labor and Employment, authorized to exempt other types of employers from the requirement.
Section 3 of the Rules and Regulations Implementing Presidential Decree No. 851 provides:
Section 3. Employers covered The Decree shall apply to all employers except to:
a) Distressed employers, such as (1) those which are currently incurring substantial losses or 112) in the case of
non-profit institutions and organizations, where their income, whether from donations, contributions, grants and
other earnings from any source, has consistently declined by more than forty (40%) per cent of their normal
income for the last two (2) )years, subject to the provision of Section 7 of this issuance.
b) The Government and any of its political subdivisions, including government-owned and controlled corporations,
except)t those corporation, operating essentially as private, ,subsidiaries of the government;
c) Employers already paying their employees 13th-month pay or more in a calendar year or its equivalent at the
of this issuance;
d) Employers of household helpers and persons in the personal service of another in relation to such workers:
and
e) Employers of those who are paid on purely commission, boundary, or task basis and those who are paid a
fixed for performing a specific work, irrespective of the time consumed in the performance thereof, except where

the workers are paid an piece- rate basis in which case the employer shall be covered by this issuance :insofar
ab such workers are concerned ...
The petitioners assail this rule as ultra vires and void. Citing Philippine Apparel Workers'Union v. NIRC et al., (106 SCRA
444); Teoxon v. Members of the Board of' Administators (33 SCRA 585); Santos u. Hon. Estenzo et al., (109 Phil. 419); Hilado u.
Collector of Internal Revenue (100 Phil. 288), and Olsen & Co. Inc. v. Aldanese and Trinidad (43 Phil. 259), the petitioners argue
that regulations adopted under legislative authority must be in harmony with the provisions of the law and for the sole purpose of
carrying into effect its general provisions. They state that a legislative act cannot be amended by a rule and an administrative officer
cannot change the law. Section 3 is challenged as a substantial modification by rule of a Presidential Decree and an unlawful
exercise of legislative power.
Our initial reaction was to deny due course to the petition in a minute resolution, however, considering the important issues
propounded and the fact, that constitutional principles are involved, we have now decided to give due course to the petition, to
consider the various comments as answers and to resolve the questions raised through a full length decision in the exercise of this
Court's symbolic function as an aspect of the power of judicial review.
At the outset, the petitioners are faced with a procedural barrier. The petition is one for declaratory relief, an action not embraced
within the original jurisdiction of the Supreme Court. (Remotigue v. Osmena,, Jr., 21 SCRA 837; Rural Bank of Olongapo v.
Commission of Land Registration, 102 SCRA 794; De la Llana v. Alba, 112 SCRA 294). There is no statutory or jurisprudential basis
for the petitioners' statement that the Supreme Court has original and exclusive jurisdiction over declaratory relief suits where only
questions of law are involved. Jurisdiction is conferred by law. The petitioners have not pointed to any provision of the Constitution
or statute which sustains their sweeping assertion. On this ground alone, the petition could have been dismissed outright.
Following similar action taken in Nacionalista Party v. Angelo Bautista (85 Phil. 101) and Aquino v. Commission on Elections (62
SCRA 275) we have, however, decided to treat the petition as one for mandamus. The petition has far reaching implications and
raises questions that should be resolved. Have the respondents unlawfully excluded the petitioners from the use and enjoyment of
rights to which they are entitled under the law?
An analysis of the "whereases" of P.D. No. 851 shows that the President had in mind only workers in private employment when he
issued the decree. There was no intention to cover persons working in the government service. The decree states:
xxx xxx xxx
WHEREAS, there has been no increase in the legal minimum wage rates since 1970;
xxx xxx xxx
As pointed out by the Solicitor General in his comment for the Minister of Labor and Employment, the Social Security System the
Philippine Normal College, and Polytechnic University, the contention that govermment owned and controlled corporations and
state colleges and universities are covered by the term "all employers" is belied by the nature of the 13- month pay and the intent
behind the decree.
The Solicitor General states:
"Presidential Decree No. 851 is a labor standard law which requires covered employers to pay their employees receiving not more
than P1,000.00 a month an additional thirteenth-month pay. Its purpose is to increase the real wage of the worker (Marcopper
Mining Corp. v. Ople, 105 SCRA 75; and National Federation of Sugar Workers v. Ovejera, G.R. No. 59743, May 31, 1982) as
explained in the'whereas'clause which read:
WHEREAS, it is necessary to further protect the level of real wages from the ravage of worldwide inflation;
WHEREAS, there has been no increase in the legal minimum wage rates since 1970; 11
WHEREAS, the Christmas season is an opportune time for society to show its concern for the
plight of the working masses so they may celebrate the Christmas and New Year.
xxx xxx xxx
What the P.D. No. 851 intended to cover, as explained in the prefatory statement of the Decree, are only those in
the private sector whose real wages require protection from world-wide inflation. This is emphasized by the
"whereas" clause which states that 'there has been no increase in the legal minimum wage rates since 1970'.
This could only refer to the private sector, and not to those in the government service because at the time of the
enactment of Presidential Decree No. 851 in 1975, only the employees in the private sector had not been given
any increase in their minimum wage. The employees in the government service had already been granted in
1974 a ten percent across-the-board increase on their salaries as stated in P.D. No. 525, Section 4.
Moreover, where employees in the government service were to benefit from labor standard laws, their coverage is
explicitly stated in the statute or presidential enactment. This is evident in (a) Presidential Decree No. 390, Sec. 1
which granted emergency cost of living allowance to employees in the national government; (b) Republic Act No.
6111, Sec. 10 on medicare benefits; (c) Presidential Decree No -442, Title II, Article 97 on the applicable minimum
wage rates; (d) Presidential Decree No. 442, Title 11, Article 167 (g) on workmen's compensation; (e) Presidential
Decree No. 1123 which provides for increases in emergency allowance to employees in the private sector and in

salary to government employees in Section 2 thereof; and (f) Executive Order No. 752 granting government
employees a year-end bonus equivalent to one week's pay. Thus, had the intention been to include government
employees under the coverage of Presidential Decree No. 851, said Decree should have expressly so provided
and there should have been accompanying yearly appropriation measures to implement the same. That no such
express provision was provided and no accompanying appropriation measure to was passed clearly show the
intent to exclude government employees from the coverage of P. D. No. 85 1.
We agree.
It is an old rule of statutory construction that restrictive statutes and acts which impose burdens on the public treasury or which
diminish rights and interests, no matter how broad their terms do not embrace the Sovereign, unless the Sovereign is specifically
mentioned. (See Dollar Savings Bank v. United States, 19 Wall (U.S.) 227; United States v. United Mine Workers of America, 330
U.S. 265). The Republic of the Philippines, as sovereign, cannot be covered by a general term like "employer" unless the language
used in the law is clear and specific to that effect.
The issue raised in this petition, however, is more basic and fundamental than a mere ascertainment of intent or a construction of
statutory provisions. It is concerned with a revisiting of the traditional classification of government employment into governmental
functions and proprietary functions and of the many ramifications that this dichotomous treatment presents in the handling of
concerted activities, collective bargaining, and strikes by government employees to wrest concessions in compensation, fringe
benefits, hiring and firing, and other terms and conditions of employment.
The workers in the respondent institutions have not directly petitioned the heads of their respective offices nor their representatives
in the Batasang Pambansa. They have acted through a labor federation and its affiliated unions. In other words, the workers and
employees of these state firms, college, and university are taking collective action through a labor federation which uses the
bargaining power of organized labor to secure increased compensation for its members.
Under the present state of the law and pursuant to the express language of the Constitution, this resort to concerted activity with the
ever present threat of a strike can no longer be allowed.
The general rule in the past and up to the present is that "the terms and conditions of employment in the Government, including any
political subdivision or instrumentality thereof are governed by law" (Section 11, the Industrial Peace Act, R.A. No. 875, as amended
and Article 277, the Labor Code, P.D. No. 442, as amended). Since the terms and conditions of government employment are fixed
by law, government workers cannot use the same weapons employed by workers in the private sector to secure concessions from
their employers. The principle behind labor unionism in private industry is that industrial peace cannot be secured through
compulsion by law. Relations between private employers and their employees rest on an essentially voluntary basis. Subject to the
minimum requirements of wage laws and other labor and welfare legislation, the terms and conditions of employment in the
unionized private sector are settled through the process of collective bargaining. In government employment, however, it is the
legislature and, where properly given delegated power, the administrative heads of government which fix the terms and conditions
of employment. And this is effected through statutes or administrative circulars, rules, and regulations, not through collective
bargaining agreements.
At the same time, the old Industrial Peace Act excepted employees and workers in proprietary functions of government from the
above compulsion of law. Thus, in the past, government employees performing proprietary functions could belong to labor
organizations imposing the obligation to join in strikes or engage in other concerted action. (Section 11, R.A. 875, as amended).
They could and they did engage in concerted activities and various strikes against government owned and controlled corporations
and other government institutions discharging proprietary functions. Among the institutions as falling under the exception in Section
11 of the Industrial Peace Act were respondents Government Service Insurance System (GSISEA v. Alvendia, 108 Phil. 505) and
Social Security System (SSSEA v. Soriano, 7 SCRA 1016). And this Court has supported labor completely in the various strikes and
concerted activities in firms and agencies discharging proprietary functions because the Constitution and the laws allowed these
activities.
The exception, however belongs to the past.
The petitioners state in their counter comment filed July 23, 1982 that the 1973 Constitution is categorical about the grant of the
rights to self- organization and collective bargaining to all workers and that no amount of stretched interpretation of lesser laws like
the Labor Code and the Civil Service Act can overturn the clear message of the Constitution with respect to these rights to selforganization and collective bargaining.
These statements of the petitioners are error insofar as government workers are now concerned.
Under the present Constitution, govemment-owned or controlled corporations are specifically mentioned as embraced by the civil
service. (Section 1, Article XII-B, Constitution). The inclusion of the clause "including every government owned or controlled
corporation" in the 1973 amendments to the Constitution was a deliberate amendment for an express purpose. There may be those
who disagree with the intent of the framers of the amendment but because it is fundamental law, we are all bound by it. The
amendment was intended to correct the situation where more favored employees of the government could enjoy the benefits of two
worlds. They were protected by the laws governing government employment. They could also engage in collective bargaining and
join in strikes to secure higher wages and fringe benefits which equally hardworking employees engaged in government functions
could only envy but not enjoy.
Presidential Decree No. 807, the Civil Service Decree of the Philippines has implemented the 1973 Constitutional amendment. It is
categorical about the inclusion of personnel of government-owned or controlled corporations in the civil service and their being
subject to civil service requirements:
SECTION 56. Government- owned or Controlled Corporations Personnel.All permanent personnel of
government- owned or controlled corporations whose positions are now embraced in the civil service shall
continue in the service until they have been given a chance to qualify in an appropriate examination, but in the
meantime, those who do not possess the appropriate civil service eligibility shall not be promoted until they
qualify in an appropriate civil service examination. Services of temporary personnel ma be y terminated any time.

Personnel of government-owned or controlled corporations are now part of the civil service. It would not be fair to allow them to
engage in concerted activities to wring higher salaries or fringe benefits from Government even as other civil service personnel
such as the hundreds of thousands of public school teachers, soldiers, policemen, health personnel, and other government workers
are denied the right to engage in similar activities.
To say that the words "all employers" in P.D. No. 851 includes the Government and all its agencies, instrumentalities, and
government-owned or controlled corporations would also result in nightmarish budgetary problems.
For instance, the Supreme Court is trying its best to alleviate the financial difficulties of courts, judges, and court personnel in the
entire country but it can do so only within the limits of budgetary appropriations. Public school teachers have been resorting to what
was formerly unthinkable, to mass leaves and demonstrations, to get not a 13th-month pay but promised increases in basic salaries
and small allowances for school uniforms. The budget of the Ministry of Education, Culture and Sports has to be supplemented
every now and then for this purpose. The point is, salaries and fringe benefits of those embraced by the civil service are fixed by
law. Any increases must come from law, from appropriations or savings under the law, and not from concerted activity.
The Government Corporate Counsel, Justice Manuel Lazaro, in his consolidated comment * for respondents GSIS, MWSS, and
PVTA gives the background of the amendment which includes every government-owned or controlled corporation in the embrace of
the civil service:
Records of the 1971 Constitutional Convention show that in the deliberations held relative to what is now Section
1(1) Article XII-B, supra the issue of the inclusion of government-owned or controlled corporations figured
prominently.
The late delegate Roberto S. Oca, a recognized labor leader, vehemently objected to the inclusion of
government-owned or controlled corporations in the Civil Service. He argued that such inclusion would put
asunder the right of workers in government corporations, recognized in jurisprudence under the 1935
Constitution, to form and join labor unions for purposes of collective bargaining with their employers in the same
manner as in the private section (see: records of 1971 Constitutional Convention).
In contrast, other labor experts and delegates to the 1971 Constitutional Convention enlightened the members of
the Committee on Labor on the divergent situation of government workers under the 1935 Constitution, and
called for its rectification. Thus, in a Position Paper dated November-22, 1971, submitted to the Committee on
Labor, 1971 Constitutional Convention, then Acting Commissioner of Civil Service Epi Rev Pangramuyen
declared:
It is the stand, therefore, of this Commission that by reason of the nature of the public employer
and the peculiar character of the public service, it must necessarily regard the right to strike
given to unions in private industry as not applying to public employees and civil service
employees. It has been stated that the Government, in contrast to the private employer,
protects the interests of all people in the public service, and that accordingly, such conflicting
interests as are present in private labor relations could not exist in the relations between
government and those whom they employ.
Moreover, determination of employment conditions as well as supervision of the management
of the public service is in the hands of legislative bodies. It is further emphasized that
government agencies in the performance of their duties have a right to demand undivided
allegiance from their workers and must always maintain a pronounced esprit de corps or firm
discipline among their staff members. It would be highly incompatible with these requirements
of the public service, if personnel took orders from union leaders or put solidarity with members
of the working class above solidarity with the Government. This would be inimical to the public
interest.
Moreover, it is asserted that public employees by joining labor unions may be compelled to
support objectives which are political in nature and thus jeopardize the fundamental principle
that the governmental machinery must be impartial and non-political in the sense of party
politics.' (see: Records of 1971 Constitutional Convention).
Similarly, Delegate Leandro P. Garcia, expressing support for the inclusion of government-owned or controlled
corporations in the Civil Service, argued:
It is meretricious to contend that because Govermnent owned or controlled corporations yield
profits, their employees are entitled to better wages and fringe benefits than employees of
Government other than Government- owned and controlled cor orations which are not making
profits. There is no gainsaying the fact that the capital they use is the people's (see Records of
the 1971 Constitutional Convention).
Summarizing the deliberations of the 1971 Constitutional Convention on the inclusion of Government owned or
controlled corporations, Dean Joaquin G. Bernas, SJ., of the Ateneo de Manila University Professional School of
Law, stated that government-owned corporations came under attack as milking cows of a privileged few enjoying
salaries far higher than their counterparts in the various branches of government, while the capital of these
corporations belongs to the Government and government money is pumped into them whenever on the brink of

disaster, and they should therefore come under the strick surveillance of the Civil Service System. (Bernas, The
1973 Philippine Constitution, Notes and Cases, 1974 ed., p. 524).
The Government Corporate Counsel cites the precedent setting decision in Agricultural- Credit and Cooperative Financing
Administration (ACCFA v. Confederation of Unions in Government Corporations and Offtces CUGCO et al., 30 SCRA 649) as giving
the rationale for coverage of government-owned or controlled corporations by the civil service. We stated ACCFA v. CUGCO that:
... The ACA is a government office or agency engaged in governmental, not proprietary functions. These functions
may not be strictly what President Wilson described as "constituent" (as distinguished from 'ministrant'), [Bacani
vs. National Coconut Corporation, G.R. No. L-9657, Nov. 29,1956, 53 O.G. p. 2800] such as those relating to the
maintenance of peace and the prevention of crime, those regulating property and property rights, those relating to
the administration of justice and the determination of political duties of citizens, and those relating to national
defense and foreign relations. Under this traditional classification, such constituent functions are exercised by the
State as attributes of sovereignty, and not merely to promote the welfare, progress and prosperity of the people
these latter functions being ministrant, the exercise of which is optional on the part of the government.
The growing complexities of modern society, however, have rendered this traditional classification of the functions
of government quite unrealistic, not to say obsolete. The areas which used to be left to private enterprise and
initiative and which the government was called upon to enter optionally, and only "because it was better equipped
to administer for the public welfare than is any private individual or group of individuals," (Malcolm, The
Government of the Philippines, pp. 19-20; Bacani vs. National Coconut Corporation, supra) continue to lose their
well- defined boundaries and to be absorbed within activities that the government must undertake in its sovereign
capacity if it is to meet the increasing social challenges of the times. Here as almost everywhere else the
tendency is undoubtedly towards a greater socialization of economic forces, Here of course this development was
envisioned, indeed adopted as a national policy, by the Constitution itself in its declaration of principle concerning
the promotion of social justice.
Chief Justice Fernando, then an Associate Justice of this Court, observed in a concurring opinion that the traditional classification
into constituent and ministrant functions reflects the primacy at that time of the now discredited and repudiated laissez faire concept
carried over into government. He stated:
The influence exerted by American constitutional doctrines unavoidable when the Philippines was still under
American rule notwithstanding, an influence that has not altogether vanished even after independence,
the laissez faire principle never found fun acceptance in this jurisdiction, even during the period of its full flowering
in the United States. Moreover, to erase any doubts, the Constitutional Convention saw to it that our fundamental
law embodies a policy of the responsibility thrust on government to cope with social and economic problems and
an earnest and sincere commitment to the promotion of the general welfare through state action. It would thus
follow that the force of any legal objection to regulatory measures adversely affecting property rights or to statutes
organizing public corporations that may engage in competition with private enterprise has been blunted. Unless
there be a clear showing of any invasion of rights guaranteed by the Constitution, their validity is a foregone
conclusion. No fear need be entertained that thereby spheres hitherto deemed outside government domain have
been encroached upon. With our explicit disavowal of the 'constituent-ministrant' test, the ghost of the laissezfaire concept no longer stalks the juridical stage."
Our dismissal of this petiti/n should not, by any means, be interpreted to imply that workers in government-owned and controlled
corporations or in state colleges and universities may not enjoy freedom of association. The workers whom the petitioners purport
to represent have the right, which may not be abridged, to form associations or societies for purposes not contrary to law.
(Constitution, Article IV, Section 7). This is a right which share with all public officers and employees and, in fact, by everybody living
in this country. But they may not join associations which impose the obligation to engage in concerted activities in order to get
salaries, fringe benefits, and other emoluments higher than or different frm that provided by law and regulation.
The very Labor Code, P.D. No. 442 as amended,, which governs the registration and provides for the rights of legitimate labor
organizations states:
ART. 277. Government employees. The terms and conditions of employment of all government employees,
including employees of government-owned and controlled corporations, shall be governed by the Civil Service
Law, rules and regulations. Their salaries shall be standardized by the National Assembly as provided for in the
new constitution. However, there shall be no reduction of existing wages, benefits, and other terms and conditions
of employment being enjoyed by them at the time of the adoption of this code.
Section 6, Article XII-B of the Constitution gives added reasons why the government employees represented by the petitioners
cannot expect treatment in matters of salaries different from that extended to all others government personnel. The provision states:
SEC. 6. The National Assembly shall provide for the standardization of compensation of government officials and
employees, including those in government-owned or controlled corporations, taking into account the nature of the
responsibilities pertaining to, and the qualifications required for the positions concerned.
It is the legislature or, in proper cases, the administrative heads of government and not the collective bargaining process nor the
concessions wrung by labor unions from management that determine how much the workers in government-owned or controlled
corporations may receive in terms of salaries, 13th month pay, and other conditions or terms of employment. There are government
institutions which can afford to pay two weeks, three weeks, or even 13th-month salaries to their personnel from their budgetary
appropriations. However, these payments must be pursuant to law or regulation. Presidential Decree No. 985 as amended
provides:

xxx xxx xxx

SEC. 2. Declaration of Policy. It is hereby declared to be the policy, of the national government to provide equal
pay for substantially, equal work and to base differences in pay upon substantive differences in duties and
responsibilities, and qualification requirements of the positions. In determining rates of pay, due regard shall be
given to, among others, prevailing rates in private industry for comparable work. For this purpose, there is hereby
established a system of compensation standardization and position classification in the national government for
all departments, bureaus, agencies, and officers including government-owned or controlled corporations and
financial institutions: Provided, That notwithstanding a standardized salary system established for all employees,
additional financial incentives may be established by government corporations and financial institutions for their
employees to be supported fully from their corporate funds and for such technical positions as may be approved
by the President in critical government agencies.
The Solicitor-General correctly points out that to interpret P.D. No. 851 as including government employees would upset the
compensation levels of government employees in violation of those fixed according to P.D. No. 985.
Here as in other countries, government salaries and wages have always been lower than salaries, wages, and bonuses in the
private sector. However, civil servants have no cause for despair. Service in the government may at times be a sacrifice but it is also
a welcome privilege. Apart from the emotional and psychic satisfactions, there are various material advantages. The security of
tenure guaranteed to those in the civil service by the Constitution and statutes, the knowledge that one is working for the most
stable of employers and not for private persons, the merit system in appointments and promotions, the scheme of vacation, sick,
and maternity leave privileges, and the prestige and dignity associated with public office are only a few of the joys of government
employment.
Section 3 of the Rules and Regulations Implementing Presidential Decree No. 851 is, therefore, a correct interpretation of the
decree. It has been implemented and enforced from December 22, 1975 to the present, The petitioners have shown no valid reason
why it should be nullified because of their petition filed six and a half years after the issuance and implementation of the rule.
WHEREFORE, the petition is hereby DISMISSED for lack of merit.
SO ORDERED.
G.R. Nos. L-32613-14 December 27, 1972
PEOPLE OF THE PHILIPPINES, petitioner,
vs.
HON. SIMEON. FERRER (in his capacity as Judge of the Court of First Instance of Tarlac, Branch I), FELICIANO CO alias
LEONCIO CO alias "Bob," and NILO S. TAYAG alias Romy Reyes alias "Taba,"respondents.
Solicitor R. Mutuc for respondent Feliciano Co.
Jose W. Diokno for respondent Nilo Tayag.

CASTRO, J.:p
I. Statement of the Case
Posed in issue in these two cases is the constitutionality of the Anti-Subversion
Act, 1 which outlaws the Communist Party of the Philippines and other "subversive associations," and punishes any person who
"knowingly, willfully and by overt acts affiliates himself with, becomes or remains a member" of the Party or of any other similar
"subversive" organization.
On March 5, 1970 a criminal complaint for violation of section 4 of the Anti-Subversion Act was filed against the respondent
Feliciano Co in the Court of First Instance of Tarlac. On March 10 Judge Jose C. de Guzman conducted a preliminary investigation
and, finding a prima facie case against Co, directed the Government prosecutors to file the corresponding information. The twiceamended information, docketed as Criminal Case No. 27, recites:
That on or about May 1969 to December 5, 1969, in the Municipality of Capas, Province of Tarlac, Philippines,
and within the jurisdiction of this Honorable Court, the abovenamed accused, feloniously became an officer
and/or ranking leader of the Communist Party of the Philippines, an outlawed and illegal organization aimed to
overthrow the Government of the Philippines by means of force, violence, deceit, subversion, or any other illegal
means for the purpose of establishing in the Philippines a totalitarian regime and placing the government under
the control and domination of an alien power, by being an instructor in the Mao Tse Tung University, the training
school of recruits of the New People's Army, the military arm of the said Communist Party of the Philippines.
That in the commission of the above offense, the following aggravating circumstances are present, to wit:

(a) That the crime has been committed in contempt of or with insult to public authorities;
(b) That the crime was committed by a band; and afford impunity.
(c) With the aid of armed men or persons who insure or afford impunity.
Co moved to quash on the ground that the Anti-Subversion Act is a bill of attainder.
Meanwhile, on May 25, 1970, another criminal complaint was filed with the same court, sharing the respondent Nilo Tayag and five
others with subversion. After preliminary investigation was had, an information was filed, which, as amended, reads:
The undersigned provincial Fiscal of Tarlac and State Prosecutors duly designated by the Secretary of Justice to
collaborate with the Provincial Fiscal of Tarlac, pursuant to the Order dated June 5, above entitled case, hereby
accuse Nilo S. Tayag, alias Romy Reyes alias TABA, ARTHUR GARCIA, RENATO (REY) CASIPE, ABELARDO
GARCIA, MANUEL ALAVADO, BENJAMIN BIE alias COMMANDER MELODY and several JOHN DOES, whose
identities are still unknown, for violation of REPUBLIC ACT No. 1700, otherwise known as the Anti-Subversion
Law, committed as follows:
That in or about March 1969 and for sometime prior thereto and thereafter, in the Province of Tarlac, within the
jurisdiction of this Honorable Court, and elsewhere in the Philippines, the above-named accused knowingly,
willfully and by overt acts organized, joined and/or remained as offices and/or ranking leaders, of the
KABATAANG MAKABAYAN, a subversive organization as defined in Republic Act No. 1700; that BENJAMIN BIE
and COMMANDER MELODY, in addition thereto, knowingly, willfully and by over acts joined and/or remained as
a member and became an officer and/or ranking leader not only of the Communist Party of the Philippines but
also of the New People's Army, the military arm of the Communist Party of the Philippines; and that all the abovenamed accused, as such officers and/or ranking leaders of the aforestated subversive organizations, conspiring,
confederating and mutually helping one another, did then and there knowingly, willfully and feloniously commit
subversive and/or seditious acts, by inciting, instigating and stirring the people to unite and rise publicly and
tumultuously and take up arms against the government, and/or engage in rebellious conspiracies and riots to
overthrow the government of the Republic of the Philippines by force, violence, deceit, subversion and/or other
illegal means among which are the following:
1. On several occasions within the province of Tarlac, the accused conducted meetings and/or seminars wherein
the said accused delivered speeches instigating and inciting the people to unite, rise in arms and overthrow the
Government of the Republic of the Philippines, by force, violence, deceit, subversion and/or other illegal means;
and toward this end, the said accused organized, among others a chapter of the KABATAANG MAKABAYAN in
barrio Motrico, La Paz, Tarlac for the avowed purpose of undertaking or promoting an armed revolution,
subversive and/or seditious propaganda, conspiracies, and/or riots and/or other illegal means to discredit and
overthrow the Government of the Republic of the Philippines and to established in the Philippines a Communist
regime.
2. The accused NILO TAYAG alias ROMY REYES alias TABA, together with FRANCISCO PORTEM alias KIKO
Gonzales and others, pursued the above subversive and/or seditious activities in San Pablo City by recruiting
members for the New People's Army, and/or by instigating and inciting the people to organize and unite for the
purpose of overthrowing the Government of the Republic of the Philippines through armed revolution, deceit,
subversion and/or other illegal means, and establishing in the Philippines a Communist Government.
That the following aggravating circumstances attended the commission of the offense: (a) aid of armed men or
persons to insure or afford impunity; and (b) craft, fraud, or disguise was employed.
On July 21, 1970 Tayag moved to quash, impugning the validity of the statute on the grounds that (1) it is a bill of attainder; (2) it is
vague; (3) it embraces more than one subject not expressed in the title thereof; and (4) it denied him the equal protection of the
laws.
Resolving the constitutional issues raised, the trial court, in its resolution of September 15, 1970, declared the statute void on the
grounds that it is a bill of attainder and that it is vague and overboard, and dismissed the informations against the two accused. The
Government appealed. We resolved to treat its appeal as a special civil action for certiorari.
II. Is the Act a Bill of Attainder?
Article III, section 1 (11) of the Constitution states that "No bill of attainder or ex port facto law shall be enacted." 2A bill of attainder is
a legislative act which inflicts punishment without trial. 3 Its essence is the substitution of a legislative for a judicial determination of
guilt. 4 The constitutional ban against bills of attainder serves to implement the principle of separation of powers 5 by confining
legislatures to
rule-making 6 and thereby forestalling legislative usurpation of the judicial function. 7 History in perspective, bills of attainder were
employed to suppress unpopular causes and political minorities, 8 and it is against this evil that the constitutional prohibition is
directed. The singling out of a definite class, the imposition of a burden on it, and a legislative intent, suffice to stigmatizea statute
as a bill of attainder. 9

In the case at bar, the Anti-Subversion Act was condemned by the court a quo as a bill of attainder because it "tars and feathers"
the Communist Party of the Philippines as a "continuing menace to the freedom and security of the country; its existence, a 'clear,
present and grave danger to the security of the Philippines.'" By means of the Act, the trial court said, Congress usurped "the
powers of the judge," and assumed "judicial magistracy by pronouncing the guilt of the CCP without any of the forms or safeguards
of judicial trial." Finally, according to the trial court, "if the only issue [to be determined] is whether or not the accused is a knowing
and voluntary member, the law is still a bill of attainder because it has expressly created a presumption of organizational guilt which
the accused can never hope to overthrow."
1. When the Act is viewed in its actual operation, it will be seen that it does not specify the Communist Party of the Philippines or
the members thereof for the purpose of punishment. What it does is simply to declare the Party to be an organized conspiracy for
the overthrow of the Government for the purposes of the prohibition, stated in section 4, against membership in the outlawed
organization. The term "Communist Party of the Philippines" issued solely for definitional purposes. In fact the Act applies not only
to the Communist Party of the Philippines but also to "any other organization having the same purpose and their successors." Its
focus is not on individuals but on conduct. 10
This feature of the Act distinguishes it from section 504 of the U.S. Federal Labor-Management Reporting and Disclosure Act of
1959 11 which, in U.S. vs. Brown, 12 was held to be a bill of attainder and therefore unconstitutional. Section 504 provided in its
pertinent parts as follows:
(a) No person who is or has been a member of the Communist
Party ... shall serve
(1) as an officer, director, trustee, member of any executive board or similar governing body, business agent,
manager, organizer, or other employee (other than as an employee performing exclusively clerical or custodial
duties) of any labor organization.
during or for five years after the termination of his membership in the Communist Party....
(b) Any person who willfully violates this section shall be fined not more than $10,000 or imprisoned for not more
than one year, or both.
This statute specified the Communist Party, and imposes disability and penalties on its members. Membership in the Party, without
more, ipso facto disqualifies a person from becoming an officer or a member of the governing body of any labor organization. As the
Supreme Court of the United States pointed out:
Under the line of cases just outlined, sec. 504 of the Labor Management Reporting and Disclosure Act plainly
constitutes a bill of attainder. Congress undoubtedly possesses power under the Commerce Clause to enact
legislation designed to keep from positions affecting interstate commerce persons who may use of such positions
to bring about political strikes. In section 504, however, Congress has exceeded the authority granted it by the
Constitution. The statute does not set forth a generally applicable rule decreeing that any person who commits
certain acts or possesses certain characteristics (acts and characteristics which, in Congress' view, make them
likely to initiate political strikes) shall not hold union office, and leaves to courts and juries the job of deciding what
persons have committed the specified acts or possessed the specified characteristics. Instead, it designates in no
uncertain terms the persons who possess the feared characteristics and therefore cannot hold union office
without incurring criminal liability members of the Communist Party.
Communist Party v. Subversive Activities Control Board, 367 US 1, 6 L ed 2d 625, 81 S CT 1357, lend a support
to our conclusion. That case involved an appeal from an order by the Control Board ordering the Communist
Party to register as a "Communist-action organization," under the Subversive Activities Control Act of 1950, 64
Stat 987, 50 USC sec. 781 et seq. (1958 ed). The definition of "Communist-action organization" which the Board
is to apply is set forth in sec. 3 of the Act:
[A]ny organization in the United States ... which (i)is substantially directed, dominated, or controlled by the foreign
government or foreign organization controlling the world Communist movement referred to in section 2 of this title,
and(ii) operates primarily to advance the objectives of such world Communist movement... 64 Stat 989, 50 USC
sec. 782 (1958 ed.)
A majority of the Court rejected the argument that the Act was a bill of attainder, reasoning that sec. 3 does not
specify the persons or groups upon which the deprivations setforth in the Act are to be imposed, but instead sets
forth a general definition. Although the Board has determined in 1953 that the Communist Party was a
"Communist-action organization," the Court found the statutory definition not to be so narrow as to insure that the
Party would always come within it:
In this proceeding the Board had found, and the Court of Appeals has sustained its conclusion, that the
Communist Party, by virtud of the activities in which it now engages, comes within the terms of the Act. If the
Party should at anytime choose to abandon these activities, after it is once registered pursuant to sec. 7, the Act
provides adequate means of relief. (367 US, at 87, 6 L ed 2d at 683)

Indeed, were the Anti-Subversion Act a bill of attainder, it would be totally unnecessary to charge Communists in court, as the law
alone, without more, would suffice to secure their punishment. But the undeniable fact is that their guilt still has to be judicially
established. The Government has yet to prove at the trial that the accused joined the Party knowingly, willfully and by overt acts,
and that they joined the Party, knowing its subversive character and with specific intent to further its basic objective, i.e., to
overthrow the existing Government by force deceit, and other illegal means and place the country under the control and domination
of a foreign power.
As to the claim that under the statute organizationl guilt is nonetheless imputed despite the requirement of proof of knowing
membership in the Party, suffice it to say that is precisely the nature of conspiracy, which has been referred to as a "dragneet
device" whereby all who participate in the criminal covenant are liable. The contention would be correct if the statute were
construed as punishing mere membership devoid of any specific intent to further the unlawful goals of the Party. 13 But the statute
specifically required that membership must be knowing or active, with specific intent to further the illegal objectives of the Party.
That is what section 4 means when it requires that membership, to be unlawful, must be shown to have been acquired "knowingly,
willfully and by overt acts." 14 The ingredient of specific intent to pursue the unlawful goals of the Party must be shown by "overt
acts." 15 This constitutes an element of "membership" distinct from the ingredient of guilty knowledge. The former requires proof of
direct participation in the organization's unlawful activities, while the latter requires proof of mere adherence to the organization's
illegal objectives.
2. Even assuming, however, that the Act specifies individuals and not activities, this feature is not enough to render it a bill of
attainder. A statute prohibiting partners or employees of securities underwriting firms from serving as officers or employees of
national banks on the basis of a legislative finding that the persons mentioned would be subject to the temptation to commit acts
deemed inimical to the national economy, has been declared not to be a bill of attainder. 16 Similarly, a statute requiring every
secret, oath-bound society having a membership of at least twenty to register, and punishing any person who becomes a member
of such society which fails to register or remains a member thereof, was declared valid even if in its operation it was shown to apply
only to the members of the Ku Klux Klan. 17
In the Philippines the validity of section 23 (b) of the Industrial Peace Act, 18 requiring labor unions to file with the Department of
Labor affidavits of union officers "to the effect that they are not members of the Communist Party and that they are not members of
any organization which teaches the overthrow of the Government by force or by any illegal or unconstitutional method," was upheld
by this Court. 19
Indeed, it is only when a statute applies either to named individuals or to easily ascertainable members of a group in such a way as
to inflict punishment on them without a judicial trial does it become a bill of attainder. 20 It is upon this ground that statutes which
disqualified those who had taken part in the rebellion against the Government of the United States during the Civil War from holding
office, 21 or from exercising their profession, 22 or which prohibited the payment of further compensation to individuals named in the
Act on the basis of a finding that they had engages in subversive activities, 23 or which made it a crime for a member of the
Communist Party to serve as an officer or employee of a labor union, 24 have been invalidated as bills of attainder.
But when the judgment expressed in legislation is so universally acknowledged to be certain as to be "judicially noticeable," the
legislature may apply its own rules, and judicial hearing is not needed fairly to make such determination. 25
In New York ex rel. Bryant vs. Zimmerman, 26 the New York legislature passed a law requiring every secret, oath-bound society with
a membership of at least twenty to register, and punishing any person who joined or remained a member of such a society failing to
register. While the statute did not specify the Ku Klux Klan, in its operation the law applied to the KKK exclusively. In sustaining the
statute against the claim that it discriminated against the Ku Klux Klan while exempting other secret, oath-bound organizations like
masonic societies and the Knights of Columbus, the United States Supreme Court relied on common knowledge of the nature and
activities of the Ku Klux Klan. The Court said:
The courts below recognized the principle shown in the cases just cited and reached the conclusion that the
classification was justified by a difference between the two classes of associations shown by experience, and that
the difference consisted (a) in a manifest tendency on the part of one class to make the secrecy surrounding its
purpose and membership a cloak for acts and conduct inimical to personal rights and public welfare, and (b) in
the absence of such a tendency on the part of the other class. In pointing out this difference one of the courts said
of the Ku Klux Klan, the principal association in the included class: "It is a matter of common knowledge that this
organization functions largely at night, its members disguised by hoods and gowns and doing things calculated to
strike terror into the minds of the people;" and later said of the other class: "These organizations and their
purposes are well known, many of them having been in existence for many years. Many of them are oath-bound
and secret. But we hear no complaint against them regarding violation of the peace or interfering with the rights of
others." Another of the courts said: "It is a matter of common knowledge that the association or organization of
which the relator is concededly a member exercises activities tending to the prejudice and intimidation of sundry
classes of our citizens. But the legislation is not confined to this society;" and later said of the other class: "Labor
unions have a recognized lawful purpose. The benevolent orders mentioned in the Benevolent Orders Law have
already received legislative scrutiny and have been granted special privileges so that the legislature may well
consider them beneficial rather than harmful agencies." The third court, after recognizing "the potentialities of evil
in secret societies," and observing that "the danger of certain organizations has been judicially demonstrated,"
meaning in that state, said: "Benevolent orders, labor unions and college fraternities have existed for many
years, and, while not immune from hostile criticism, have on the whole justified their existence."
We assume that the legislature had before it such information as was readily available including the published
report of a hearing, before a committee of the House of Representatives of the 57th Congress relating to the
formation, purposes and activities of the Klu Klux Klan. If so it was advised putting aside controverted evidence

 that the order was a revival of the Ku Klux Klan of an earlier time with additional features borrowed from the
Know Nothing and the A. P. A. orders of other periods; that its memberships was limited to native-born, gentile,
protestant whites; that in part of its constitution and printed creed it proclaimed the widest freedom for all and full
adherence to the Constitution of the United States; in another exacted of its member an oath to shield and
preserve "white supremacy;" and in still another declared any person actively opposing its principles to be "a
dangerous ingredient in the body politic of our country and an enemy to the weal of our national commonwealth;"
that it was conducting a crusade against Catholics, Jews, and Negroes, and stimulating hurtful religious and race
prejudices; that it was striving for political power and assuming a sort of guardianship over the administration of
local, state and national affairs; and that at times it was taking into its own hands the punishment of what some of
its members conceived to be crimes.27
In the Philippines the character of the Communist Party has been the object of continuing scrutiny by this Court. In 1932 we found
the Communist Party of the Philippines to be an illegal association. 28 In 1969 we again found that the objective of the Party was the
"overthrow of the Philippine Government by armed struggle and to establish in the Philippines a communist form of government
similar to that of Soviet Russia and Red China." 29 More recently, in Lansang vs. Garcia, 30 we noted the growth of the Communist
Party of the Philippines and the organization of Communist fronts among youth organizations such as the Kabataang Makabayan
(KM) and the emergence of the New People's Army. After meticulously reviewing the evidence, we said: "We entertain, therefore,
no doubts about the existence of a sizeable group of men who have publicly risen in arms to overthrow the government and have
thus been and still are engaged in rebellion against the Government of the Philippines.
3. Nor is it enough that the statute specify persons or groups in order that it may fall within the ambit of the prohibition against bills
of attainder. It is also necessary that it must apply retroactively and reach past conduct. This requirement follows from the nature of
a bill of attainder as a legislative adjudication of guilt. As Justice Frankfurter observed, "frequently a bill of attainder was ... doubly
objectionable because of its ex post factofeatures. This is the historic explanation for uniting the two mischiefs in one
clause 'No Bill of Attainder or ex post facto law shall be passed.' ... Therefore, if [a statute] is a bill of attainder it is also an ex
post facto law. But if it is not an ex post facto law, the reasons that establish that it is not are persuasive that it cannot be a bill of
attainder." 31
Thus in Gardner vs. Board of Public Works, 32 the U.S. Supreme Court upheld the validity of the Charter of the City of Los Angeles
which provided:
... [N]o person shall hold or retain or be eligible for any public office or employment in the service of the City of
Los Angeles, in any office or department thereof, either elective or appointive, who has within five (5) years prior
to the effective date of this section advised, advocated, or taught, or who may, after this section becomes
effective, become a member of or affiliated with any group, society, association, organization or party which
advises, advocates or teaches or has within said period of five (5) years advised, advocated, or taught the
overthrow by force or violence of the Government of the United States of America or of the State of California.
In upholding the statute, the Court stressed the prospective application of the Act to the petitioner therein, thus:
... Immaterial here is any opinion we might have as to the charter provision insofar as it purported to apply
restrospectively for a five-year period to its effective date. We assume that under the Federal Constitution the
Charter Amendment is valid to the extent that it bars from the city's public service persons who, subsequently to
its adoption in 1941, advise, advocate, or reach the violent overthrow of the Government or who are or become
affiliated with any group doing so. The provisions operating thus prospectively were a reasonable regulation to
protect the municipal service by establishing an employment qualification of loyalty to the State and the United
States.
... Unlike the provisions of the charter and ordinance under which petitioners were removed, the statute in the
Lovett case did not declare general and prospectively operative standards of qualification and eligibility for public
employment. Rather, by its terms it prohibited any further payment of compensationto named individuals or
employees. Under these circumstances, viewed against the legislative background, the statutewas held to have
imposed penalties without judicial trial.
Indeed, if one objection to the bill of attainder is thatCongress thereby assumed judicial magistracy, them it mustbe demonstrated
that the statute claimed to be a bill of attainderreaches past conduct and that the penalties it imposesare inescapable. As the U.S.
Supreme Court observedwith respect to the U.S. Federal Subversive Activities ControlAct of 1950:
Nor is the statute made an act of "outlawry" or of attainderby the fact that the conduct which it regulates is
describedwith such particularity that, in probability, few organizationswill come within the statutory terms.
Legislatures may act tocurb behaviour which they regard as harmful to the public welfare,whether that conduct is
found to be engaged in by manypersons or by one. So long as the incidence of legislation issuch that the persons
who engage in the regulated conduct, bethey many or few, can escape regulation merely by altering thecourse of
their own present activities, there can be no complaintof an attainder. 33
This statement, mutatis mutandis, may be said of theAnti-Subversion Act. Section 4 thereof expressly statesthat the prohibition
therein applies only to acts committed"After the approval of this Act." Only those who "knowingly,willfully and by overt acts affiliate
themselves with,become or remain members of the Communist Party of thePhilippines and/or its successors or of any subversive
association"after June 20, 1957, are punished. Those whowere members of the Party or of any other subversive associationat the
time of the enactment of the law, weregiven the opportunity of purging themselves of liability byrenouncing in writing and under oath

their membershipin the Party. The law expressly provides that such renunciationshall operate to exempt such persons from
penalliability. 34 The penalties prescribed by the Act are thereforenot inescapable.
III. The Act and the Requirements of Due Process
1. As already stated, the legislative declaration in section 2 of the Act that the Communist Party of the Philippinesis an organized
conspiracy for the overthrow of theGovernment is inteded not to provide the basis for a legislativefinding of guilt of the members of
the Party butrather to justify the proscription spelled out in section 4. Freedom of expression and freedom of association are
sofundamental that they are thought by some to occupy a"preferred position" in the hierarchy of constitutional
values. 35 Accordingly, any limitation on their exercise mustbe justified by the existence of a substantive evil. This isthe reason why
before enacting the statute in question Congressconducted careful investigations and then stated itsfindings in the preamble, thus:
... [T]he Communist Party of the Philippines althoughpurportedly a political party, is in fact an organized
conspiracyto overthrow the Government of the Republic of the Philippinesnot only by force and violence but also
by deceit, subversionand other illegal means, for the purpose of establishing in thePhilippines a totalitarian
regime subject to alien dominationand control;
... [T]he continued existence and activities of the CommunistParty of the Philippines constitutes a clear, present
andgrave danger to the security of the Philippines;
... [I]n the face of the organized, systematice and persistentsubversion, national in scope but international in
direction,posed by the Communist Party of the Philippines and its activities,there is urgent need for special
legislation to cope withthis continuing menace to the freedom and security of the country.
In truth, the constitutionality of the Act would be opento question if, instead of making these findings in enactingthe statute,
Congress omitted to do so.
In saying that by means of the Act Congress has assumed judicial magistracy, the trial courd failed to takeproper account of the
distinction between legislative fact and adjudicative fact. Professor Paul Freund elucidatesthe crucial distinction, thus:
... A law forbidding the sale of beverages containingmore than 3.2 per cent of alcohol would raise a question of
legislativefact, i.e., whether this standard has a reasonable relationto public health, morals, and the enforcement
problem. Alaw forbidding the sale of intoxicating beverages (assuming itis not so vague as to require
supplementation by rule-making)would raise a question of adjudicative fact, i.e., whether thisor that beverage is
intoxicating within the meaning of the statuteand the limits on governmental action imposed by the Constitution.
Of course what we mean by fact in each case is itselfan ultimate conclusion founded on underlying facts and
oncriteria of judgment for weighing them.
A conventional formulation is that legislative facts those facts which are relevant to the legislative judgment
will not be canvassed save to determine whether there is a rationalbasis for believing that they exist, while
adjudicativefacts those which tie the legislative enactment to the litigant are to be demonstrated and found
according to the ordinarystandards prevailing for judicial trials. 36
The test formulated in Nebbia vs. new York, 37 andadopted by this Court in Lansang vs. Garcia, 38 is that 'if laws are seen to have a
reasonable relation to a proper legislative purpose, and are neither arbitrary nor discriminatory, the requirements of due process are
satisfied, and judicial determination to that effect renders a court functus officio." The recital of legislative findings implements this
test.
With respect to a similar statement of legislative findingsin the U.S. Federal Subversive Activities Control Actof 1950 (that
"Communist-action organizations" are controlledby the foreign government controlling the worldCommunist movement and that they
operate primarily to"advance the objectives of such world Communist movement"),the U.S. Supreme Court said:
It is not for the courts to reexamine the validity of theselegislative findings and reject them....They are the
productof extensive investigation by Committes of Congress over morethan a decade and a half. Cf. Nebbia v.
New York, 291 U.S.502, 516, 530. We certainly cannot dismiss them as unfoundedirrational imaginings. ... And if
we accept them, as we mustas a not unentertainable appraisal by Congress of the threatwhich Communist
organizations pose not only to existing governmentin the United States, but to the United States as asovereign,
independent Nation. ...we must recognize that thepower of Congress to regulate Communist organizations of
thisnature is
extensive. 39
This statement, mutatis mutandis, may be said of thelegislative findings articulated in the Anti-Subversion Act.
That the Government has a right to protect itself againstsubversion is a proposition too plain to require elaboration.Self-preservation
is the "ultimate value" of society. It surpasses and transcendes every other value, "forif a society cannot protect its very structure
from armedinternal attack, ...no subordinate value can be protected" 40 As Chief Justice Vinson so aptly said in Dennis vs. United
States: 41

Whatever theoretical merit there may be to the argumentthat there is a 'right' to rebellion against dictatorial
governmentsis without force where the existing structure of government provides for peaceful and orderly
change. We rejectany principle of governmental helplessness in the face of preparationfor revolution, which
principle, carried to its logical conclusion,must lead to anarchy. No one could conceive that it isnot within the
power of Congress to prohibit acts intended tooverthrow the government by force and violence.
2. By carefully delimiting the reach of the Act to conduct (as explicitly described in sectin 4 thereof), Congressreaffirmed its respect
for the rule that "even throughthe governmental purpose be legitimate and substantial,that purpose cannot be pursued by means
that broadly stiflefundamental personal liberties when the end can be more narrowly achieved." 42 The requirement
of knowing membership,as distinguished from nominalmembership, hasbeen held as a sufficient basis for penalizing membershipin
a subversive organization. 43 For, as has been stated:
Membership in an organization renders aid and encouragement to the organization; and when membership is
acceptedor retained with knowledge that the organization is engaged inan unlawful purpose, the one accepting or
retaining membershipwith such knowledge makes himself a party to the unlawfulenterprise in which it is
engaged. 44
3. The argument that the Act is unconstitutionallyoverbroad because section 2 merely speaks of "overthrow"of the Government and
overthrow may be achieved by peaceful means, misconceives the function of the phrase"knowingly, willfully and by overt acts" in
section 4. Section 2 is merely a legislative declaration; the definitionsof and the penalties prescribed for the different acts
prescribedare stated in section 4 which requires that membershipin the Communist Party of the Philippines, to be unlawful, must be
acquired "knowingly, willfully and by overt acts." Indeed, the first "whereas" clause makes clear thatthe overthrow contemplated is
"overthrow not only by forceand violence but also be deceit, subversion and other illegalmeans." The absence of this qualificatio in
section 2 appearsto be due more to an oversight rather than to deliberateomission.
Moreover, the word "overthrow' sufficiently connotesthe use of violent and other illegal means. Only in a metaphoricalsense may
one speak of peaceful overthrow ofgovernments, and certainly the law does not speak in metaphors.In the case of the AntiSubversion Act, the use ofthe word "overthrow" in a metaphorical sense is hardlyconsistent with the clearly delineated objective of
the "overthrow,"namely, "establishing in the Philippines a totalitarianregime and place [sic] the Government under thecontrol and
domination of an alien power." What thisCourt once said in a prosecution for sedition is appropos: "The language used by the
appellant clearly imported anoverthrow of the Government by violence, and it should beinterpreted in the plain and obvious sense in
which it wasevidently intended to be understood. The word 'overthrow'could not have been intended as referring to an
ordinarychange by the exercise of the elective franchise. The useof the whip [which the accused exhorted his audience to
useagainst the Constabulary], an instrument designed toleave marks on the sides of adversaries, is inconsistentwith the mild
interpretation which the appellant wouldhave us impute to the language."45
IV. The Act and the Guaranty of Free Expression
As already pointed out, the Act is aimed against conspiracies to overthrow the Government by force, violence orother illegal means.
Whatever interest in freedom of speechand freedom of association is infringed by the prohibitionagainst knowing membership in the
Communist Party ofthe Philippines, is so indirect and so insubstantial as to beclearly and heavily outweighed by the overriding
considerationsof national security and the preservartion of democraticinstitutions in his country.
The membership clause of the U.S. Federal Smith Actis similar in many respects to the membership provision ofthe Anti-Subversion
Act. The former provides:
Whoever organizes or helps or attempts to organize anysociety, group, or assembly of persons who teach,
advocate, orencourage the overthrow or destruction of any such governmentby force or violence; or becomes or
is a member of, or affiliatedwith, any such society, group or assembly of persons, knowingthe purpose thereof
Shall be fined not more than $20,000 or imprisoned notmore than twenty years, or both, and shall be ineligible for
emplymentby the United States or any department or agencythereof, for the five years next following his
conviction.... 46
In sustaining the validity of this provision, the "Court said in Scales vs. United States: 47
It was settled in Dennis that advocacy with which we arehere concerned is not constitutionally protected speech,
and itwas further established that a combination to promote suchadvocacy, albeit under the aegis of what
purports to be a politicalparty, is not such association as is protected by the firstAmendment. We can discern no
reason why membership, whenit constitutes a purposeful form of complicity in a group engagingin this same
forbidden advocacy, should receive anygreater degree of protection from the guarantees of that Amendment.
Moreover, as was held in another case, where the problemsof accommodating the exigencies of self-preservationand the values of
liberty are as complex and intricate as inthe situation described in the legislative findings stated inthe U.S. Federal Subversive
Activities Control Act of 1950,the legislative judgment as to how that threat may best bemet consistently with the safeguards of
personal freedomsis not to be set aside merely because the judgment of judgeswould, in the first instance, have chosen other
methods. 48 For in truth, legislation, "whether it restrains freedom tohire or freedom to speak, is itself an effort at
compromisebetween the claims of the social order and individual freedom,and when the legislative compromise in either case
isbrought to the judicial test the court stands one step removedfrom the conflict and its resolution through law." 49

V. The Act and its Title

The respondent Tayag invokes the constitutional commandthat "no bill which may be enacted into law shall embrace more than one
subject which shall be expressed in the title of the bill." 50
What is assailed as not germane to or embraced in thetitle of the Act is the last proviso of section 4 which reads:
And provided, finally, That one who conspires with anyother person to overthrow the Government of the Republic
ofthe Philippines, or the government of any of its political subdivisionsby force, violence, deceit, subversion or
illegal means,for the purpose of placing such Government or political subdivisionunder the control and domination
of any lien power, shallbe punished by prision correccional to prision mayor with allthe accessory penalties
provided therefor in the same code.
It is argued that the said proviso, in reality, punishes notonly membership in the Communist Party of the Philippinesor similar
associations, but as well "any conspiracyby two persons to overthrow the national or any local governmentby illegal means, even if
their intent is not to establisha totalitarian regime, burt a democratic regime, evenif their purpose is not to place the nation under an
aliencommunist power, but under an alien democratic power likethe United States or England or Malaysia or even an anticommunistpower like Spain, Japan, Thailand or Taiwanor Indonesia."
The Act, in addition to its main title ("An Act to Outlawthe Communist Party of the Philippines and SimilarAssociations, Penalizing
Membership Therein, and forOther Purposes"), has a short title. Section 1 providesthat "This Act shall be known as the
Anti-Subversion Act."Together with the main title, the short title of the statuteunequivocally indicates that the subject matter is
subversionin general which has for its fundamental purpose the substitutionof a foreign totalitarian regime in place of theexisting
Government and not merely subversion by Communistconspiracies..
The title of a bill need not be a catalogue or an indexof its contents, and need not recite the details of the Act. 51 It is a valid title if it
indicates in broad but clear termsthe nature, scope, and consequences of the proposed lawand its operation. 52 A narrow or
technical construction isto be avoided, and the statute will be read fairly and reasonablyin order not to thwart the legislative intent.
We holdthat the Anti-Subversion Act fully satisfies these requirements.
VI. Conclusion and Guidelines
In conclusion, even as we uphold the validity of theAnti-Subversion Act, we cannot overemphasize the needfor prudence and
circumspection in its enforcement, operatingas it does in the sensitive area of freedom of expressionand belief. Accordingly, we set
the following basic guidelines to be observed in any prosecution under the Act.The Government, in addition to proving such
circumstancesas may affect liability, must establish the following elementsof the crime of joining the Communist Party of the
Philippinesor any other subversive association:
(1) In the case of subversive organizations other thanthe Communist Party of the Philippines, (a) that thepurpose of the
organization is to overthrow the presentGovernment of the Philippines and to establish in thiscountry a totalitarian regime under the
domination of aforeign power; (b) that the accused joined such organization;and (c) that he did so knowingly, willfully and byovert
acts; and
(2) In the case of the Communist Party of the Philippines,(a) that the CPP continues to pursue the objectiveswhich led Congress in
1957 to declare it to be an organizedconspiracy for the overthrow of the Government by illegalmeans for the purpose of placing the
country under thecontrol of a foreign power; (b) that the accused joined theCPP; and (c) that he did so willfully, knowingly and
byovert acts.
We refrain from making any pronouncement as to thecrime or remaining a member of the Communist Party ofthe Philippines or of
any other subversive association: weleave this matter to future determination.
ACCORDINGLY, the questioned resolution of September15, 1970 is set aside, and these two cases are herebyremanded to the
court a quo for trial on the merits. Costs de oficio.