[G.R. No. 153888.

July 9, 2003]
ISLAMIC DAWAH COUNCIL OF THE PHILIPPINES, INC., herein represented by PROF. ABDULRAFIH
H. SAYEDY, petitioner, vs. OFFICE OF THE EXECUTIVE SECRETARY of the Office of the President
of the Philippines, herein represented by HON. ALBERTO G. ROMULO, Executive Secretary, and
the OFFICE ON MUSLIM AFFAIRS, herein represented by its Executive Director, HABIB MUJAHAB
HASHIM, respondents.
DECISION
CORONA, J.:
Before us is a petition for prohibition filed by petitioner Islamic Dawah Council of the Philippines, Inc. (IDCP)
praying for the declaration of nullity of Executive Order (EO) 46, s. 2001 and the prohibition of herein
respondents Office of the Executive Secretary and Office of Muslim Affairs (OMA) from implementing the
subject EO.
Petitioner IDCP, a corporation that operates under Department of Social Welfare and Development License
No. SB-01-085, is a non-governmental organization that extends voluntary services to the Filipino people,
especially to Muslim communities. It claims to be a federation of national Islamic organizations and an
active member of international organizations such as the Regional Islamic Dawah Council of Southeast Asia
and the Pacific (RISEAP)[1] and The World Assembly of Muslim Youth. The RISEAP accredited petitioner to
issue halal[2] certifications in the Philippines. Thus, among the functions petitioner carries out is to conduct
seminars, orient manufacturers on halal food and issue halal certifications to qualified products and
manufacturers.
Petitioner alleges that, on account of the actual need to certify food products as halal and also due to halal
food producers request, petitioner formulated in 1995 internal rules and procedures based on the Quran[3]
and the Sunnah[4] for the analysis of food, inspection thereof and issuance of halal certifications. In that
same year, petitioner began to issue, for a fee, certifications to qualified products and food manufacturers.
Petitioner even adopted for use on its halal certificates a distinct sign or logo registered in the Philippine
Patent Office under Patent No. 4-2000-03664.
On October 26, 2001, respondent Office of the Executive Secretary issued EO 46[5] creating the Philippine
Halal Certification Scheme and designating respondent OMA to oversee its implementation. Under the EO,
respondent OMA has the exclusive authority to issue halal certificates and perform other related regulatory
activities.
On May 8, 2002, a news article entitled OMA Warns NGOs Issuing Illegal Halal Certification was published in
the Manila Bulletin, a newspaper of general circulation. In said article, OMA warned Muslim consumers to
buy only products with its official halal certification since those without said certification had not been
subjected to careful analysis and therefore could contain pork or its derivatives. Respondent OMA also sent
letters to food manufacturers asking them to secure the halal certification only from OMA lest they violate
EO 46 and RA 4109.[6] As a result, petitioner lost revenues after food manufacturers stopped securing
certifications from it.
Hence, this petition for prohibition.
Petitioner contends that the subject EO violates the constitutional provision on the separation of Church and
State.[7] It is unconstitutional for the government to formulate policies and guidelines on the halal
certification scheme because said scheme is a function only religious organizations, entity or scholars can
lawfully and validly perform for the Muslims. According to petitioner, a food product becomes halal only
after the performance of Islamic religious ritual and prayer. Thus, only practicing Muslims are qualified to
slaughter animals for food. A government agency like herein respondent OMA cannot therefore perform a
religious function like certifying qualified food products as halal.

Petitioner also maintains that the respondents violated Section 10, Article III of the 1987 Constitution which
provides that (n)o law impairing the obligation of contracts, shall be passed. After the subject EO was
implemented, food manufacturers with existing contracts with petitioner ceased to obtain certifications
from the latter.
Moreover, petitioner argues that the subject EO violates Sections 15 and 16 of Article XIII of the 1987
Constitution which respectively provide:
ROLE AND RIGHTS OF PEOPLES ORGANIZATIONS
Sec. 15. The State shall respect the role of independent peoples organizations to enable the people to
pursue and protect, within the democratic framework, their legitimate and collective interests and
aspirations through peaceful and lawful means.
Peoples organizations are bona fide associations of citizens with demonstrated capacity to promote the
public interest and with identifiable leadership, membership, and structure.
Sec. 16. The rights of the people and their organizations to effective and reasonable participation at all
levels of social, political, and economic decision-making shall not be abridged. The State shall, by law,
facilitate, the establishment of adequate consultation mechanisms.
According to petitioner, the subject EO was issued with utter haste and without even consulting Muslim
peoples organizations like petitioner before it became effective.
We grant the petition.
OMA was created in 1981 through Executive Order No. 697 (EO 697) to ensure the integration of Muslim
Filipinos into the mainstream of Filipino society with due regard to their beliefs, customs, traditions, and
institutions.[8] OMA deals with the societal, legal, political and economic concerns of the Muslim community
as a national cultural community and not as a religious group. Thus, bearing in mind the constitutional
barrier between the Church and State, the latter must make sure that OMA does not intrude into purely
religious matters lest it violate the non-establishment clause and the free exercise of religion provision
found in Article III, Section 5 of the 1987 Constitution.[9]
Freedom of religion was accorded preferred status by the framers of our fundamental law. And this Court
has consistently affirmed this preferred status, well aware that it is "designed to protect the broadest
possible liberty of conscience, to allow each man to believe as his conscience directs, to profess his beliefs,
and to live as he believes he ought to live, consistent with the liberty of others and with the common good.
[10]
Without doubt, classifying a food product as halal is a religious function because the standards used are
drawn from the Quran and Islamic beliefs. By giving OMA the exclusive power to classify food products as
halal, EO 46 encroached on the religious freedom of Muslim organizations like herein petitioner to interpret
for Filipino Muslims what food products are fit for Muslim consumption. Also, by arrogating to itself the task
of issuing halal certifications, the State has in effect forced Muslims to accept its own interpretation of the
Quran and Sunnah on halal food.
To justify EO 46s intrusion into the subject religious activity, the Solicitor General argues that the freedom of
religion is subservient to the police power of the State. By delegating to OMA the authority to issue halal
certifications, the government allegedly seeks to protect and promote the muslim Filipinos right to health,
and to instill health consciousness in them.
We disagree.

Only the prevention of an immediate and grave danger to the security and welfare of the community can
justify the infringement of religious freedom.[11] If the government fails to show the seriousness and
immediacy of the threat, State intrusion is constitutionally unacceptable. In a society with a democratic
framework like ours, the State must minimize its interference with the affairs of its citizens and instead
allow them to exercise reasonable freedom of personal and religious activity.
In the case at bar, we find no compelling justification for the government to deprive Muslim organizations,
like herein petitioner, of their religious right to classify a product as halal, even on the premise that the
health of Muslim Filipinos can be effectively protected by assigning to OMA the exclusive power to issue
halal certifications. The protection and promotion of the Muslim Filipinos right to health are already provided
for in existing laws and ministered to by government agencies charged with ensuring that food products
released in the market are fit for human consumption, properly labeled and safe. Unlike EO 46, these laws
do not encroach on the religious freedom of Muslims.
Section 48(4) of the Administrative Code of 1987 gives to the National Meat Inspection Commission (NMIC)
of the Department of Agriculture (DOA) the power to inspect slaughtered animals intended for human
consumption to ensure the safety of the meat released in the market. Another law, RA 7394, otherwise
known as The Consumer Act of 1992, gives to certain government departments the duty to protect the
interests of the consumer, promote his general welfare and to establish standards of conduct for business
and industry.[12] To this end, a food product, before its distribution to the market, is required to secure the
Philippine Standard Certification Mark after the concerned department inspects and certifies its compliance
with quality and safety standards.[13]
One such government agency designated by RA 7394 is the Bureau of Food and Drugs (BFD) of the
Department of Health (DOH). Under Article 22 of said law, BFD has the duty to promulgate and enforce
rules and regulations fixing and establishing a reasonable definition and standard of identity, a standard of
quality and a standard of fill of containers for food. The BFD also ensures that food products released in the
market are not adulterated.[14]
Furthermore, under Article 48 of RA 7394, the Department of Trade and Industry (DTI) is tasked to protect
the consumer against deceptive, unfair and unconscionable sales acts or practices as defined in Article 50.
[15] DTI also enforces compulsory labeling and fair packaging to enable the consumer to obtain accurate
information as to the nature, quality and quantity of the contents of consumer products and to facilitate his
comparison of the value of such products.[16]
With these regulatory bodies given detailed functions on how to screen and check the quality and safety of
food products, the perceived danger against the health of Muslim and non-Muslim Filipinos alike is totally
avoided. Of great help are the provisions on labeling of food products (Articles 74 to 85)[17] of RA 7394. In
fact, through these labeling provisions, the State ably informs the consuming public of the contents of food
products released in the market. Stiff sanctions are imposed on violators of said labeling requirements.
Through the laws on food safety and quality, therefore, the State indirectly aids Muslim consumers in
differentiating food from non-food products. The NMIC guarantees that the meat sold in the market has
been thoroughly inspected and fit for consumption. Meanwhile, BFD ensures that food products are properly
categorized and have passed safety and quality standards. Then, through the labeling provisions enforced
by the DTI, Muslim consumers are adequately apprised of the products that contain substances or
ingredients that, according to their Islamic beliefs, are not fit for human intake. These are the non-secular
steps put in place by the State to ensure that the Muslim consumers right to health is protected. The halal
certifications issued by petitioner and similar organizations come forward as the official religious approval of
a food product fit for Muslim consumption.
We do not share respondents apprehension that the absence of a central administrative body to regulate
halal certifications might give rise to schemers who, for profit, will issue certifications for products that are
not actually halal. Aside from the fact that Muslim consumers can actually verify through the labels whether

a product contains non-food substances, we believe that they are discerning enough to know who the
reliable and competent certifying organizations in their community are. Before purchasing a product, they
can easily avert this perceived evil by a diligent inquiry on the reliability of the concerned certifying
organization.
WHEREFORE, the petition is GRANTED. Executive Order 46, s. 2001, is hereby declared NULL AND VOID.
Consequently, respondents are prohibited from enforcing the same.
SO ORDERED.
G.R. No. 101083
30, 1993

July

OPOSA
vs.
THE HONORABLE FULGENCIO S. FACTORAN, JR., in his capacity as the Secretary of the
Department of Environment and Natural Resources, and THE HONORABLE ERIBERTO U.
ROSARIO, Presiding Judge of the RTC, Makati, Branch 66, respondents.
DAVIDE, JR., J.:
In a broader sense, this petition bears upon the right of Filipinos to a balanced and healthful ecology which
the petitioners dramatically associate with the twin concepts of "inter-generational responsibility" and
"inter-generational justice." Specifically, it touches on the issue of whether the said petitioners have a cause
of action to "prevent the misappropriation or impairment" of Philippine rainforests and "arrest the unabated
hemorrhage of the country's vital life support systems and continued rape of Mother Earth."
The controversy has its genesis in Civil Case No. 90-77 which was filed before Branch 66 (Makati, Metro
Manila) of the Regional Trial Court (RTC), National Capital Judicial Region. The principal plaintiffs therein,
now the principal petitioners, are all minors duly represented and joined by their respective parents.
Impleaded as an additional plaintiff is the Philippine Ecological Network, Inc. (PENI), a domestic, non-stock
and non-profit corporation organized for the purpose of, inter alia, engaging in concerted action geared for
the protection of our environment and natural resources. The original defendant was the Honorable
Fulgencio S. Factoran, Jr., then Secretary of the Department of Environment and Natural Resources (DENR).
His substitution in this petition by the new Secretary, the Honorable Angel C. Alcala, was subsequently
ordered upon proper motion by the petitioners. 1 The complaint 2 was instituted as a taxpayers' class suit 3
and alleges that the plaintiffs "are all citizens of the Republic of the Philippines, taxpayers, and entitled to
the full benefit, use and enjoyment of the natural resource treasure that is the country's virgin tropical
forests." The same was filed for themselves and others who are equally concerned about the preservation
of said resource but are "so numerous that it is impracticable to bring them all before the Court." The
minors further asseverate that they "represent their generation as well as generations yet unborn." 4
Consequently, it is prayed for that judgment be rendered:
. . . ordering defendant, his agents, representatives and other persons acting in his behalf to
(1)
Cancel all existing timber license agreements in the country;
(2)
Cease and desist from receiving, accepting, processing, renewing or approving new timber license
agreements.

and granting the plaintiffs ". . . such other reliefs just and equitable under the premises." 5
The complaint starts off with the general averments that the Philippine archipelago of 7,100 islands has a
land area of thirty million (30,000,000) hectares and is endowed with rich, lush and verdant rainforests in
which varied, rare and unique species of flora and fauna may be found; these rainforests contain a genetic,
biological and chemical pool which is irreplaceable; they are also the habitat of indigenous Philippine
cultures which have existed, endured and flourished since time immemorial; scientific evidence reveals that
in order to maintain a balanced and healthful ecology, the country's land area should be utilized on the
basis of a ratio of fifty-four per cent (54%) for forest cover and forty-six per cent (46%) for agricultural,
residential, industrial, commercial and other uses; the distortion and disturbance of this balance as a
consequence of deforestation have resulted in a host of environmental tragedies, such as (a) water
shortages resulting from drying up of the water table, otherwise known as the "aquifer," as well as of rivers,
brooks and streams, (b) salinization of the water table as a result of the intrusion therein of salt water,
incontrovertible examples of which may be found in the island of Cebu and the Municipality of Bacoor,
Cavite, (c) massive erosion and the consequential loss of soil fertility and agricultural productivity, with the
volume of soil eroded estimated at one billion (1,000,000,000) cubic meters per annum approximately
the size of the entire island of Catanduanes, (d) the endangering and extinction of the country's unique,
rare and varied flora and fauna, (e) the disturbance and dislocation of cultural communities, including the
disappearance of the Filipino's indigenous cultures, (f) the siltation of rivers and seabeds and consequential
destruction of corals and other aquatic life leading to a critical reduction in marine resource productivity, (g)
recurrent spells of drought as is presently experienced by the entire country, (h) increasing velocity of
typhoon winds which result from the absence of windbreakers, (i) the floodings of lowlands and agricultural
plains arising from the absence of the absorbent mechanism of forests, (j) the siltation and shortening of
the lifespan of multi-billion peso dams constructed and operated for the purpose of supplying water for
domestic uses, irrigation and the generation of electric power, and (k) the reduction of the earth's capacity
to process carbon dioxide gases which has led to perplexing and catastrophic climatic changes such as the
phenomenon of global warming, otherwise known as the "greenhouse effect."
Plaintiffs further assert that the adverse and detrimental consequences of continued and deforestation are
so capable of unquestionable demonstration that the same may be submitted as a matter of judicial notice.
This notwithstanding, they expressed their intention to present expert witnesses as well as documentary,
photographic and film evidence in the course of the trial.
As their cause of action, they specifically allege that:
CAUSE OF ACTION
7.
Plaintiffs replead by reference the foregoing allegations.
8.
Twenty-five (25) years ago, the Philippines had some sixteen (16) million hectares of rainforests constituting
roughly 53% of the country's land mass.
9.
Satellite images taken in 1987 reveal that there remained no more than 1.2 million hectares of said
rainforests or four per cent (4.0%) of the country's land area.
10.

More recent surveys reveal that a mere 850,000 hectares of virgin old-growth rainforests are left, barely
2.8% of the entire land mass of the Philippine archipelago and about 3.0 million hectares of immature and
uneconomical secondary growth forests.
11.
Public records reveal that the defendant's, predecessors have granted timber license agreements ('TLA's')
to various corporations to cut the aggregate area of 3.89 million hectares for commercial logging purposes.
A copy of the TLA holders and the corresponding areas covered is hereto attached as Annex "A".
12.
At
the present rate of deforestation, i.e. about 200,000 hectares per annum or 25 hectares per hour
nighttime, Saturdays, Sundays and holidays included the Philippines will be bereft of forest resources
after the end of this ensuing decade, if not earlier.
13.
The
adverse effects, disastrous consequences, serious injury and irreparable damage of this continued trend of
deforestation to the plaintiff minor's generation and to generations yet unborn are evident and
incontrovertible. As a matter of fact, the environmental damages enumerated in paragraph 6 hereof are
already being felt, experienced and suffered by the generation of plaintiff adults.
14.
The
continued allowance by defendant of TLA holders to cut and deforest the remaining forest stands will work
great damage and irreparable injury to plaintiffs especially plaintiff minors and their successors who
may never see, use, benefit from and enjoy this rare and unique natural resource treasure.
This act of defendant constitutes a misappropriation and/or impairment of the natural resource property he
holds in trust for the benefit of plaintiff minors and succeeding generations.
15.
Plaintiffs have a clear and constitutional right to a balanced and healthful ecology and are entitled to
protection by the State in its capacity as the parens patriae.
16.
Plaintiff have exhausted all administrative remedies with the defendant's office. On March 2, 1990, plaintiffs
served upon defendant a final demand to cancel all logging permits in the country.
A copy of the plaintiffs' letter dated March 1, 1990 is hereto attached as Annex "B".
17.
Defendant, however, fails and refuses to cancel the existing TLA's to the continuing serious damage and
extreme prejudice of plaintiffs.
18.
The
continued failure and refusal by defendant to cancel the TLA's is an act violative of the rights of plaintiffs,
especially plaintiff minors who may be left with a country that is desertified (sic), bare, barren and devoid of
the wonderful flora, fauna and indigenous cultures which the Philippines had been abundantly blessed with.

19.
Defendant's refusal to cancel the aforementioned TLA's is manifestly contrary to the public policy
enunciated in the Philippine Environmental Policy which, in pertinent part, states that it is the policy of the
State
(a)
to
create, develop, maintain and improve conditions under which man and nature can thrive in productive and
enjoyable harmony with each other;
(b)
fulfill the social, economic and other requirements of present and future generations of Filipinos and;

to

(c)
to
ensure the attainment of an environmental quality that is conductive to a life of dignity and well-being. (P.D.
1151, 6 June 1977)
20.
Furthermore, defendant's continued refusal to cancel the aforementioned TLA's is contradictory to the
Constitutional policy of the State to
a.
effect "a more equitable distribution of opportunities, income and wealth" and "make full and efficient use
of natural resources (sic)." (Section 1, Article XII of the Constitution);
b.
tect the nation's marine wealth." (Section 2, ibid);

"pro

c.
nserve and promote the nation's cultural heritage and resources (sic)" (Section 14, Article XIV, id.);

"co

d.
"pro
tect and advance the right of the people to a balanced and healthful ecology in accord with the rhythm and
harmony of nature." (Section 16, Article II, id.)
21.
Finally, defendant's act is contrary to the highest law of humankind the natural law and violative of
plaintiffs' right to self-preservation and perpetuation.
22.
There is no other plain, speedy and adequate remedy in law other than the instant action to arrest the
unabated hemorrhage of the country's vital life support systems and continued rape of Mother Earth. 6
On 22 June 1990, the original defendant, Secretary Factoran, Jr., filed a Motion to Dismiss the complaint
based on two (2) grounds, namely: (1) the plaintiffs have no cause of action against him and (2) the issue
raised by the plaintiffs is a political question which properly pertains to the legislative or executive branches
of Government. In their 12 July 1990 Opposition to the Motion, the petitioners maintain that (1) the
complaint shows a clear and unmistakable cause of action, (2) the motion is dilatory and (3) the action
presents a justiciable question as it involves the defendant's abuse of discretion.

On 18 July 1991, respondent Judge issued an order granting the aforementioned motion to dismiss. 7 In the
said order, not only was the defendant's claim that the complaint states no cause of action against him
and that it raises a political question sustained, the respondent Judge further ruled that the granting of
the relief prayed for would result in the impairment of contracts which is prohibited by the fundamental law
of the land.
Plaintiffs thus filed the instant special civil action for certiorari under Rule 65 of the Revised Rules of Court
and ask this Court to rescind and set aside the dismissal order on the ground that the respondent Judge
gravely abused his discretion in dismissing the action. Again, the parents of the plaintiffs-minors not only
represent their children, but have also joined the latter in this case. 8
On 14 May 1992, We resolved to give due course to the petition and required the parties to submit their
respective Memoranda after the Office of the Solicitor General (OSG) filed a Comment in behalf of the
respondents and the petitioners filed a reply thereto.
Petitioners contend that the complaint clearly and unmistakably states a cause of action as it contains
sufficient allegations concerning their right to a sound environment based on Articles 19, 20 and 21 of the
Civil Code (Human Relations), Section 4 of Executive Order (E.O.) No. 192 creating the DENR, Section 3 of
Presidential Decree (P.D.) No. 1151 (Philippine Environmental Policy), Section 16, Article II of the 1987
Constitution recognizing the right of the people to a balanced and healthful ecology, the concept of
generational genocide in Criminal Law and the concept of man's inalienable right to self-preservation and
self-perpetuation embodied in natural law. Petitioners likewise rely on the respondent's correlative
obligation per Section 4 of E.O. No. 192, to safeguard the people's right to a healthful environment.
It is further claimed that the issue of the respondent Secretary's alleged grave abuse of discretion in
granting Timber License Agreements (TLAs) to cover more areas for logging than what is available involves
a judicial question.
Anent the invocation by the respondent Judge of the Constitution's non-impairment clause, petitioners
maintain that the same does not apply in this case because TLAs are not contracts. They likewise submit
that even if TLAs may be considered protected by the said clause, it is well settled that they may still be
revoked by the State when the public interest so requires.
On the other hand, the respondents aver that the petitioners failed to allege in their complaint a specific
legal right violated by the respondent Secretary for which any relief is provided by law. They see nothing in
the complaint but vague and nebulous allegations concerning an "environmental right" which supposedly
entitles the petitioners to the "protection by the state in its capacity as parens patriae." Such allegations,
according to them, do not reveal a valid cause of action. They then reiterate the theory that the question of
whether logging should be permitted in the country is a political question which should be properly
addressed to the executive or legislative branches of Government. They therefore assert that the
petitioners' resources is not to file an action to court, but to lobby before Congress for the passage of a bill
that would ban logging totally.
As to the matter of the cancellation of the TLAs, respondents submit that the same cannot be done by the
State without due process of law. Once issued, a TLA remains effective for a certain period of time usually
for twenty-five (25) years. During its effectivity, the same can neither be revised nor cancelled unless the
holder has been found, after due notice and hearing, to have violated the terms of the agreement or other
forestry laws and regulations. Petitioners' proposition to have all the TLAs indiscriminately cancelled without
the requisite hearing would be violative of the requirements of due process.
Before going any further, We must first focus on some procedural matters. Petitioners instituted Civil Case
No. 90-777 as a class suit. The original defendant and the present respondents did not take issue with this
matter. Nevertheless, We hereby rule that the said civil case is indeed a class suit. The subject matter of the

complaint is of common and general interest not just to several, but to all citizens of the Philippines.
Consequently, since the parties are so numerous, it, becomes impracticable, if not totally impossible, to
bring all of them before the court. We likewise declare that the plaintiffs therein are numerous and
representative enough to ensure the full protection of all concerned interests. Hence, all the requisites for
the filing of a valid class suit under Section 12, Rule 3 of the Revised Rules of Court are present both in the
said civil case and in the instant petition, the latter being but an incident to the former.
This case, however, has a special and novel element. Petitioners minors assert that they represent their
generation as well as generations yet unborn. We find no difficulty in ruling that they can, for themselves,
for others of their generation and for the succeeding generations, file a class suit. Their personality to sue in
behalf of the succeeding generations can only be based on the concept of intergenerational responsibility
insofar as the right to a balanced and healthful ecology is concerned. Such a right, as hereinafter
expounded, considers
the "rhythm and harmony of nature." Nature means the created world in its entirety. 9 Such rhythm and
harmony indispensably include, inter alia, the judicious disposition, utilization, management, renewal and
conservation of the country's forest, mineral, land, waters, fisheries, wildlife, off-shore areas and other
natural resources to the end that their exploration, development and utilization be equitably accessible to
the present as well as future generations. 10 Needless to say, every generation has a responsibility to the
next to preserve that rhythm and harmony for the full enjoyment of a balanced and healthful ecology. Put a
little differently, the minors' assertion of their right to a sound environment constitutes, at the same time,
the performance of their obligation to ensure the protection of that right for the generations to come.
The locus standi of the petitioners having thus been addressed, We shall now proceed to the merits of the
petition.
After a careful perusal of the complaint in question and a meticulous consideration and evaluation of the
issues raised and arguments adduced by the parties, We do not hesitate to find for the petitioners and rule
against the respondent Judge's challenged order for having been issued with grave abuse of discretion
amounting to lack of jurisdiction. The pertinent portions of the said order reads as follows:
xxx

xxx
xxx

After a careful and circumspect evaluation of the Complaint, the Court cannot help but agree with the
defendant. For although we believe that plaintiffs have but the noblest of all intentions, it (sic) fell short of
alleging, with sufficient definiteness, a specific legal right they are seeking to enforce and protect, or a
specific legal wrong they are seeking to prevent and redress (Sec. 1, Rule 2, RRC). Furthermore, the Court
notes that the Complaint is replete with vague assumptions and vague conclusions based on unverified
data. In fine, plaintiffs fail to state a cause of action in its Complaint against the herein defendant.
Furthermore, the Court firmly believes that the matter before it, being impressed with political color and
involving a matter of public policy, may not be taken cognizance of by this Court without doing violence to
the sacred principle of "Separation of Powers" of the three (3) co-equal branches of the Government.
The Court is likewise of the impression that it cannot, no matter how we stretch our jurisdiction, grant the
reliefs prayed for by the plaintiffs, i.e., to cancel all existing timber license agreements in the country and to
cease and desist from receiving, accepting, processing, renewing or approving new timber license
agreements. For to do otherwise would amount to "impairment of contracts" abhored (sic) by the
fundamental law. 11
We do not agree with the trial court's conclusions that the plaintiffs failed to allege with sufficient
definiteness a specific legal right involved or a specific legal wrong committed, and that the complaint is
replete with vague assumptions and conclusions based on unverified data. A reading of the complaint itself
belies these conclusions.

The complaint focuses on one specific fundamental legal right the right to a balanced and healthful
ecology which, for the first time in our nation's constitutional history, is solemnly incorporated in the
fundamental law. Section 16, Article II of the 1987 Constitution explicitly provides:
Sec. 16.
The
State shall protect and advance the right of the people to a balanced and healthful ecology in accord with
the rhythm and harmony of nature.
This right unites with the right to health which is provided for in the preceding section of the same article:
Sec. 15.
The
State shall protect and promote the right to health of the people and instill health consciousness among
them.
While the right to a balanced and healthful ecology is to be found under the Declaration of Principles and
State Policies and not under the Bill of Rights, it does not follow that it is less important than any of the civil
and political rights enumerated in the latter. Such a right belongs to a different category of rights altogether
for it concerns nothing less than self-preservation and self-perpetuation aptly and fittingly stressed by the
petitioners the advancement of which may even be said to predate all governments and constitutions. As
a matter of fact, these basic rights need not even be written in the Constitution for they are assumed to
exist from the inception of humankind. If they are now explicitly mentioned in the fundamental charter, it is
because of the well-founded fear of its framers that unless the rights to a balanced and healthful ecology
and to health are mandated as state policies by the Constitution itself, thereby highlighting their continuing
importance and imposing upon the state a solemn obligation to preserve the first and protect and advance
the second, the day would not be too far when all else would be lost not only for the present generation, but
also for those to come generations which stand to inherit nothing but parched earth incapable of
sustaining life.
The right to a balanced and healthful ecology carries with it the correlative duty to refrain from impairing
the environment. During the debates on this right in one of the plenary sessions of the 1986 Constitutional
Commission, the following exchange transpired between Commissioner Wilfrido Villacorta and
Commissioner Adolfo Azcuna who sponsored the section in question:
MR. VILLACORTA:
Does this section mandate the State to provide sanctions against all forms of pollution air, water and
noise pollution?
MR. AZCUNA:
Yes, Madam President. The right to healthful (sic) environment necessarily carries with it the correlative
duty of not impairing the same and, therefore, sanctions may be provided for impairment of environmental
balance. 12
The said right implies, among many other things, the judicious management and conservation of the
country's forests.
Without such forests, the ecological or environmental balance would be irreversiby disrupted.
Conformably with the enunciated right to a balanced and healthful ecology and the right to health, as well
as the other related provisions of the Constitution concerning the conservation, development and utilization
of the country's natural resources, 13 then President Corazon C. Aquino promulgated on 10 June 1987 E.O.
No. 192, 14 Section 4 of which expressly mandates that the Department of Environment and Natural

Resources "shall be the primary government agency responsible for the conservation, management,
development and proper use of the country's environment and natural resources, specifically forest and
grazing lands, mineral, resources, including those in reservation and watershed areas, and lands of the
public domain, as well as the licensing and regulation of all natural resources as may be provided for by law
in order to ensure equitable sharing of the benefits derived therefrom for the welfare of the present and
future generations of Filipinos." Section 3 thereof makes the following statement of policy:
Sec. 3. Declaration of Policy. It is hereby declared the policy of the State to ensure the sustainable use,
development, management, renewal, and conservation of the country's forest, mineral, land, off-shore
areas and other natural resources, including the protection and enhancement of the quality of the
environment, and equitable access of the different segments of the population to the development and the
use of the country's natural resources, not only for the present generation but for future generations as
well. It is also the policy of the state to recognize and apply a true value system including social and
environmental cost implications relative to their utilization, development and conservation of our natural
resources.
This policy declaration is substantially re-stated it Title XIV, Book IV of the Administrative Code of 1987, 15
specifically in Section 1 thereof which reads:
Sec. 1. Declaration of Policy. (1) The State shall ensure, for the benefit of the Filipino people, the full
exploration and development as well as the judicious disposition, utilization, management, renewal and
conservation of the country's forest, mineral, land, waters, fisheries, wildlife, off-shore areas and other
natural resources, consistent with the necessity of maintaining a sound ecological balance and protecting
and enhancing the quality of the environment and the objective of making the exploration, development
and utilization of such natural resources equitably accessible to the different segments of the present as
well as future generations.
(2)
The
State shall likewise recognize and apply a true value system that takes into account social and
environmental cost implications relative to the utilization, development and conservation of our natural
resources.
The above provision stresses "the necessity of maintaining a sound ecological balance and protecting and
enhancing the quality of the environment." Section 2 of the same Title, on the other hand, specifically
speaks of the mandate of the DENR; however, it makes particular reference to the fact of the agency's
being subject to law and higher authority. Said section provides:
Sec. 2. Mandate. (1) The Department of Environment and Natural Resources shall be primarily
responsible for the implementation of the foregoing policy.
(2)
It
shall, subject to law and higher authority, be in charge of carrying out the State's constitutional mandate to
control and supervise the exploration, development, utilization, and conservation of the country's natural
resources.
Both E.O. NO. 192 and the Administrative Code of 1987 have set the objectives which will serve as the
bases for policy formulation, and have defined the powers and functions of the DENR.
It may, however, be recalled that even before the ratification of the 1987 Constitution, specific statutes
already paid special attention to the "environmental right" of the present and future generations. On 6 June
1977, P.D. No. 1151 (Philippine Environmental Policy) and P.D. No. 1152 (Philippine Environment Code) were
issued. The former "declared a continuing policy of the State (a) to create, develop, maintain and improve
conditions under which man and nature can thrive in productive and enjoyable harmony with each other,
(b) to fulfill the social, economic and other requirements of present and future generations of Filipinos, and

(c) to insure the attainment of an environmental quality that is conducive to a life of dignity and well-being."
16 As its goal, it speaks of the "responsibilities of each generation as trustee and guardian of the
environment for succeeding generations." 17 The latter statute, on the other hand, gave flesh to the said
policy.
Thus, the right of the petitioners (and all those they represent) to a balanced and healthful ecology is as
clear as the DENR's duty under its mandate and by virtue of its powers and functions under E.O. No. 192
and the Administrative Code of 1987 to protect and advance the said right.
A denial or violation of that right by the other who has the corelative duty or obligation to respect or protect
the same gives rise to a cause of action. Petitioners maintain that the granting of the TLAs, which they
claim was done with grave abuse of discretion, violated their right to a balanced and healthful ecology;
hence, the full protection thereof requires that no further TLAs should be renewed or granted.
A cause of action is defined as:
. . . an act or omission of one party in violation of the legal right or rights of the other; and its essential
elements are legal right of the plaintiff, correlative obligation of the defendant, and act or omission of the
defendant in violation of said legal right. 18
It is settled in this jurisdiction that in a motion to dismiss based on the ground that the complaint fails to
state a cause of action, 19 the question submitted to the court for resolution involves the sufficiency of the
facts alleged in the complaint itself. No other matter should be considered; furthermore, the truth of falsity
of the said allegations is beside the point for the truth thereof is deemed hypothetically admitted. The only
issue to be resolved in such a case is: admitting such alleged facts to be true, may the court render a valid
judgment in accordance with the prayer in the complaint? 20 In Militante vs. Edrosolano, 21 this Court laid
down the rule that the judiciary should "exercise the utmost care and circumspection in passing upon a
motion to dismiss on the ground of the absence thereof [cause of action] lest, by its failure to manifest a
correct appreciation of the facts alleged and deemed hypothetically admitted, what the law grants or
recognizes is effectively nullified. If that happens, there is a blot on the legal order. The law itself stands in
disrepute."
After careful examination of the petitioners' complaint, We find the statements under the introductory
affirmative allegations, as well as the specific averments under the sub-heading CAUSE OF ACTION, to be
adequate enough to show, prima facie, the claimed violation of their rights. On the basis thereof, they may
thus be granted, wholly or partly, the reliefs prayed for. It bears stressing, however, that insofar as the
cancellation of the TLAs is concerned, there is the need to implead, as party defendants, the grantees
thereof for they are indispensable parties.
The foregoing considered, Civil Case No. 90-777 be said to raise a political question. Policy formulation or
determination by the executive or legislative branches of Government is not squarely put in issue. What is
principally involved is the enforcement of a right vis-a-vis policies already formulated and expressed in
legislation. It must, nonetheless, be emphasized that the political question doctrine is no longer, the
insurmountable obstacle to the exercise of judicial power or the impenetrable shield that protects executive
and legislative actions from judicial inquiry or review. The second paragraph of section 1, Article VIII of the
Constitution states that:
Judicial power includes the duty of the courts of justice to settle actual controversies involving rights which
are legally demandable and enforceable, and to determine whether or not there has been a grave abuse of
discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of the
Government.
Commenting on this provision in his book, Philippine Political Law, 22 Mr. Justice Isagani A. Cruz, a
distinguished member of this Court, says:

The first part of the authority represents the traditional concept of judicial power, involving the settlement
of conflicting rights as conferred as law. The second part of the authority represents a broadening of judicial
power to enable the courts of justice to review what was before forbidden territory, to wit, the discretion of
the political departments of the government.
As worded, the new provision vests in the judiciary, and particularly the Supreme Court, the power to rule
upon even the wisdom of the decisions of the executive and the legislature and to declare their acts invalid
for lack or excess of jurisdiction because tainted with grave abuse of discretion. The catch, of course, is the
meaning of "grave abuse of discretion," which is a very elastic phrase that can expand or contract
according to the disposition of the judiciary.
In Daza vs. Singson, 23 Mr. Justice Cruz, now speaking for this Court, noted:
In the case now before us, the jurisdictional objection becomes even less tenable and decisive. The reason
is that, even if we were to assume that the issue presented before us was political in nature, we would still
not be precluded from revolving it under the expanded jurisdiction conferred upon us that now covers, in
proper cases, even the political question. Article VII, Section 1, of the Constitution clearly provides: . . .
The last ground invoked by the trial court in dismissing the complaint is the non-impairment of contracts
clause found in the Constitution. The court a quo declared that:
The Court is likewise of the impression that it cannot, no matter how we stretch our jurisdiction, grant the
reliefs prayed for by the plaintiffs, i.e., to cancel all existing timber license agreements in the country and to
cease and desist from receiving, accepting, processing, renewing or approving new timber license
agreements. For to do otherwise would amount to "impairment of contracts" abhored (sic) by the
fundamental law. 24
We are not persuaded at all; on the contrary, We are amazed, if not shocked, by such a sweeping
pronouncement. In the first place, the respondent Secretary did not, for obvious reasons, even invoke in his
motion to dismiss the non-impairment clause. If he had done so, he would have acted with utmost infidelity
to the Government by providing undue and unwarranted benefits and advantages to the timber license
holders because he would have forever bound the Government to strictly respect the said licenses
according to their terms and conditions regardless of changes in policy and the demands of public interest
and welfare. He was aware that as correctly pointed out by the petitioners, into every timber license must
be read Section 20 of the Forestry Reform Code (P.D. No. 705) which provides:
. . . Provided, That when the national interest so requires, the President may amend, modify, replace or
rescind any contract, concession, permit, licenses or any other form of privilege granted herein . . .
Needless to say, all licenses may thus be revoked or rescinded by executive action. It is not a contract,
property or a property right protested by the due process clause of the Constitution. In Tan vs. Director of
Forestry, 25 this Court held:
. . . A timber license is an instrument by which the State regulates the utilization and disposition of forest
resources to the end that public welfare is promoted. A timber license is not a contract within the purview of
the due process clause; it is only a license or privilege, which can be validly withdrawn whenever dictated
by public interest or public welfare as in this case.
A license is merely a permit or privilege to do what otherwise would be unlawful, and is not a contract
between the authority, federal, state, or municipal, granting it and the person to whom it is granted; neither
is it property or a property right, nor does it create a vested right; nor is it taxation (37 C.J. 168). Thus, this
Court held that the granting of license does not create irrevocable rights, neither is it property or property
rights (People vs. Ong Tin, 54 O.G. 7576).

We reiterated this pronouncement in Felipe Ysmael, Jr. & Co., Inc. vs. Deputy Executive Secretary: 26
. . . Timber licenses, permits and license agreements are the principal instruments by which the State
regulates the utilization and disposition of forest resources to the end that public welfare is promoted. And it
can hardly be gainsaid that they merely evidence a privilege granted by the State to qualified entities, and
do not vest in the latter a permanent or irrevocable right to the particular concession area and the forest
products therein. They may be validly amended, modified, replaced or rescinded by the Chief Executive
when national interests so require. Thus, they are not deemed contracts within the purview of the due
process of law clause [See Sections 3(ee) and 20 of Pres. Decree No. 705, as amended. Also, Tan v. Director
of Forestry, G.R. No. L-24548, October 27, 1983, 125 SCRA 302].
Since timber licenses are not contracts, the non-impairment clause, which reads:
Sec. 10.
law impairing, the obligation of contracts shall be passed. 27

No

cannot be invoked.
In the second place, even if it is to be assumed that the same are contracts, the instant case does not
involve a law or even an executive issuance declaring the cancellation or modification of existing timber
licenses. Hence, the non-impairment clause cannot as yet be invoked. Nevertheless, granting further that a
law has actually been passed mandating cancellations or modifications, the same cannot still be
stigmatized as a violation of the non-impairment clause. This is because by its very nature and purpose,
such as law could have only been passed in the exercise of the police power of the state for the purpose of
advancing the right of the people to a balanced and healthful ecology, promoting their health and
enhancing the general welfare. In Abe vs. Foster Wheeler
Corp. 28 this Court stated:
The freedom of contract, under our system of government, is not meant to be absolute. The same is
understood to be subject to reasonable legislative regulation aimed at the promotion of public health,
moral, safety and welfare. In other words, the constitutional guaranty of non-impairment of obligations of
contract is limited by the exercise of the police power of the State, in the interest of public health, safety,
moral and general welfare.
The reason for this is emphatically set forth in Nebia vs. New York, 29 quoted in Philippine American Life
Insurance Co. vs. Auditor General, 30 to wit:
Under our form of government the use of property and the making of contracts are normally matters of
private and not of public concern. The general rule is that both shall be free of governmental interference.
But neither property rights nor contract rights are absolute; for government cannot exist if the citizen may
at will use his property to the detriment of his fellows, or exercise his freedom of contract to work them
harm. Equally fundamental with the private right is that of the public to regulate it in the common interest.
In short, the non-impairment clause must yield to the police power of the state. 31
Finally, it is difficult to imagine, as the trial court did, how the non-impairment clause could apply with
respect to the prayer to enjoin the respondent Secretary from receiving, accepting, processing, renewing or
approving new timber licenses for, save in cases of renewal, no contract would have as of yet existed in the
other instances. Moreover, with respect to renewal, the holder is not entitled to it as a matter of right.
WHEREFORE, being impressed with merit, the instant Petition is hereby GRANTED, and the challenged Order
of respondent Judge of 18 July 1991 dismissing Civil Case No. 90-777 is hereby set aside. The petitioners
may therefore amend their complaint to implead as defendants the holders or grantees of the questioned

timber license agreements.

No pronouncement as to costs.
SO ORDERED.
G.R. No. 91649

May 14, 1991

ATTORNEYS HUMBERTO BASCO, EDILBERTO BALCE, SOCRATES MARANAN AND LORENZO

SANCHEZ, petitioners,
vs.
PHILIPPINE AMUSEMENTS AND GAMING CORPORATION (PAGCOR), respondent.
PARAS, J.:
A TV ad proudly announces:
"The new PAGCOR responding through responsible gaming."
But the petitioners think otherwise, that is why, they filed the instant petition seeking to annul the
Philippine Amusement and Gaming Corporation (PAGCOR) Charter PD 1869, because it is allegedly
contrary to morals, public policy and order, and because
A.
It
constitutes a waiver of a right prejudicial to a third person with a right recognized by law. It waived the
Manila City government's right to impose taxes and license fees, which is recognized by law;
B.
For
the same reason stated in the immediately preceding paragraph, the law has intruded into the local
government's right to impose local taxes and license fees. This, in contravention of the constitutionally
enshrined principle of local autonomy;
C.
It
violates the equal protection clause of the constitution in that it legalizes PAGCOR conducted gambling,
while most other forms of gambling are outlawed, together with prostitution, drug trafficking and other
vices;
D.
It
violates the avowed trend of the Cory government away from monopolistic and crony economy, and toward
free enterprise and privatization. (p. 2, Amended Petition; p. 7, Rollo)
In their Second Amended Petition, petitioners also claim that PD 1869 is contrary to the declared national
policy of the "new restored democracy" and the people's will as expressed in the 1987 Constitution. The
decree is said to have a "gambling objective" and therefore is contrary to Sections 11, 12 and 13 of Article
II, Sec. 1 of Article VIII and Section 3 (2) of Article XIV, of the present Constitution (p. 3, Second Amended
Petition; p. 21, Rollo).
The procedural issue is whether petitioners, as taxpayers and practicing lawyers (petitioner Basco being
also the Chairman of the Committee on Laws of the City Council of Manila), can question and seek the
annulment of PD 1869 on the alleged grounds mentioned above.
The Philippine Amusements and Gaming Corporation (PAGCOR) was created by virtue of P.D. 1067-A dated
January 1, 1977 and was granted a franchise under P.D. 1067-B also dated January 1, 1977 "to establish,
operate and maintain gambling casinos on land or water within the territorial jurisdiction of the Philippines."

Its operation was originally conducted in the well known floating casino "Philippine Tourist." The operation
was considered a success for it proved to be a potential source of revenue to fund infrastructure and socioeconomic projects, thus, P.D. 1399 was passed on June 2, 1978 for PAGCOR to fully attain this objective.
Subsequently, on July 11, 1983, PAGCOR was created under P.D. 1869 to enable the Government to regulate
and centralize all games of chance authorized by existing franchise or permitted by law, under the following
declared policy
Sec.

1.

Declaration of Policy. It is hereby declared to be the policy of the State to centralize and integrate all
games of chance not heretofore authorized by existing franchises or permitted by law in order to attain the
following objectives:
(a)
To
centralize and integrate the right and authority to operate and conduct games of chance into one corporate
entity to be controlled, administered and supervised by the Government.
(b)
To
establish and operate clubs and casinos, for amusement and recreation, including sports gaming pools,
(basketball, football, lotteries, etc.) and such other forms of amusement and recreation including games of
chance, which may be allowed by law within the territorial jurisdiction of the Philippines and which will: (1)
generate sources of additional revenue to fund infrastructure and socio-civic projects, such as flood control
programs, beautification, sewerage and sewage projects, Tulungan ng Bayan Centers, Nutritional Programs,
Population Control and such other essential public services; (2) create recreation and integrated facilities
which will expand and improve the country's existing tourist attractions; and (3) minimize, if not totally
eradicate, all the evils, malpractices and corruptions that are normally prevalent on the conduct and
operation of gambling clubs and casinos without direct government involvement. (Section 1, P.D. 1869)
To attain these objectives PAGCOR is given territorial jurisdiction all over the Philippines. Under its Charter's
repealing clause, all laws, decrees, executive orders, rules and regulations, inconsistent therewith, are
accordingly repealed, amended or modified.
It is reported that PAGCOR is the third largest source of government revenue, next to the Bureau of Internal
Revenue and the Bureau of Customs. In 1989 alone, PAGCOR earned P3.43 Billion, and directly remitted to
the National Government a total of P2.5 Billion in form of franchise tax, government's income share, the
President's Social Fund and Host Cities' share. In addition, PAGCOR sponsored other socio-cultural and
charitable projects on its own or in cooperation with various governmental agencies, and other private
associations and organizations. In its 3 1/2 years of operation under the present administration, PAGCOR
remitted to the government a total of P6.2 Billion. As of December 31, 1989, PAGCOR was employing 4,494
employees in its nine (9) casinos nationwide, directly supporting the livelihood of Four Thousand Four
Hundred Ninety-Four (4,494) families.
But the petitioners, are questioning the validity of P.D. No. 1869. They allege that the same is "null and
void" for being "contrary to morals, public policy and public order," monopolistic and tends toward "crony
economy", and is violative of the equal protection clause and local autonomy as well as for running counter
to the state policies enunciated in Sections 11 (Personal Dignity and Human Rights), 12 (Family) and 13
(Role of Youth) of Article II, Section 1 (Social Justice) of Article XIII and Section 2 (Educational Values) of
Article XIV of the 1987 Constitution.
This challenge to P.D. No. 1869 deserves a searching and thorough scrutiny and the most deliberate
consideration by the Court, involving as it does the exercise of what has been described as "the highest and
most delicate function which belongs to the judicial department of the government." (State v. Manuel, 20

N.C. 144; Lozano v. Martinez, 146 SCRA 323).

As We enter upon the task of passing on the validity of an act of a co-equal and coordinate branch of the
government We need not be reminded of the time-honored principle, deeply ingrained in our jurisprudence,
that a statute is presumed to be valid. Every presumption must be indulged in favor of its constitutionality.
This is not to say that We approach Our task with diffidence or timidity. Where it is clear that the legislature
or the executive for that matter, has over-stepped the limits of its authority under the constitution, We
should not hesitate to wield the axe and let it fall heavily, as fall it must, on the offending statute (Lozano v.
Martinez, supra).
In Victoriano v. Elizalde Rope Workers' Union, et al, 59 SCRA 54, the Court thru Mr. Justice Zaldivar
underscored the
. . . thoroughly established principle which must be followed in all cases where questions of constitutionality
as obtain in the instant cases are involved. All presumptions are indulged in favor of constitutionality; one
who attacks a statute alleging unconstitutionality must prove its invalidity beyond a reasonable doubt; that
a law may work hardship does not render it unconstitutional; that if any reasonable basis may be conceived
which supports the statute, it will be upheld and the challenger must negate all possible basis; that the
courts are not concerned with the wisdom, justice, policy or expediency of a statute and that a liberal
interpretation of the constitution in favor of the constitutionality of legislation should be adopted. (Danner v.
Hass, 194 N.W. 2nd 534, 539; Spurbeck v. Statton, 106 N.W. 2nd 660, 663; 59 SCRA 66; see also e.g. Salas
v. Jarencio, 46 SCRA 734, 739 [1970]; Peralta v. Commission on Elections, 82 SCRA 30, 55 [1978]; and Heirs
of Ordona v. Reyes, 125 SCRA 220, 241-242 [1983] cited in Citizens Alliance for Consumer Protection v.
Energy Regulatory Board, 162 SCRA 521, 540)
Of course, there is first, the procedural issue. The respondents are questioning the legal personality of
petitioners to file the instant petition.
Considering however the importance to the public of the case at bar, and in keeping with the Court's duty,
under the 1987 Constitution, to determine whether or not the other branches of government have kept
themselves within the limits of the Constitution and the laws and that they have not abused the discretion
given to them, the Court has brushed aside technicalities of procedure and has taken cognizance of this
petition. (Kapatiran ng mga Naglilingkod sa Pamahalaan ng Pilipinas Inc. v. Tan, 163 SCRA 371)
With particular regard to the requirement of proper party as applied in the cases before us, We hold that the
same is satisfied by the petitioners and intervenors because each of them has sustained or is in danger of
sustaining an immediate injury as a result of the acts or measures complained of. And even if, strictly
speaking they are not covered by the definition, it is still within the wide discretion of the Court to waive the
requirement and so remove the impediment to its addressing and resolving the serious constitutional
questions raised.
In the first Emergency Powers Cases, ordinary citizens and taxpayers were allowed to question the
constitutionality of several executive orders issued by President Quirino although they were involving only
an indirect and general interest shared in common with the public. The Court dismissed the objection that
they were not proper parties and ruled that "the transcendental importance to the public of these cases
demands that they be settled promptly and definitely, brushing aside, if we must technicalities of
procedure." We have since then applied the exception in many other cases. (Association of Small
Landowners in the Philippines, Inc. v. Sec. of Agrarian Reform, 175 SCRA 343).
Having disposed of the procedural issue, We will now discuss the substantive issues raised.
Gambling in all its forms, unless allowed by law, is generally prohibited. But the prohibition of gambling
does not mean that the Government cannot regulate it in the exercise of its police power.

The concept of police power is well-established in this jurisdiction. It has been defined as the "state
authority to enact legislation that may interfere with personal liberty or property in order to promote the
general welfare." (Edu v. Ericta, 35 SCRA 481, 487) As defined, it consists of (1) an imposition or restraint
upon liberty or property, (2) in order to foster the common good. It is not capable of an exact definition but
has been, purposely, veiled in general terms to underscore its all-comprehensive embrace. (Philippine
Association of Service Exporters, Inc. v. Drilon, 163 SCRA 386).
Its scope, ever-expanding to meet the exigencies of the times, even to anticipate the future where it could
be done, provides enough room for an efficient and flexible response to conditions and circumstances thus
assuming the greatest benefits. (Edu v. Ericta, supra)
It finds no specific Constitutional grant for the plain reason that it does not owe its origin to the charter.
Along with the taxing power and eminent domain, it is inborn in the very fact of statehood and sovereignty.
It is a fundamental attribute of government that has enabled it to perform the most vital functions of
governance. Marshall, to whom the expression has been credited, refers to it succinctly as the plenary
power of the state "to govern its citizens". (Tribe, American Constitutional Law, 323, 1978). The police
power of the State is a power co-extensive with self-protection and is most aptly termed the "law of
overwhelming necessity." (Rubi v. Provincial Board of Mindoro, 39 Phil. 660, 708) It is "the most essential,
insistent, and illimitable of powers." (Smith Bell & Co. v. National, 40 Phil. 136) It is a dynamic force that
enables the state to meet the agencies of the winds of change.
What was the reason behind the enactment of P.D. 1869?
P.D. 1869 was enacted pursuant to the policy of the government to "regulate and centralize thru an
appropriate institution all games of chance authorized by existing franchise or permitted by law" (1st
whereas clause, PD 1869). As was subsequently proved, regulating and centralizing gambling operations in
one corporate entity the PAGCOR, was beneficial not just to the Government but to society in general. It
is a reliable source of much needed revenue for the cash strapped Government. It provided funds for social
impact projects and subjected gambling to "close scrutiny, regulation, supervision and control of the
Government" (4th Whereas Clause, PD 1869). With the creation of PAGCOR and the direct intervention of
the Government, the evil practices and corruptions that go with gambling will be minimized if not totally
eradicated. Public welfare, then, lies at the bottom of the enactment of PD 1896.
Petitioners contend that P.D. 1869 constitutes a waiver of the right of the City of Manila to impose taxes and
legal fees; that the exemption clause in P.D. 1869 is violative of the principle of local autonomy. They must
be referring to Section 13 par. (2) of P.D. 1869 which exempts PAGCOR, as the franchise holder from paying
any "tax of any kind or form, income or otherwise, as well as fees, charges or levies of whatever nature,
whether National or Local."
(2)
Income and other taxes. a) Franchise Holder: No tax of any kind or form, income or otherwise as well as
fees, charges or levies of whatever nature, whether National or Local, shall be assessed and collected under
this franchise from the Corporation; nor shall any form or tax or charge attach in any way to the earnings of
the Corporation, except a franchise tax of five (5%) percent of the gross revenues or earnings derived by
the Corporation from its operations under this franchise. Such tax shall be due and payable quarterly to the
National Government and shall be in lieu of all kinds of taxes, levies, fees or assessments of any kind,
nature or description, levied, established or collected by any municipal, provincial or national government
authority (Section 13 [2]).
Their contention stated hereinabove is without merit for the following reasons:
(a)

The

City of Manila, being a mere Municipal corporation has no inherent right to impose taxes (Icard v. City of
Baguio, 83 Phil. 870; City of Iloilo v. Villanueva, 105 Phil. 337; Santos v. Municipality of Caloocan, 7 SCRA
643). Thus, "the Charter or statute must plainly show an intent to confer that power or the municipality
cannot assume it" (Medina v. City of Baguio, 12 SCRA 62). Its "power to tax" therefore must always yield to
a legislative act which is superior having been passed upon by the state itself which has the "inherent
power to tax" (Bernas, the Revised [1973] Philippine Constitution, Vol. 1, 1983 ed. p. 445).
(b)
The
Charter of the City of Manila is subject to control by Congress. It should be stressed that "municipal
corporations are mere creatures of Congress" (Unson v. Lacson, G.R. No. 7909, January 18, 1957) which has
the power to "create and abolish municipal corporations" due to its "general legislative powers" (Asuncion v.
Yriantes, 28 Phil. 67; Merdanillo v. Orandia, 5 SCRA 541). Congress, therefore, has the power of control over
Local governments (Hebron v. Reyes, G.R. No. 9124, July 2, 1950). And if Congress can grant the City of
Manila the power to tax certain matters, it can also provide for exemptions or even take back the power.
(c)
The
City of Manila's power to impose license fees on gambling, has long been revoked. As early as 1975, the
power of local governments to regulate gambling thru the grant of "franchise, licenses or permits" was
withdrawn by P.D. No. 771 and was vested exclusively on the National Government, thus:
Sec. 1.
Any
provision of law to the contrary notwithstanding, the authority of chartered cities and other local
governments to issue license, permit or other form of franchise to operate, maintain and establish horse
and dog race tracks, jai-alai and other forms of gambling is hereby revoked.
Sec.

2.

Hereafter, all permits or franchises to operate, maintain and establish, horse and dog race tracks, jai-alai
and other forms of gambling shall be issued by the national government upon proper application and
verification of the qualification of the applicant . . .
Therefore, only the National Government has the power to issue "licenses or permits" for the operation of
gambling. Necessarily, the power to demand or collect license fees which is a consequence of the issuance
of "licenses or permits" is no longer vested in the City of Manila.
(d)
Local governments have no power to tax instrumentalities of the National Government. PAGCOR is a
government owned or controlled corporation with an original charter, PD 1869. All of its shares of stocks are
owned by the National Government. In addition to its corporate powers (Sec. 3, Title II, PD 1869) it also
exercises regulatory powers thus:
Sec.

9.

Regulatory Power. The Corporation shall maintain a Registry of the affiliated entities, and shall exercise
all the powers, authority and the responsibilities vested in the Securities and Exchange Commission over
such affiliating entities mentioned under the preceding section, including, but not limited to amendments of
Articles of Incorporation and By-Laws, changes in corporate term, structure, capitalization and other
matters concerning the operation of the affiliated entities, the provisions of the Corporation Code of the
Philippines to the contrary notwithstanding, except only with respect to original incorporation.
PAGCOR has a dual role, to operate and to regulate gambling casinos. The latter role is governmental, which
places it in the category of an agency or instrumentality of the Government. Being an instrumentality of the

Government, PAGCOR should be and actually is exempt from local taxes. Otherwise, its operation might be
burdened, impeded or subjected to control by a mere Local government.
The states have no power by taxation or otherwise, to retard, impede, burden or in any manner control the
operation of constitutional laws enacted by Congress to carry into execution the powers vested in the
federal government. (MC Culloch v. Marland, 4 Wheat 316, 4 L Ed. 579)
This doctrine emanates from the "supremacy" of the National Government over local governments.
Justice Holmes, speaking for the Supreme Court, made reference to the entire absence of power on the part
of the States to touch, in that way (taxation) at least, the instrumentalities of the United States (Johnson v.
Maryland, 254 US 51) and it can be agreed that no state or political subdivision can regulate a federal
instrumentality in such a way as to prevent it from consummating its federal responsibilities, or even to
seriously burden it in the accomplishment of them. (Antieau, Modern Constitutional Law, Vol. 2, p. 140,
emphasis supplied)
Otherwise, mere creatures of the State can defeat National policies thru extermination of what local
authorities may perceive to be undesirable activities or enterprise using the power to tax as "a tool for
regulation" (U.S. v. Sanchez, 340 US 42).
The power to tax which was called by Justice Marshall as the "power to destroy" (Mc Culloch v. Maryland,
supra) cannot be allowed to defeat an instrumentality or creation of the very entity which has the inherent
power to wield it.
(e)
Petitioners also argue that the Local Autonomy Clause of the Constitution will be violated by P.D. 1869. This
is a pointless argument. Article X of the 1987 Constitution (on Local Autonomy) provides:
Sec.

5.

Each local government unit shall have the power to create its own source of revenue and to levy taxes,
fees, and other charges subject to such guidelines and limitation as the congress may provide, consistent
with the basic policy on local autonomy. Such taxes, fees and charges shall accrue exclusively to the local
government. (emphasis supplied)
The power of local government to "impose taxes and fees" is always subject to "limitations" which Congress
may provide by law. Since PD 1869 remains an "operative" law until "amended, repealed or revoked" (Sec.
3, Art. XVIII, 1987 Constitution), its "exemption clause" remains as an exception to the exercise of the power
of local governments to impose taxes and fees. It cannot therefore be violative but rather is consistent with
the principle of local autonomy.
Besides, the principle of local autonomy under the 1987 Constitution simply means "decentralization" (III
Records of the 1987 Constitutional Commission, pp. 435-436, as cited in Bernas, The Constitution of the
Republic of the Philippines, Vol. II, First Ed., 1988, p. 374). It does not make local governments sovereign
within the state or an "imperium in imperio."
Local Government has been described as a political subdivision of a nation or state which is constituted by
law and has substantial control of local affairs. In a unitary system of government, such as the government
under the Philippine Constitution, local governments can only be an intra sovereign subdivision of one
sovereign nation, it cannot be an imperium in imperio. Local government in such a system can only mean a
measure of decentralization of the function of government. (emphasis supplied)

As to what state powers should be "decentralized" and what may be delegated to local government units
remains a matter of policy, which concerns wisdom. It is therefore a political question. (Citizens Alliance for
Consumer Protection v. Energy Regulatory Board, 162 SCRA 539).
What is settled is that the matter of regulating, taxing or otherwise dealing with gambling is a State concern
and hence, it is the sole prerogative of the State to retain it or delegate it to local governments.
As gambling is usually an offense against the State, legislative grant or express charter power is generally
necessary to empower the local corporation to deal with the subject. . . . In the absence of express grant of
power to enact, ordinance provisions on this subject which are inconsistent with the state laws are void.
(Ligan v. Gadsden, Ala App. 107 So. 733 Ex-Parte Solomon, 9, Cals. 440, 27 PAC 757 following in re Ah You,
88 Cal. 99, 25 PAC 974, 22 Am St. Rep. 280, 11 LRA 480, as cited in Mc Quinllan Vol. 3 Ibid, p. 548,
emphasis supplied)
Petitioners next contend that P.D. 1869 violates the equal protection clause of the Constitution, because "it
legalized PAGCOR conducted gambling, while most gambling are outlawed together with prostitution,
drug trafficking and other vices" (p. 82, Rollo).
We, likewise, find no valid ground to sustain this contention. The petitioners' posture ignores the wellaccepted meaning of the clause "equal protection of the laws." The clause does not preclude classification
of individuals who may be accorded different treatment under the law as long as the classification is not
unreasonable or arbitrary (Itchong v. Hernandez, 101 Phil. 1155). A law does not have to operate in equal
force on all persons or things to be conformable to Article III, Section 1 of the Constitution (DECS v. San
Diego, G.R. No. 89572, December 21, 1989).
The "equal protection clause" does not prohibit the Legislature from establishing classes of individuals or
objects upon which different rules shall operate (Laurel v. Misa, 43 O.G. 2847). The Constitution does not
require situations which are different in fact or opinion to be treated in law as though they were the same
(Gomez v. Palomar, 25 SCRA 827).
Just how P.D. 1869 in legalizing gambling conducted by PAGCOR is violative of the equal protection is not
clearly explained in the petition. The mere fact that some gambling activities like cockfighting (P.D 449)
horse racing (R.A. 306 as amended by RA 983), sweepstakes, lotteries and races (RA 1169 as amended by
B.P. 42) are legalized under certain conditions, while others are prohibited, does not render the applicable
laws, P.D. 1869 for one, unconstitutional.
If the law presumably hits the evil where it is most felt, it is not to be overthrown because there are other
instances to which it might have been applied. (Gomez v. Palomar, 25 SCRA 827)
The equal protection clause of the 14th Amendment does not mean that all occupations called by the same
name must be treated the same way; the state may do what it can to prevent which is deemed as evil and
stop short of those cases in which harm to the few concerned is not less than the harm to the public that
would insure if the rule laid down were made mathematically exact. (Dominican Hotel v. Arizona, 249 US
2651).
Anent petitioners' claim that PD 1869 is contrary to the "avowed trend of the Cory Government away from
monopolies and crony economy and toward free enterprise and privatization" suffice it to state that this is
not a ground for this Court to nullify P.D. 1869. If, indeed, PD 1869 runs counter to the government's
policies then it is for the Executive Department to recommend to Congress its repeal or amendment.
The judiciary does not settle policy issues. The Court can only declare what the law is and not what the law
should be.1wphi1 Under our system of government, policy issues are within the domain of the political
branches of government and of the people themselves as the repository of all state power. (Valmonte v.
Belmonte, Jr., 170 SCRA 256).

On the issue of "monopoly," however, the Constitution provides that:

Sec. 19.
The
State shall regulate or prohibit monopolies when public interest so requires. No combinations in restraint of
trade or unfair competition shall be allowed. (Art. XII, National Economy and Patrimony)
It should be noted that, as the provision is worded, monopolies are not necessarily prohibited by the
Constitution. The state must still decide whether public interest demands that monopolies be regulated or
prohibited. Again, this is a matter of policy for the Legislature to decide.
On petitioners' allegation that P.D. 1869 violates Sections 11 (Personality Dignity) 12 (Family) and 13 (Role
of Youth) of Article II; Section 13 (Social Justice) of Article XIII and Section 2 (Educational Values) of Article
XIV of the 1987 Constitution, suffice it to state also that these are merely statements of principles and,
policies. As such, they are basically not self-executing, meaning a law should be passed by Congress to
clearly define and effectuate such principles.
In general, therefore, the 1935 provisions were not intended to be self-executing principles ready for
enforcement through the courts. They were rather directives addressed to the executive and the legislature.
If the executive and the legislature failed to heed the directives of the articles the available remedy was not
judicial or political. The electorate could express their displeasure with the failure of the executive and the
legislature through the language of the ballot. (Bernas, Vol. II, p. 2)
Every law has in its favor the presumption of constitutionality (Yu Cong Eng v. Trinidad, 47 Phil. 387; Salas v.
Jarencio, 48 SCRA 734; Peralta v. Comelec, 82 SCRA 30; Abbas v. Comelec, 179 SCRA 287). Therefore, for PD
1869 to be nullified, it must be shown that there is a clear and unequivocal breach of the Constitution, not
merely a doubtful and equivocal one. In other words, the grounds for nullity must be clear and beyond
reasonable doubt. (Peralta v. Comelec, supra) Those who petition this Court to declare a law, or parts
thereof, unconstitutional must clearly establish the basis for such a declaration. Otherwise, their petition
must fail. Based on the grounds raised by petitioners to challenge the constitutionality of P.D. 1869, the
Court finds that petitioners have failed to overcome the presumption. The dismissal of this petition is
therefore, inevitable. But as to whether P.D. 1869 remains a wise legislation considering the issues of
"morality, monopoly, trend to free enterprise, privatization as well as the state principles on social justice,
role of youth and educational values" being raised, is up for Congress to determine.
As this Court held in Citizens' Alliance for Consumer Protection v. Energy Regulatory Board, 162 SCRA 521
Presidential Decree No. 1956, as amended by Executive Order No. 137 has, in any case, in its favor the
presumption of validity and constitutionality which petitioners Valmonte and the KMU have not overturned.
Petitioners have not undertaken to identify the provisions in the Constitution which they claim to have been
violated by that statute. This Court, however, is not compelled to speculate and to imagine how the assailed
legislation may possibly offend some provision of the Constitution. The Court notes, further, in this respect
that petitioners have in the main put in question the wisdom, justice and expediency of the establishment
of the OPSF, issues which are not properly addressed to this Court and which this Court may not
constitutionally pass upon. Those issues should be addressed rather to the political departments of
government: the President and the Congress.
Parenthetically, We wish to state that gambling is generally immoral, and this is precisely so when the
gambling resorted to is excessive. This excessiveness necessarily depends not only on the financial
resources of the gambler and his family but also on his mental, social, and spiritual outlook on life.
However, the mere fact that some persons may have lost their material fortunes, mental control, physical
health, or even their lives does not necessarily mean that the same are directly attributable to gambling.
Gambling may have been the antecedent, but certainly not necessarily the cause. For the same
consequences could have been preceded by an overdose of food, drink, exercise, work, and even sex.

WHEREFORE, the petition is DISMISSED for lack of merit.

SO ORDERED.
Fernan, C.J., Narvasa, Gutierrez, Jr., Cruz, Feliciano, Gancayco, Bidin, Sarmiento, Grio-Aquino, Medialdea,
Regalado and Davide, Jr., JJ., concur.

G.R. No. 161872

April 13, 2004

REV. ELLY CHAVEZ PAMATONG, ESQUIRE, petitioner,

vs.
COMMISSION ON ELECTIONS, respondent.
RESOLUTION
TINGA, J.:
Petitioner Rev. Elly Velez Pamatong filed his Certificate of Candidacy for President on December 17, 2003.
Respondent Commission on Elections (COMELEC) refused to give due course to petitioners Certificate of
Candidacy in its Resolution No. 6558 dated January 17, 2004. The decision, however, was not unanimous
since Commissioners Luzviminda G. Tancangco and Mehol K. Sadain voted to include petitioner as they
believed he had parties or movements to back up his candidacy.
On January 15, 2004, petitioner moved for reconsideration of Resolution No. 6558. Petitioners Motion for
Reconsideration was docketed as SPP (MP) No. 04-001. The COMELEC, acting on petitioners Motion for
Reconsideration and on similar motions filed by other aspirants for national elective positions, denied the
same under the aegis of Omnibus Resolution No. 6604 dated February 11, 2004. The COMELEC declared
petitioner and thirty-five (35) others nuisance candidates who could not wage a nationwide campaign
and/or are not nominated by a political party or are not supported by a registered political party with a
national constituency. Commissioner Sadain maintained his vote for petitioner. By then, Commissioner
Tancangco had retired.
In this Petition For Writ of Certiorari, petitioner seeks to reverse the resolutions which were allegedly
rendered in violation of his right to "equal access to opportunities for public service" under Section 26,
Article II of the 1987
Constitution,1 by limiting the number of qualified candidates only to those who can afford to wage a
nationwide campaign and/or are nominated by political parties. In so doing, petitioner argues that the
COMELEC indirectly amended the constitutional provisions on the electoral process and limited the power of
the sovereign people to choose their leaders. The COMELEC supposedly erred in disqualifying him since he
is the most qualified among all the presidential candidates, i.e., he possesses all the constitutional and legal
qualifications for the office of the president, he is capable of waging a national campaign since he has
numerous national organizations under his leadership, he also has the capacity to wage an international
campaign since he has practiced law in other countries, and he has a platform of government. Petitioner
likewise attacks the validity of the form for the Certificate of Candidacy prepared by the COMELEC.
Petitioner claims that the form does not provide clear and reasonable guidelines for determining the
qualifications of candidates since it does not ask for the candidates bio-data and his program of
government.
First, the constitutional and legal dimensions involved.
Implicit in the petitioners invocation of the constitutional provision ensuring "equal access to opportunities

for public office" is the claim that there is a constitutional right to run for or hold public office and,
particularly in his case, to seek the presidency. There is none. What is recognized is merely a privilege
subject to limitations imposed by law. Section 26, Article II of the Constitution neither bestows such a right
nor elevates the privilege to the level of an enforceable right. There is nothing in the plain language of the
provision which suggests such a thrust or justifies an interpretation of the sort.
The "equal access" provision is a subsumed part of Article II of the Constitution, entitled "Declaration of
Principles and State Policies." The provisions under the Article are generally considered not self-executing,2
and there is no plausible reason for according a different treatment to the "equal access" provision. Like the
rest of the policies enumerated in Article II, the provision does not contain any judicially enforceable
constitutional right but merely specifies a guideline for legislative or executive action.3 The disregard of the
provision does not give rise to any cause of action before the courts.4
An inquiry into the intent of the framers5 produces the same determination that the provision is not selfexecutory. The original wording of the present Section 26, Article II had read, "The State shall broaden
opportunities to public office and prohibit public dynasties."6 Commissioner (now Chief Justice) Hilario
Davide, Jr. successfully brought forth an amendment that changed the word "broaden" to the phrase
"ensure equal access," and the substitution of the word "office" to "service." He explained his proposal in
this wise:
I changed the word "broaden" to "ENSURE EQUAL ACCESS TO" because what is important would be equal
access to the opportunity. If you broaden, it would necessarily mean that the government would be
mandated to create as many offices as are possible to accommodate as many people as are also possible.
That is the meaning of broadening opportunities to public service. So, in order that we should not mandate
the State to make the government the number one employer and to limit offices only to what may be
necessary and expedient yet offering equal opportunities to access to it, I change the word "broaden."7
(emphasis supplied)
Obviously, the provision is not intended to compel the State to enact positive measures that would
accommodate as many people as possible into public office. The approval of the "Davide amendment"
indicates the design of the framers to cast the provision as simply enunciatory of a desired policy objective
and not reflective of the imposition of a clear State burden.
Moreover, the provision as written leaves much to be desired if it is to be regarded as the source of positive
rights. It is difficult to interpret the clause as operative in the absence of legislation since its effective
means and reach are not properly defined. Broadly written, the myriad of claims that can be subsumed
under this rubric appear to be entirely open-ended.8 Words and phrases such as "equal access,"
"opportunities," and "public service" are susceptible to countless interpretations owing to their inherent
impreciseness. Certainly, it was not the intention of the framers to inflict on the people an operative but
amorphous foundation from which innately unenforceable rights may be sourced.
As earlier noted, the privilege of equal access to opportunities to public office may be subjected to
limitations. Some valid limitations specifically on the privilege to seek elective office are found in the
provisions9 of the Omnibus Election Code on "Nuisance Candidates" and COMELEC Resolution No. 645210
dated December 10, 2002 outlining the instances wherein the COMELEC may motu proprio refuse to give
due course to or cancel a Certificate of Candidacy.
As long as the limitations apply to everybody equally without discrimination, however, the equal access
clause is not violated. Equality is not sacrificed as long as the burdens engendered by the limitations are
meant to be borne by any one who is minded to file a certificate of candidacy. In the case at bar, there is no
showing that any person is exempt from the limitations or the burdens which they create.
Significantly, petitioner does not challenge the constitutionality or validity of Section 69 of the Omnibus
Election Code and COMELEC Resolution No. 6452 dated 10 December 2003. Thus, their presumed validity

stands and has to be accorded due weight.

Clearly, therefore, petitioners reliance on the equal access clause in Section 26, Article II of the Constitution
is misplaced.
The rationale behind the prohibition against nuisance candidates and the disqualification of candidates who
have not evinced a bona fide intention to run for office is easy to divine. The State has a compelling interest
to ensure that its electoral exercises are rational, objective, and orderly. Towards this end, the State takes
into account the practical considerations in conducting elections. Inevitably, the greater the number of
candidates, the greater the opportunities for logistical confusion, not to mention the increased allocation of
time and resources in preparation for the election. These practical difficulties should, of course, never
exempt the State from the conduct of a mandated electoral exercise. At the same time, remedial actions
should be available to alleviate these logistical hardships, whenever necessary and proper. Ultimately, a
disorderly election is not merely a textbook example of inefficiency, but a rot that erodes faith in our
democratic institutions. As the United States Supreme Court held:
[T]here is surely an important state interest in requiring some preliminary showing of a significant modicum
of support before printing the name of a political organization and its candidates on the ballot the interest,
if no other, in avoiding confusion, deception and even frustration of the democratic [process].11
The COMELEC itself recognized these practical considerations when it promulgated Resolution No. 6558 on
17 January 2004, adopting the study Memorandum of its Law Department dated 11 January 2004. As
observed in the COMELECs Comment:
There is a need to limit the number of candidates especially in the case of candidates for national positions
because the election process becomes a mockery even if those who cannot clearly wage a national
campaign are allowed to run. Their names would have to be printed in the Certified List of Candidates,
Voters Information Sheet and the Official Ballots. These would entail additional costs to the government. For
the official ballots in automated counting and canvassing of votes, an additional page would amount to
more or less FOUR HUNDRED FIFTY MILLION PESOS (P450,000,000.00).
xxx[I]t serves no practical purpose to allow those candidates to continue if they cannot wage a decent
campaign enough to project the prospect of winning, no matter how slim.12
The preparation of ballots is but one aspect that would be affected by allowance of "nuisance candidates"
to run in the elections. Our election laws provide various entitlements for candidates for public office, such
as watchers in every polling place,13 watchers in the board of canvassers,14 or even the receipt of
electoral contributions.15 Moreover, there are election rules and regulations the formulations of which are
dependent on the number of candidates in a given election.
Given these considerations, the ignominious nature of a nuisance candidacy becomes even more galling.
The organization of an election with bona fide candidates standing is onerous enough. To add into the mix
candidates with no serious intentions or capabilities to run a viable campaign would actually impair the
electoral process. This is not to mention the candidacies which are palpably ridiculous so as to constitute a
one-note joke. The poll body would be bogged by irrelevant minutiae covering every step of the electoral
process, most probably posed at the instance of these nuisance candidates. It would be a senseless
sacrifice on the part of the State.
Owing to the superior interest in ensuring a credible and orderly election, the State could exclude nuisance
candidates and need not indulge in, as the song goes, "their trips to the moon on gossamer wings."
The Omnibus Election Code and COMELEC Resolution No. 6452 are cognizant of the compelling State
interest to ensure orderly and credible elections by excising impediments thereto, such as nuisance
candidacies that distract and detract from the larger purpose. The COMELEC is mandated by the

Constitution with the administration of elections16 and endowed with considerable latitude in adopting
means and methods that will ensure the promotion of free, orderly and honest elections.17 Moreover, the
Constitution guarantees that only bona fide candidates for public office shall be free from any form of
harassment and discrimination.18 The determination of bona fide candidates is governed by the statutes,
and the concept, to our mind is, satisfactorily defined in the Omnibus Election Code.
Now, the needed factual premises.
However valid the law and the COMELEC issuance involved are, their proper application in the case of the
petitioner cannot be tested and reviewed by this Court on the basis of what is now before it. The assailed
resolutions of the COMELEC do not direct the Court to the evidence which it considered in determining that
petitioner was a nuisance candidate. This precludes the Court from reviewing at this instance whether the
COMELEC committed grave abuse of discretion in disqualifying petitioner, since such a review would
necessarily take into account the matters which the COMELEC considered in arriving at its decisions.
Petitioner has submitted to this Court mere photocopies of various documents purportedly evincing his
credentials as an eligible candidate for the presidency. Yet this Court, not being a trier of facts, can not
properly pass upon the reproductions as evidence at this level. Neither the COMELEC nor the Solicitor
General appended any document to their respective Comments.
The question of whether a candidate is a nuisance candidate or not is both legal and factual. The basis of
the factual determination is not before this Court. Thus, the remand of this case for the reception of further
evidence is in order.
A word of caution is in order. What is at stake is petitioners aspiration and offer to serve in the government.
It deserves not a cursory treatment but a hearing which conforms to the requirements of due process.
As to petitioners attacks on the validity of the form for the certificate of candidacy, suffice it to say that the
form strictly complies with Section 74 of the Omnibus Election Code. This provision specifically enumerates
what a certificate of candidacy should contain, with the required information tending to show that the
candidate possesses the minimum qualifications for the position aspired for as established by the
Constitution and other election laws.
IN VIEW OF THE FOREGOING, COMELEC Case No. SPP (MP) No. 04-001 is hereby remanded to the COMELEC
for the reception of further evidence, to determine the question on whether petitioner Elly Velez Lao
Pamatong is a nuisance candidate as contemplated in Section 69 of the Omnibus Election Code.
The COMELEC is directed to hold and complete the reception of evidence and report its findings to this
Court with deliberate dispatch.
SO ORDERED.
Davide, Jr., Puno, Vitug*, Panganiban, Quisumbing, Ynares-Santiago, Sandoval-Gutierrez, Carpio, AustriaMartinez, Corona, Carpio-Morales, Callejo, Sr., and Azcuna, JJ., concur.

G.R. No. 169777*

April 20, 2006

SENATE OF THE PHILIPPINES

vs.
EDUARDO R. ERMITA, in his capacity as Executive Secretary and alter-ego of President Gloria
Macapagal-Arroyo, and anyone acting in his stead and in behalf of the President of the
Philippines, Respondents.

DECISION
CARPIO MORALES, J.:
A transparent government is one of the hallmarks of a truly republican state. Even in the early history of
republican thought, however, it has been recognized that the head of government may keep certain
information confidential in pursuit of the public interest. Explaining the reason for vesting executive power
in only one magistrate, a distinguished delegate to the U.S. Constitutional Convention said: "Decision,
activity, secrecy, and dispatch will generally characterize the proceedings of one man, in a much more
eminent degree than the proceedings of any greater number; and in proportion as the number is increased,
these qualities will be diminished."1
History has been witness, however, to the fact that the power to withhold information lends itself to abuse,
hence, the necessity to guard it zealously.
The present consolidated petitions for certiorari and prohibition proffer that the President has abused such
power by issuing Executive Order No. 464 (E.O. 464) last September 28, 2005. They thus pray for its
declaration as null and void for being unconstitutional.
In resolving the controversy, this Court shall proceed with the recognition that the issuance under review
has come from a co-equal branch of government, which thus entitles it to a strong presumption of
constitutionality. Once the challenged order is found to be indeed violative of the Constitution, it is dutybound to declare it so. For the Constitution, being the highest expression of the sovereign will of the Filipino
people, must prevail over any issuance of the government that contravenes its mandates.
In the exercise of its legislative power, the Senate of the Philippines, through its various Senate
Committees, conducts inquiries or investigations in aid of legislation which call for, inter alia, the
attendance of officials and employees of the executive department, bureaus, and offices including those
employed in Government Owned and Controlled Corporations, the Armed Forces of the Philippines (AFP),
and the Philippine National Police (PNP).
On September 21 to 23, 2005, the Committee of the Senate as a whole issued invitations to various officials
of the Executive Department for them to appear on September 29, 2005 as resource speakers in a public
hearing on the railway project of the North Luzon Railways Corporation with the China National Machinery
and Equipment Group (hereinafter North Rail Project). The public hearing was sparked by a privilege speech
of Senator Juan Ponce Enrile urging the Senate to investigate the alleged overpricing and other unlawful
provisions of the contract covering the North Rail Project.
The Senate Committee on National Defense and Security likewise issued invitations2 dated September 22,
2005 to the following officials of the AFP: the Commanding General of the Philippine Army, Lt. Gen.
Hermogenes C. Esperon; Inspector General of the AFP Vice Admiral Mateo M. Mayuga; Deputy Chief of Staff
for Intelligence of the AFP Rear Admiral Tirso R. Danga; Chief of the Intelligence Service of the AFP Brig.
Gen. Marlu Q. Quevedo; Assistant Superintendent of the Philippine Military Academy (PMA) Brig. Gen.
Francisco V. Gudani; and Assistant Commandant, Corps of Cadets of the PMA, Col. Alexander F. Balutan, for
them to attend as resource persons in a public hearing scheduled on September 28, 2005 on the following:
(1) Privilege Speech of Senator Aquilino Q. Pimentel Jr., delivered on June 6, 2005 entitled "Bunye has
Provided Smoking Gun or has Opened a Can of Worms that Show Massive Electoral Fraud in the Presidential
Election of May 2005"; (2) Privilege Speech of Senator Jinggoy E. Estrada delivered on July 26, 2005 entitled
"The Philippines as the Wire-Tapping Capital of the World"; (3) Privilege Speech of Senator Rodolfo Biazon
delivered on August 1, 2005 entitled "Clear and Present Danger"; (4) Senate Resolution No. 285 filed by
Senator Maria Ana Consuelo Madrigal Resolution Directing the Committee on National Defense and
Security to Conduct an Inquiry, in Aid of Legislation, and in the National Interest, on the Role of the Military
in the So-called "Gloriagate Scandal"; and (5) Senate Resolution No. 295 filed by Senator Biazon

Resolution Directing the Committee on National Defense and Security to Conduct an Inquiry, in Aid of
Legislation, on the Wire-Tapping of the President of the Philippines.
Also invited to the above-said hearing scheduled on September 28 2005 was the AFP Chief of Staff, General
Generoso S. Senga who, by letter3 dated September 27, 2005, requested for its postponement "due to a
pressing operational situation that demands [his utmost personal attention" while "some of the invited AFP
officers are currently attending to other urgent operational matters."
On September 28, 2005, Senate President Franklin M. Drilon received from Executive Secretary Eduardo R.
Ermita a letter4 dated September 27, 2005 "respectfully request[ing] for the postponement of the hearing
[regarding the NorthRail project] to which various officials of the Executive Department have been invited"
in order to "afford said officials ample time and opportunity to study and prepare for the various issues so
that they may better enlighten the Senate Committee on its investigation."
Senate President Drilon, however, wrote5 Executive Secretary Ermita that the Senators "are unable to
accede to [his request]" as it "was sent belatedly" and "[a]ll preparations and arrangements as well as
notices to all resource persons were completed [the previous] week."
Senate President Drilon likewise received on September 28, 2005 a letter6 from the President of the North
Luzon Railways Corporation Jose L. Cortes, Jr. requesting that the hearing on the NorthRail project be
postponed or cancelled until a copy of the report of the UP Law Center on the contract agreements relative
to the project had been secured.
On September 28, 2005, the President issued E.O. 464, "Ensuring Observance of the Principle of Separation
of Powers, Adherence to the Rule on Executive Privilege and Respect for the Rights of Public Officials
Appearing in Legislative Inquiries in Aid of Legislation Under the Constitution, and For Other Purposes,"7
which, pursuant to Section 6 thereof, took effect immediately. The salient provisions of the Order are as
follows:
SECTION 1. Appearance by Heads of Departments Before Congress. In accordance with Article VI, Section
22 of the Constitution and to implement the Constitutional provisions on the separation of powers between
co-equal branches of the government, all heads of departments of the Executive Branch of the government
shall secure the consent of the President prior to appearing before either House of Congress.
When the security of the State or the public interest so requires and the President so states in writing, the
appearance shall only be conducted in executive session.
SECTION. 2. Nature, Scope and Coverage of Executive Privilege.
(a) Nature and Scope. - The rule of confidentiality based on executive privilege is fundamental to the
operation of government and rooted in the separation of powers under the Constitution (Almonte vs.
Vasquez, G.R. No. 95367, 23 May 1995). Further, Republic Act No. 6713 or the Code of Conduct and Ethical
Standards for Public Officials and Employees provides that Public Officials and Employees shall not use or
divulge confidential or classified information officially known to them by reason of their office and not made
available to the public to prejudice the public interest.
Executive privilege covers all confidential or classified information between the President and the public
officers covered by this executive order, including:
Conversations and correspondence between the President and the public official covered by this executive
order (Almonte vs. Vasquez G.R. No. 95367, 23 May 1995; Chavez v. Public Estates Authority, G.R. No.
133250, 9 July 2002);
Military, diplomatic and other national security matters which in the interest of national security should not

be divulged (Almonte vs. Vasquez, G.R. No. 95367, 23 May 1995; Chavez v. Presidential Commission on
Good Government, G.R. No. 130716, 9 December 1998).
Information between inter-government agencies prior to the conclusion of treaties and executive
agreements (Chavez v. Presidential Commission on Good Government, G.R. No. 130716, 9 December 1998);
Discussion in close-door Cabinet meetings (Chavez v. Presidential Commission on Good Government, G.R.
No. 130716, 9 December 1998);
Matters affecting national security and public order (Chavez v. Public Estates Authority, G.R. No. 133250, 9
July 2002).
(b) Who are covered. The following are covered by this executive order:
Senior officials of executive departments who in the judgment of the department heads are covered by the
executive privilege;
Generals and flag officers of the Armed Forces of the Philippines and such other officers who in the
judgment of the Chief of Staff are covered by the executive privilege;
Philippine National Police (PNP) officers with rank of chief superintendent or higher and such other officers
who in the judgment of the Chief of the PNP are covered by the executive privilege;
Senior national security officials who in the judgment of the National Security Adviser are covered by the
executive privilege; and
Such other officers as may be determined by the President.
SECTION 3. Appearance of Other Public Officials Before Congress. All public officials enumerated in Section
2 (b) hereof shall secure prior consent of the President prior to appearing before either House of Congress
to ensure the observance of the principle of separation of powers, adherence to the rule on executive
privilege and respect for the rights of public officials appearing in inquiries in aid of legislation. (Emphasis
and underscoring supplied)
Also on September 28, 2005, Senate President Drilon received from Executive Secretary Ermita a copy of
E.O. 464, and another letter8 informing him "that officials of the Executive Department invited to appear at
the meeting [regarding the NorthRail project] will not be able to attend the same without the consent of the
President, pursuant to [E.O. 464]" and that "said officials have not secured the required consent from the
President." On even date which was also the scheduled date of the hearing on the alleged wiretapping, Gen.
Senga sent a letter9 to Senator Biazon, Chairperson of the Committee on National Defense and Security,
informing him "that per instruction of [President Arroyo], thru the Secretary of National Defense, no officer
of the [AFP] is authorized to appear before any Senate or Congressional hearings without seeking a written
approval from the President" and "that no approval has been granted by the President to any AFP officer to
appear before the public hearing of the Senate Committee on National Defense and Security scheduled [on]
28 September 2005."
Despite the communications received from Executive Secretary Ermita and Gen. Senga, the investigation
scheduled by the Committee on National Defense and Security pushed through, with only Col. Balutan and
Brig. Gen. Gudani among all the AFP officials invited attending.
For defying President Arroyos order barring military personnel from testifying before legislative inquiries
without her approval, Brig. Gen. Gudani and Col. Balutan were relieved from their military posts and were
made to face court martial proceedings.

As to the NorthRail project hearing scheduled on September 29, 2005, Executive Secretary Ermita, citing
E.O. 464, sent letter of regrets, in response to the invitations sent to the following government officials:
Light Railway Transit Authority Administrator Melquiades Robles, Metro Rail Transit Authority Administrator
Roberto Lastimoso, Department of Justice (DOJ) Chief State Counsel Ricardo V. Perez, then Presidential Legal
Counsel Merceditas Gutierrez, Department of Transportation and Communication (DOTC) Undersecretary
Guiling Mamonding, DOTC Secretary Leandro Mendoza, Philippine National Railways General Manager Jose
Serase II, Monetary Board Member Juanita Amatong, Bases Conversion Development Authority Chairperson
Gen. Narciso Abaya and Secretary Romulo L. Neri.10 NorthRail President Cortes sent personal regrets
likewise citing E.O. 464.11
On October 3, 2005, three petitions, docketed as G.R. Nos. 169659, 169660, and 169667, for certiorari and
prohibition, were filed before this Court challenging the constitutionality of E.O. 464.
In G.R. No. 169659, petitioners party-list Bayan Muna, House of Representatives Members Satur Ocampo,
Crispin Beltran, Rafael Mariano, Liza Maza, Joel Virador and Teodoro Casino, Courage, an organization of
government employees, and Counsels for the Defense of Liberties (CODAL), a group of lawyers dedicated to
the promotion of justice, democracy and peace, all claiming to have standing to file the suit because of the
transcendental importance of the issues they posed, pray, in their petition that E.O. 464 be declared null
and void for being unconstitutional; that respondent Executive Secretary Ermita, in his capacity as
Executive Secretary and alter-ego of President Arroyo, be prohibited from imposing, and threatening to
impose sanctions on officials who appear before Congress due to congressional summons. Additionally,
petitioners claim that E.O. 464 infringes on their rights and impedes them from fulfilling their respective
obligations. Thus, Bayan Muna alleges that E.O. 464 infringes on its right as a political party entitled to
participate in governance; Satur Ocampo, et al. allege that E.O. 464 infringes on their rights and duties as
members of Congress to conduct investigation in aid of legislation and conduct oversight functions in the
implementation of laws; Courage alleges that the tenure of its members in public office is predicated on,
and threatened by, their submission to the requirements of E.O. 464 should they be summoned by
Congress; and CODAL alleges that its members have a sworn duty to uphold the rule of law, and their rights
to information and to transparent governance are threatened by the imposition of E.O. 464.
In G.R. No. 169660, petitioner Francisco I. Chavez, claiming that his constitutional rights as a citizen,
taxpayer and law practitioner, are affected by the enforcement of E.O. 464, prays in his petition that E.O.
464 be declared null and void for being unconstitutional.
In G.R. No. 169667, petitioner Alternative Law Groups, Inc.12 (ALG), alleging that as a coalition of 17 legal
resource non-governmental organizations engaged in developmental lawyering and work with the poor and
marginalized sectors in different parts of the country, and as an organization of citizens of the Philippines
and a part of the general public, it has legal standing to institute the petition to enforce its constitutional
right to information on matters of public concern, a right which was denied to the public by E.O. 464,13
prays, that said order be declared null and void for being unconstitutional and that respondent Executive
Secretary Ermita be ordered to cease from implementing it.
On October 11, 2005, Petitioner Senate of the Philippines, alleging that it has a vital interest in the
resolution of the issue of the validity of E.O. 464 for it stands to suffer imminent and material injury, as it
has already sustained the same with its continued enforcement since it directly interferes with and impedes
the valid exercise of the Senates powers and functions and conceals information of great public interest
and concern, filed its petition for certiorari and prohibition, docketed as G.R. No. 169777 and prays that E.O.
464 be declared unconstitutional.
On October 14, 2005, PDP-Laban, a registered political party with members duly elected into the Philippine
Senate and House of Representatives, filed a similar petition for certiorari and prohibition, docketed as G.R.
No. 169834, alleging that it is affected by the challenged E.O. 464 because it hampers its legislative agenda
to be implemented through its members in Congress, particularly in the conduct of inquiries in aid of
legislation and transcendental issues need to be resolved to avert a constitutional crisis between the

executive and legislative branches of the government.

Meanwhile, by letter14 dated February 6, 2006, Senator Biazon reiterated his invitation to Gen. Senga for
him and other military officers to attend the hearing on the alleged wiretapping scheduled on February 10,
2005. Gen. Senga replied, however, by letter15 dated February 8, 2006, that "[p]ursuant to Executive Order
No. 464, th[e] Headquarters requested for a clearance from the President to allow [them] to appear before
the public hearing" and that "they will attend once [their] request is approved by the President." As none of
those invited appeared, the hearing on February 10, 2006 was cancelled.16
In another investigation conducted jointly by the Senate Committee on Agriculture and Food and the Blue
Ribbon Committee on the alleged mismanagement and use of the fertilizer fund under the Ginintuang
Masaganang Ani program of the Department of Agriculture (DA), several Cabinet officials were invited to
the hearings scheduled on October 5 and 26, November 24 and December 12, 2005 but most of them failed
to attend, DA Undersecretary Belinda Gonzales, DA Assistant Secretary Felix Jose Montes, Fertilizer and
Pesticide Authority Executive Director Norlito R. Gicana,17 and those from the Department of Budget and
Management18 having invoked E.O. 464.
In the budget hearings set by the Senate on February 8 and 13, 2006, Press Secretary and Presidential
Spokesperson Ignacio R. Bunye,19 DOJ Secretary Raul M. Gonzalez20 and Department of Interior and Local
Government Undersecretary Marius P. Corpus21 communicated their inability to attend due to lack of
appropriate clearance from the President pursuant to E.O. 464. During the February 13, 2005 budget
hearing, however, Secretary Bunye was allowed to attend by Executive Secretary Ermita.
On February 13, 2006, Jose Anselmo I. Cadiz and the incumbent members of the Board of Governors of the
Integrated Bar of the Philippines, as taxpayers, and the Integrated Bar of the Philippines as the official
organization of all Philippine lawyers, all invoking their constitutional right to be informed on matters of
public interest, filed their petition for certiorari and prohibition, docketed as G.R. No. 171246, and pray that
E.O. 464 be declared null and void.
All the petitions pray for the issuance of a Temporary Restraining Order enjoining respondents from
implementing, enforcing, and observing E.O. 464.
In the oral arguments on the petitions conducted on February 21, 2006, the following substantive issues
were ventilated: (1) whether respondents committed grave abuse of discretion in implementing E.O. 464
prior to its publication in the Official Gazette or in a newspaper of general circulation; and (2) whether E.O.
464 violates the following provisions of the Constitution: Art. II, Sec. 28, Art. III, Sec. 4, Art. III, Sec. 7, Art. IV.
Sec. 1, Art. VI, Sec. 21, Art. VI, Sec. 22, Art. XI, Sec. 1, and Art. XIII, Sec. 16. The procedural issue of whether
there is an actual case or controversy that calls for judicial review was not taken up; instead, the parties
were instructed to discuss it in their respective memoranda.
After the conclusion of the oral arguments, the parties were directed to submit their respective memoranda,
paying particular attention to the following propositions: (1) that E.O. 464 is, on its face, unconstitutional;
and (2) assuming that it is not, it is unconstitutional as applied in four instances, namely: (a) the so called
Fertilizer scam; (b) the NorthRail investigation (c) the Wiretapping activity of the ISAFP; and (d) the
investigation on the Venable contract.22
Petitioners in G.R. No. 16966023 and G.R. No. 16977724 filed their memoranda on March 7, 2006, while
those in G.R. No. 16966725 and G.R. No. 16983426 filed theirs the next day or on March 8, 2006. Petitioners
in G.R. No. 171246 did not file any memorandum.
Petitioners Bayan Muna et al. in G.R. No. 169659, after their motion for extension to file memorandum27
was granted, subsequently filed a manifestation28 dated March 14, 2006 that it would no longer file its
memorandum in the interest of having the issues resolved soonest, prompting this Court to issue a
Resolution reprimanding them.29

Petitioners submit that E.O. 464 violates the following constitutional provisions:
Art. VI, Sec. 2130
Art. VI, Sec. 2231
Art. VI, Sec. 132
Art. XI, Sec. 133
Art. III, Sec. 734
Art. III, Sec. 435
Art. XIII, Sec. 16 36
Art. II, Sec. 2837
Respondents Executive Secretary Ermita et al., on the other hand, pray in their consolidated
memorandum38 on March 13, 2006 for the dismissal of the petitions for lack of merit.
The Court synthesizes the issues to be resolved as follows:
1. Whether E.O. 464 contravenes the power of inquiry vested in Congress;
2. Whether E.O. 464 violates the right of the people to information on matters of public concern; and
3. Whether respondents have committed grave abuse of discretion when they implemented E.O. 464 prior
to its publication in a newspaper of general circulation.
Essential requisites for judicial review
Before proceeding to resolve the issue of the constitutionality of E.O. 464, ascertainment of whether the
requisites for a valid exercise of the Courts power of judicial review are present is in order.
Like almost all powers conferred by the Constitution, the power of judicial review is subject to limitations, to
wit: (1) there must be an actual case or controversy calling for the exercise of judicial power; (2) the person
challenging the act must have standing to challenge the validity of the subject act or issuance; otherwise
stated, he must have a personal and substantial interest in the case such that he has sustained, or will
sustain, direct injury as a result of its enforcement; (3) the question of constitutionality must be raised at
the earliest opportunity; and (4) the issue of constitutionality must be the very lis mota of the case.39
Except with respect to the requisites of standing and existence of an actual case or controversy where the
disagreement between the parties lies, discussion of the rest of the requisites shall be omitted.
Standing
Respondents, through the Solicitor General, assert that the allegations in G.R. Nos. 169659, 169660 and
169667 make it clear that they, adverting to the non-appearance of several officials of the executive
department in the investigations called by the different committees of the Senate, were brought to
vindicate the constitutional duty of the Senate or its different committees to conduct inquiry in aid of
legislation or in the exercise of its oversight functions. They maintain that Representatives Ocampo et al.
have not shown any specific prerogative, power, and privilege of the House of Representatives which had

been effectively impaired by E.O. 464, there being no mention of any investigation called by the House of
Representatives or any of its committees which was aborted due to the implementation of E.O. 464.
As for Bayan Munas alleged interest as a party-list representing the marginalized and underrepresented,
and that of the other petitioner groups and individuals who profess to have standing as advocates and
defenders of the Constitution, respondents contend that such interest falls short of that required to confer
standing on them as parties "injured-in-fact."40
Respecting petitioner Chavez, respondents contend that Chavez may not claim an interest as a taxpayer for
the implementation of E.O. 464 does not involve the exercise of taxing or spending power.41
With regard to the petition filed by the Senate, respondents argue that in the absence of a personal or
direct injury by reason of the issuance of E.O. 464, the Senate and its individual members are not the
proper parties to assail the constitutionality of E.O. 464.
Invoking this Courts ruling in National Economic Protectionism Association v. Ongpin42 and Valmonte v.
Philippine Charity Sweepstakes Office,43 respondents assert that to be considered a proper party, one must
have a personal and substantial interest in the case, such that he has sustained or will sustain direct injury
due to the enforcement of E.O. 464.44
That the Senate of the Philippines has a fundamental right essential not only for intelligent public decisionmaking in a democratic system, but more especially for sound legislation45 is not disputed. E.O. 464,
however, allegedly stifles the ability of the members of Congress to access information that is crucial to
law-making.46 Verily, the Senate, including its individual members, has a substantial and direct interest
over the outcome of the controversy and is the proper party to assail the constitutionality of E.O. 464.
Indeed, legislators have standing to maintain inviolate the prerogative, powers and privileges vested by the
Constitution in their office and are allowed to sue to question the validity of any official action which they
claim infringes their prerogatives as legislators.47
In the same vein, party-list representatives Satur Ocampo (Bayan Muna), Teodoro Casino (Bayan Muna), Joel
Virador (Bayan Muna), Crispin Beltran (Anakpawis), Rafael Mariano (Anakpawis), and Liza Maza (Gabriela)
are allowed to sue to question the constitutionality of E.O. 464, the absence of any claim that an
investigation called by the House of Representatives or any of its committees was aborted due to the
implementation of E.O. 464 notwithstanding, it being sufficient that a claim is made that E.O. 464 infringes
on their constitutional rights and duties as members of Congress to conduct investigation in aid of
legislation and conduct oversight functions in the implementation of laws.
The national political party, Bayan Muna, likewise meets the standing requirement as it obtained three
seats in the House of Representatives in the 2004 elections and is, therefore, entitled to participate in the
legislative process consonant with the declared policy underlying the party list system of affording citizens
belonging to marginalized and underrepresented sectors, organizations and parties who lack well-defined
political constituencies to contribute to the formulation and enactment of legislation that will benefit the
nation.48
As Bayan Muna and Representatives Ocampo et al. have the standing to file their petitions, passing on the
standing of their co-petitioners Courage and Codal is rendered unnecessary.49
In filing their respective petitions, Chavez, the ALG which claims to be an organization of citizens, and the
incumbent members of the IBP Board of Governors and the IBP in behalf of its lawyer members,50 invoke
their constitutional right to information on matters of public concern, asserting that the right to information,
curtailed and violated by E.O. 464, is essential to the effective exercise of other constitutional rights51 and
to the maintenance of the balance of power among the three branches of the government through the
principle of checks and balances.52

It is well-settled that when suing as a citizen, the interest of the petitioner in assailing the constitutionality
of laws, presidential decrees, orders, and other regulations, must be direct and personal. In Franciso v.
House of Representatives,53 this Court held that when the proceeding involves the assertion of a public
right, the mere fact that he is a citizen satisfies the requirement of personal interest.
As for petitioner PDP-Laban, it asseverates that it is clothed with legal standing in view of the
transcendental issues raised in its petition which this Court needs to resolve in order to avert a
constitutional crisis. For it to be accorded standing on the ground of transcendental importance, however, it
must establish (1) the character of the funds (that it is public) or other assets involved in the case, (2) the
presence of a clear case of disregard of a constitutional or statutory prohibition by the public respondent
agency or instrumentality of the government, and (3) the lack of any party with a more direct and specific
interest in raising the questions being raised.54 The first and last determinants not being present as no
public funds or assets are involved and petitioners in G.R. Nos. 169777 and 169659 have direct and specific
interests in the resolution of the controversy, petitioner PDP-Laban is bereft of standing to file its petition.
Its allegation that E.O. 464 hampers its legislative agenda is vague and uncertain, and at best is only a
"generalized interest" which it shares with the rest of the political parties. Concrete injury, whether actual or
threatened, is that indispensable element of a dispute which serves in part to cast it in a form traditionally
capable of judicial resolution.55 In fine, PDP-Labans alleged interest as a political party does not suffice to
clothe it with legal standing.
Actual Case or Controversy
Petitioners assert that an actual case exists, they citing the absence of the executive officials invited by the
Senate to its hearings after the issuance of E.O. 464, particularly those on the NorthRail project and the
wiretapping controversy.
Respondents counter that there is no case or controversy, there being no showing that President Arroyo has
actually withheld her consent or prohibited the appearance of the invited officials.56 These officials, they
claim, merely communicated to the Senate that they have not yet secured the consent of the President, not
that the President prohibited their attendance.57 Specifically with regard to the AFP officers who did not
attend the hearing on September 28, 2005, respondents claim that the instruction not to attend without the
Presidents consent was based on its role as Commander-in-Chief of the Armed Forces, not on E.O. 464.
Respondents thus conclude that the petitions merely rest on an unfounded apprehension that the President
will abuse its power of preventing the appearance of officials before Congress, and that such apprehension
is not sufficient for challenging the validity of E.O. 464.
The Court finds respondents assertion that the President has not withheld her consent or prohibited the
appearance of the officials concerned immaterial in determining the existence of an actual case or
controversy insofar as E.O. 464 is concerned. For E.O. 464 does not require either a deliberate withholding
of consent or an express prohibition issuing from the President in order to bar officials from appearing
before Congress.
As the implementation of the challenged order has already resulted in the absence of officials invited to the
hearings of petitioner Senate of the Philippines, it would make no sense to wait for any further event before
considering the present case ripe for adjudication. Indeed, it would be sheer abandonment of duty if this
Court would now refrain from passing on the constitutionality of E.O. 464.
Constitutionality of E.O. 464
E.O. 464, to the extent that it bars the appearance of executive officials before Congress, deprives Congress
of the information in the possession of these officials. To resolve the question of whether such withholding
of information violates the Constitution, consideration of the general power of Congress to obtain
information, otherwise known as the power of inquiry, is in order.

The power of inquiry

The Congress power of inquiry is expressly recognized in Section 21 of Article VI of the Constitution which
reads:
SECTION 21. The Senate or the House of Representatives or any of its respective committees may conduct
inquiries in aid of legislation in accordance with its duly published rules of procedure. The rights of persons
appearing in or affected by such inquiries shall be respected. (Underscoring supplied)
This provision is worded exactly as Section 8 of Article VIII of the 1973 Constitution except that, in the
latter, it vests the power of inquiry in the unicameral legislature established therein the Batasang
Pambansa and its committees.
The 1935 Constitution did not contain a similar provision. Nonetheless, in Arnault v. Nazareno,58 a case
decided in 1950 under that Constitution, the Court already recognized that the power of inquiry is inherent
in the power to legislate.
Arnault involved a Senate investigation of the reportedly anomalous purchase of the Buenavista and
Tambobong Estates by the Rural Progress Administration. Arnault, who was considered a leading witness in
the controversy, was called to testify thereon by the Senate. On account of his refusal to answer the
questions of the senators on an important point, he was, by resolution of the Senate, detained for
contempt. Upholding the Senates power to punish Arnault for contempt, this Court held:
Although there is no provision in the Constitution expressly investing either House of Congress with power
to make investigations and exact testimony to the end that it may exercise its legislative functions
advisedly and effectively, such power is so far incidental to the legislative function as to be implied. In other
words, the power of inquiry with process to enforce it is an essential and appropriate auxiliary to the
legislative function. A legislative body cannot legislate wisely or effectively in the absence of information
respecting the conditions which the legislation is intended to affect or change; and where the legislative
body does not itself possess the requisite information which is not infrequently true recourse must be
had to others who do possess it. Experience has shown that mere requests for such information are often
unavailing, and also that information which is volunteered is not always accurate or complete; so some
means of compulsion is essential to obtain what is needed.59 . . . (Emphasis and underscoring supplied)
That this power of inquiry is broad enough to cover officials of the executive branch may be deduced from
the same case. The power of inquiry, the Court therein ruled, is co-extensive with the power to legislate.60
The matters which may be a proper subject of legislation and those which may be a proper subject of
investigation are one. It follows that the operation of government, being a legitimate subject for legislation,
is a proper subject for investigation.
Thus, the Court found that the Senate investigation of the government transaction involved in Arnault was a
proper exercise of the power of inquiry. Besides being related to the expenditure of public funds of which
Congress is the guardian, the transaction, the Court held, "also involved government agencies created by
Congress and officers whose positions it is within the power of Congress to regulate or even abolish."
Since Congress has authority to inquire into the operations of the executive branch, it would be incongruous
to hold that the power of inquiry does not extend to executive officials who are the most familiar with and
informed on executive operations.
As discussed in Arnault, the power of inquiry, "with process to enforce it," is grounded on the necessity of
information in the legislative process. If the information possessed by executive officials on the operation of
their offices is necessary for wise legislation on that subject, by parity of reasoning, Congress has the right
to that information and the power to compel the disclosure thereof.

As evidenced by the American experience during the so-called "McCarthy era," however, the right of
Congress to conduct inquiries in aid of legislation is, in theory, no less susceptible to abuse than executive
or judicial power. It may thus be subjected to judicial review pursuant to the Courts certiorari powers under
Section 1, Article VIII of the Constitution.
For one, as noted in Bengzon v. Senate Blue Ribbon Committee,61 the inquiry itself might not properly be in
aid of legislation, and thus beyond the constitutional power of Congress. Such inquiry could not usurp
judicial functions. Parenthetically, one possible way for Congress to avoid such a result as occurred in
Bengzon is to indicate in its invitations to the public officials concerned, or to any person for that matter,
the possible needed statute which prompted the need for the inquiry. Given such statement in its
invitations, along with the usual indication of the subject of inquiry and the questions relative to and in
furtherance thereof, there would be less room for speculation on the part of the person invited on whether
the inquiry is in aid of legislation.
Section 21, Article VI likewise establishes crucial safeguards that proscribe the legislative power of inquiry.
The provision requires that the inquiry be done in accordance with the Senate or Houses duly published
rules of procedure, necessarily implying the constitutional infirmity of an inquiry conducted without duly
published rules of procedure. Section 21 also mandates that the rights of persons appearing in or affected
by such inquiries be respected, an imposition that obligates Congress to adhere to the guarantees in the Bill
of Rights.
These abuses are, of course, remediable before the courts, upon the proper suit filed by the persons
affected, even if they belong to the executive branch. Nonetheless, there may be exceptional
circumstances, none appearing to obtain at present, wherein a clear pattern of abuse of the legislative
power of inquiry might be established, resulting in palpable violations of the rights guaranteed to members
of the executive department under the Bill of Rights. In such instances, depending on the particulars of
each case, attempts by the Executive Branch to forestall these abuses may be accorded judicial sanction.
Even where the inquiry is in aid of legislation, there are still recognized exemptions to the power of inquiry,
which exemptions fall under the rubric of "executive privilege." Since this term figures prominently in the
challenged order, it being mentioned in its provisions, its preambular clauses,62 and in its very title, a
discussion of executive privilege is crucial for determining the constitutionality of E.O. 464.
Executive privilege
The phrase "executive privilege" is not new in this jurisdiction. It has been used even prior to the
promulgation of the 1986 Constitution.63 Being of American origin, it is best understood in light of how it
has been defined and used in the legal literature of the United States.
Schwartz defines executive privilege as "the power of the Government to withhold information from the
public, the courts, and the Congress."64 Similarly, Rozell defines it as "the right of the President and highlevel executive branch officers to withhold information from Congress, the courts, and ultimately the
public."65
Executive privilege is, nonetheless, not a clear or unitary concept. 66 It has encompassed claims of varying
kinds.67 Tribe, in fact, comments that while it is customary to employ the phrase "executive privilege," it
may be more accurate to speak of executive privileges "since presidential refusals to furnish information
may be actuated by any of at least three distinct kinds of considerations, and may be asserted, with
differing degrees of success, in the context of either judicial or legislative investigations."
One variety of the privilege, Tribe explains, is the state secrets privilege invoked by U.S. Presidents,
beginning with Washington, on the ground that the information is of such nature that its disclosure would
subvert crucial military or diplomatic objectives. Another variety is the informers privilege, or the privilege

of the Government not to disclose the identity of persons who furnish information of violations of law to
officers charged with the enforcement of that law. Finally, a generic privilege for internal deliberations has
been said to attach to intragovernmental documents reflecting advisory opinions, recommendations and
deliberations comprising part of a process by which governmental decisions and policies are formulated. 68
Tribes comment is supported by the ruling in In re Sealed Case, thus:
Since the beginnings of our nation, executive officials have claimed a variety of privileges to resist
disclosure of information the confidentiality of which they felt was crucial to fulfillment of the unique role
and responsibilities of the executive branch of our government. Courts ruled early that the executive had a
right to withhold documents that might reveal military or state secrets. The courts have also granted the
executive a right to withhold the identity of government informers in some circumstances and a qualified
right to withhold information related to pending investigations. x x x"69 (Emphasis and underscoring
supplied)
The entry in Blacks Law Dictionary on "executive privilege" is similarly instructive regarding the scope of
the doctrine.
This privilege, based on the constitutional doctrine of separation of powers, exempts the executive from
disclosure requirements applicable to the ordinary citizen or organization where such exemption is
necessary to the discharge of highly important executive responsibilities involved in maintaining
governmental operations, and extends not only to military and diplomatic secrets but also to documents
integral to an appropriate exercise of the executive domestic decisional and policy making functions, that
is, those documents reflecting the frank expression necessary in intra-governmental advisory and
deliberative communications.70 (Emphasis and underscoring supplied)
That a type of information is recognized as privileged does not, however, necessarily mean that it would be
considered privileged in all instances. For in determining the validity of a claim of privilege, the question
that must be asked is not only whether the requested information falls within one of the traditional
privileges, but also whether that privilege should be honored in a given procedural setting.71
The leading case on executive privilege in the United States is U.S. v. Nixon, 72 decided in 1974. In issue in
that case was the validity of President Nixons claim of executive privilege against a subpoena issued by a
district court requiring the production of certain tapes and documents relating to the Watergate
investigations. The claim of privilege was based on the Presidents general interest in the confidentiality of
his conversations and correspondence. The U.S. Court held that while there is no explicit reference to a
privilege of confidentiality in the U.S. Constitution, it is constitutionally based to the extent that it relates to
the effective discharge of a Presidents powers. The Court, nonetheless, rejected the Presidents claim of
privilege, ruling that the privilege must be balanced against the public interest in the fair administration of
criminal justice. Notably, the Court was careful to clarify that it was not there addressing the issue of claims
of privilege in a civil litigation or against congressional demands for information.
Cases in the U.S. which involve claims of executive privilege against Congress are rare.73 Despite frequent
assertion of the privilege to deny information to Congress, beginning with President Washingtons refusal to
turn over treaty negotiation records to the House of Representatives, the U.S. Supreme Court has never
adjudicated the issue.74 However, the U.S. Court of Appeals for the District of Columbia Circuit, in a case
decided earlier in the same year as Nixon, recognized the Presidents privilege over his conversations
against a congressional subpoena.75 Anticipating the balancing approach adopted by the U.S. Supreme
Court in Nixon, the Court of Appeals weighed the public interest protected by the claim of privilege against
the interest that would be served by disclosure to the Committee. Ruling that the balance favored the
President, the Court declined to enforce the subpoena. 76
In this jurisdiction, the doctrine of executive privilege was recognized by this Court in Almonte v. Vasquez.77
Almonte used the term in reference to the same privilege subject of Nixon. It quoted the following portion of

the Nixon decision which explains the basis for the privilege:
"The expectation of a President to the confidentiality of his conversations and correspondences, like the
claim of confidentiality of judicial deliberations, for example, has all the values to which we accord
deference for the privacy of all citizens and, added to those values, is the necessity for protection of the
public interest in candid, objective, and even blunt or harsh opinions in Presidential decision-making. A
President and those who assist him must be free to explore alternatives in the process of shaping policies
and making decisions and to do so in a way many would be unwilling to express except privately. These are
the considerations justifying a presumptive privilege for Presidential communications. The privilege is
fundamental to the operation of government and inextricably rooted in the separation of powers under the
Constitution x x x " (Emphasis and underscoring supplied)
Almonte involved a subpoena duces tecum issued by the Ombudsman against the therein petitioners. It did
not involve, as expressly stated in the decision, the right of the people to information.78 Nonetheless, the
Court recognized that there are certain types of information which the government may withhold from the
public, thus acknowledging, in substance if not in name, that executive privilege may be claimed against
citizens demands for information.
In Chavez v. PCGG,79 the Court held that this jurisdiction recognizes the common law holding that there is a
"governmental privilege against public disclosure with respect to state secrets regarding military,
diplomatic and other national security matters."80 The same case held that closed-door Cabinet meetings
are also a recognized limitation on the right to information.
Similarly, in Chavez v. Public Estates Authority,81 the Court ruled that the right to information does not
extend to matters recognized as "privileged information under the separation of powers,"82 by which the
Court meant Presidential conversations, correspondences, and discussions in closed-door Cabinet meetings.
It also held that information on military and diplomatic secrets and those affecting national security, and
information on investigations of crimes by law enforcement agencies before the prosecution of the accused
were exempted from the right to information.
From the above discussion on the meaning and scope of executive privilege, both in the United States and
in this jurisdiction, a clear principle emerges. Executive privilege, whether asserted against Congress, the
courts, or the public, is recognized only in relation to certain types of information of a sensitive character.
While executive privilege is a constitutional concept, a claim thereof may be valid or not depending on the
ground invoked to justify it and the context in which it is made. Noticeably absent is any recognition that
executive officials are exempt from the duty to disclose information by the mere fact of being executive
officials. Indeed, the extraordinary character of the exemptions indicates that the presumption inclines
heavily against executive secrecy and in favor of disclosure.
Validity of Section 1
Section 1 is similar to Section 3 in that both require the officials covered by them to secure the consent of
the President prior to appearing before Congress. There are significant differences between the two
provisions, however, which constrain this Court to discuss the validity of these provisions separately.
Section 1 specifically applies to department heads. It does not, unlike Section 3, require a prior
determination by any official whether they are covered by E.O. 464. The President herself has, through the
challenged order, made the determination that they are. Further, unlike also Section 3, the coverage of
department heads under Section 1 is not made to depend on the department heads possession of any
information which might be covered by executive privilege. In fact, in marked contrast to Section 3 vis--vis
Section 2, there is no reference to executive privilege at all. Rather, the required prior consent under
Section 1 is grounded on Article VI, Section 22 of the Constitution on what has been referred to as the
question hour.

SECTION 22. The heads of departments may upon their own initiative, with the consent of the President, or
upon the request of either House, as the rules of each House shall provide, appear before and be heard by
such House on any matter pertaining to their departments. Written questions shall be submitted to the
President of the Senate or the Speaker of the House of Representatives at least three days before their
scheduled appearance. Interpellations shall not be limited to written questions, but may cover matters
related thereto. When the security of the State or the public interest so requires and the President so states
in writing, the appearance shall be conducted in executive session.
Determining the validity of Section 1 thus requires an examination of the meaning of Section 22 of Article
VI. Section 22 which provides for the question hour must be interpreted vis--vis Section 21 which provides
for the power of either House of Congress to "conduct inquiries in aid of legislation." As the following
excerpt of the deliberations of the Constitutional Commission shows, the framers were aware that these two
provisions involved distinct functions of Congress.
MR. MAAMBONG. x x x When we amended Section 20 [now Section 22 on the Question Hour] yesterday, I
noticed that members of the Cabinet cannot be compelled anymore to appear before the House of
Representatives or before the Senate. I have a particular problem in this regard, Madam President, because
in our experience in the Regular Batasang Pambansa as the Gentleman himself has experienced in the
interim Batasang Pambansa one of the most competent inputs that we can put in our committee
deliberations, either in aid of legislation or in congressional investigations, is the testimonies of Cabinet
ministers. We usually invite them, but if they do not come and it is a congressional investigation, we usually
issue subpoenas.
I want to be clarified on a statement made by Commissioner Suarez when he said that the fact that the
Cabinet ministers may refuse to come to the House of Representatives or the Senate [when requested
under Section 22] does not mean that they need not come when they are invited or subpoenaed by the
committee of either House when it comes to inquiries in aid of legislation or congressional investigation.
According to Commissioner Suarez, that is allowed and their presence can be had under Section 21. Does
the gentleman confirm this, Madam President?
MR. DAVIDE. We confirm that, Madam President, because Section 20 refers only to what was originally the
Question Hour, whereas, Section 21 would refer specifically to inquiries in aid of legislation, under which
anybody for that matter, may be summoned and if he refuses, he can be held in contempt of the House.83
(Emphasis and underscoring supplied)
A distinction was thus made between inquiries in aid of legislation and the question hour. While attendance
was meant to be discretionary in the question hour, it was compulsory in inquiries in aid of legislation. The
reference to Commissioner Suarez bears noting, he being one of the proponents of the amendment to make
the appearance of department heads discretionary in the question hour.
So clearly was this distinction conveyed to the members of the Commission that the Committee on Style,
precisely in recognition of this distinction, later moved the provision on question hour from its original
position as Section 20 in the original draft down to Section 31, far from the provision on inquiries in aid of
legislation. This gave rise to the following exchange during the deliberations:
MR. GUINGONA. [speaking in his capacity as Chairman of the Committee on Style] We now go, Mr. Presiding
Officer, to the Article on Legislative and may I request the chairperson of the Legislative Department,
Commissioner Davide, to give his reaction.
THE PRESIDING OFFICER (Mr. Jamir). Commissioner Davide is recognized.|avvphi|.net
MR. DAVIDE. Thank you, Mr. Presiding Officer. I have only one reaction to the Question Hour. I propose that
instead of putting it as Section 31, it should follow Legislative Inquiries.

THE PRESIDING OFFICER. What does the committee say?

MR. GUINGONA. I ask Commissioner Maambong to reply, Mr. Presiding Officer.
MR. MAAMBONG. Actually, we considered that previously when we sequenced this but we reasoned that in
Section 21, which is Legislative Inquiry, it is actually a power of Congress in terms of its own lawmaking;
whereas, a Question Hour is not actually a power in terms of its own lawmaking power because in
Legislative Inquiry, it is in aid of legislation. And so we put Question Hour as Section 31. I hope
Commissioner Davide will consider this.
MR. DAVIDE. The Question Hour is closely related with the legislative power, and it is precisely as a
complement to or a supplement of the Legislative Inquiry. The appearance of the members of Cabinet
would be very, very essential not only in the application of check and balance but also, in effect, in aid of
legislation.
MR. MAAMBONG. After conferring with the committee, we find merit in the suggestion of Commissioner
Davide. In other words, we are accepting that and so this Section 31 would now become Section 22. Would
it be, Commissioner Davide?
MR. DAVIDE. Yes.84 (Emphasis and underscoring supplied)
Consistent with their statements earlier in the deliberations, Commissioners Davide and Maambong
proceeded from the same assumption that these provisions pertained to two different functions of the
legislature. Both Commissioners understood that the power to conduct inquiries in aid of legislation is
different from the power to conduct inquiries during the question hour. Commissioner Davides only concern
was that the two provisions on these distinct powers be placed closely together, they being complementary
to each other. Neither Commissioner considered them as identical functions of Congress.
The foregoing opinion was not the two Commissioners alone. From the above-quoted exchange,
Commissioner Maambongs committee the Committee on Style shared the view that the two provisions
reflected distinct functions of Congress. Commissioner Davide, on the other hand, was speaking in his
capacity as Chairman of the Committee on the Legislative Department. His views may thus be presumed as
representing that of his Committee.
In the context of a parliamentary system of government, the "question hour" has a definite meaning. It is a
period of confrontation initiated by Parliament to hold the Prime Minister and the other ministers
accountable for their acts and the operation of the government,85 corresponding to what is known in
Britain as the question period. There was a specific provision for a question hour in the 1973 Constitution86
which made the appearance of ministers mandatory. The same perfectly conformed to the parliamentary
system established by that Constitution, where the ministers are also members of the legislature and are
directly accountable to it.
An essential feature of the parliamentary system of government is the immediate accountability of the
Prime Minister and the Cabinet to the National Assembly. They shall be responsible to the National
Assembly for the program of government and shall determine the guidelines of national policy. Unlike in the
presidential system where the tenure of office of all elected officials cannot be terminated before their term
expired, the Prime Minister and the Cabinet remain in office only as long as they enjoy the confidence of the
National Assembly. The moment this confidence is lost the Prime Minister and the Cabinet may be
changed.87
The framers of the 1987 Constitution removed the mandatory nature of such appearance during the
question hour in the present Constitution so as to conform more fully to a system of separation of
powers.88 To that extent, the question hour, as it is presently understood in this jurisdiction, departs from
the question period of the parliamentary system. That department heads may not be required to appear in

a question hour does not, however, mean that the legislature is rendered powerless to elicit information
from them in all circumstances. In fact, in light of the absence of a mandatory question period, the need to
enforce Congress right to executive information in the performance of its legislative function becomes
more imperative. As Schwartz observes:
Indeed, if the separation of powers has anything to tell us on the subject under discussion, it is that the
Congress has the right to obtain information from any source even from officials of departments and
agencies in the executive branch. In the United States there is, unlike the situation which prevails in a
parliamentary system such as that in Britain, a clear separation between the legislative and executive
branches. It is this very separation that makes the congressional right to obtain information from the
executive so essential, if the functions of the Congress as the elected representatives of the people are
adequately to be carried out. The absence of close rapport between the legislative and executive branches
in this country, comparable to those which exist under a parliamentary system, and the nonexistence in the
Congress of an institution such as the British question period have perforce made reliance by the Congress
upon its right to obtain information from the executive essential, if it is intelligently to perform its legislative
tasks. Unless the Congress possesses the right to obtain executive information, its power of oversight of
administration in a system such as ours becomes a power devoid of most of its practical content, since it
depends for its effectiveness solely upon information parceled out ex gratia by the executive.89 (Emphasis
and underscoring supplied)
Sections 21 and 22, therefore, while closely related and complementary to each other, should not be
considered as pertaining to the same power of Congress. One specifically relates to the power to conduct
inquiries in aid of legislation, the aim of which is to elicit information that may be used for legislation, while
the other pertains to the power to conduct a question hour, the objective of which is to obtain information in
pursuit of Congress oversight function.
When Congress merely seeks to be informed on how department heads are implementing the statutes
which it has issued, its right to such information is not as imperative as that of the President to whom, as
Chief Executive, such department heads must give a report of their performance as a matter of duty. In
such instances, Section 22, in keeping with the separation of powers, states that Congress may only request
their appearance. Nonetheless, when the inquiry in which Congress requires their appearance is "in aid of
legislation" under Section 21, the appearance is mandatory for the same reasons stated in Arnault.90
In fine, the oversight function of Congress may be facilitated by compulsory process only to the extent that
it is performed in pursuit of legislation. This is consistent with the intent discerned from the deliberations of
the Constitutional Commission.
Ultimately, the power of Congress to compel the appearance of executive officials under Section 21 and the
lack of it under Section 22 find their basis in the principle of separation of powers. While the executive
branch is a co-equal branch of the legislature, it cannot frustrate the power of Congress to legislate by
refusing to comply with its demands for information.
When Congress exercises its power of inquiry, the only way for department heads to exempt themselves
therefrom is by a valid claim of privilege. They are not exempt by the mere fact that they are department
heads. Only one executive official may be exempted from this power the President on whom executive
power is vested, hence, beyond the reach of Congress except through the power of impeachment. It is
based on her being the highest official of the executive branch, and the due respect accorded to a co-equal
branch of government which is sanctioned by a long-standing custom.
By the same token, members of the Supreme Court are also exempt from this power of inquiry. Unlike the
Presidency, judicial power is vested in a collegial body; hence, each member thereof is exempt on the basis
not only of separation of powers but also on the fiscal autonomy and the constitutional independence of the
judiciary. This point is not in dispute, as even counsel for the Senate, Sen. Joker Arroyo, admitted it during
the oral argument upon interpellation of the Chief Justice.

Having established the proper interpretation of Section 22, Article VI of the Constitution, the Court now
proceeds to pass on the constitutionality of Section 1 of E.O. 464.
Section 1, in view of its specific reference to Section 22 of Article VI of the Constitution and the absence of
any reference to inquiries in aid of legislation, must be construed as limited in its application to
appearances of department heads in the question hour contemplated in the provision of said Section 22 of
Article VI. The reading is dictated by the basic rule of construction that issuances must be interpreted, as
much as possible, in a way that will render it constitutional.
The requirement then to secure presidential consent under Section 1, limited as it is only to appearances in
the question hour, is valid on its face. For under Section 22, Article VI of the Constitution, the appearance of
department heads in the question hour is discretionary on their part.
Section 1 cannot, however, be applied to appearances of department heads in inquiries in aid of legislation.
Congress is not bound in such instances to respect the refusal of the department head to appear in such
inquiry, unless a valid claim of privilege is subsequently made, either by the President herself or by the
Executive Secretary.
Validity of Sections 2 and 3
Section 3 of E.O. 464 requires all the public officials enumerated in Section 2(b) to secure the consent of the
President prior to appearing before either house of Congress. The enumeration is broad. It covers all senior
officials of executive departments, all officers of the AFP and the PNP, and all senior national security
officials who, in the judgment of the heads of offices designated in the same section (i.e. department heads,
Chief of Staff of the AFP, Chief of the PNP, and the National Security Adviser), are "covered by the executive
privilege."
The enumeration also includes such other officers as may be determined by the President. Given the title of
Section 2 "Nature, Scope and Coverage of Executive Privilege" , it is evident that under the rule of
ejusdem generis, the determination by the President under this provision is intended to be based on a
similar finding of coverage under executive privilege.
En passant, the Court notes that Section 2(b) of E.O. 464 virtually states that executive privilege actually
covers persons. Such is a misuse of the doctrine. Executive privilege, as discussed above, is properly
invoked in relation to specific categories of information and not to categories of persons.
In light, however, of Sec 2(a) of E.O. 464 which deals with the nature, scope and coverage of executive
privilege, the reference to persons being "covered by the executive privilege" may be read as an
abbreviated way of saying that the person is in possession of information which is, in the judgment of the
head of office concerned, privileged as defined in Section 2(a). The Court shall thus proceed on the
assumption that this is the intention of the challenged order.
Upon a determination by the designated head of office or by the President that an official is "covered by the
executive privilege," such official is subjected to the requirement that he first secure the consent of the
President prior to appearing before Congress. This requirement effectively bars the appearance of the
official concerned unless the same is permitted by the President. The proviso allowing the President to give
its consent means nothing more than that the President may reverse a prohibition which already exists by
virtue of E.O. 464.
Thus, underlying this requirement of prior consent is the determination by a head of office, authorized by
the President under E.O. 464, or by the President herself, that such official is in possession of information
that is covered by executive privilege. This determination then becomes the basis for the officials not
showing up in the legislative investigation.

In view thereof, whenever an official invokes E.O. 464 to justify his failure to be present, such invocation
must be construed as a declaration to Congress that the President, or a head of office authorized by the
President, has determined that the requested information is privileged, and that the President has not
reversed such determination. Such declaration, however, even without mentioning the term "executive
privilege," amounts to an implied claim that the information is being withheld by the executive branch, by
authority of the President, on the basis of executive privilege. Verily, there is an implied claim of privilege.
The letter dated September 28, 2005 of respondent Executive Secretary Ermita to Senate President Drilon
illustrates the implied nature of the claim of privilege authorized by E.O. 464. It reads:
In connection with the inquiry to be conducted by the Committee of the Whole regarding the Northrail
Project of the North Luzon Railways Corporation on 29 September 2005 at 10:00 a.m., please be informed
that officials of the Executive Department invited to appear at the meeting will not be able to attend the
same without the consent of the President, pursuant to Executive Order No. 464 (s. 2005), entitled
"Ensuring Observance Of The Principle Of Separation Of Powers, Adherence To The Rule On Executive
Privilege And Respect For The Rights Of Public Officials Appearing In Legislative Inquiries In Aid Of
Legislation Under The Constitution, And For Other Purposes". Said officials have not secured the required
consent from the President. (Underscoring supplied)
The letter does not explicitly invoke executive privilege or that the matter on which these officials are being
requested to be resource persons falls under the recognized grounds of the privilege to justify their
absence. Nor does it expressly state that in view of the lack of consent from the President under E.O. 464,
they cannot attend the hearing.
Significant premises in this letter, however, are left unstated, deliberately or not. The letter assumes that
the invited officials are covered by E.O. 464. As explained earlier, however, to be covered by the order
means that a determination has been made, by the designated head of office or the President, that the
invited official possesses information that is covered by executive privilege. Thus, although it is not stated
in the letter that such determination has been made, the same must be deemed implied. Respecting the
statement that the invited officials have not secured the consent of the President, it only means that the
President has not reversed the standing prohibition against their appearance before Congress.
Inevitably, Executive Secretary Ermitas letter leads to the conclusion that the executive branch, either
through the President or the heads of offices authorized under E.O. 464, has made a determination that the
information required by the Senate is privileged, and that, at the time of writing, there has been no contrary
pronouncement from the President. In fine, an implied claim of privilege has been made by the executive.
While there is no Philippine case that directly addresses the issue of whether executive privilege may be
invoked against Congress, it is gathered from Chavez v. PEA that certain information in the possession of
the executive may validly be claimed as privileged even against Congress. Thus, the case holds:
There is no claim by PEA that the information demanded by petitioner is privileged information rooted in the
separation of powers. The information does not cover Presidential conversations, correspondences, or
discussions during closed-door Cabinet meetings which, like internal-deliberations of the Supreme Court
and other collegiate courts, or executive sessions of either house of Congress, are recognized as
confidential. This kind of information cannot be pried open by a co-equal branch of government. A frank
exchange of exploratory ideas and assessments, free from the glare of publicity and pressure by interested
parties, is essential to protect the independence of decision-making of those tasked to exercise Presidential,
Legislative and Judicial power. This is not the situation in the instant case.91 (Emphasis and underscoring
supplied)
Section 3 of E.O. 464, therefore, cannot be dismissed outright as invalid by the mere fact that it sanctions
claims of executive privilege. This Court must look further and assess the claim of privilege authorized by

the Order to determine whether it is valid.

While the validity of claims of privilege must be assessed on a case to case basis, examining the ground
invoked therefor and the particular circumstances surrounding it, there is, in an implied claim of privilege, a
defect that renders it invalid per se. By its very nature, and as demonstrated by the letter of respondent
Executive Secretary quoted above, the implied claim authorized by Section 3 of E.O. 464 is not
accompanied by any specific allegation of the basis thereof (e.g., whether the information demanded
involves military or diplomatic secrets, closed-door Cabinet meetings, etc.). While Section 2(a) enumerates
the types of information that are covered by the privilege under the challenged order, Congress is left to
speculate as to which among them is being referred to by the executive. The enumeration is not even
intended to be comprehensive, but a mere statement of what is included in the phrase "confidential or
classified information between the President and the public officers covered by this executive order."
Certainly, Congress has the right to know why the executive considers the requested information privileged.
It does not suffice to merely declare that the President, or an authorized head of office, has determined that
it is so, and that the President has not overturned that determination. Such declaration leaves Congress in
the dark on how the requested information could be classified as privileged. That the message is couched in
terms that, on first impression, do not seem like a claim of privilege only makes it more pernicious. It
threatens to make Congress doubly blind to the question of why the executive branch is not providing it
with the information that it has requested.
A claim of privilege, being a claim of exemption from an obligation to disclose information, must, therefore,
be clearly asserted. As U.S. v. Reynolds teaches:
The privilege belongs to the government and must be asserted by it; it can neither be claimed nor waived
by a private party. It is not to be lightly invoked. There must be a formal claim of privilege, lodged by the
head of the department which has control over the matter, after actual personal consideration by that
officer. The court itself must determine whether the circumstances are appropriate for the claim of privilege,
and yet do so without forcing a disclosure of the very thing the privilege is designed to protect.92
(Underscoring supplied)
Absent then a statement of the specific basis of a claim of executive privilege, there is no way of
determining whether it falls under one of the traditional privileges, or whether, given the circumstances in
which it is made, it should be respected.93 These, in substance, were the same criteria in assessing the
claim of privilege asserted against the Ombudsman in Almonte v. Vasquez94 and, more in point, against a
committee of the Senate in Senate Select Committee on Presidential Campaign Activities v. Nixon.95
A.O. Smith v. Federal Trade Commission is enlightening:
[T]he lack of specificity renders an assessment of the potential harm resulting from disclosure impossible,
thereby preventing the Court from balancing such harm against plaintiffs needs to determine whether to
override any claims of privilege.96 (Underscoring supplied)
And so is U.S. v. Article of Drug:97
On the present state of the record, this Court is not called upon to perform this balancing operation. In
stating its objection to claimants interrogatories, government asserts, and nothing more, that the
disclosures sought by claimant would inhibit the free expression of opinion that non-disclosure is designed
to protect. The government has not shown nor even alleged that those who evaluated claimants
product were involved in internal policymaking, generally, or in this particular instance. Privilege cannot be
set up by an unsupported claim. The facts upon which the privilege is based must be established. To find
these interrogatories objectionable, this Court would have to assume that the evaluation and classification
of claimants products was a matter of internal policy formulation, an assumption in which this Court is
unwilling to indulge sua sponte.98 (Emphasis and underscoring supplied)

Mobil Oil Corp. v. Department of Energy99 similarly emphasizes that "an agency must provide precise and
certain reasons for preserving the confidentiality of requested information."
Black v. Sheraton Corp. of America100 amplifies, thus:
A formal and proper claim of executive privilege requires a specific designation and description of the
documents within its scope as well as precise and certain reasons for preserving their confidentiality.
Without this specificity, it is impossible for a court to analyze the claim short of disclosure of the very thing
sought to be protected. As the affidavit now stands, the Court has little more than its sua sponte
speculation with which to weigh the applicability of the claim. An improperly asserted claim of privilege is
no claim of privilege. Therefore, despite the fact that a claim was made by the proper executive as Reynolds
requires, the Court can not recognize the claim in the instant case because it is legally insufficient to allow
the Court to make a just and reasonable determination as to its applicability. To recognize such a broad
claim in which the Defendant has given no precise or compelling reasons to shield these documents from
outside scrutiny, would make a farce of the whole procedure.101 (Emphasis and underscoring supplied)
Due respect for a co-equal branch of government, moreover, demands no less than a claim of privilege
clearly stating the grounds therefor. Apropos is the following ruling in McPhaul v. U.S:102
We think the Courts decision in United States v. Bryan, 339 U.S. 323, 70 S. Ct. 724, is highly relevant to
these questions. For it is as true here as it was there, that if (petitioner) had legitimate reasons for failing to
produce the records of the association, a decent respect for the House of Representatives, by whose
authority the subpoenas issued, would have required that (he) state (his) reasons for noncompliance upon
the return of the writ. Such a statement would have given the Subcommittee an opportunity to avoid the
blocking of its inquiry by taking other appropriate steps to obtain the records. To deny the Committee the
opportunity to consider the objection or remedy is in itself a contempt of its authority and an obstruction of
its processes. His failure to make any such statement was "a patent evasion of the duty of one summoned
to produce papers before a congressional committee[, and] cannot be condoned." (Emphasis and
underscoring supplied; citations omitted)
Upon the other hand, Congress must not require the executive to state the reasons for the claim with such
particularity as to compel disclosure of the information which the privilege is meant to protect.103 A useful
analogy in determining the requisite degree of particularity would be the privilege against selfincrimination. Thus, Hoffman v. U.S.104 declares:
The witness is not exonerated from answering merely because he declares that in so doing he would
incriminate himself his say-so does not of itself establish the hazard of incrimination. It is for the court to
say whether his silence is justified, and to require him to answer if it clearly appears to the court that he is
mistaken. However, if the witness, upon interposing his claim, were required to prove the hazard in the
sense in which a claim is usually required to be established in court, he would be compelled to surrender
the very protection which the privilege is designed to guarantee. To sustain the privilege, it need only be
evident from the implications of the question, in the setting in which it is asked, that a responsive answer to
the question or an explanation of why it cannot be answered might be dangerous because injurious
disclosure could result." x x x (Emphasis and underscoring supplied)
The claim of privilege under Section 3 of E.O. 464 in relation to Section 2(b) is thus invalid per se. It is not
asserted. It is merely implied. Instead of providing precise and certain reasons for the claim, it merely
invokes E.O. 464, coupled with an announcement that the President has not given her consent. It is woefully
insufficient for Congress to determine whether the withholding of information is justified under the
circumstances of each case. It severely frustrates the power of inquiry of Congress.
In fine, Section 3 and Section 2(b) of E.O. 464 must be invalidated.

No infirmity, however, can be imputed to Section 2(a) as it merely provides guidelines, binding only on the
heads of office mentioned in Section 2(b), on what is covered by executive privilege. It does not purport to
be conclusive on the other branches of government. It may thus be construed as a mere expression of
opinion by the President regarding the nature and scope of executive privilege.
Petitioners, however, assert as another ground for invalidating the challenged order the alleged unlawful
delegation of authority to the heads of offices in Section 2(b). Petitioner Senate of the Philippines, in
particular, cites the case of the United States where, so it claims, only the President can assert executive
privilege to withhold information from Congress.
Section 2(b) in relation to Section 3 virtually provides that, once the head of office determines that a certain
information is privileged, such determination is presumed to bear the Presidents authority and has the
effect of prohibiting the official from appearing before Congress, subject only to the express pronouncement
of the President that it is allowing the appearance of such official. These provisions thus allow the President
to authorize claims of privilege by mere silence.
Such presumptive authorization, however, is contrary to the exceptional nature of the privilege. Executive
privilege, as already discussed, is recognized with respect to information the confidential nature of which is
crucial to the fulfillment of the unique role and responsibilities of the executive branch,105 or in those
instances where exemption from disclosure is necessary to the discharge of highly important executive
responsibilities.106 The doctrine of executive privilege is thus premised on the fact that certain
informations must, as a matter of necessity, be kept confidential in pursuit of the public interest. The
privilege being, by definition, an exemption from the obligation to disclose information, in this case to
Congress, the necessity must be of such high degree as to outweigh the public interest in enforcing that
obligation in a particular case.
In light of this highly exceptional nature of the privilege, the Court finds it essential to limit to the President
the power to invoke the privilege. She may of course authorize the Executive Secretary to invoke the
privilege on her behalf, in which case the Executive Secretary must state that the authority is "By order of
the President," which means that he personally consulted with her. The privilege being an extraordinary
power, it must be wielded only by the highest official in the executive hierarchy. In other words, the
President may not authorize her subordinates to exercise such power. There is even less reason to uphold
such authorization in the instant case where the authorization is not explicit but by mere silence. Section 3,
in relation to Section 2(b), is further invalid on this score.
It follows, therefore, that when an official is being summoned by Congress on a matter which, in his own
judgment, might be covered by executive privilege, he must be afforded reasonable time to inform the
President or the Executive Secretary of the possible need for invoking the privilege. This is necessary in
order to provide the President or the Executive Secretary with fair opportunity to consider whether the
matter indeed calls for a claim of executive privilege. If, after the lapse of that reasonable time, neither the
President nor the Executive Secretary invokes the privilege, Congress is no longer bound to respect the
failure of the official to appear before Congress and may then opt to avail of the necessary legal means to
compel his appearance.
The Court notes that one of the expressed purposes for requiring officials to secure the consent of the
President under Section 3 of E.O. 464 is to ensure "respect for the rights of public officials appearing in
inquiries in aid of legislation." That such rights must indeed be respected by Congress is an echo from
Article VI Section 21 of the Constitution mandating that "[t]he rights of persons appearing in or affected by
such inquiries shall be respected."
In light of the above discussion of Section 3, it is clear that it is essentially an authorization for implied
claims of executive privilege, for which reason it must be invalidated. That such authorization is partly
motivated by the need to ensure respect for such officials does not change the infirm nature of the
authorization itself.

Right to Information
E.O 464 is concerned only with the demands of Congress for the appearance of executive officials in the
hearings conducted by it, and not with the demands of citizens for information pursuant to their right to
information on matters of public concern. Petitioners are not amiss in claiming, however, that what is
involved in the present controversy is not merely the legislative power of inquiry, but the right of the people
to information.
There are, it bears noting, clear distinctions between the right of Congress to information which underlies
the power of inquiry and the right of the people to information on matters of public concern. For one, the
demand of a citizen for the production of documents pursuant to his right to information does not have the
same obligatory force as a subpoena duces tecum issued by Congress. Neither does the right to information
grant a citizen the power to exact testimony from government officials. These powers belong only to
Congress and not to an individual citizen.
Thus, while Congress is composed of representatives elected by the people, it does not follow, except in a
highly qualified sense, that in every exercise of its power of inquiry, the people are exercising their right to
information.
To the extent that investigations in aid of legislation are generally conducted in public, however, any
executive issuance tending to unduly limit disclosures of information in such investigations necessarily
deprives the people of information which, being presumed to be in aid of legislation, is presumed to be a
matter of public concern. The citizens are thereby denied access to information which they can use in
formulating their own opinions on the matter before Congress opinions which they can then
communicate to their representatives and other government officials through the various legal means
allowed by their freedom of expression. Thus holds Valmonte v. Belmonte:
It is in the interest of the State that the channels for free political discussion be maintained to the end that
the government may perceive and be responsive to the peoples will. Yet, this open dialogue can be
effective only to the extent that the citizenry is informed and thus able to formulate its will intelligently.
Only when the participants in the discussion are aware of the issues and have access to information relating
thereto can such bear fruit.107 (Emphasis and underscoring supplied)
The impairment of the right of the people to information as a consequence of E.O. 464 is, therefore, in the
sense explained above, just as direct as its violation of the legislatures power of inquiry.
Implementation of E.O. 464 prior to its publication
While E.O. 464 applies only to officials of the executive branch, it does not follow that the same is exempt
from the need for publication. On the need for publishing even those statutes that do not directly apply to
people in general, Taada v. Tuvera states:
The term "laws" should refer to all laws and not only to those of general application, for strictly speaking all
laws relate to the people in general albeit there are some that do not apply to them directly. An example is
a law granting citizenship to a particular individual, like a relative of President Marcos who was decreed
instant naturalization. It surely cannot be said that such a law does not affect the public although it
unquestionably does not apply directly to all the people. The subject of such law is a matter of public
interest which any member of the body politic may question in the political forums or, if he is a proper
party, even in courts of justice.108 (Emphasis and underscoring supplied)
Although the above statement was made in reference to statutes, logic dictates that the challenged order
must be covered by the publication requirement. As explained above, E.O. 464 has a direct effect on the
right of the people to information on matters of public concern. It is, therefore, a matter of public interest

which members of the body politic may question before this Court. Due process thus requires that the
people should have been apprised of this issuance before it was implemented.
Conclusion
Congress undoubtedly has a right to information from the executive branch whenever it is sought in aid of
legislation. If the executive branch withholds such information on the ground that it is privileged, it must so
assert it and state the reason therefor and why it must be respected.
The infirm provisions of E.O. 464, however, allow the executive branch to evade congressional requests for
information without need of clearly asserting a right to do so and/or proffering its reasons therefor. By the
mere expedient of invoking said provisions, the power of Congress to conduct inquiries in aid of legislation
is frustrated. That is impermissible. For
[w]hat republican theory did accomplishwas to reverse the old presumption in favor of secrecy, based on
the divine right of kings and nobles, and replace it with a presumption in favor of publicity, based on the
doctrine of popular sovereignty. (Underscoring supplied)109
Resort to any means then by which officials of the executive branch could refuse to divulge information
cannot be presumed valid. Otherwise, we shall not have merely nullified the power of our legislature to
inquire into the operations of government, but we shall have given up something of much greater value
our right as a people to take part in government.
WHEREFORE, the petitions are PARTLY GRANTED. Sections 2(b) and 3 of Executive Order No. 464 (series of
2005), "Ensuring Observance of the Principle of Separation of Powers, Adherence to the Rule on Executive
Privilege and Respect for the Rights of Public Officials Appearing in Legislative Inquiries in Aid of Legislation
Under the Constitution, and For Other Purposes," are declared VOID. Sections 1 and 2(a) are, however,
VALID.
SO ORDERED.
CONCHITA CARPIO MORALES
Associate Justice
WE CONCUR:
ARTEMIO V. PANGANIBAN
Chief Justice
G.R. No. 180643

September 4, 2008

ROMULO L. NERI, petitioner,

vs.
SENATE COMMITTEE ON ACCOUNTABILITY OF PUBLIC OFFICERS AND INVESTIGATIONS, SENATE
COMMITTEE ON TRADE AND COMMERCE, AND SENATE COMMITTEE ON NATIONAL DEFENSE AND
SECURITY, respondents.
RESOLUTION
LEONARDO-DE CASTRO, J.:
Executive privilege is not a personal privilege, but one that adheres to the Office of the President. It exists
to protect public interest, not to benefit a particular public official. Its purpose, among others, is to assure

that the nation will receive the benefit of candid, objective and untrammeled communication and exchange
of information between the President and his/her advisers in the process of shaping or forming policies and
arriving at decisions in the exercise of the functions of the Presidency under the Constitution. The
confidentiality of the Presidents conversations and correspondence is not unique. It is akin to the
confidentiality of judicial deliberations. It possesses the same value as the right to privacy of all citizens and
more, because it is dictated by public interest and the constitutionally ordained separation of governmental
powers.
In these proceedings, this Court has been called upon to exercise its power of review and arbitrate a hotly,
even acrimoniously, debated dispute between the Courts co-equal branches of government. In this task,
this Court should neither curb the legitimate powers of any of the co-equal and coordinate branches of
government nor allow any of them to overstep the boundaries set for it by our Constitution. The competing
interests in the case at bar are the claim of executive privilege by the President, on the one hand, and the
respondent Senate Committees assertion of their power to conduct legislative inquiries, on the other. The
particular facts and circumstances of the present case, stripped of the politically and emotionally charged
rhetoric from both sides and viewed in the light of settled constitutional and legal doctrines, plainly lead to
the conclusion that the claim of executive privilege must be upheld.
Assailed in this motion for reconsideration is our Decision dated March 25, 2008 (the "Decision"), granting
the petition for certiorari filed by petitioner Romulo L. Neri against the respondent Senate Committees on
Accountability of Public Officers and Investigations,1 Trade and Commerce,2 and National Defense and
Security (collectively the "respondent Committees").3
A brief review of the facts is imperative.
On September 26, 2007, petitioner appeared before respondent Committees and testified for about eleven
(11) hours on matters concerning the National Broadband Project (the "NBN Project"), a project awarded by
the Department of Transportation and Communications ("DOTC") to Zhong Xing Telecommunications
Equipment ("ZTE"). Petitioner disclosed that then Commission on Elections ("COMELEC") Chairman
Benjamin Abalos offered him P200 Million in exchange for his approval of the NBN Project. He further
narrated that he informed President Gloria Macapagal Arroyo ("President Arroyo") of the bribery attempt
and that she instructed him not to accept the bribe. However, when probed further on President Arroyo and
petitioners discussions relating to the NBN Project, petitioner refused to answer, invoking "executive
privilege." To be specific, petitioner refused to answer questions on: (a) whether or not President Arroyo
followed up the NBN Project,4 (b) whether or not she directed him to prioritize it,5 and (c) whether or not
she directed him to approve it.6
Respondent Committees persisted in knowing petitioners answers to these three questions by requiring
him to appear and testify once more on November 20, 2007. On November 15, 2007, Executive Secretary
Eduardo R. Ermita wrote to respondent Committees and requested them to dispense with petitioners
testimony on the ground of executive privilege.7 The letter of Executive Secretary Ermita pertinently stated:
Following the ruling in Senate v. Ermita, the foregoing questions fall under conversations and
correspondence between the President and public officials which are considered executive privilege
(Almonte v. Vasquez, G.R. 95637, 23 May 1995; Chavez v. PEA, G.R. 133250, July 9, 2002). Maintaining the
confidentiality of conversations of the President is necessary in the exercise of her executive and policy
decision making process. The expectation of a President to the confidentiality of her conversations and
correspondences, like the value which we accord deference for the privacy of all citizens, is the necessity
for protection of the public interest in candid, objective, and even blunt or harsh opinions in Presidential
decision-making. Disclosure of conversations of the President will have a chilling effect on the President,
and will hamper her in the effective discharge of her duties and responsibilities, if she is not protected by
the confidentiality of her conversations.
The context in which executive privilege is being invoked is that the information sought to be disclosed

might impair our diplomatic as well as economic relations with the Peoples Republic of China. Given the
confidential nature in which these information were conveyed to the President, he cannot provide the
Committee any further details of these conversations, without disclosing the very thing the privilege is
designed to protect.
In light of the above considerations, this Office is constrained to invoke the settled doctrine of executive
privilege as refined in Senate v. Ermita, and has advised Secretary Neri accordingly.
Considering that Sec. Neri has been lengthily interrogated on the subject in an unprecedented 11-hour
hearing, wherein he has answered all questions propounded to him except the foregoing questions
involving executive privilege, we therefore request that his testimony on 20 November 2007 on the ZTE /
NBN project be dispensed with.
On November 20, 2007, petitioner did not appear before respondent Committees upon orders of the
President invoking executive privilege. On November 22, 2007, the respondent Committees issued the
show-cause letter requiring him to explain why he should not be cited in contempt. On November 29, 2007,
in petitioners reply to respondent Committees, he manifested that it was not his intention to ignore the
Senate hearing and that he thought the only remaining questions were those he claimed to be covered by
executive privilege. He also manifested his willingness to appear and testify should there be new matters to
be taken up. He just requested that he be furnished "in advance as to what else" he "needs to clarify."
Respondent Committees found petitioners explanations unsatisfactory. Without responding to his request
for advance notice of the matters that he should still clarify, they issued the Order dated January 30, 2008;
In Re: P.S. Res. Nos. 127,129,136 & 144; and privilege speeches of Senator Lacson and Santiago (all on the
ZTE-NBN Project), citing petitioner in contempt of respondent Committees and ordering his arrest and
detention at the Office of the Senate Sergeant-at-Arms until such time that he would appear and give his
testimony.
On the same date, petitioner moved for the reconsideration of the above Order.8 He insisted that he had
not shown "any contemptible conduct worthy of contempt and arrest." He emphasized his willingness to
testify on new matters, but respondent Committees did not respond to his request for advance notice of
questions. He also mentioned the petition for certiorari he previously filed with this Court on December 7,
2007. According to him, this should restrain respondent Committees from enforcing the order dated January
30, 2008 which declared him in contempt and directed his arrest and detention.
Petitioner then filed his Supplemental Petition for Certiorari (with Urgent Application for TRO/Preliminary
Injunction) on February 1, 2008. In the Courts Resolution dated February 4, 2008, the parties were required
to observe the status quo prevailing prior to the Order dated January 30, 2008.
On March 25, 2008, the Court granted his petition for certiorari on two grounds: first, the communications
elicited by the three (3) questions were covered by executive privilege; and second, respondent
Committees committed grave abuse of discretion in issuing the contempt order. Anent the first ground, we
considered the subject communications as falling under the presidential communications privilege because
(a) they related to a quintessential and non-delegable power of the President, (b) they were received by a
close advisor of the President, and (c) respondent Committees failed to adequately show a compelling need
that would justify the limitation of the privilege and the unavailability of the information elsewhere by an
appropriate investigating authority. As to the second ground, we found that respondent Committees
committed grave abuse of discretion in issuing the contempt order because (a) there was a valid claim of
executive privilege, (b) their invitations to petitioner did not contain the questions relevant to the inquiry,
(c) there was a cloud of doubt as to the regularity of the proceeding that led to their issuance of the
contempt order, (d) they violated Section 21, Article VI of the Constitution because their inquiry was not in
accordance with the "duly published rules of procedure," and (e) they issued the contempt order arbitrarily
and precipitately.

On April 8, 2008, respondent Committees filed the present motion for reconsideration, anchored on the
following grounds:
I
CONTRARY TO THIS HONORABLE COURTS DECISION, THERE IS NO DOUBT THAT THE ASSAILED ORDERS
WERE ISSUED BY RESPONDENT COMMITTEES PURSUANT TO THE EXERCISE OF THEIR LEGISLATIVE POWER,
AND NOT MERELY THEIR OVERSIGHT FUNCTIONS.
II
CONTRARY TO THIS HONORABLE COURTS DECISION, THERE CAN BE NO PRESUMPTION THAT THE
INFORMATION WITHHELD IN THE INSTANT CASE IS PRIVILEGED.
III
CONTRARY TO THIS HONORABLE COURTS DECISION, THERE IS NO FACTUAL OR LEGAL BASIS TO HOLD THAT
THE COMMUNICATIONS ELICITED BY THE SUBJECT THREE (3) QUESTIONS ARE COVERED BY EXECUTIVE
PRIVILEGE, CONSIDERING THAT:
A. THERE IS NO SHOWING THAT THE MATTERS FOR WHICH EXECUTIVE PRIVILEGE IS CLAIMED CONSTITUTE
STATE SECRETS.
B. EVEN IF THE TESTS ADOPTED BY THIS HONORABLE COURT IN THE DECISION IS APPLIED, THERE IS NO
SHOWING THAT THE ELEMENTS OF PRESIDENTIAL COMMUNICATIONS PRIVILEGE ARE PRESENT.
C. ON THE CONTRARY, THERE IS ADEQUATE SHOWING OF A COMPELLING NEED TO JUSTIFY THE
DISCLOSURE OF THE INFORMATION SOUGHT.
D. TO UPHOLD THE CLAIM OF EXECUTIVE PRIVILEGE IN THE INSTANT CASE WOULD SERIOUSLY IMPAIR THE
RESPONDENTS PERFORMANCE OF THEIR PRIMARY FUNCTION TO ENACT LAWS.
E. FINALLY, THE CONSTITUTIONAL RIGHT OF THE PEOPLE TO INFORMATION, AND THE CONSTITUTIONAL
POLICIES ON PUBLIC ACCOUNTABILITY AND TRANSPARENCY OUTWEIGH THE CLAIM OF EXECUTIVE
PRIVILEGE.
IV
CONTRARY TO THIS HONORABLE COURTS DECISION, RESPONDENTS DID NOT COMMIT GRAVE ABUSE OF
DISCRETION IN ISSUING THE ASSAILED CONTEMPT ORDER, CONSIDERING THAT:
A. THERE IS NO LEGITIMATE CLAIM OF EXECUTIVE PRIVILEGE IN THE INSTANT CASE.
B. RESPONDENTS DID NOT VIOLATE THE SUPPOSED REQUIREMENTS LAID DOWN IN SENATE V. ERMITA.
C. RESPONDENTS DULY ISSUED THE CONTEMPT ORDER IN ACCORDANCE WITH THEIR INTERNAL RULES.
D. RESPONDENTS DID NOT VIOLATE THE REQUIREMENTS UNDER ARTICLE VI, SECTION 21 OF THE
CONSTITUTION REQUIRING THAT ITS RULES OF PROCEDURE BE DULY PUBLISHED, AND WERE DENIED DUE
PROCESS WHEN THE COURT CONSIDERED THE OSGS INTERVENTION ON THIS ISSUE WITHOUT GIVING
RESPONDENTS THE OPPORTUNITY TO COMMENT.
E. RESPONDENTS ISSUANCE OF THE CONTEMPT ORDER IS NOT ARBITRARY OR PRECIPITATE.

In his Comment, petitioner charges respondent Committees with exaggerating and distorting the Decision
of this Court. He avers that there is nothing in it that prohibits respondent Committees from investigating
the NBN Project or asking him additional questions. According to petitioner, the Court merely applied the
rule on executive privilege to the facts of the case. He further submits the following contentions: first, the
assailed Decision did not reverse the presumption against executive secrecy laid down in Senate v. Ermita;
second, respondent Committees failed to overcome the presumption of executive privilege because it
appears that they could legislate even without the communications elicited by the three (3) questions, and
they admitted that they could dispense with petitioners testimony if certain NEDA documents would be
given to them; third, the requirement of specificity applies only to the privilege for State, military and
diplomatic secrets, not to the necessarily broad and all-encompassing presidential communications
privilege; fourth, there is no right to pry into the Presidents thought processes or exploratory exchanges;
fifth, petitioner is not covering up or hiding anything illegal; sixth, the Court has the power and duty to
annul the Senate Rules; seventh, the Senate is not a continuing body, thus the failure of the present Senate
to publish its Rules of Procedure Governing Inquiries in Aid of Legislation (Rules) has a vitiating effect on
them; eighth, the requirement for a witness to be furnished advance copy of questions comports with due
process and the constitutional mandate that the rights of witnesses be respected; and ninth, neither
petitioner nor respondent has the final say on the matter of executive privilege, only the Court.
For its part, the Office of the Solicitor General maintains that: (1) there is no categorical pronouncement
from the Court that the assailed Orders were issued by respondent Committees pursuant to their oversight
function; hence, there is no reason for them "to make much" of the distinction between Sections 21 and 22,
Article VI of the Constitution; (2) presidential communications enjoy a presumptive privilege against
disclosure as earlier held in Almonte v. Vasquez9 and Chavez v. Public Estates Authority (PEA)10; (3) the
communications elicited by the three (3) questions are covered by executive privilege, because all the
elements of the presidential communications privilege are present; (4) the subpoena ad testificandum
issued by respondent Committees to petitioner is fatally defective under existing law and jurisprudence; (5)
the failure of the present Senate to publish its Rules renders the same void; and (6) respondent Committees
arbitrarily issued the contempt order.
Incidentally, respondent Committees objection to the Resolution dated March 18, 2008 (granting the Office
of the Solicitor Generals Motion for Leave to Intervene and to Admit Attached Memorandum) only after the
promulgation of the Decision in this case is foreclosed by its untimeliness.
The core issues that arise from the foregoing respective contentions of the opposing parties are as follows:
(1) whether or not there is a recognized presumptive presidential communications privilege in our legal
system;
(2) whether or not there is factual or legal basis to hold that the communications elicited by the three (3)
questions are covered by executive privilege;
(3) whether or not respondent Committees have shown that the communications elicited by the three (3)
questions are critical to the exercise of their functions; and
(4) whether or not respondent Committees committed grave abuse of discretion in issuing the contempt
order.
We shall discuss these issues seriatim.
I
There Is a Recognized Presumptive
Presidential Communications Privilege

Respondent Committees ardently argue that the Courts declaration that presidential communications are
presumptively privileged reverses the "presumption" laid down in Senate v. Ermita11 that "inclines heavily
against executive secrecy and in favor of disclosure." Respondent Committees then claim that the Court
erred in relying on the doctrine in Nixon.
Respondent Committees argue as if this were the first time the presumption in favor of the presidential
communications privilege is mentioned and adopted in our legal system. That is far from the truth. The
Court, in the earlier case of Almonte v. Vasquez,12 affirmed that the presidential communications privilege
is fundamental to the operation of government and inextricably rooted in the separation of powers under
the Constitution. Even Senate v. Ermita,13 the case relied upon by respondent Committees, reiterated this
concept. There, the Court enumerated the cases in which the claim of executive privilege was recognized,
among them Almonte v. Chavez, Chavez v. Presidential Commission on Good Government (PCGG),14 and
Chavez v. PEA.15 The Court articulated in these cases that "there are certain types of information which the
government may withhold from the public,16" that there is a "governmental privilege against public
disclosure with respect to state secrets regarding military, diplomatic and other national security
matters";17 and that "the right to information does not extend to matters recognized as privileged
information under the separation of powers, by which the Court meant Presidential conversations,
correspondences, and discussions in closed-door Cabinet meetings."18
Respondent Committees observation that this Courts Decision reversed the "presumption that inclines
heavily against executive secrecy and in favor of disclosure" arises from a piecemeal interpretation of the
said Decision. The Court has repeatedly held that in order to arrive at the true intent and meaning of a
decision, no specific portion thereof should be isolated and resorted to, but the decision must be considered
in its entirety.19
Note that the aforesaid presumption is made in the context of the circumstances obtaining in Senate v.
Ermita, which declared void Sections 2(b) and 3 of Executive Order (E.O.) No. 464, Series of 2005. The
pertinent portion of the decision in the said case reads:
From the above discussion on the meaning and scope of executive privilege, both in the United States and
in this jurisprudence, a clear principle emerges. Executive privilege, whether asserted against Congress, the
courts, or the public, is recognized only in relation to certain types of information of a sensitive character.
While executive privilege is a constitutional concept, a claim thereof may be valid or not depending on the
ground invoked to justify it and the context in which it is made. Noticeably absent is any recognition that
executive officials are exempt from the duty to disclose information by the mere fact of being executive
officials. Indeed, the extraordinary character of the exemptions indicates that the presumption inclines
heavily against executive secrecy and in favor of disclosure. (Emphasis and underscoring supplied)
Obviously, the last sentence of the above-quoted paragraph in Senate v. Ermita refers to the "exemption"
being claimed by the executive officials mentioned in Section 2(b) of E.O. No. 464, solely by virtue of their
positions in the Executive Branch. This means that when an executive official, who is one of those
mentioned in the said Sec. 2(b) of E.O. No. 464, claims to be exempt from disclosure, there can be no
presumption of authorization to invoke executive privilege given by the President to said executive official,
such that the presumption in this situation inclines heavily against executive secrecy and in favor of
disclosure.
Senate v. Ermita 20 expounds on the premise of the foregoing ruling in this wise:
Section 2(b) in relation to Section 3 virtually provides that, once the head of office determines that a certain
information is privileged, such determination is presumed to bear the Presidents authority and has the
effect of prohibiting the official from appearing before Congress, subject only to the express pronouncement
of the President that it is allowing the appearance of such official. These provisions thus allow the President
to authorize claims of privilege by mere silence.

Such presumptive authorization, however, is contrary to the exceptional nature of the privilege. Executive
privilege, as already discussed, is recognized with respect to information the confidential nature of which is
crucial to the fulfillment of the unique role and responsibilities of the executive branch, or in those instances
where exemption from disclosure is necessary to the discharge of highly important executive
responsibilities. The doctrine of executive privilege is thus premised on the fact that certain information
must, as a matter of necessity, be kept confidential in pursuit of the public interest. The privilege being, by
definition, an exemption from the obligation to disclose information, in this case to Congress, the necessity
must be of such high degree as to outweigh the public interest in enforcing that obligation in a particular
case.
In light of this highly exceptional nature of the privilege, the Court finds it essential to limit to the President
the power to invoke the privilege. She may of course authorize the Executive Secretary to invoke the
privilege on her behalf, in which case the Executive Secretary must state that the authority is "By order of
the President", which means that he personally consulted with her. The privilege being an extraordinary
power, it must be wielded only by the highest official in the executive hierarchy. In other words, the
President may not authorize her subordinates to exercise such power. There is even less reason to uphold
such authorization in the instant case where the authorization is not explicit but by mere silence. Section 3,
in relation to Section 2(b), is further invalid on this score.
The constitutional infirmity found in the blanket authorization to invoke executive privilege granted by the
President to executive officials in Sec. 2(b) of E.O. No. 464 does not obtain in this case.
In this case, it was the President herself, through Executive Secretary Ermita, who invoked executive
privilege on a specific matter involving an executive agreement between the Philippines and China, which
was the subject of the three (3) questions propounded to petitioner Neri in the course of the Senate
Committees investigation. Thus, the factual setting of this case markedly differs from that passed upon in
Senate v. Ermita.
Moreover, contrary to the claim of respondents, the Decision in this present case hews closely to the ruling
in Senate v. Ermita,21 to wit:
Executive privilege
The phrase "executive privilege" is not new in this jurisdiction. It has been used even prior to the
promulgation of the 1986 Constitution. Being of American origin, it is best understood in light of how it has
been defined and used in the legal literature of the United States.
Schwart defines executive privilege as "the power of the Government to withhold information from the
public, the courts, and the Congress. Similarly, Rozell defines it as "the right of the President and high-level
executive branch officers to withhold information from Congress, the courts, and ultimately the public." x x
x In this jurisdiction, the doctrine of executive privilege was recognized by this Court in Almonte v. Vasquez.
Almonte used the term in reference to the same privilege subject of Nixon. It quoted the following portion of
the Nixon decision which explains the basis for the privilege:
"The expectation of a President to the confidentiality of his conversations and correspondences, like the
claim of confidentiality of judicial deliberations, for example, he has all the values to which we accord
deference for the privacy of all citizens and, added to those values, is the necessity for protection of the
public interest in candid, objective, and even blunt or harsh opinions in Presidential decision-making. A
President and those who assist him must be free to explore alternatives in the process of shaping policies
and making decisions and to do so in a way many would be unwilling to express except privately. These are
the considerations justifying a presumptive privilege for Presidential communications. The privilege is
fundamental to the operation of government and inextricably rooted in the separation of powers under the
Constitution x x x " (Emphasis and italics supplied)

Clearly, therefore, even Senate v. Ermita adverts to "a presumptive privilege for Presidential
communication," which was recognized early on in Almonte v. Vasquez. To construe the passage in Senate
v. Ermita adverted to in the Motion for Reconsideration of respondent Committees, referring to the nonexistence of a "presumptive authorization" of an executive official, to mean that the "presumption" in favor
of executive privilege "inclines heavily against executive secrecy and in favor of disclosure" is to distort the
ruling in the Senate v. Ermita and make the same engage in self-contradiction.
Senate v. Ermita22 expounds on the constitutional underpinning of the relationship between the Executive
Department and the Legislative Department to explain why there should be no implied authorization or
presumptive authorization to invoke executive privilege by the Presidents subordinate officials, as follows:
When Congress exercises its power of inquiry, the only way for department heads to exempt themselves
therefrom is by a valid claim of privilege. They are not exempt by the mere fact that they are department
heads. Only one executive official may be exempted from this power - the President on whom executive
power is vested, hence, beyond the reach of Congress except through the power of impeachment. It is
based on he being the highest official of the executive branch, and the due respect accorded to a co-equal
branch of governments which is sanctioned by a long-standing custom. (Underscoring supplied)
Thus, if what is involved is the presumptive privilege of presidential communications when invoked by the
President on a matter clearly within the domain of the Executive, the said presumption dictates that the
same be recognized and be given preference or priority, in the absence of proof of a compelling or critical
need for disclosure by the one assailing such presumption. Any construction to the contrary will render
meaningless the presumption accorded by settled jurisprudence in favor of executive privilege. In fact,
Senate v. Ermita reiterates jurisprudence citing "the considerations justifying a presumptive privilege for
Presidential communications."23
II
There Are Factual and Legal Bases to
Hold that the Communications Elicited by the
Three (3) Questions Are Covered by Executive Privilege
Respondent Committees claim that the communications elicited by the three (3) questions are not covered
by executive privilege because the elements of the presidential communications privilege are not present.
A. The power to enter into an executive agreement is a "quintessential and non-delegable presidential
power."
First, respondent Committees contend that the power to secure a foreign loan does not relate to a
"quintessential and non-delegable presidential power," because the Constitution does not vest it in the
President alone, but also in the Monetary Board which is required to give its prior concurrence and to report
to Congress.
This argument is unpersuasive.
The fact that a power is subject to the concurrence of another entity does not make such power less
executive. "Quintessential" is defined as the most perfect embodiment of something, the concentrated
essence of substance.24 On the other hand, "non-delegable" means that a power or duty cannot be
delegated to another or, even if delegated, the responsibility remains with the obligor.25 The power to enter
into an executive agreement is in essence an executive power. This authority of the President to enter into
executive agreements without the concurrence of the Legislature has traditionally been recognized in
Philippine jurisprudence.26 Now, the fact that the President has to secure the prior concurrence of the
Monetary Board, which shall submit to Congress a complete report of its decision before contracting or
guaranteeing foreign loans, does not diminish the executive nature of the power.

The inviolate doctrine of separation of powers among the legislative, executive and judicial branches of
government by no means prescribes absolute autonomy in the discharge by each branch of that part of the
governmental power assigned to it by the sovereign people. There is the corollary doctrine of checks and
balances, which has been carefully calibrated by the Constitution to temper the official acts of each of these
three branches. Thus, by analogy, the fact that certain legislative acts require action from the President for
their validity does not render such acts less legislative in nature. A good example is the power to pass a law.
Article VI, Section 27 of the Constitution mandates that every bill passed by Congress shall, before it
becomes a law, be presented to the President who shall approve or veto the same. The fact that the
approval or vetoing of the bill is lodged with the President does not render the power to pass law executive
in nature. This is because the power to pass law is generally a quintessential and non-delegable power of
the Legislature. In the same vein, the executive power to enter or not to enter into a contract to secure
foreign loans does not become less executive in nature because of conditions laid down in the Constitution.
The final decision in the exercise of the said executive power is still lodged in the Office of the President.
B. The "doctrine of operational proximity" was laid down precisely to limit the scope of the presidential
communications privilege but, in any case, it is not conclusive.
Second, respondent Committees also seek reconsideration of the application of the "doctrine of operational
proximity" for the reason that "it maybe misconstrued to expand the scope of the presidential
communications privilege to communications between those who are operationally proximate to the
President but who may have "no direct communications with her."
It must be stressed that the doctrine of "operational proximity" was laid down in In re: Sealed
Case27precisely to limit the scope of the presidential communications privilege. The U.S. court was aware
of the dangers that a limitless extension of the privilege risks and, therefore, carefully cabined its reach by
explicitly confining it to White House staff, and not to staffs of the agencies, and then only to White House
staff that has "operational proximity" to direct presidential decision-making, thus:
We are aware that such an extension, unless carefully circumscribed to accomplish the purposes of the
privilege, could pose a significant risk of expanding to a large swath of the executive branch a privilege that
is bottomed on a recognition of the unique role of the President. In order to limit this risk, the presidential
communications privilege should be construed as narrowly as is consistent with ensuring that the
confidentiality of the Presidents decision-making process is adequately protected. Not every person who
plays a role in the development of presidential advice, no matter how remote and removed from the
President, can qualify for the privilege. In particular, the privilege should not extend to staff outside the
White House in executive branch agencies. Instead, the privilege should apply only to communications
authored or solicited and received by those members of an immediate White House advisors staff who
have broad and significant responsibility for investigation and formulating the advice to be given the
President on the particular matter to which the communications relate. Only communications at that level
are close enough to the President to be revelatory of his deliberations or to pose a risk to the candor of his
advisers. See AAPS, 997 F.2d at 910 (it is "operational proximity" to the President that matters in
determining whether "[t]he Presidents confidentiality interests" is implicated). (Emphasis supplied)
In the case at bar, the danger of expanding the privilege "to a large swath of the executive branch" (a fear
apparently entertained by respondents) is absent because the official involved here is a member of the
Cabinet, thus, properly within the term "advisor" of the President; in fact, her alter ego and a member of her
official family. Nevertheless, in circumstances in which the official involved is far too remote, this Court also
mentioned in the Decision the organizational test laid down in Judicial Watch, Inc. v. Department of
Justice.28 This goes to show that the operational proximity test used in the Decision is not considered
conclusive in every case. In determining which test to use, the main consideration is to limit the availability
of executive privilege only to officials who stand proximate to the President, not only by reason of their
function, but also by reason of their positions in the Executives organizational structure. Thus, respondent
Committees fear that the scope of the privilege would be unnecessarily expanded with the use of the

operational proximity test is unfounded.

C. The Presidents claim of executive privilege is not merely based on a generalized interest; and in
balancing respondent Committees and the Presidents clashing interests, the Court did not disregard the
1987 Constitutional provisions on government transparency, accountability and disclosure of information.
Third, respondent Committees claim that the Court erred in upholding the Presidents invocation, through
the Executive Secretary, of executive privilege because (a) between respondent Committees specific and
demonstrated need and the Presidents generalized interest in confidentiality, there is a need to strike the
balance in favor of the former; and (b) in the balancing of interest, the Court disregarded the provisions of
the 1987 Philippine Constitution on government transparency, accountability and disclosure of information,
specifically, Article III, Section 7;29 Article II, Sections 2430 and 28;31 Article XI, Section 1;32 Article XVI,
Section 10;33 Article VII, Section 20;34 and Article XII, Sections 9,35 21,36 and 22.37
It must be stressed that the Presidents claim of executive privilege is not merely founded on her
generalized interest in confidentiality. The Letter dated November 15, 2007 of Executive Secretary Ermita
specified presidential communications privilege in relation to diplomatic and economic relations with
another sovereign nation as the bases for the claim. Thus, the Letter stated:
The context in which executive privilege is being invoked is that the information sought to be disclosed
might impair our diplomatic as well as economic relations with the Peoples Republic of China. Given the
confidential nature in which this information were conveyed to the President, he cannot provide the
Committee any further details of these conversations, without disclosing the very thing the privilege is
designed to protect. (emphasis supplied)
Even in Senate v. Ermita, it was held that Congress must not require the Executive to state the reasons for
the claim with such particularity as to compel disclosure of the information which the privilege is meant to
protect. This is a matter of respect for a coordinate and co-equal department.
It is easy to discern the danger that goes with the disclosure of the Presidents communication with her
advisor. The NBN Project involves a foreign country as a party to the agreement. It was actually a product of
the meeting of minds between officials of the Philippines and China. Whatever the President says about the
agreement - particularly while official negotiations are ongoing - are matters which China will surely view
with particular interest. There is danger in such kind of exposure. It could adversely affect our diplomatic as
well as economic relations with the Peoples Republic of China. We reiterate the importance of secrecy in
matters involving foreign negotiations as stated in United States v. Curtiss-Wright Export Corp., 38 thus:
The nature of foreign negotiations requires caution, and their success must often depend on secrecy, and
even when brought to a conclusion, a full disclosure of all the measures, demands, or eventual concessions
which may have been proposed or contemplated would be extremely impolitic, for this might have a
pernicious influence on future negotiations or produce immediate inconveniences, perhaps danger and
mischief, in relation to other powers. The necessity of such caution and secrecy was one cogent reason for
vesting the power of making treaties in the President, with the advice and consent of the Senate, the
principle on which the body was formed confining it to a small number of members. To admit, then, a right
in the House of Representatives to demand and to have as a matter of course all the papers respecting a
negotiation with a foreign power would be to establish a dangerous precedent.
US jurisprudence clearly guards against the dangers of allowing Congress access to all papers relating to a
negotiation with a foreign power. In this jurisdiction, the recent case of Akbayan Citizens Action Party, et al.
v. Thomas G. Aquino, et al.39 upheld the privileged character of diplomatic negotiations. In Akbayan, the
Court stated:
Privileged character of diplomatic negotiations

The privileged character of diplomatic negotiations has been recognized in this jurisdiction. In discussing
valid limitations on the right to information, the Court in Chavez v. PCGG held that "information on intergovernment exchanges prior to the conclusion of treaties and executive agreements may be subject to
reasonable safeguards for the sake of national interest." Even earlier, the same privilege was upheld in
Peoples Movement for Press Freedom (PMPF) v. Manglapus wherein the Court discussed the reasons for the
privilege in more precise terms.
In PMPF v. Manglapus, the therein petitioners were seeking information from the Presidents representatives
on the state of the then on-going negotiations of the RP-US Military Bases Agreement. The Court denied the
petition, stressing that "secrecy of negotiations with foreign countries is not violative of the constitutional
provisions of freedom of speech or of the press nor of the freedom of access to information." The Resolution
went on to state, thus:
The nature of diplomacy requires centralization of authority and expedition of decision which are inherent in
executive action. Another essential characteristic of diplomacy is its confidential nature. Although much has
been said about "open" and "secret" diplomacy, with disparagement of the latter, Secretaries of State
Hughes and Stimson have clearly analyzed and justified the practice. In the words of Mr. Stimson:
"A complicated negotiation cannot be carried through without many, many private talks and discussion,
man to man; many tentative suggestions and proposals. Delegates from other countries come and tell you
in confidence of their troubles at home and of their differences with other countries and with other
delegates; they tell you of what they would do under certain circumstances and would not do under other
circumstances If these reports should become public who would ever trust American Delegations in
another conference? (United States Department of State, Press Releases, June 7, 1930, pp. 282-284)
xxxx
There is frequent criticism of the secrecy in which negotiation with foreign powers on nearly all subjects is
concerned. This, it is claimed, is incompatible with the substance of democracy. As expressed by one writer,
"It can be said that there is no more rigid system of silence anywhere in the world." (E.J. Young, Looking
Behind the Censorship, J. B. Lipincott Co., 1938) President Wilson in starting his efforts for the conclusion of
the World War declared that we must have "open covenants, openly arrived at." He quickly abandoned his
thought.
No one who has studied the question believes that such a method of publicity is possible. In the moment
that negotiations are started, pressure groups attempt to "muscle in." An ill-timed speech by one of the
parties or a frank declaration of the concession which are exacted or offered on both sides would quickly
lead to a widespread propaganda to block the negotiations. After a treaty has been drafted and its terms
are fully published, there is ample opportunity for discussion before it is approved. (The New American
Government and Its Works, James T. Young, 4th Edition, p. 194) (Emphasis and underscoring supplied)
Still in PMPF v. Manglapus, the Court adopted the doctrine in U.S. v. Curtiss-Wright Export Corp. that the
President is the sole organ of the nation in its negotiations with foreign countries,viz:
"x x x In this vast external realm, with its important, complicated, delicate and manifold problems, the
President alone has the power to speak or listen as a representative of the nation. He makes treaties with
the advice and consent of the Senate; but he alone negotiates. Into the field of negotiation the Senate
cannot intrude; and Congress itself is powerless to invade it. As Marshall said in his great arguments of
March 7, 1800, in the House of Representatives, "The President is the sole organ of the nation in its external
relations, and its sole representative with foreign nations." Annals, 6th Cong., col. 613 (Emphasis
supplied; underscoring in the original)
Considering that the information sought through the three (3) questions subject of this Petition involves the
Presidents dealings with a foreign nation, with more reason, this Court is wary of approving the view that

Congress may peremptorily inquire into not only official, documented acts of the President but even her
confidential and informal discussions with her close advisors on the pretext that said questions serve some
vague legislative need. Regardless of who is in office, this Court can easily foresee unwanted consequences
of subjecting a Chief Executive to unrestricted congressional inquiries done with increased frequency and
great publicity. No Executive can effectively discharge constitutional functions in the face of intense and
unchecked legislative incursion into the core of the Presidents decision-making process, which inevitably
would involve her conversations with a member of her Cabinet.
With respect to respondent Committees invocation of constitutional prescriptions regarding the right of the
people to information and public accountability and transparency, the Court finds nothing in these
arguments to support respondent Committees case.
There is no debate as to the importance of the constitutional right of the people to information and the
constitutional policies on public accountability and transparency. These are the twin postulates vital to the
effective functioning of a democratic government. The citizenry can become prey to the whims and caprices
of those to whom the power has been delegated if they are denied access to information. And the policies
on public accountability and democratic government would certainly be mere empty words if access to such
information of public concern is denied.
In the case at bar, this Court, in upholding executive privilege with respect to three (3) specific questions,
did not in any way curb the publics right to information or diminish the importance of public accountability
and transparency.
This Court did not rule that the Senate has no power to investigate the NBN Project in aid of legislation.
There is nothing in the assailed Decision that prohibits respondent Committees from inquiring into the NBN
Project. They could continue the investigation and even call petitioner Neri to testify again. He himself has
repeatedly expressed his willingness to do so. Our Decision merely excludes from the scope of respondents
investigation the three (3) questions that elicit answers covered by executive privilege and rules that
petitioner cannot be compelled to appear before respondents to answer the said questions. We have
discussed the reasons why these answers are covered by executive privilege. That there is a recognized
public interest in the confidentiality of such information is a recognized principle in other democratic States.
To put it simply, the right to information is not an absolute right.
Indeed, the constitutional provisions cited by respondent Committees do not espouse an absolute right to
information. By their wording, the intention of the Framers to subject such right to the regulation of the law
is unmistakable. The highlighted portions of the following provisions show the obvious limitations on the
right to information, thus:
Article III, Sec. 7. The right of the people to information on matters of public concern shall be recognized.
Access to official records, and to documents, and papers pertaining to official records, and to documents,
and papers pertaining to official acts, transactions, or decisions, as well as to government research data
used as basis for policy development, shall be afforded the citizen, subject to such limitations as may be
provided by law.
Article II, Sec. 28. Subject to reasonable conditions prescribed by law, the State adopts and implements a
policy of full public disclosure of all its transactions involving public interest. (Emphasis supplied)
In Chavez v. Presidential Commission on Good Government,40 it was stated that there are no specific laws
prescribing the exact limitations within which the right may be exercised or the correlative state duty may
be obliged. Nonetheless, it enumerated the recognized restrictions to such rights, among them: (1) national
security matters, (2) trade secrets and banking transactions, (3) criminal matters, and (4) other confidential
information. National security matters include state secrets regarding military and diplomatic matters, as
well as information on inter-government exchanges prior to the conclusion of treaties and executive
agreements. It was further held that even where there is no need to protect such state secrets, they must

be "examined in strict confidence and given scrupulous protection."

Incidentally, the right primarily involved here is the right of respondent Committees to obtain information
allegedly in aid of legislation, not the peoples right to public information. This is the reason why we
stressed in the assailed Decision the distinction between these two rights. As laid down in Senate v. Ermita,
"the demand of a citizen for the production of documents pursuant to his right to information does not have
the same obligatory force as a subpoena duces tecum issued by Congress" and "neither does the right to
information grant a citizen the power to exact testimony from government officials." As pointed out, these
rights belong to Congress, not to the individual citizen. It is worth mentioning at this juncture that the
parties here are respondent Committees and petitioner Neri and that there was no prior request for
information on the part of any individual citizen. This Court will not be swayed by attempts to blur the
distinctions between the Legislature's right to information in a legitimate legislative inquiry and the public's
right to information.
For clarity, it must be emphasized that the assailed Decision did not enjoin respondent Committees from
inquiring into the NBN Project. All that is expected from them is to respect matters that are covered by
executive privilege.
III.
Respondent Committees Failed to Show That
the Communications Elicited by the Three Questions
Are Critical to the Exercise of their Functions
In their Motion for Reconsideration, respondent Committees devote an unusually lengthy discussion on the
purported legislative nature of their entire inquiry, as opposed to an oversight inquiry.
At the outset, it must be clarified that the Decision did not pass upon the nature of respondent Committees
inquiry into the NBN Project. To reiterate, this Court recognizes respondent Committees power to
investigate the NBN Project in aid of legislation. However, this Court cannot uphold the view that when a
constitutionally guaranteed privilege or right is validly invoked by a witness in the course of a legislative
investigation, the legislative purpose of respondent Committees questions can be sufficiently supported by
the expedient of mentioning statutes and/or pending bills to which their inquiry as a whole may have
relevance. The jurisprudential test laid down by this Court in past decisions on executive privilege is that
the presumption of privilege can only be overturned by a showing of compelling need for disclosure of the
information covered by executive privilege.
In the Decision, the majority held that "there is no adequate showing of a compelling need that would
justify the limitation of the privilege and of the unavailability of the information elsewhere by an appropriate
investigating authority." In the Motion for Reconsideration, respondent Committees argue that the
information elicited by the three (3) questions are necessary in the discharge of their legislative functions,
among them, (a) to consider the three (3) pending Senate Bills, and (b) to curb graft and corruption.
We remain unpersuaded by respondents assertions.
In U.S. v. Nixon, the U.S. Court held that executive privilege is subject to balancing against other interests
and it is necessary to resolve the competing interests in a manner that would preserve the essential
functions of each branch. There, the Court weighed between presidential privilege and the legitimate claims
of the judicial process. In giving more weight to the latter, the Court ruled that the President's generalized
assertion of privilege must yield to the demonstrated, specific need for evidence in a pending criminal trial.
The Nixon Court ruled that an absolute and unqualified privilege would stand in the way of the primary
constitutional duty of the Judicial Branch to do justice in criminal prosecutions. The said Court further
ratiocinated, through its ruling extensively quoted in the Honorable Chief Justice Puno's dissenting opinion,

as follows:
"... this presumptive privilege must be considered in light of our historic commitment to the rule of law. This
is nowhere more profoundly manifest than in our view that 'the twofold aim (of criminal justice) is that guild
shall not escape or innocence suffer.' Berger v. United States, 295 U.S., at 88, 55 S.Ct., at 633. We have
elected to employ an adversary system of criminal justice in which the parties contest all issues before a
court of law. The need to develop all relevant facts in the adversary system is both fundamental and
comprehensive. The ends of criminal justice would be defeated if judgments were to be founded on a partial
or speculative presentation of the facts. The very integrity of the judicial system and public confidence in
the system depend on full disclosure of all the facts, within the framework of the rules of evidence. To
ensure that justice is done, it is imperative to the function of courts that compulsory process be available
for the production of evidence needed either by the prosecution or by the defense.
xxx xxx xxx
The right to the production of all evidence at a criminal trial similarly has constitutional dimensions. The
Sixth Amendment explicitly confers upon every defendant in a criminal trial the right 'to be confronted with
the witness against him' and 'to have compulsory process for obtaining witnesses in his favor.' Moreover,
the Fifth Amendment also guarantees that no person shall be deprived of liberty without due process of law.
It is the manifest duty of the courts to vindicate those guarantees, and to accomplish that it is essential that
all relevant and admissible evidence be produced.
In this case we must weigh the importance of the general privilege of confidentiality of Presidential
communications in performance of the President's responsibilities against the inroads of such a privilege on
the fair administration of criminal justice. (emphasis supplied)
xxx xxx xxx
...the allowance of the privilege to withhold evidence that is demonstrably relevant in a criminal trial would
cut deeply into the guarantee of due process of law and gravely impair the basic function of the courts. A
President'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's broad interest in
confidentiality of communication will not be vitiated by disclosure of a limited number of conversations
preliminarily shown to have some bearing on the pending criminal cases.
We conclude that when the ground for asserting privilege as to subpoenaed materials sought for use in a
criminal trial is based only on the generalized interest in confidentiality, it cannot prevail over the
fundamental demands of due process of law in the fair administration of criminal justice. The generalized
assertion of privilege must yield to the demonstrated, specific need for evidence in a pending criminal trial.
(emphasis supplied)
In the case at bar, we are not confronted with a courts need for facts in order to adjudge liability in a
criminal case but rather with the Senates need for information in relation to its legislative functions. This
leads us to consider once again just how critical is the subject information in the discharge of respondent
Committees functions. The burden to show this is on the respondent Committees, since they seek to
intrude into the sphere of competence of the President in order to gather information which, according to
said respondents, would "aid" them in crafting legislation.
Senate Select Committee on Presidential Campaign Activities v. Nixon41 expounded on the nature of a
legislative inquiry in aid of legislation in this wise:
The sufficiency of the Committee's showing of need has come to depend, therefore, entirely on whether the

subpoenaed materials are critical to the performance of its legislative functions. There is a clear difference
between Congress' legislative tasks and the responsibility of a grand jury, or any institution engaged in like
functions. While fact-finding by a legislative committee is undeniably a part of its task, legislative
judgments normally depend more on the predicted consequences of proposed legislative actions and their
political acceptability, than on precise reconstruction of past events; Congress frequently legislates on the
basis of conflicting information provided in its hearings. In contrast, the responsibility of the grand jury turns
entirely on its ability to determine whether there is probable cause to believe that certain named individuals
did or did not commit specific crimes. If, for example, as in Nixon v. Sirica, one of those crimes is perjury
concerning the content of certain conversations, the grand jury's need for the most precise evidence, the
exact text of oral statements recorded in their original form, is undeniable. We see no comparable need in
the legislative process, at least not in the circumstances of this case. Indeed, whatever force there might
once have been in the Committee's argument that the subpoenaed materials are necessary to its legislative
judgments has been substantially undermined by subsequent events. (Emphasis supplied)
Clearly, the need for hard facts in crafting legislation cannot be equated with the compelling or
demonstratively critical and specific need for facts which is so essential to the judicial power to adjudicate
actual controversies. Also, the bare standard of "pertinency" set in Arnault cannot be lightly applied to the
instant case, which unlike Arnault involves a conflict between two (2) separate, co-equal and coordinate
Branches of the Government.
Whatever test we may apply, the starting point in resolving the conflicting claims between the Executive
and the Legislative Branches is the recognized existence of the presumptive presidential communications
privilege. This is conceded even in the Dissenting Opinion of the Honorable Chief Justice Puno, which states:
A hard look at Senate v. Ermita ought to yield the conclusion that it bestowed a qualified presumption in
favor of the Presidential communications privilege. As shown in the previous discussion, U.S. v. Nixon, as
well as the other related Nixon cases Sirica and Senate Select Committee on Presidential Campaign
Activities, et al., v. Nixon in the D.C. Court of Appeals, as well as subsequent cases all recognize that there
is a presumptive privilege in favor of Presidential communications. The Almonte case quoted U.S. v. Nixon
and recognized a presumption in favor of confidentiality of Presidential communications.
The presumption in favor of Presidential communications puts the burden on the respondent Senate
Committees to overturn the presumption by demonstrating their specific need for the information to be
elicited by the answers to the three (3) questions subject of this case, to enable them to craft legislation.
Here, there is simply a generalized assertion that the information is pertinent to the exercise of the power
to legislate and a broad and non-specific reference to pending Senate bills. It is not clear what matters
relating to these bills could not be determined without the said information sought by the three (3)
questions. As correctly pointed out by the Honorable Justice Dante O. Tinga in his Separate Concurring
Opinion:
If respondents are operating under the premise that the president and/or her executive officials have
committed wrongdoings that need to be corrected or prevented from recurring by remedial legislation, the
answer to those three questions will not necessarily bolster or inhibit respondents from proceeding with
such legislation. They could easily presume the worst of the president in enacting such legislation.
For sure, a factual basis for situations covered by bills is not critically needed before legislatives bodies can
come up with relevant legislation unlike in the adjudication of cases by courts of law. Interestingly, during
the Oral Argument before this Court, the counsel for respondent Committees impliedly admitted that the
Senate could still come up with legislations even without petitioner answering the three (3) questions. In
other words, the information being elicited is not so critical after all. Thus:
CHIEF JUSTICE PUNO
So can you tell the Court how critical are these questions to the lawmaking function of the Senate. For

instance, question Number 1 whether the President followed up the NBN project. According to the other
counsel this question has already been asked, is that correct?
ATTY. AGABIN
Well, the question has been asked but it was not answered, Your Honor.
CHIEF JUSTICE PUNO
Yes. But my question is how critical is this to the lawmaking function of the Senate?
ATTY. AGABIN
I believe it is critical, Your Honor.
CHIEF JUSTICE PUNO
Why?
ATTY. AGABIN
For instance, with respect to the proposed Bill of Senator Miriam Santiago, she would like to indorse a Bill to
include Executive Agreements had been used as a device to the circumventing the Procurement Law.
CHIEF JUSTICE PUNO
But the question is just following it up.
ATTY. AGABIN
I believe that may be the initial question, Your Honor, because if we look at this problem in its factual
setting as counsel for petitioner has observed, there are intimations of a bribery scandal involving high
government officials.
CHIEF JUSTICE PUNO
Again, about the second question, were you dictated to prioritize this ZTE, is that critical to the lawmaking
function of the Senate? Will it result to the failure of the Senate to cobble a Bill without this question?
ATTY. AGABIN
I think it is critical to lay the factual foundations for a proposed amendment to the Procurement Law, Your
Honor, because the petitioner had already testified that he was offered a P200 Million bribe, so if he was
offered a P200 Million bribe it is possible that other government officials who had something to do with the
approval of the contract would be offered the same amount of bribes.
CHIEF JUSTICE PUNO
Again, that is speculative.
ATTY. AGABIN
That is why they want to continue with the investigation, Your Honor.

CHIEF JUSTICE PUNO

How about the third question, whether the President said to go ahead and approve the project after being
told about the alleged bribe. How critical is that to the lawmaking function of the Senate? And the question
is may they craft a Bill a remedial law without forcing petitioner Neri to answer this question?
ATTY. AGABIN
Well, they can craft it, Your Honor, based on mere speculation. And sound legislation requires that a
proposed Bill should have some basis in fact.42
The failure of the counsel for respondent Committees to pinpoint the specific need for the information
sought or how the withholding of the information sought will hinder the accomplishment of their legislative
purpose is very evident in the above oral exchanges. Due to the failure of the respondent Committees to
successfully discharge this burden, the presumption in favor of confidentiality of presidential
communication stands. The implication of the said presumption, like any other, is to dispense with the
burden of proof as to whether the disclosure will significantly impair the Presidents performance of her
function. Needless to state this is assumed, by virtue of the presumption.
Anent respondent Committees bewailing that they would have to "speculate" regarding the questions
covered by the privilege, this does not evince a compelling need for the information sought. Indeed, Senate
Select Committee on Presidential Campaign Activities v. Nixon43 held that while fact-finding by a legislative
committee is undeniably a part of its task, legislative judgments normally depend more on the predicted
consequences of proposed legislative actions and their political acceptability than on a precise
reconstruction of past events. It added that, normally, Congress legislates on the basis of conflicting
information provided in its hearings. We cannot subscribe to the respondent Committees self-defeating
proposition that without the answers to the three (3) questions objected to as privileged, the distinguished
members of the respondent Committees cannot intelligently craft legislation.
Anent the function to curb graft and corruption, it must be stressed that respondent Committees need for
information in the exercise of this function is not as compelling as in instances when the purpose of the
inquiry is legislative in nature. This is because curbing graft and corruption is merely an oversight function
of Congress.44 And if this is the primary objective of respondent Committees in asking the three (3)
questions covered by privilege, it may even contradict their claim that their purpose is legislative in nature
and not oversight. In any event, whether or not investigating graft and corruption is a legislative or
oversight function of Congress, respondent Committees investigation cannot transgress bounds set by the
Constitution.
In Bengzon, Jr. v. Senate Blue Ribbon Committee,45 this Court ruled:
The "allocation of constitutional boundaries" is a task that this Court must perform under the Constitution.
Moreover, as held in a recent case, "the political question doctrine neither interposes an obstacle to judicial
determination of the rival claims. The jurisdiction to delimit constitutional boundaries has been given to this
Court. It cannot abdicate that obligation mandated by the 1987 Constitution, although said provision by no
means does away with the applicability of the principle in appropriate cases.46 (Emphasis supplied)
There, the Court further ratiocinated that "the contemplated inquiry by respondent Committee is not really
in aid of legislation because it is not related to a purpose within the jurisdiction of Congress, since the aim
of the investigation is to find out whether or not the relatives of the President or Mr. Ricardo Lopa had
violated Section 5 of R.A. No. 3019, the Anti-Graft and Corrupt Practices Act, a matter that appears more
within the province of the courts rather than of the Legislature."47 (Emphasis and underscoring supplied)
The general thrust and the tenor of the three (3) questions is to trace the alleged bribery to the Office of the
President.48 While it may be a worthy endeavor to investigate the potential culpability of high government

officials, including the President, in a given government transaction, it is simply not a task for the Senate to
perform. The role of the Legislature is to make laws, not to determine anyones guilt of a crime or
wrongdoing. Our Constitution has not bestowed upon the Legislature the latter role. Just as the Judiciary
cannot legislate, neither can the Legislature adjudicate or prosecute.
Respondent Committees claim that they are conducting an inquiry in aid of legislation and a "search for
truth," which in respondent Committees view appears to be equated with the search for persons
responsible for "anomalies" in government contracts.
No matter how noble the intentions of respondent Committees are, they cannot assume the power reposed
upon our prosecutorial bodies and courts. The determination of who is/are liable for a crime or illegal
activity, the investigation of the role played by each official, the determination of who should be haled to
court for prosecution and the task of coming up with conclusions and finding of facts regarding anomalies,
especially the determination of criminal guilt, are not functions of the Senate. Congress is neither a law
enforcement nor a trial agency. Moreover, it bears stressing that no inquiry is an end in itself; it must be
related to, and in furtherance of, a legitimate task of the Congress, i.e. legislation. Investigations conducted
solely to gather incriminatory evidence and "punish" those investigated are indefensible. There is no
Congressional power to expose for the sake of exposure.49 In this regard, the pronouncement in Barenblatt
v. United States50 is instructive, thus:
Broad as it is, the power is not, however, without limitations. Since Congress may only investigate into the
areas in which it may potentially legislate or appropriate, it cannot inquire into matters which are within the
exclusive province of one of the other branches of the government. Lacking the judicial power given to the
Judiciary, it cannot inquire into matters that are exclusively the concern of the Judiciary. Neither can it
supplant the Executive in what exclusively belongs to the Executive. (Emphasis supplied.)
At this juncture, it is important to stress that complaints relating to the NBN Project have already been filed
against President Arroyo and other personalities before the Office of the Ombudsman. Under our
Constitution, it is the Ombudsman who has the duty "to investigate any act or omission of any public
official, employee, office or agency when such act or omission appears to be illegal, unjust, improper, or
inefficient."51 The Office of the Ombudsman is the body properly equipped by the Constitution and our laws
to preliminarily determine whether or not the allegations of anomaly are true and who are liable therefor.
The same holds true for our courts upon which the Constitution reposes the duty to determine criminal guilt
with finality. Indeed, the rules of procedure in the Office of the Ombudsman and the courts are well-defined
and ensure that the constitutionally guaranteed rights of all persons, parties and witnesses alike, are
protected and safeguarded.
Should respondent Committees uncover information related to a possible crime in the course of their
investigation, they have the constitutional duty to refer the matter to the appropriate agency or branch of
government. Thus, the Legislatures need for information in an investigation of graft and corruption cannot
be deemed compelling enough to pierce the confidentiality of information validly covered by executive
privilege. As discussed above, the Legislature can still legislate on graft and corruption even without the
information covered by the three (3) questions subject of the petition.
Corollarily, respondent Committees justify their rejection of petitioners claim of executive privilege on the
ground that there is no privilege when the information sought might involve a crime or illegal activity,
despite the absence of an administrative or judicial determination to that effect. Significantly, however, in
Nixon v. Sirica,52 the showing required to overcome the presumption favoring confidentiality turned, not on
the nature of the presidential conduct that the subpoenaed material might reveal, but, instead, on the
nature and appropriateness of the function in the performance of which the material was sought, and the
degree to which the material was necessary to its fulfillment.
Respondent Committees assert that Senate Select Committee on Presidential Campaign Activities v. Nixon
does not apply to the case at bar because, unlike in the said case, no impeachment proceeding has been

initiated at present. The Court is not persuaded. While it is true that no impeachment proceeding has been
initiated, however, complaints relating to the NBN Project have already been filed against President Arroyo
and other personalities before the Office of the Ombudsman. As the Court has said earlier, the prosecutorial
and judicial arms of government are the bodies equipped and mandated by the Constitution and our laws to
determine whether or not the allegations of anomaly in the NBN Project are true and, if so, who should be
prosecuted and penalized for criminal conduct.
Legislative inquiries, unlike court proceedings, are not subject to the exacting standards of evidence
essential to arrive at accurate factual findings to which to apply the law. Hence, Section 10 of the Senate
Rules of Procedure Governing Inquiries in Aid of Legislation provides that "technical rules of evidence
applicable to judicial proceedings which do not affect substantive rights need not be observed by the
Committee." Court rules which prohibit leading, hypothetical, or repetitive questions or questions calling for
a hearsay answer, to name a few, do not apply to a legislative inquiry. Every person, from the highest public
official to the most ordinary citizen, has the right to be presumed innocent until proven guilty in proper
proceedings by a competent court or body.
IV
Respondent Committees Committed Grave
Abuse of Discretion in Issuing the Contempt Order
Respondent Committees insist that they did not commit grave abuse of discretion in issuing the contempt
order because (1) there is no legitimate claim of executive privilege; (2) they did not violate the
requirements laid down in Senate v. Ermita; (3) they issued the contempt order in accordance with their
internal Rules; (4) they did not violate the requirement under Article VI, Section 21 of the Constitution
requiring the publication of their Rules; and (5) their issuance of the contempt order is not arbitrary or
precipitate.
We reaffirm our earlier ruling.
The legitimacy of the claim of executive privilege having been fully discussed in the preceding pages, we
see no reason to discuss it once again.
Respondent Committees second argument rests on the view that the ruling in Senate v. Ermita, requiring
invitations or subpoenas to contain the "possible needed statute which prompted the need for the inquiry"
along with the "usual indication of the subject of inquiry and the questions relative to and in furtherance
thereof" is not provided for by the Constitution and is merely an obiter dictum.
On the contrary, the Court sees the rationale and necessity of compliance with these requirements.
An unconstrained congressional investigative power, like an unchecked Executive, generates its own
abuses. Consequently, claims that the investigative power of Congress has been abused (or has the
potential for abuse) have been raised many times.53 Constant exposure to congressional subpoena takes
its toll on the ability of the Executive to function effectively. The requirements set forth in Senate v. Ermita
are modest mechanisms that would not unduly limit Congress power. The legislative inquiry must be
confined to permissible areas and thus, prevent the "roving commissions" referred to in the U.S. case,
Kilbourn v. Thompson.54 Likewise, witnesses have their constitutional right to due process. They should be
adequately informed what matters are to be covered by the inquiry. It will also allow them to prepare the
pertinent information and documents. To our mind, these requirements concede too little political costs or
burdens on the part of Congress when viewed vis--vis the immensity of its power of inquiry. The logic of
these requirements is well articulated in the study conducted by William P. Marshall,55 to wit:
A second concern that might be addressed is that the current system allows committees to continually
investigate the Executive without constraint. One process solution addressing this concern is to require

each investigation be tied to a clearly stated purpose. At present, the charters of some congressional
committees are so broad that virtually any matter involving the Executive can be construed to fall within
their province. Accordingly, investigations can proceed without articulation of specific need or purpose. A
requirement for a more precise charge in order to begin an inquiry should immediately work to limit the
initial scope of the investigation and should also serve to contain the investigation once it is instituted.
Additionally, to the extent clear statements of rules cause legislatures to pause and seriously consider the
constitutional implications of proposed courses of action in other areas, they would serve that goal in the
context of congressional investigations as well.
The key to this reform is in its details. A system that allows a standing committee to simply articulate its
reasons to investigate pro forma does no more than imposes minimal drafting burdens. Rather, the system
must be designed in a manner that imposes actual burdens on the committee to articulate its need for
investigation and allows for meaningful debate about the merits of proceeding with the investigation.
(Emphasis supplied)
Clearly, petitioners request to be furnished an advance copy of questions is a reasonable demand that
should have been granted by respondent Committees.
Unfortunately, the Subpoena Ad Testificandum dated November 13, 2007 made no specific reference to any
pending Senate bill. It did not also inform petitioner of the questions to be asked. As it were, the subpoena
merely commanded him to "testify on what he knows relative to the subject matter under inquiry."
Anent the third argument, respondent Committees contend that their Rules of Procedure Governing
Inquiries in Aid of Legislation (the "Rules") are beyond the reach of this Court. While it is true that this Court
must refrain from reviewing the internal processes of Congress, as a co-equal branch of government,
however, when a constitutional requirement exists, the Court has the duty to look into Congress
compliance therewith. We cannot turn a blind eye to possible violations of the Constitution simply out of
courtesy. In this regard, the pronouncement in Arroyo v. De Venecia56 is enlightening, thus:
"Cases both here and abroad, in varying forms of expression, all deny to the courts the power to inquire into
allegations that, in enacting a law, a House of Congress failed to comply with its own rules, in the absence
of showing that there was a violation of a constitutional provision or the rights of private individuals.
United States v. Ballin, Joseph & Co., the rule was stated thus: The Constitution empowers each House to
determine its rules of proceedings. It may not by its rules ignore constitutional restraints or violate
fundamental rights, and there should be a reasonable relation between the mode or method of proceeding
established by the rule and the result which is sought to be attained."
In the present case, the Courts exercise of its power of judicial review is warranted because there appears
to be a clear abuse of the power of contempt on the part of respondent Committees. Section 18 of the Rules
provides that:
"The Committee, by a vote of majority of all its members, may punish for contempt any witness before it
who disobey any order of the Committee or refuses to be sworn or to testify or to answer proper questions
by the Committee or any of its members." (Emphasis supplied)
In the assailed Decision, we said that there is a cloud of doubt as to the validity of the contempt order
because during the deliberation of the three (3) respondent Committees, only seven (7) Senators were
present. This number could hardly fulfill the majority requirement needed by respondent Committee on
Accountability of Public Officers and Investigations which has a membership of seventeen (17) Senators and
respondent Committee on National Defense and Security which has a membership of eighteen (18)
Senators. With respect to respondent Committee on Trade and Commerce which has a membership of nine
(9) Senators, only three (3) members were present.57 These facts prompted us to quote in the Decision the
exchanges between Senators Alan Peter Cayetano and Aquilino Pimentel, Jr. whereby the former raised the

issue of lack of the required majority to deliberate and vote on the contempt order.
When asked about such voting during the March 4, 2008 hearing before this Court, Senator Francis
Pangilinan stated that any defect in the committee voting had been cured because two-thirds of the
Senators effectively signed for the Senate in plenary session.58
Obviously the deliberation of the respondent Committees that led to the issuance of the contempt order is
flawed. Instead of being submitted to a full debate by all the members of the respondent Committees, the
contempt order was prepared and thereafter presented to the other members for signing. As a result, the
contempt order which was issued on January 30, 2008 was not a faithful representation of the proceedings
that took place on said date. Records clearly show that not all of those who signed the contempt order were
present during the January 30, 2008 deliberation when the matter was taken up.
Section 21, Article VI of the Constitution states that:
The Senate or the House of Representatives or any of its respective committees may conduct inquiries in
aid of legislation in accordance with its duly published rules of procedure. The rights of person appearing in
or affected by such inquiries shall be respected. (Emphasis supplied)
All the limitations embodied in the foregoing provision form part of the witness settled expectation. If the
limitations are not observed, the witness settled expectation is shattered. Here, how could there be a
majority vote when the members in attendance are not enough to arrive at such majority? Petitioner has
the right to expect that he can be cited in contempt only through a majority vote in a proceeding in which
the matter has been fully deliberated upon. There is a greater measure of protection for the witness when
the concerns and objections of the members are fully articulated in such proceeding. We do not believe that
respondent Committees have the discretion to set aside their rules anytime they wish. This is especially
true here where what is involved is the contempt power. It must be stressed that the Rules are not
promulgated for their benefit. More than anybody else, it is the witness who has the highest stake in the
proper observance of the Rules.
Having touched the subject of the Rules, we now proceed to respondent Committees fourth argument.
Respondent Committees argue that the Senate does not have to publish its Rules because the same was
published in 1995 and in 2006. Further, they claim that the Senate is a continuing body; thus, it is not
required to republish the Rules, unless the same is repealed or amended.
On the nature of the Senate as a "continuing body," this Court sees fit to issue a clarification. Certainly,
there is no debate that the Senate as an institution is "continuing", as it is not dissolved as an entity with
each national election or change in the composition of its members. However, in the conduct of its day-today business the Senate of each Congress acts separately and independently of the Senate of the Congress
before it. The Rules of the Senate itself confirms this when it states:
RULE XLIV
UNFINISHED BUSINESS
SEC. 123. Unfinished business at the end of the session shall be taken up at the next session in the same
status.
All pending matters and proceedings shall terminate upon the expiration of one (1) Congress, but may be
taken by the succeeding Congress as if present for the first time. (emphasis supplied)
Undeniably from the foregoing, all pending matters and proceedings, i.e. unpassed bills and even legislative
investigations, of the Senate of a particular Congress are considered terminated upon the expiration of that
Congress and it is merely optional on the Senate of the succeeding Congress to take up such unfinished
matters, not in the same status, but as if presented for the first time. The logic and practicality of such a

rule is readily apparent considering that the Senate of the succeeding Congress (which will typically have a
different composition as that of the previous Congress) should not be bound by the acts and deliberations of
the Senate of which they had no part. If the Senate is a continuing body even with respect to the conduct of
its business, then pending matters will not be deemed terminated with the expiration of one Congress but
will, as a matter of course, continue into the next Congress with the same status.
This dichotomy of the continuity of the Senate as an institution and of the opposite nature of the conduct of
its business is reflected in its Rules. The Rules of the Senate (i.e. the Senates main rules of procedure)
states:
RULE LI
AMENDMENTS TO, OR REVISIONS OF, THE RULES
SEC. 136. At the start of each session in which the Senators elected in the preceding elections shall begin
their term of office, the President may endorse the Rules to the appropriate committee for amendment or
revision.
The Rules may also be amended by means of a motion which should be presented at least one day before
its consideration, and the vote of the majority of the Senators present in the session shall be required for its
approval. (emphasis supplied)
RULE LII
DATE OF TAKING EFFECT
SEC. 137. These Rules shall take effect on the date of their adoption and shall remain in force until they are
amended or repealed. (emphasis supplied)
Section 136 of the Senate Rules quoted above takes into account the new composition of the Senate after
an election and the possibility of the amendment or revision of the Rules at the start of each session in
which the newly elected Senators shall begin their term.
However, it is evident that the Senate has determined that its main rules are intended to be valid from the
date of their adoption until they are amended or repealed. Such language is conspicuously absent from the
Rules. The Rules simply state "(t)hese Rules shall take effect seven (7) days after publication in two (2)
newspapers of general circulation."59 The latter does not explicitly provide for the continued effectivity of
such rules until they are amended or repealed. In view of the difference in the language of the two sets of
Senate rules, it cannot be presumed that the Rules (on legislative inquiries) would continue into the next
Congress. The Senate of the next Congress may easily adopt different rules for its legislative inquiries which
come within the rule on unfinished business.
The language of Section 21, Article VI of the Constitution requiring that the inquiry be conducted in
accordance with the duly published rules of procedure is categorical. It is incumbent upon the Senate to
publish the rules for its legislative inquiries in each Congress or otherwise make the published rules clearly
state that the same shall be effective in subsequent Congresses or until they are amended or repealed to
sufficiently put public on notice.
If it was the intention of the Senate for its present rules on legislative inquiries to be effective even in the
next Congress, it could have easily adopted the same language it had used in its main rules regarding
effectivity.
Lest the Court be misconstrued, it should likewise be stressed that not all orders issued or proceedings
conducted pursuant to the subject Rules are null and void. Only those that result in violation of the rights of
witnesses should be considered null and void, considering that the rationale for the publication is to protect
the rights of witnesses as expressed in Section 21, Article VI of the Constitution. Sans such violation, orders

and proceedings are considered valid and effective.

Respondent Committees last argument is that their issuance of the contempt order is not precipitate or
arbitrary. Taking into account the totality of circumstances, we find no merit in their argument.
As we have stressed before, petitioner is not an unwilling witness, and contrary to the assertion of
respondent Committees, petitioner did not assume that they no longer had any other questions for him. He
repeatedly manifested his willingness to attend subsequent hearings and respond to new matters. His only
request was that he be furnished a copy of the new questions in advance to enable him to adequately
prepare as a resource person. He did not attend the November 20, 2007 hearing because Executive
Secretary Ermita requested respondent Committees to dispense with his testimony on the ground of
executive privilege. Note that petitioner is an executive official under the direct control and supervision of
the Chief Executive. Why punish petitioner for contempt when he was merely directed by his superior?
Besides, save for the three (3) questions, he was very cooperative during the September 26, 2007 hearing.
On the part of respondent Committees, this Court observes their haste and impatience. Instead of ruling on
Executive Secretary Ermitas claim of executive privilege, they curtly dismissed it as unsatisfactory and
ordered the arrest of petitioner. They could have informed petitioner of their ruling and given him time to
decide whether to accede or file a motion for reconsideration. After all, he is not just an ordinary witness; he
is a high- ranking official in a co-equal branch of government. He is an alter ego of the President. The same
haste and impatience marked the issuance of the contempt order, despite the absence of the majority of
the members of the respondent Committees, and their subsequent disregard of petitioners motion for
reconsideration alleging the pendency of his petition for certiorari before this Court.
On a concluding note, we are not unmindful of the fact that the Executive and the Legislature are political
branches of government. In a free and democratic society, the interests of these branches inevitably clash,
but each must treat the other with official courtesy and respect. This Court wholeheartedly concurs with the
proposition that it is imperative for the continued health of our democratic institutions that we preserve the
constitutionally mandated checks and balances among the different branches of government.
In the present case, it is respondent Committees contention that their determination on the validity of
executive privilege should be binding on the Executive and the Courts. It is their assertion that their internal
procedures and deliberations cannot be inquired into by this Court supposedly in accordance with the
principle of respect between co-equal branches of government. Interestingly, it is a courtesy that they
appear to be unwilling to extend to the Executive (on the matter of executive privilege) or this Court (on the
matter of judicial review). It moves this Court to wonder: In respondent Committees paradigm of checks
and balances, what are the checks to the Legislatures all-encompassing, awesome power of investigation?
It is a power, like any other, that is susceptible to grave abuse.
While this Court finds laudable the respondent Committees well-intentioned efforts to ferret out corruption,
even in the highest echelons of government, such lofty intentions do not validate or accord to Congress
powers denied to it by the Constitution and granted instead to the other branches of government.
There is no question that any story of government malfeasance deserves an inquiry into its veracity. As
respondent Committees contend, this is founded on the constitutional command of transparency and public
accountability. The recent clamor for a "search for truth" by the general public, the religious community and
the academe is an indication of a concerned citizenry, a nation that demands an accounting of an entrusted
power. However, the best venue for this noble undertaking is not in the political branches of government.
The customary partisanship and the absence of generally accepted rules on evidence are too great an
obstacle in arriving at the truth or achieving justice that meets the test of the constitutional guarantee of
due process of law. We believe the people deserve a more exacting "search for truth" than the process here
in question, if that is its objective.
WHEREFORE, respondent Committees Motion for Reconsideration dated April 8, 2008 is hereby DENIED.

SO ORDERED.

RANDOLF DAVID VS. ERMITA

DECISION
SANDOVAL-GUTIERREZ, J.:
All powers need some restraint; practical adjustments rather than rigid formula are necessary.[1] Superior
strength the use of force cannot make wrongs into rights. In this regard, the courts should be vigilant
in safeguarding the constitutional rights of the citizens, specifically their liberty.
Chief Justice Artemio V. Panganibans philosophy of liberty is thus most relevant.
He said: In cases
involving liberty, the scales of justice should weigh heavily against government and in favor of the poor, the
oppressed, the marginalized, the dispossessed and the weak. Laws and actions that restrict fundamental
rights come to the courts with a heavy presumption against their constitutional validity.[2]
These seven (7) consolidated petitions for certiorari and prohibition allege that in issuing Presidential
Proclamation No. 1017 (PP 1017) and General Order No. 5 (G.O. No. 5), President Gloria Macapagal-Arroyo
committed grave abuse of discretion. Petitioners contend that respondent officials of the Government, in
their professed efforts to defend and preserve democratic institutions, are actually trampling upon the very
freedom guaranteed and protected by the Constitution. Hence, such issuances are void for being
unconstitutional.

Once again, the Court is faced with an age-old but persistently modern problem. How does the
Constitution of a free people combine the degree of liberty, without which, law becomes tyranny, with the
degree of law, without which, liberty becomes license?[3]
On February 24, 2006, as the nation celebrated the 20th Anniversary of the Edsa People Power I,
President Arroyo issued PP 1017 declaring a state of national emergency, thus:
NOW, THEREFORE, I, Gloria Macapagal-Arroyo, President of the Republic of the Philippines and Commanderin-Chief of the Armed Forces of the Philippines, by virtue of the powers vested upon me by Section 18,
Article 7 of the Philippine Constitution which states that: The President. . . whenever it becomes
necessary, . . . may call out (the) armed forces to prevent or suppress. . .rebellion. . ., and in my capacity
as their Commander-in-Chief, do hereby command the Armed Forces of the Philippines, to maintain law and
order throughout the Philippines, prevent or suppress all forms of lawless violence as well as any act of
insurrection or rebellion and to enforce obedience to all the laws and to all decrees, orders and regulations
promulgated by me personally or upon my direction; and as provided in Section 17, Article 12 of the
Constitution do hereby declare a State of National Emergency.
She cited the following facts as bases:
WHEREAS, over these past months, elements in the political opposition have conspired with authoritarians
of the extreme Left represented by the NDF-CPP-NPA and the extreme Right, represented by military
adventurists the historical enemies of the democratic Philippine State who are now in a tactical alliance
and engaged in a concerted and systematic conspiracy, over a broad front, to bring down the duly
constituted Government elected in May 2004;
WHEREAS, these conspirators have repeatedly tried to bring down the President;
WHEREAS, the claims of these elements have been recklessly magnified by certain segments of the
national media;

WHEREAS, this series of actions is hurting the Philippine State by obstructing governance including
hindering the growth of the economy and sabotaging the peoples confidence in government and their
faith in the future of this country;
WHEREAS, these actions are adversely affecting the economy;
WHEREAS, these activities give totalitarian forces of both the extreme Left and extreme Right the opening
to intensify their avowed aims to bring down the democratic Philippine State;
WHEREAS, Article 2, Section 4 of the our Constitution makes the defense and preservation of the
democratic institutions and the State the primary duty of Government;
WHEREAS, the activities above-described, their consequences, ramifications and collateral effects
constitute a clear and present danger to the safety and the integrity of the Philippine State and of the
Filipino people;

On the same day, the President issued G. O. No. 5 implementing PP 1017, thus:
WHEREAS, over these past months, elements in the political opposition have conspired with
authoritarians of the extreme Left, represented by the NDF-CPP-NPA and the extreme Right, represented by
military adventurists - the historical enemies of the democratic Philippine State and who are now in a
tactical alliance and engaged in a concerted and systematic conspiracy, over a broad front, to bring down
the duly-constituted Government elected in May 2004;
WHEREAS, these conspirators have repeatedly tried to bring down our republican government;
WHEREAS, the claims of these elements have been recklessly magnified by certain segments of the
national media;
WHEREAS, these series of actions is hurting the Philippine State by obstructing governance, including
hindering the growth of the economy and sabotaging the peoples confidence in the government and their
faith in the future of this country;
WHEREAS, these actions are adversely affecting the economy;
WHEREAS, these activities give totalitarian forces; of both the extreme Left and extreme Right the opening
to intensify their avowed aims to bring down the democratic Philippine State;
WHEREAS, Article 2, Section 4 of our Constitution makes the defense and preservation of the democratic
institutions and the State the primary duty of Government;
WHEREAS, the activities above-described, their consequences, ramifications and collateral effects
constitute a clear and present danger to the safety and the integrity of the Philippine State and of the
Filipino people;
WHEREAS, Proclamation 1017 date February 24, 2006 has been issued declaring a State of National
Emergency;
NOW, THEREFORE, I GLORIA MACAPAGAL-ARROYO, by virtue of the powers vested in me under the
Constitution as President of the Republic of the Philippines, and Commander-in-Chief of the Republic of the
Philippines, and pursuant to Proclamation No. 1017 dated February 24, 2006, do hereby call upon the
Armed Forces of the Philippines (AFP) and the Philippine National Police (PNP), to prevent and suppress acts
of terrorism and lawless violence in the country;

I hereby direct the Chief of Staff of the AFP and the Chief of the PNP, as well as the officers and men
of the AFP and PNP, to immediately carry out the necessary and appropriate actions and measures to
suppress and prevent acts of terrorism and lawless violence.

On March 3, 2006, exactly one week after the declaration of a state of national emergency and after all
these petitions had been filed, the President lifted PP 1017. She issued Proclamation No. 1021 which reads:
WHEREAS, pursuant to Section 18, Article VII and Section 17, Article XII of the Constitution, Proclamation
No. 1017 dated February 24, 2006, was issued declaring a state of national emergency;
WHEREAS, by virtue of General Order No.5 and No.6 dated February 24, 2006, which were issued on
the basis of Proclamation No. 1017, the Armed Forces of the Philippines (AFP) and the Philippine National
Police (PNP), were directed to maintain law and order throughout the Philippines, prevent and suppress all
form of lawless violence as well as any act of rebellion and to undertake such action as may be necessary;
WHEREAS, the AFP and PNP have effectively prevented, suppressed and quelled the acts lawless
violence and rebellion;
NOW, THEREFORE, I, GLORIA MACAPAGAL-ARROYO, President of the Republic of the Philippines, by
virtue of the powers vested in me by law, hereby declare that the state of national emergency has ceased
to exist.

In their presentation of the factual bases of PP 1017 and G.O. No. 5, respondents stated that the proximate
cause behind the executive issuances was the conspiracy among some military officers, leftist insurgents of
the New Peoples Army (NPA), and some members of the political opposition in a plot to unseat or
assassinate President Arroyo.[4] They considered the aim to oust or assassinate the President and takeover the reigns of government as a clear and present danger.
During the oral arguments held on March 7, 2006, the Solicitor General specified the facts leading to the
issuance of PP 1017 and
G.O. No. 5. Significantly, there was no refutation from petitioners
counsels.
The Solicitor General argued that the intent of the Constitution is to give full discretionary powers to the
President in determining the necessity of calling out the armed forces. He emphasized that none of the
petitioners has shown that PP 1017 was without factual bases. While he explained that it is not
respondents task to state the facts behind the questioned Proclamation, however, they are presenting the
same, narrated hereunder, for the elucidation of the issues.
On January 17, 2006, Captain Nathaniel Rabonza and
First Lieutenants Sonny Sarmiento,
Lawrence San Juan and Patricio Bumidang, members of the Magdalo Group indicted in the Oakwood mutiny,
escaped their detention cell in Fort Bonifacio, Taguig City. In a public statement, they vowed to remain
defiant and to elude arrest at all costs. They called upon the people to show and proclaim our displeasure
at the sham regime. Let us demonstrate our disgust, not only by going to the streets in protest, but also by
wearing red bands on our left arms. [5]

On February 17, 2006, the authorities got hold of a document entitled Oplan Hackle I which detailed
plans for bombings and attacks during the Philippine Military Academy Alumni Homecoming in Baguio City.
The plot was to assassinate selected targets including some cabinet members and President Arroyo herself.
[6] Upon the advice of her security, President Arroyo decided not to attend the Alumni Homecoming. The

next day, at the height of the celebration, a bomb was found and detonated at the PMA parade ground.
On February 21, 2006, Lt. San Juan was recaptured in a communist safehouse in Batangas province. Found
in his possession were two (2) flash disks containing minutes of the meetings between members of the
Magdalo Group and the National Peoples Army (NPA), a tape recorder, audio cassette cartridges, diskettes,
and copies of subversive documents.[7] Prior to his arrest, Lt. San Juan announced through DZRH that the
Magdalos D-Day would be on February 24, 2006, the 20th Anniversary of Edsa I.
On February 23, 2006, PNP Chief Arturo Lomibao intercepted information that members of the PNP- Special
Action Force were planning to defect. Thus, he immediately ordered SAF Commanding General Marcelino
Franco, Jr. to disavow any defection. The latter promptly obeyed and issued a public statement: All SAF
units are under the effective control of responsible and trustworthy officers with proven integrity and
unquestionable loyalty.
On the same day, at the house of former Congressman Peping Cojuangco, President Cory Aquinos brother,
businessmen and mid-level government officials plotted moves to bring down the Arroyo administration.
Nelly Sindayen of TIME Magazine reported that Pastor Saycon, longtime Arroyo critic, called a U.S.
government official about his groups plans if President Arroyo is ousted. Saycon also phoned a man codenamed Delta. Saycon identified him as B/Gen. Danilo Lim, Commander of the Armys elite Scout Ranger.
Lim said it was all systems go for the planned movement against Arroyo.[8]
B/Gen. Danilo Lim and Brigade Commander Col. Ariel Querubin confided to Gen. Generoso Senga, Chief of
Staff of the Armed Forces of the Philippines (AFP), that a huge number of soldiers would join the rallies to
provide a critical mass and armed component to the Anti-Arroyo protests to be held on February 24, 2005.
According to these two (2) officers, there was no way they could possibly stop the soldiers because they
too, were breaking the chain of command to join the forces foist to unseat the President. However, Gen.
Senga has remained faithful to his Commander-in-Chief and to the chain of command. He immediately took
custody of B/Gen. Lim and directed Col. Querubin to return to the Philippine Marines Headquarters in Fort
Bonifacio.
Earlier, the CPP-NPA called for intensification of political and revolutionary work within the military and the
police establishments in order to forge alliances with its members and key officials.
NPA spokesman
Gregorio Ka Roger Rosal declared: The Communist Party and revolutionary movement and the entire
people look forward to the possibility in the coming year of accomplishing its immediate task of bringing
down the Arroyo regime; of rendering it to weaken and unable to rule that it will not take much longer to
end it.[9]
On the other hand, Cesar Renerio, spokesman for the National Democratic Front (NDF) at North Central
Mindanao, publicly announced: Anti-Arroyo groups within the military and police are growing rapidly,
hastened by the economic difficulties suffered by the families of AFP officers and enlisted personnel who
undertake counter-insurgency operations in the field. He claimed that with the forces of the national
democratic movement, the anti-Arroyo conservative political parties, coalitions, plus the groups that have
been reinforcing since June 2005, it is probable that the Presidents ouster is nearing its concluding stage
in the first half of 2006.
Respondents further claimed that the bombing of telecommunication towers and cell sites in Bulacan and
Bataan was also considered as additional factual basis for the issuance of PP 1017 and G.O. No. 5. So is
the raid of an army outpost in Benguet resulting in the death of three (3) soldiers. And also the directive of
the Communist Party of the Philippines ordering its front organizations to join 5,000 Metro Manila radicals
and 25,000 more from the provinces in mass protests.[10]
By midnight of February 23, 2006, the President convened her security advisers and several cabinet
members to assess the gravity of the fermenting peace and order situation. She directed both the AFP and
the PNP to account for all their men and ensure that the chain of command remains solid and undivided.

To protect the young students from any possible trouble that might break loose on the streets, the President
suspended classes in all levels in the entire National Capital Region.
For their part, petitioners cited the events that followed after the issuance of PP 1017 and G.O. No. 5.
Immediately, the Office of the President announced the cancellation of all programs and activities related to
the 20th anniversary celebration of Edsa People Power I; and revoked the permits to hold rallies issued
earlier by the local governments. Justice Secretary Raul Gonzales stated that political rallies, which to the
Presidents mind were organized for purposes of destabilization, are cancelled. Presidential Chief of Staff
Michael Defensor announced that warrantless arrests and take-over of facilities, including media, can
already be implemented.[11]
Undeterred by the announcements that rallies and public assemblies would not be allowed, groups of
protesters (members of Kilusang Mayo Uno [KMU] and National Federation of Labor Unions-Kilusang Mayo
Uno [NAFLU-KMU]), marched from various parts of Metro Manila with the intention of converging at the
EDSA shrine. Those who were already near the EDSA site were violently dispersed by huge clusters of antiriot police. The well-trained policemen used truncheons, big fiber glass shields, water cannons, and tear
gas to stop and break up the marching groups, and scatter the massed participants. The same police action
was used against the protesters marching forward to Cubao, Quezon City and to the corner of Santolan
Street and EDSA. That same evening, hundreds of riot policemen broke up an EDSA celebration rally held
along Ayala Avenue and Paseo de Roxas Street in Makati City.[12]
According to petitioner Kilusang Mayo Uno, the police cited PP 1017 as the ground for the dispersal of their
assemblies.
During the dispersal of the rallyists along EDSA, police arrested (without warrant) petitioner Randolf S.
David, a professor at the University of the Philippines and newspaper columnist. Also arrested was his
companion, Ronald Llamas, president of party-list Akbayan.
At around 12:20 in the early morning of February 25, 2006, operatives of the Criminal Investigation and
Detection Group (CIDG) of the PNP, on the basis of PP 1017 and G.O. No. 5, raided the Daily Tribune offices
in Manila. The raiding team confiscated news stories by reporters, documents, pictures, and mock-ups of
the Saturday issue. Policemen from Camp Crame in Quezon City were stationed inside the editorial and
business offices of the newspaper; while policemen from the Manila Police District were stationed outside
the building.[13]
A few minutes after the search and seizure at the Daily Tribune offices, the police surrounded the premises
of another pro-opposition paper, Malaya, and its sister publication, the tabloid Abante.
The raid, according to Presidential Chief of Staff Michael Defensor, is meant to show a strong presence,
to tell media outlets not to connive or do anything that would help the rebels in bringing down this
government.
The PNP warned that it would take over any media organization that would not follow
standards set by the government during the state of national emergency. Director General Lomibao
stated that if they do not follow the standards and the standards are - if they would contribute to
instability in the government, or if they do not subscribe to what is in General Order No. 5 and Proc. No.
1017 we will recommend a takeover. National Telecommunications Commissioner Ronald Solis
urged television and radio networks to cooperate with the government for the duration of the state of
national emergency.
He asked for balanced reporting from broadcasters when covering the events
surrounding the coup attempt foiled by the government. He warned that his agency will not hesitate to
recommend the closure of any broadcast outfit that violates rules set out for media coverage when the
national security is threatened.[14]
Also, on February 25, 2006, the police arrested Congressman Crispin Beltran, representing the Anakpawis
Party and Chairman of Kilusang Mayo Uno (KMU), while leaving his farmhouse in Bulacan.
The police

showed a warrant for his arrest dated 1985. Beltrans lawyer explained that the warrant, which stemmed
from a case of inciting to rebellion filed during the Marcos regime, had long been quashed.
Beltran,
however, is not a party in any of these petitions.
When members of petitioner KMU went to Camp Crame to visit Beltran, they were told they could not be
admitted because of PP 1017 and G.O. No. 5. Two members were arrested and detained, while the rest
were dispersed by the police.
Bayan Muna Representative Satur Ocampo eluded arrest when the police went after him during a public
forum at the Sulo Hotel in Quezon City. But his two drivers, identified as Roel and Art, were taken into
custody.
Retired Major General Ramon Montao, former head of the Philippine Constabulary, was arrested while with
his wife and golfmates at the Orchard Golf and Country Club in Dasmarias, Cavite.
Attempts were made to arrest Anakpawis Representative Satur Ocampo, Representative Rafael Mariano,
Bayan Muna Representative Teodoro Casio and Gabriela Representative Liza Maza.
Bayan Muna
Representative Josel Virador was arrested at the PAL Ticket Office in Davao City. Later, he was turned over
to the custody of the House of Representatives where the Batasan 5 decided to stay indefinitely.
Let it be stressed at this point that the alleged violations of the rights of Representatives Beltran, Satur
Ocampo, et al., are not being raised in these petitions.
On March 3, 2006, President Arroyo issued PP 1021 declaring that the state of national emergency has
ceased to exist.
In the interim, these seven (7) petitions challenging the constitutionality of PP 1017 and G.O. No. 5 were
filed with this Court against the above-named respondents. Three (3) of these petitions impleaded
President Arroyo as respondent.
In G.R. No. 171396, petitioners Randolf S. David, et al. assailed PP 1017 on the grounds that (1) it
encroaches on the emergency powers of Congress; (2) it is a subterfuge to avoid the constitutional
requirements for the imposition of martial law; and (3) it violates the constitutional guarantees of freedom
of the press, of speech and of assembly.
In G.R. No. 171409, petitioners Ninez Cacho-Olivares and Tribune Publishing Co., Inc. challenged the
CIDGs act of raiding the Daily Tribune offices as a clear case of censorship or prior restraint. They
also claimed that the term emergency refers only to tsunami, typhoon, hurricane and similar
occurrences, hence, there is absolutely no emergency that warrants the issuance of PP 1017.
In G.R. No. 171485, petitioners herein are Representative Francis Joseph G. Escudero, and twenty one (21)
other members of the House of Representatives, including Representatives Satur Ocampo, Rafael Mariano,
Teodoro Casio, Liza Maza, and Josel Virador.
They asserted that PP 1017 and G.O. No. 5 constitute
usurpation of legislative powers; violation of freedom of expression and a declaration of martial
law. They alleged that President Arroyo gravely abused her discretion in calling out the armed forces
without clear and verifiable factual basis of the possibility of lawless violence and a showing that there is
necessity to do so.
In G.R. No. 171483, petitioners KMU, NAFLU-KMU, and their members averred that PP 1017 and G.O. No.
5 are unconstitutional because (1) they arrogate unto President Arroyo the power to enact laws and
decrees; (2) their issuance was without factual basis; and (3) they violate freedom of expression and the
right of the people to peaceably assemble to redress their grievances.
In G.R. No. 171400, petitioner Alternative Law Groups, Inc. (ALGI) alleged that PP 1017 and G.O. No. 5 are

unconstitutional because they violate (a) Section 4[15] of Article II, (b) Sections 1,[16] 2,[17] and 4[18] of
Article III, (c) Section 23[19] of Article VI, and (d) Section 17[20] of Article XII of the Constitution.
In G.R. No. 171489, petitioners Jose Anselmo I. Cadiz et al., alleged that PP 1017 is an arbitrary and
unlawful exercise by the President of her Martial Law powers. And assuming that PP 1017 is not really a
declaration of Martial Law, petitioners argued that it amounts to an exercise by the President of
emergency powers without congressional approval. In addition, petitioners asserted that PP 1017 goes
beyond the nature and function of a proclamation as defined under the Revised Administrative Code.
And lastly, in G.R. No. 171424, petitioner Loren B. Legarda maintained that PP 1017 and G.O. No. 5 are
unconstitutional for being violative of the freedom of expression, including its cognate rights such as
freedom of the press and the right to access to information on matters of public concern, all guaranteed
under Article III, Section 4 of the 1987 Constitution. In this regard, she stated that these issuances
prevented her from fully prosecuting her election protest pending before the Presidential Electoral Tribunal.
In respondents Consolidated Comment, the Solicitor General countered that: first, the petitions
should be dismissed for being
moot; second, petitioners in G.R. Nos. 171400 (ALGI), 171424
(Legarda), 171483 (KMU et al.), 171485 (Escudero et al.) and 171489 (Cadiz et al.) have no legal standing;
third, it is not necessary for petitioners to implead President Arroyo as respondent; fourth, PP 1017 has
constitutional and legal basis; and fifth, PP 1017 does not violate the peoples right to free expression and
redress of grievances.
On March 7, 2006, the Court conducted oral arguments and heard the parties on the above
interlocking issues which may be summarized as follows:
A. PROCEDURAL:
1) Whether the issuance of PP 1021 renders the petitions moot and academic.
2) Whether petitioners in 171485 (Escudero et al.), G.R. Nos. 171400 (ALGI), 171483 (KMU et al.), 171489
(Cadiz et al.), and 171424 (Legarda) have legal standing.
B.
SUBSTANTIVE:
1) Whether the Supreme Court can review the factual bases of PP 1017.
2) Whether PP 1017 and G.O. No. 5 are unconstitutional.
a. Facial Challenge
b. Constitutional Basis
c. As Applied Challenge
A.

PROCEDURAL
First, we must resolve the procedural roadblocks.

I- Moot and Academic Principle

One of the greatest contributions of the American system to this country is the concept of judicial
review enunciated in Marbury v. Madison.[21] This concept rests on the extraordinary simple foundation -The Constitution is the supreme law. It was ordained by the people, the ultimate source of all political
authority. It confers limited powers on the national government. x x x If the government consciously or
unconsciously oversteps these limitations there must be some authority competent to hold it in control, to
thwart its unconstitutional attempt, and thus to vindicate and preserve inviolate the will of the people as
expressed in the Constitution. This power the courts exercise. This is the beginning and the end of the
theory of judicial review.[22]
But the power of judicial review does not repose upon the courts a self-starting capacity.[23]
Courts may exercise such power only when the following requisites are present: first, there must be an

actual case or controversy; second, petitioners have to raise a question of constitutionality; third, the
constitutional question must be raised at the earliest opportunity; and fourth, the decision of the
constitutional question must be necessary to the determination of the case itself.[24]
Respondents maintain that the first and second requisites are absent, hence, we shall limit our discussion
thereon.
An actual case or controversy involves a conflict of legal right, an opposite legal claims susceptible of
judicial resolution. It is definite and concrete, touching the legal relations of parties having adverse legal
interest; a real and substantial controversy admitting of specific relief.[25] The Solicitor General refutes
the existence of such actual case or controversy, contending that the present petitions were rendered
moot and academic by President Arroyos issuance of PP 1021.
Such contention lacks merit.
A moot and academic case is one that ceases to present a justiciable controversy by virtue of supervening
events,[26] so that a declaration thereon would be of no practical use or value.[27] Generally, courts
decline jurisdiction over such case[28] or dismiss it on ground of mootness.[29]
The Court holds that President Arroyos issuance of PP 1021 did not render the present petitions moot and
academic.
During the eight (8) days that PP 1017 was operative, the police officers, according to
petitioners, committed illegal acts in implementing it. Are PP 1017 and G.O. No. 5 constitutional or valid?
Do they justify these alleged illegal acts? These are the vital issues that must be resolved in the present
petitions. It must be stressed that an unconstitutional act is not a law, it confers no rights, it imposes no
duties, it affords no protection; it is in legal contemplation, inoperative.[30]
The moot and academic principle is not a magical formula that can automatically dissuade the courts in
resolving a case. Courts will decide cases, otherwise moot and academic, if: first, there is a grave violation
of the Constitution;[31] second, the exceptional character of the situation and the paramount public interest
is involved;[32] third, when constitutional issue raised requires formulation of controlling principles to guide
the bench, the bar, and the public;[33] and fourth, the case is capable of repetition yet evading review.[34]
All the foregoing exceptions are present here and justify this Courts assumption of jurisdiction over the
instant petitions. Petitioners alleged that the issuance of PP 1017 and G.O. No. 5 violates the Constitution.
There is no question that the issues being raised affect the publics interest, involving as they do the
peoples basic rights to freedom of expression, of assembly and of the press. Moreover, the Court has the
duty to formulate guiding and controlling constitutional precepts, doctrines or rules. It has the symbolic
function of educating the bench and the bar, and in the present petitions, the military and the police, on the
extent of the protection given by constitutional guarantees.[35] And lastly, respondents contested actions
are capable of repetition. Certainly, the petitions are subject to judicial review.
In their attempt to prove the alleged mootness of this case, respondents cited Chief Justice Artemio V.
Panganibans Separate Opinion in Sanlakas v. Executive Secretary.[36] However, they failed to take into
account the Chief Justices very statement that an otherwise moot case may still be decided provided
the party raising it in a proper case has been and/or continues to be prejudiced or damaged as a direct
result of its issuance. The present case falls right within this exception to the mootness rule pointed out
by the Chief Justice.
II- Legal Standing
In view of the number of petitioners suing in various personalities, the Court deems it imperative to have a
more than passing discussion on legal standing or locus standi.
Locus standi is defined as a right of appearance in a court of justice on a given question.[37]

In

private suits, standing is governed by the real-parties-in interest rule as contained in Section 2, Rule 3 of
the 1997 Rules of Civil Procedure, as amended. It provides that every action must be prosecuted or
defended in the name of the real party in interest. Accordingly, the real-party-in interest is the party
who stands to be benefited or injured by the judgment in the suit or the party entitled to the avails of the
suit.[38] Succinctly put, the plaintiffs standing is based on his own right to the relief sought.

The difficulty of determining locus standi arises in public suits.

Here, the plaintiff who asserts a
public right in assailing an allegedly illegal official action, does so as a representative of the general
public. He may be a person who is affected no differently from any other person. He could be suing as a
stranger, or in the category of a citizen, or taxpayer. In either case, he has to adequately show
that he is entitled to seek judicial protection. In other words, he has to make out a sufficient interest in the
vindication of the public order and the securing of relief as a citizen or taxpayer.
Case law in most jurisdictions now allows both citizen and taxpayer standing in public actions.
The distinction was first laid down in Beauchamp v. Silk,[39] where it was held that the plaintiff in a
taxpayers suit is in a different category from the plaintiff in a citizens suit. In the former, the plaintiff is
affected by the expenditure of public funds, while in the latter, he is but the mere instrument of the public
concern. As held by the New York Supreme Court in People ex rel Case v. Collins:[40] In matter of mere
public right, howeverthe people are the real partiesIt is at least the right, if not the duty, of every citizen
to interfere and see that a public offence be properly pursued and punished, and that a public grievance be
remedied. With respect to taxpayers suits, Terr v. Jordan[41] held that the right of a citizen and a
taxpayer to maintain an action in courts to restrain the unlawful use of public funds to his injury cannot be
denied.
However, to prevent just about any person from seeking judicial interference in any official policy or
act with which he disagreed with, and thus hinders the activities of governmental agencies engaged in
public service, the United State Supreme Court laid down the more stringent direct injury test in Ex Parte
Levitt,[42] later reaffirmed in Tileston v. Ullman.[43] The same Court ruled that for a private individual to
invoke the judicial power to determine the validity of an executive or legislative action, he must show that
he has sustained a direct injury as a result of that action, and it is not sufficient that he has a general
interest common to all members of the public.
This Court adopted the direct injury test in our jurisdiction. In People v. Vera,[44] it held that the person
who impugns the validity of a statute must have a personal and substantial interest in the case such that
he has sustained, or will sustain direct injury as a result. The Vera doctrine was upheld in a litany of
cases, such as, Custodio v. President of the Senate,[45] Manila Race Horse Trainers Association v. De la
Fuente,[46] Pascual v. Secretary of Public Works[47] and Anti-Chinese League of the Philippines v. Felix.[48]
However, being a mere procedural technicality, the requirement of locus standi may be waived by the Court
in the exercise of its discretion. This was done in the 1949 Emergency Powers Cases, Araneta v. Dinglasan,
[49] where the transcendental importance of the cases prompted the Court to act liberally.
Such
liberality was neither a rarity nor accidental. In Aquino v. Comelec,[50] this Court resolved to pass upon
the issues raised due to the far-reaching implications of the petition notwithstanding its categorical
statement that petitioner therein had no personality to file the suit. Indeed, there is a chain of cases where
this liberal policy has been observed, allowing ordinary citizens, members of Congress, and civic
organizations to prosecute actions involving the constitutionality or validity of laws, regulations and rulings.
[51]
Thus, the Court has adopted a rule that even where the petitioners have failed to show direct injury,
they have been allowed to sue under the principle of transcendental importance. Pertinent are the
following cases:
(1) Chavez v. Public Estates Authority,[52] where the Court ruled that the enforcement of the constitutional

right to information and the equitable diffusion of natural resources are matters of transcendental
importance which clothe the petitioner with locus standi;

(2) Bagong Alyansang Makabayan v. Zamora,[53] wherein the Court held that given the transcendental
importance of the issues involved, the Court may relax the standing requirements and allow the suit to
prosper despite the lack of direct injury to the parties seeking judicial review of the Visiting Forces
Agreement;

(3) Lim v. Executive Secretary,[54] while the Court noted that the petitioners may not file suit in their
capacity as taxpayers absent a showing that Balikatan 02-01 involves the exercise of Congress taxing
or spending powers, it
reiterated its ruling in Bagong Alyansang Makabayan v. Zamora,[55] that in
cases of transcendental importance, the cases must be settled promptly and definitely and standing
requirements may be relaxed.

By way of summary, the following rules may be culled from the cases decided by this Court. Taxpayers,
voters, concerned citizens, and legislators may be accorded standing to sue, provided that the following
requirements are met:
(1)
the cases involve constitutional issues;
(2)
for taxpayers, there must be a claim of illegal disbursement of public funds or that the tax
measure is unconstitutional;
(3)
for voters, there must be a showing of obvious interest in the validity of the election law in
question;
(4)
for concerned citizens, there must be a showing that the issues raised are of transcendental
importance which must be settled early; and
(5)
for legislators, there must be a claim that the official action complained of infringes upon
their prerogatives as legislators.
Significantly, recent decisions show a certain toughening in the Courts attitude toward legal standing.
In Kilosbayan, Inc. v. Morato,[56] the Court ruled that the status of Kilosbayan as a peoples
organization does not give it the requisite personality to question the validity of the on-line lottery contract,
more so where it does not raise any issue of constitutionality. Moreover, it cannot sue as a taxpayer absent
any allegation that public funds are being misused. Nor can it sue as a concerned citizen as it does not
allege any specific injury it has suffered.
In Telecommunications and Broadcast Attorneys of the Philippines, Inc. v. Comelec,[57] the Court
reiterated the direct injury test with respect to concerned citizens cases involving constitutional issues.
It held that there must be a showing that the citizen personally suffered some actual or threatened injury
arising from the alleged illegal official act.
In Lacson v. Perez,[58] the Court ruled that one of the petitioners, Laban ng Demokratikong Pilipino (LDP), is
not a real party-in-interest as it had not demonstrated any injury to itself or to its leaders, members or
supporters.
In Sanlakas v. Executive Secretary,[59] the Court ruled that only the petitioners who are members of
Congress have standing to sue, as they claim that the Presidents declaration of a state of rebellion is a
usurpation of the emergency powers of Congress, thus impairing their legislative powers. As to petitioners
Sanlakas, Partido Manggagawa, and Social Justice Society, the Court declared them to be devoid of
standing, equating them with the LDP in Lacson.
Now, the application of the above principles to the present petitions.
The locus standi of petitioners in G.R. No. 171396, particularly David and Llamas, is beyond doubt. The
same holds true with petitioners in G.R. No. 171409, Cacho-Olivares and Tribune Publishing Co. Inc. They
alleged direct injury resulting from illegal arrest and unlawful search committed by police
operatives pursuant to PP 1017. Rightly so, the Solicitor General does not question their legal standing.
In G.R. No. 171485, the opposition Congressmen alleged there was usurpation of legislative powers.

They also raised the issue of whether or not the concurrence of Congress is necessary whenever the
alarming powers incident to Martial Law are used.
Moreover, it is in the interest of justice that those
affected by PP 1017 can be represented by their Congressmen in bringing to the attention of the Court the
alleged violations of their basic rights.
In G.R. No. 171400, (ALGI), this Court applied the liberality rule in Philconsa v. Enriquez,[60] Kapatiran
Ng Mga Naglilingkod sa Pamahalaan ng Pilipinas, Inc. v. Tan,[61] Association of Small Landowners in the
Philippines, Inc. v. Secretary of Agrarian Reform,[62] Basco v. Philippine Amusement and Gaming
Corporation,[63] and Taada v. Tuvera,[64] that when the issue concerns a public right, it is sufficient that
the petitioner is a citizen and has an interest in the execution of the laws.
In G.R. No. 171483, KMUs assertion that PP 1017 and G.O. No. 5 violated its right to peaceful assembly
may be deemed sufficient to give it legal standing. Organizations may be granted standing to assert the
rights of their members.[65]
We take judicial notice of the announcement by the Office of the President
banning all rallies and canceling all permits for public assemblies following the issuance of PP 1017 and
G.O. No. 5.
In G.R. No. 171489, petitioners, Cadiz et al., who are national officers of the Integrated Bar of the Philippines
(IBP) have no legal standing, having failed to allege any direct or potential injury which the IBP as an
institution or its members may suffer as a consequence of the issuance of PP No. 1017 and G.O. No. 5. In
Integrated Bar of the Philippines v. Zamora,[66] the Court held that the mere invocation by the IBP of its
duty to preserve the rule of law and nothing more, while undoubtedly true, is not sufficient to clothe it with
standing in this case.
This is too general an interest which is shared by other groups and the whole
citizenry. However, in view of the transcendental importance of the issue, this Court declares that
petitioner have locus standi.
In G.R. No. 171424, Loren Legarda has no personality as a taxpayer to file the instant petition as there are
no allegations of illegal disbursement of public funds.
The fact that she is a former Senator is of no
consequence. She can no longer sue as a legislator on the allegation that her prerogatives as a lawmaker
have been impaired by PP 1017 and G.O. No. 5. Her claim that she is a media personality will not likewise
aid her because there was no showing that the enforcement of these issuances prevented her from
pursuing her occupation. Her submission that she has pending electoral protest before the Presidential
Electoral Tribunal is likewise of no relevance. She has not sufficiently shown that PP 1017 will affect the
proceedings or result of her case. But considering once more the transcendental importance of the issue
involved, this Court may relax the standing rules.
It must always be borne in mind that the question of locus standi is but corollary to the bigger question of
proper exercise of judicial power. This is the underlying legal tenet of the liberality doctrine on legal
standing. It cannot be doubted that the validity of PP No. 1017 and G.O. No. 5 is a judicial question which
is of paramount importance to the Filipino people. To paraphrase Justice Laurel, the whole of Philippine
society now waits with bated breath the ruling of this Court on this very critical matter. The petitions thus
call for the application of the transcendental importance doctrine, a relaxation of the standing
requirements for the petitioners in the PP 1017 cases.
This Court holds that all the petitioners herein have locus standi.
Incidentally, it is not proper to implead President Arroyo as respondent. Settled is the doctrine that the
President, during his tenure of office or actual incumbency,[67] may not be sued in any civil or criminal
case, and there is no need to provide for it in the Constitution or law. It will degrade the dignity of the high
office of the President, the Head of State, if he can be dragged into court litigations while serving as such.
Furthermore, it is important that he be freed from any form of harassment, hindrance or distraction to
enable him to fully attend to the performance of his official duties and functions. Unlike the legislative and
judicial branch, only one constitutes the executive branch and anything which impairs his usefulness in the
discharge of the many great and important duties imposed upon him by the Constitution necessarily
impairs the operation of the Government. However, this does not mean that the President is not
accountable to anyone. Like any other official, he remains accountable to the people[68] but he may be
removed from office only in the mode provided by law and that is by impeachment.[69]
B. SUBSTANTIVE

I. Review of Factual Bases

Petitioners maintain that PP 1017 has no factual basis. Hence, it was not necessary for President Arroyo
to issue such Proclamation.
The issue of whether the Court may review the factual bases of the Presidents exercise of his Commanderin-Chief power has reached its distilled point - from the indulgent days of Barcelon v. Baker[70]
and Montenegro v. Castaneda[71] to the volatile era of Lansang v.
Garcia,[72] Aquino, Jr. v. Enrile,
[73] and Garcia-Padilla v. Enrile.[74] The tug-of-war always cuts across the line defining political
questions, particularly those questions in regard to which full discretionary authority has been delegated
to the legislative or executive branch of the government.[75] Barcelon and Montenegro were in unison in
declaring that the authority to decide whether an exigency has arisen belongs to the President and his
decision is final and conclusive on the courts. Lansang took the opposite view. There, the members of the
Court were unanimous in the conviction that the Court has the authority to inquire into the existence of
factual bases in order to determine their constitutional sufficiency. From the principle of separation of
powers, it shifted the focus to the system of checks and balances, under which the President is supreme, x
x x only if and when he acts within the sphere allotted 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.[76] In 1973, the unanimous Court of Lansang
was divided in Aquino v. Enrile.[77] There, the Court was
almost evenly divided on the issue of
whether the validity of the
imposition of Martial Law is a political or justiciable question.[78]
Then came Garcia-Padilla v. Enrile which greatly diluted Lansang. It declared that there is a need to reexamine the latter case, ratiocinating that in times of war or national emergency, the President must be
given absolute control for the very life of the nation and the government is in great peril. The President, it
intoned, is answerable only to his conscience, the People, and God.[79]
The Integrated Bar of the Philippines v. Zamora[80] -- a recent case most pertinent to these cases at bar -echoed a principle similar to Lansang. While the Court considered the Presidents calling-out power as
a discretionary power solely vested in his wisdom, it stressed that this does not prevent an examination of
whether such power was exercised within permissible constitutional limits or whether it was exercised in a
manner constituting grave abuse of discretion.
This ruling is mainly a result of the Courts reliance on
Section 1, Article VIII of 1987 Constitution which fortifies the authority of the courts to determine in an
appropriate action the validity of the acts of the political departments. Under the new definition of judicial
power, the courts are authorized not only to settle actual controversies involving rights which are legally
demandable and enforceable, but also to determine whether or not there has been a grave abuse of
discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of the
government. The latter part of the authority represents a broadening of judicial power to enable the
courts of justice to review what was before a forbidden territory,
to wit, the discretion of the political
departments of the government.[81] It speaks of judicial prerogative not only in terms of power but also of
duty.[82]
As to how the Court may inquire into the Presidents exercise of power, Lansang adopted the test that
judicial inquiry can go no further than to satisfy the Court not that the Presidents decision is correct,
but that the President did not act arbitrarily. Thus, the standard laid down is not correctness, but
arbitrariness.[83] In Integrated Bar of the Philippines, this Court further ruled that it is incumbent upon
the petitioner to show that the Presidents decision is totally bereft of factual basis and that if he fails, by
way of proof, to support his assertion, then this Court cannot undertake an independent investigation
beyond the pleadings.
Petitioners failed to show that President Arroyos exercise of the calling-out power, by issuing PP 1017, is
totally bereft of factual basis.
A reading of the Solicitor Generals Consolidated Comment and
Memorandum shows a detailed narration of the events leading to the issuance of PP 1017, with supporting
reports forming part of the records. Mentioned are the escape of the Magdalo Group, their audacious threat
of the Magdalo D-Day, the defections in the military, particularly in the Philippine Marines, and the

reproving statements from the communist leaders. There was also the Minutes of the Intelligence Report
and Security Group of the Philippine Army showing the growing alliance between the NPA and the military.
Petitioners presented nothing to refute such events. Thus, absent any contrary allegations, the Court is
convinced that the President was justified in issuing PP 1017 calling for military aid.

Indeed, judging the seriousness of the incidents, President Arroyo was not expected to simply fold her arms
and do nothing to prevent or suppress what she believed was lawless violence, invasion or rebellion.
However, the exercise of such power or duty must not stifle liberty.
II. Constitutionality of PP 1017 and G.O. No. 5
Doctrines of Several Political Theorists
on the Power of the President
in Times of Emergency

This case brings to fore a contentious subject -- the power of the President in times of emergency.
A
glimpse at the various political theories relating to this subject provides an adequate backdrop for our
ensuing discussion.

John Locke, describing the architecture of civil government, called upon the English doctrine of prerogative
to cope with the problem of emergency. In times of danger to the nation, positive law enacted by the
legislature might be inadequate or even a fatal obstacle to the promptness of action necessary to avert
catastrophe. In these situations, the Crown retained a prerogative power to act according to discretion for
the public good, without the proscription of the law and sometimes even against it.[84] But Locke
recognized that this moral restraint might not suffice to avoid abuse of prerogative powers. Who shall
judge the need for resorting to the prerogative and how may its abuse be avoided? Here, Locke readily
admitted defeat, suggesting that the people have no other remedy in this, as in all other cases where they
have no judge on earth, but to appeal to Heaven.[85]

Jean-Jacques Rousseau also assumed the need for temporary suspension of democratic processes of
government in time of emergency. According to him:
The inflexibility of the laws, which prevents them from adopting themselves to circumstances, may, in
certain cases, render them disastrous and make them bring about, at a time of crisis, the ruin of the State
It is wrong therefore to wish to make political institutions as strong as to render it impossible to suspend
their operation. Even Sparta allowed its law to lapse...
If the peril is of such a kind that the paraphernalia of the laws are an obstacle to their preservation, the
method is to nominate a supreme lawyer, who shall silence all the laws and suspend for a moment the
sovereign authority. In such a case, there is no doubt about the general will, and it clear that the peoples
first intention is that the State shall not perish.[86]

Rosseau did not fear the abuse of the emergency dictatorship or supreme magistracy as he termed it.
For him, it would more likely be cheapened by indiscreet use. He was unwilling to rely upon an appeal
to heaven. Instead, he relied upon a tenure of office of prescribed duration to avoid perpetuation of the
dictatorship.[87]

John Stuart Mill concluded his ardent defense of representative government: I am far from condemning, in
cases of extreme necessity, the assumption of absolute power in the form of a temporary dictatorship.[88]

Nicollo Machiavellis view of emergency powers, as one element in the whole scheme of limited
government, furnished an ironic contrast to the Lockean theory of prerogative.
He recognized and
attempted to bridge this chasm in democratic political theory, thus:
Now, in a well-ordered society, it should never be necessary to resort to extra constitutional
measures; for although they may for a time be beneficial, yet the precedent is pernicious, for if the practice
is once established for good objects, they will in a little while be disregarded under that pretext but for evil
purposes. Thus, no republic will ever be perfect if she has not by law provided for everything, having a
remedy for every emergency and fixed rules for applying it.[89]

Machiavelli in contrast to Locke, Rosseau and Mill sought to incorporate into the constitution a
regularized system of standby emergency powers to be invoked with suitable checks and controls in time of
national danger. He attempted forthrightly to meet the problem of combining a capacious reserve of power
and speed and vigor in its application in time of emergency, with effective constitutional restraints.[90]

Contemporary political theorists, addressing themselves to the problem of response to emergency by

constitutional democracies, have employed the doctrine of constitutional dictatorship.[91] Frederick M.
Watkins saw no reason why absolutism should not be used as a means for the defense of liberal
institutions, provided it serves to protect established institutions from the danger of permanent injury in
a period of temporary emergency and is followed by a prompt return to the previous forms of political
life.[92] He recognized the two (2) key elements of the problem of emergency governance, as well as all
constitutional governance: increasing administrative powers of the executive, while at the same time
imposing limitation upon that power.[93] Watkins placed his real faith in a scheme of constitutional
dictatorship. These are the conditions of success of such a dictatorship: The period of dictatorship must
be relatively shortDictatorship should always be strictly legitimate in characterFinal authority to
determine the need for dictatorship in any given case must never rest with the dictator himself[94] and
the objective of such an emergency dictatorship should be strict political conservatism.

Carl J. Friedrich cast his analysis in terms similar to those of Watkins.[95] It is a problem of concentrating
power in a government where power has consciously been divided to cope with situations of
unprecedented magnitude and gravity. There must be a broad grant of powers, subject to equally strong
limitations as to who shall exercise such powers, when, for how long, and to what end.[96] Friedrich, too,
offered criteria for judging the adequacy of any of scheme of emergency powers, to wit: The emergency
executive must be appointed by constitutional means i.e., he must be legitimate; he should not enjoy
power to determine the existence of an emergency; emergency powers should be exercised under a strict
time limitation; and last, the objective of emergency action must be the defense of the constitutional
order.[97]

Clinton L. Rossiter, after surveying the history of the employment of emergency powers in Great Britain,
France, Weimar, Germany and the United States, reverted to a description of a scheme of constitutional
dictatorship as solution to the vexing problems presented by emergency.[98] Like Watkins and Friedrich,
he stated a priori the conditions of success of the constitutional dictatorship, thus:
1) No general regime or particular institution of constitutional dictatorship should be initiated unless it is

necessary or even indispensable to the preservation of the State and its constitutional order
2) the decision to institute a constitutional dictatorship should never be in the hands of the man or men
who will constitute the dictator
3) No government should initiate a constitutional dictatorship without making specific provisions for its
termination
4) all uses of emergency powers and all readjustments in the organization of the government should be
effected in pursuit of constitutional or legal requirements
5) no dictatorial institution should be adopted, no right invaded, no regular procedure altered any more
than is absolutely necessary for the conquest of the particular crisis . . .
6)
The measures adopted in the prosecution of the a constitutional dictatorship should never be
permanent in character or effect
7) The dictatorship should be carried on by persons representative of every part of the citizenry interested
in the defense of the existing constitutional order. . .
8) Ultimate responsibility should be maintained for every action taken under a constitutional dictatorship. .
.
9) The decision to terminate a constitutional dictatorship, like the decision to institute one should never be
in the hands of the man or men who constitute the dictator. . .
10) No constitutional dictatorship should extend beyond the termination of the crisis for which it was
instituted
11) the termination of the crisis must be followed by a complete return as possible to the political and
governmental conditions existing prior to the initiation of the constitutional dictatorship[99]

Rossiter accorded to legislature a far greater role in the oversight exercise of emergency powers than did
Watkins. He would secure to Congress final responsibility for declaring the existence or termination of an
emergency, and he places great faith in the effectiveness of congressional investigating committees.[100]
Scott and Cotter, in analyzing the above contemporary theories in light of recent experience, were
one in saying that, the suggestion that democracies surrender the control of government to an
authoritarian ruler in time of grave danger to the nation is not based upon sound constitutional theory. To
appraise emergency power in terms of constitutional dictatorship serves merely to distort the problem and
hinder realistic analysis. It matters not whether the term dictator is used in its normal sense (as applied
to authoritarian rulers) or is employed to embrace all chief executives administering emergency powers.
However used, constitutional dictatorship cannot be divorced from the implication of suspension of the
processes of constitutionalism. Thus, they favored instead the concept of constitutionalism articulated
by Charles H. McIlwain:
A concept of constitutionalism which is less misleading in the analysis of problems of emergency powers,
and which is consistent with the findings of this study, is that formulated by Charles H. McIlwain. While it
does not by any means necessarily exclude some indeterminate limitations upon the substantive powers of
government, full emphasis is placed upon procedural limitations, and political responsibility. McIlwain clearly
recognized the need to repose adequate power in government. And in discussing the meaning of
constitutionalism, he insisted that the historical and proper test of constitutionalism was the existence of
adequate processes for keeping government responsible. He refused to equate constitutionalism with the
enfeebling of government by an exaggerated emphasis upon separation of powers and substantive

limitations on governmental power. He found that the really effective checks on despotism have consisted
not in the weakening of government but, but rather in the limiting of it; between which there is a great and
very significant difference. In associating constitutionalism with limited as distinguished from weak
government, McIlwain meant government limited to the orderly procedure of law as opposed to the
processes of force. The two fundamental correlative elements of constitutionalism for which all lovers of
liberty must yet fight are the legal limits to arbitrary power and a complete political responsibility of
government to the governed.[101]

In the final analysis, the various approaches to emergency of the above political theorists - from Locks
theory of prerogative, to Watkins doctrine of constitutional dictatorship and, eventually, to
McIlwains principle of constitutionalism --- ultimately aim to solve one real problem in emergency
governance, i.e., that of allotting increasing areas of discretionary power to the Chief Executive, while
insuring that such powers will be exercised with a sense of political responsibility and under effective
limitations and checks.
Our Constitution has fairly coped with this problem. Fresh from the fetters of a repressive regime, the 1986
Constitutional Commission, in drafting the 1987 Constitution, endeavored to create a government in the
concept of Justice Jacksons balanced power structure.[102] Executive, legislative, and judicial powers
are dispersed to the President, the Congress, and the Supreme Court, respectively. Each is supreme within
its own sphere. But none has the monopoly of power in times of emergency. Each branch is given a role to
serve as limitation or check upon the other. This system does not weaken the President, it just limits
his power, using the language of McIlwain. In other words, in times of emergency, our Constitution
reasonably demands that we repose a certain amount of faith in the basic integrity and wisdom of the Chief
Executive but, at the same time, it obliges him to operate within carefully prescribed procedural limitations.
a. Facial Challenge

Petitioners contend that PP 1017 is void on its face because of its overbreadth. They claim that its
enforcement encroached on both unprotected and protected rights under Section 4, Article III of the
Constitution and sent a chilling effect to the citizens.
A facial review of PP 1017, using the overbreadth doctrine, is uncalled for.

First and foremost, the overbreadth doctrine is an analytical tool developed for testing on their faces
statutes in free speech cases, also known under the American Law as First Amendment cases.[103]

A plain reading of PP 1017 shows that it is not primarily directed to speech or even speech-related conduct.
It is actually a call upon the AFP to prevent or suppress all forms of lawless violence. In United States v.
Salerno,[104] the US Supreme Court held that we have not recognized an overbreadth doctrine outside
the limited context of the First Amendment (freedom of speech).

Moreover, the overbreadth doctrine is not intended for testing the validity of a law that reflects legitimate
state interest in maintaining comprehensive control over harmful, constitutionally unprotected conduct.
Undoubtedly, lawless violence, insurrection and rebellion are considered harmful and constitutionally
unprotected conduct. In Broadrick v. Oklahoma,[105] it was held:
It remains a matter of no little difficulty to determine when a law may properly be held void on its face
and when such summary action is inappropriate. But the plain import of our cases is, at the very least,
that facial overbreadth adjudication is an exception to our traditional rules of practice and that its function,

a limited one at the outset, attenuates as the otherwise unprotected behavior that it forbids the State to
sanction moves from pure speech toward conduct and that conduct even if expressive falls within the
scope of otherwise valid criminal laws that reflect legitimate state interests in maintaining comprehensive
controls over harmful, constitutionally unprotected conduct.

Thus, claims of facial overbreadth are entertained in cases involving statutes which, by their terms,
seek to regulate only spoken words and again, that overbreadth claims, if entertained at all, have been
curtailed when invoked against ordinary criminal laws that are sought to be applied to protected
conduct.[106] Here, the incontrovertible fact remains that PP 1017 pertains to a spectrum of conduct,
not free speech, which is manifestly subject to state regulation.

Second, facial invalidation of laws is considered as manifestly strong medicine, to be used

sparingly and only as a last resort, and is generally disfavored;[107] The reason for this is obvious.
Embedded in the traditional rules governing constitutional adjudication is the principle that a person to
whom a law may be applied will not be heard to challenge a law on the ground that it may conceivably be
applied unconstitutionally to others, i.e., in other situations not before the Court.[108] A writer and scholar
in Constitutional Law explains further:
The most distinctive feature of the overbreadth technique is that it marks an exception to some of the usual
rules of constitutional litigation. Ordinarily, a particular litigant claims that a statute is unconstitutional as
applied to him or her; if the litigant prevails, the courts carve away the unconstitutional aspects of the law
by invalidating its improper applications on a case to case basis. Moreover, challengers to a law are not
permitted to raise the rights of third parties and can only assert their own interests. In overbreadth
analysis, those rules give way; challenges are permitted to raise the rights of third parties; and the court
invalidates the entire statute on its face, not merely as applied for so that the overbroad law becomes
unenforceable until a properly authorized court construes it more narrowly. The factor that motivates courts
to depart from the normal adjudicatory rules is the concern with the chilling; deterrent effect of the
overbroad statute on third parties not courageous enough to bring suit. The Court assumes that an
overbroad laws very existence may cause others not before the court to refrain from constitutionally
protected speech or expression. An overbreadth ruling is designed to remove that deterrent effect on the
speech of those third parties.

In other words, a facial challenge using the overbreadth doctrine will require the Court to examine PP 1017
and pinpoint its flaws and defects, not on the basis of its actual operation to petitioners, but on the
assumption or prediction that its very existence may cause others not before the Court to refrain from
constitutionally protected speech or expression. In Younger v. Harris,[109] it was held that:
[T]he task of analyzing a proposed statute, pinpointing its deficiencies, and requiring correction of these
deficiencies before the statute is put into effect, is rarely if ever an appropriate task for the judiciary. The
combination of the relative remoteness of the controversy, the impact on the legislative process of the relief
sought, and above all the speculative and amorphous nature of the required line-by-line analysis of detailed
statutes,...ordinarily results in a kind of case that is wholly unsatisfactory for deciding constitutional
questions, whichever way they might be decided.
And third, a facial challenge on the ground of overbreadth is the most difficult challenge to mount
successfully, since the challenger must establish that there can be no instance when the assailed law may
be valid. Here, petitioners did not even attempt to show whether this situation exists.
Petitioners likewise seek a facial review of PP 1017 on the ground of vagueness.

This, too, is unwarranted.

Related to the overbreadth doctrine is the void for vagueness doctrine which holds that a law is

facially invalid if men of common intelligence must necessarily guess at its meaning and differ as to its
application.[110] It is subject to the same principles governing overbreadth doctrine. For one, it is also an
analytical tool for testing on their faces statutes in free speech cases. And like overbreadth, it is said
that a litigant may challenge a statute on its face only if it is vague in all its possible applications. Again,
petitioners did not even attempt to show that PP 1017 is vague in all its application. They also failed to
establish that men of common intelligence cannot understand the meaning and application of PP 1017.

b. Constitutional Basis of PP 1017

Now on the constitutional foundation of PP 1017.

The operative portion of PP 1017 may be divided into three important provisions, thus:
First provision:

by virtue of the power vested upon me by Section 18, Artilce VII do hereby command the Armed Forces
of the Philippines, to maintain law and order throughout the Philippines, prevent or suppress all forms of
lawless violence as well any act of insurrection or rebellion
Second provision:

and to enforce obedience to all the laws and to all decrees, orders and regulations promulgated by me
personally or upon my direction;

Third provision:

as provided in Section 17, Article XII of the Constitution do hereby declare a State of National
Emergency.

First Provision: Calling-out Power

The first provision pertains to the Presidents calling-out power. In

Sanlakas v. Executive Secretary,[111] this Court, through Mr. Justice Dante O. Tinga, held that Section 18,
Article VII of the Constitution reproduced as follows:
Sec. 18. The President shall be the Commander-in-Chief of all armed forces of the Philippines and
whenever it becomes necessary, he may call out such armed forces to prevent or suppress lawless
violence, invasion or rebellion. In case of invasion or rebellion, when the public safety requires it, he may,
for a period not exceeding sixty days, suspend the privilege of the writ of habeas corpus or place the

Philippines or any part thereof under martial law. Within forty-eight hours from the proclamation of martial
law or the suspension of the privilege of the writ of habeas corpus, the President shall submit a report in
person or in writing to the Congress. The Congress, voting jointly, by a vote of at least a majority of all its
Members in regular or special session, may revoke such proclamation or suspension, which revocation shall
not be set aside by the President. Upon the initiative of the President, the Congress may, in the same
manner, extend such proclamation or suspension for a period to be determined by the Congress, if the
invasion or rebellion shall persist and public safety requires it.
The Congress, if not in session, shall within twenty-four hours following such
proclamation or suspension, convene in accordance with its rules without need of a call.
The Supreme Court may review, in an appropriate proceeding filed by any citizen, the sufficiency of
the factual bases of the proclamation of martial law or the suspension of the privilege of the writ or the
extension thereof, and must promulgate its decision thereon within thirty days from its filing.
A state of martial law does not suspend the operation of the Constitution, nor supplant the
functioning of the civil courts or legislative assemblies, nor authorize the conferment of jurisdiction on
military courts and agencies over civilians where civil courts are able to function, nor automatically suspend
the privilege of the writ.
The suspension of the privilege of the writ shall apply only to persons judicially
charged for rebellion or offenses inherent in or directly connected with invasion.
During the suspension of the privilege of the writ, any person thus arrested or
detained shall be judicially charged within three days, otherwise he shall be released.

grants the President, as Commander-in-Chief, a sequence of graduated powers. From the most to the
least benign, these are: the calling-out power, the power to suspend the privilege of the writ of habeas
corpus, and the power to declare Martial Law. Citing Integrated Bar of the Philippines v. Zamora,[112] the
Court ruled that the only criterion for the exercise of the calling-out power is that whenever it becomes
necessary, the President may call the armed forces to prevent or suppress lawless violence, invasion or
rebellion. Are these conditions present in the instant cases? As stated earlier, considering the
circumstances then prevailing, President Arroyo found it necessary to issue PP 1017. Owing to her Offices
vast intelligence network, she is in the best position to determine the actual condition of the country.
Under the calling-out power, the President may summon the armed forces to aid him in suppressing
lawless violence, invasion and rebellion. This involves ordinary police action. But every act that goes
beyond the Presidents calling-out power is considered illegal or ultra vires. For this reason, a President
must be careful in the exercise of his powers. He cannot invoke a greater power when he wishes to act
under a lesser power. There lies the wisdom of our Constitution, the greater the power, the greater are the
limitations.
It is pertinent to state, however, that there is a distinction between the Presidents authority to
declare a state of rebellion (in Sanlakas) and the authority to proclaim a state of national emergency.
While President Arroyos authority to declare a state of rebellion emanates from her powers as Chief
Executive, the statutory authority cited in Sanlakas was Section 4, Chapter 2, Book II of the Revised
Administrative Code of 1987, which provides:
SEC. 4. Proclamations. Acts of the President fixing a date or declaring a status or condition of
public moment or interest, upon the existence of which the operation of a specific law or regulation is made
to depend, shall be promulgated in proclamations which shall have the force of an executive order.

President Arroyos declaration of a state of rebellion was merely an act declaring a status or
condition of public moment or interest, a declaration allowed under Section 4 cited above. Such
declaration, in the words of Sanlakas, is harmless, without legal significance, and deemed not written. In
these cases, PP 1017 is more than that. In declaring a state of national emergency, President Arroyo did
not only rely on Section 18, Article VII of the Constitution, a provision calling on the AFP to prevent or
suppress lawless violence, invasion or rebellion. She also relied on Section 17, Article XII, a provision on the
States extraordinary power to take over privately-owned public utility and business affected with public
interest.
Indeed, PP 1017 calls for the exercise of an awesome power. Obviously, such Proclamation
cannot be deemed harmless, without legal significance, or not written, as in the case of Sanlakas.
Some of the petitioners vehemently maintain that PP 1017 is actually a declaration of Martial Law. It
is no so. What defines the character of PP 1017 are its wordings. It is plain therein that what the President
invoked was her calling-out power.
The declaration of Martial Law is a warn[ing] to citizens that the military power has been called upon
by the executive to assist in the maintenance of law and order, and that, while the emergency lasts, they
must, upon pain of arrest and punishment, not commit any acts which will in any way render more difficult
the restoration of order and the enforcement of law.[113]
In his Statement before the Senate Committee on Justice on March 13, 2006, Mr. Justice Vicente V.
Mendoza,[114] an authority in constitutional law, said that of the three powers of the President as
Commander-in-Chief, the power to declare Martial Law poses the most severe threat to civil liberties. It is a
strong medicine which should not be resorted to lightly. It cannot be used to stifle or persecute critics of
the government. It is placed in the keeping of the President for the purpose of enabling him to secure the
people from harm and to restore order so that they can enjoy their individual freedoms. In fact, Section 18,
Art. VII, provides:
A state of martial law does not suspend the operation of the Constitution, nor supplant the functioning of
the civil courts or legislative assemblies, nor authorize the conferment of jurisdiction on military courts and
agencies over civilians where civil courts are able to function, nor automatically suspend the privilege of the
writ.

Justice Mendoza also stated that PP 1017 is not a declaration of Martial Law. It is no more than a call
by the President to the armed forces to prevent or suppress lawless violence. As such, it cannot be used to
justify acts that only under a valid declaration of Martial Law can be done. Its use for any other purpose is
a perversion of its nature and scope, and any act done contrary to its command is ultra vires.
Justice Mendoza further stated that specifically, (a) arrests and seizures without judicial warrants; (b)
ban on public assemblies; (c) take-over of news media and agencies and press censorship; and (d) issuance
of Presidential Decrees, are powers which can be exercised by the President as Commander-in-Chief only
where there is a valid declaration of Martial Law or suspension of the writ of habeas corpus.
Based on the above disquisition, it is clear that PP 1017 is not a declaration of Martial Law. It is merely an
exercise of President Arroyos calling-out power for the armed forces to assist her in preventing or
suppressing lawless violence.

Second Provision: Take Care Power

The second provision pertains to the power of the President to ensure that the laws be faithfully executed.
This is based on Section 17, Article VII which reads:

SEC. 17. The President shall have control of all the executive departments, bureaus, and offices. He shall
ensure that the laws be faithfully executed.

As the Executive in whom the executive power is vested,[115] the primary function of the President is to
enforce the laws as well as to formulate policies to be embodied in existing laws. He sees to it that all laws
are enforced by the officials and employees of his department. Before assuming office, he is required to
take an oath or affirmation to the effect that as President of the Philippines, he will, among others, execute
its laws.[116] In the exercise of such function, the President, if needed, may employ the powers attached
to his office as the Commander-in-Chief of all the armed forces of the country,[117] including the Philippine
National Police[118] under the Department of Interior and Local Government.[119]

Petitioners, especially Representatives Francis Joseph G. Escudero, Satur Ocampo, Rafael Mariano, Teodoro
Casio, Liza Maza, and Josel Virador argue that PP 1017 is unconstitutional as it arrogated upon President
Arroyo the power to enact laws and decrees in violation of Section 1, Article VI of the Constitution, which
vests the power to enact laws in Congress. They assail the clause to enforce obedience to all the laws and
to all decrees, orders and regulations promulgated by me personally or upon my direction.
\
Petitioners contention is understandable. A reading of PP 1017 operative clause shows that it was
lifted[120] from Former President Marcos Proclamation No. 1081, which partly reads:

NOW, THEREFORE, I, FERDINAND E. MARCOS, President of the Philippines by virtue of the powers vested
upon me by Article VII, Section 10, Paragraph (2) of the Constitution, do hereby place the entire Philippines
as defined in Article 1, Section 1 of the Constitution under martial law and, in my capacity as their
Commander-in-Chief, do hereby command the Armed Forces of the Philippines, to maintain law and order
throughout the Philippines, prevent or suppress all forms of lawless violence as well as any act of
insurrection or rebellion and to enforce obedience to all the laws and decrees, orders and regulations
promulgated by me personally or upon my direction.

We all know that it was PP 1081 which granted President Marcos legislative power. Its enabling clause
states: to enforce obedience to all the laws and decrees, orders and regulations promulgated by me
personally or upon my direction. Upon the other hand, the enabling clause of PP 1017 issued by President
Arroyo is: to enforce obedience to all the laws and to all decrees, orders and regulations promulgated by me
personally or upon my direction.
Is it within the domain of President Arroyo to promulgate decrees?
PP 1017 states in part: to enforce obedience to all the laws and decrees x x x promulgated by me
personally or upon my direction.

The President is granted an Ordinance Power under Chapter 2, Book III of Executive Order No. 292
(Administrative Code of 1987). She may issue any of the following:

Sec. 2. Executive Orders. Acts of the President providing for rules of a general or permanent character in
implementation or execution of constitutional or statutory powers shall be promulgated in executive orders.
Sec. 3. Administrative Orders. Acts of the President which relate to particular aspect of governmental
operations in pursuance of his duties as administrative head shall be promulgated in administrative orders.
Sec. 4. Proclamations. Acts of the President fixing a date or declaring a status or condition of public
moment or interest, upon the existence of which the operation of a specific law or regulation is made to
depend, shall be promulgated in proclamations which shall have the force of an executive order.
Sec. 5. Memorandum Orders. Acts of the President on matters of administrative detail or of subordinate
or temporary interest which only concern a particular officer or office of the Government shall be embodied
in memorandum orders.
Sec. 6. Memorandum Circulars. Acts of the President on matters relating to internal administration, which
the President desires to bring to the attention of all or some of the departments, agencies, bureaus or
offices of the Government, for information or compliance, shall be embodied in memorandum circulars.
Sec. 7. General or Special Orders. Acts and commands of the President in his capacity as Commander-inChief of the Armed Forces of the Philippines shall be issued as general or special orders.

President Arroyos ordinance power is limited to the foregoing issuances. She cannot issue decrees similar
to those issued by Former President Marcos under PP 1081. Presidential Decrees are laws which are of the
same category and binding force as statutes because they were issued by the President in the exercise of
his legislative power during the period of Martial Law under the 1973 Constitution.[121]
This Court rules that the assailed PP 1017 is unconstitutional insofar as it grants President Arroyo the
authority to promulgate decrees. Legislative power is peculiarly within the province of the Legislature.
Section 1, Article VI categorically states that [t]he legislative power shall be vested in the Congress of the
Philippines which shall consist of a Senate and a House of Representatives. To be sure, neither Martial
Law nor a state of rebellion nor a state of emergency can justify President Arroyos exercise of legislative
power by issuing decrees.
Can President Arroyo enforce obedience to all decrees and laws through the military?

As this Court stated earlier, President Arroyo has no authority to enact decrees. It follows that these
decrees are void and, therefore, cannot be enforced. With respect to laws, she cannot call the military to
enforce or implement certain laws, such as customs laws, laws governing family and property relations,
laws on obligations and contracts and the like. She can only order the military, under PP 1017, to enforce
laws pertinent to its duty to suppress lawless violence.

Third Provision: Power to Take Over

The pertinent provision of PP 1017 states:

x x x and to enforce obedience to all the laws and to all decrees, orders, and regulations promulgated by
me personally or upon my direction; and as provided in Section 17, Article XII of the Constitution do hereby
declare a state of national emergency.

The import of this provision is that President Arroyo, during the state of national emergency under PP 1017,
can call the military not only to enforce obedience to all the laws and to all decrees x x x but also to act
pursuant to the provision of Section 17, Article XII which reads:
Sec. 17. In times of national emergency, when the public interest so requires, the State may, during
the emergency and under reasonable terms prescribed by it, temporarily take over or direct the operation
of any privately-owned public utility or business affected with public interest.

What could be the reason of President Arroyo in invoking the above provision when she issued PP 1017?
The answer is simple. During the existence of the state of national emergency, PP 1017 purports to grant
the President, without any authority or delegation from Congress, to take over or direct the operation of any
privately-owned public utility or business affected with public interest.
This provision was first introduced in the 1973 Constitution, as a product of the martial law thinking of
the 1971 Constitutional Convention.[122] In effect at the time of its approval was President Marcos Letter
of Instruction No. 2 dated September 22, 1972 instructing the Secretary of National Defense to take over
the management, control and operation of the Manila Electric Company, the Philippine Long Distance
Telephone Company, the National Waterworks and Sewerage Authority, the Philippine National Railways,
the Philippine Air Lines, Air Manila (and) Filipinas Orient Airways . . . for the successful prosecution by the
Government of its effort to contain, solve and end the present national emergency.
Petitioners, particularly the members of the House of Representatives, claim that President Arroyos
inclusion of Section 17, Article XII in PP 1017 is an encroachment on the legislatures emergency powers.
This is an area that needs delineation.
A distinction must be drawn between the Presidents authority to declare a state of national
emergency and
to exercise emergency powers. To the first, as elucidated by the Court, Section 18,
Article VII grants the President such power, hence, no legitimate constitutional objection can be raised. But
to the second, manifold constitutional issues arise.

Section 23, Article VI of the Constitution reads:

SEC. 23. (1) The Congress, by a vote of two-thirds of both Houses in joint session assembled, voting
separately, shall have the sole power to declare the existence of a state of war.
(2) In times of war or other national emergency, the Congress may, by law, authorize the President, for a
limited period and subject to such restrictions as it may prescribe, to exercise powers necessary and proper
to carry out a declared national policy. Unless sooner withdrawn by resolution of the Congress, such powers
shall cease upon the next adjournment thereof.

It may be pointed out that the second paragraph of the above provision refers not only to war but also
to other national emergency. If the intention of the Framers of our Constitution was to withhold from the

President the authority to declare a state of national emergency pursuant to Section 18, Article VII
(calling-out power) and grant it to Congress (like the declaration of the existence of a state of war), then the
Framers could have provided so. Clearly, they did not intend that Congress should first authorize the
President before he can declare a state of national emergency. The logical conclusion then is that
President Arroyo could validly declare the existence of a state of national emergency even in the absence of
a Congressional enactment.
But the exercise of emergency powers, such as the taking over of privately owned public utility or business
affected with public interest, is a
different matter. This requires a delegation from Congress.
Courts have often said that constitutional provisions in pari materia are to be construed together.
Otherwise stated, different clauses, sections, and provisions of a constitution which relate to the same
subject matter will be construed together and considered in the light of each other.[123] Considering that
Section 17 of Article XII and Section 23 of Article VI, previously quoted, relate to national emergencies, they
must be read together to determine the limitation of the exercise of emergency powers.
Generally, Congress is the repository of emergency powers. This is evident in the tenor of Section 23 (2),
Article VI authorizing it to delegate such powers to the President. Certainly, a body cannot delegate a
power not reposed upon it. However, knowing that during grave emergencies, it may not be possible or
practicable for Congress to meet and exercise its powers, the Framers of our Constitution deemed it wise to
allow Congress to grant emergency powers to the President, subject to certain conditions, thus:

(1) There must be a war or other emergency.

(2) The delegation must be for a limited period only.
(3) The delegation must be subject to such restrictions as the Congress may prescribe.
(4) The emergency powers must be exercised to carry out a national policy declared by Congress.[124]

Section 17, Article XII must be understood as an aspect of the emergency powers clause. The taking
over of private business affected with public interest is just another facet of the emergency powers
generally reposed upon Congress. Thus, when Section 17 states that the the State may, during the
emergency and under reasonable terms prescribed by it, temporarily take over or direct the operation of
any privately owned public utility or business affected with public interest, it refers to Congress, not the
President. Now, whether or not the President may exercise such power is dependent on whether Congress
may delegate it to him pursuant to a law prescribing the reasonable terms thereof. Youngstown Sheet &
Tube Co. et al. v. Sawyer,[125] held:
It is clear that if the President had authority to issue the order he did, it must be found in some provision of
the Constitution. And it is not claimed that express constitutional language grants this power to the
President. The contention is that presidential power should be implied from the aggregate of his powers
under the Constitution. Particular reliance is placed on provisions in Article II which say that The executive
Power shall be vested in a President . . . .; that he shall take Care that the Laws be faithfully executed;
and that he shall be Commander-in-Chief of the Army and Navy of the United States.
The order cannot properly be sustained as an exercise of the Presidents military power as Commander-inChief of the Armed Forces. The Government attempts to do so by citing a number of cases upholding broad
powers in military commanders engaged in day-to-day fighting in a theater of war. Such cases need not
concern us here. Even though theater of war be an expanding concept, we cannot with faithfulness to
our constitutional system hold that the Commander-in-Chief of the Armed Forces has the ultimate power as

such to take possession of private property in order to keep labor disputes from stopping production. This is
a job for the nations lawmakers, not for its military authorities.
Nor can the seizure order be sustained because of the several constitutional provisions that grant executive
power to the President. In the framework of our Constitution, the Presidents power to see that the laws
are faithfully executed refutes the idea that he is to be a lawmaker. The Constitution limits his functions in
the lawmaking process to the recommending of laws he thinks wise and the vetoing of laws he thinks bad.
And the Constitution is neither silent nor equivocal about who shall make laws which the President is to
execute. The first section of the first article says that All legislative Powers herein granted shall be vested
in a Congress of the United States. . .[126]

Petitioner Cacho-Olivares, et al. contends that the term emergency under Section 17, Article XII refers to
tsunami, typhoon, hurricane and similar occurrences. This is a limited view of emergency.

Emergency, as a generic term, connotes the existence of conditions suddenly intensifying the degree of
existing danger to life or well-being beyond that which is accepted as normal. Implicit in this definitions
are the elements of intensity, variety, and perception.[127] Emergencies, as perceived by legislature or
executive in the United Sates since 1933, have been occasioned by a wide range of situations, classifiable
under three (3) principal heads: a) economic,[128] b) natural disaster,[129] and c) national security.[130]

Emergency, as contemplated in our Constitution, is of the same breadth. It may include rebellion,
economic crisis, pestilence or epidemic, typhoon, flood, or other similar catastrophe of nationwide
proportions or effect.[131] This is evident in the Records of the Constitutional Commission, thus:
MR. GASCON. Yes. What is the Committees definition of national emergency which appears in Section
13, page 5? It reads:
When the common good so requires, the State may temporarily take over or direct the operation of any
privately owned public utility or business affected with public interest.
MR. VILLEGAS. What I mean is threat from external aggression, for example, calamities or natural disasters.
MR. GASCON. There is a question by Commissioner de los Reyes. What about strikes and riots?
MR. VILLEGAS. Strikes, no; those would not be covered by the term national emergency.
MR. BENGZON. Unless they are of such proportions such that they would paralyze government service.
[132]
x

MR. TINGSON. May I ask the committee if national emergency refers to military national emergency or
could this be economic emergency?
MR. VILLEGAS. Yes, it could refer to both military or economic dislocations.

MR. TINGSON. Thank you very much.[133]

It may be argued that when there is national emergency, Congress may not be able to convene and,
therefore, unable to delegate to the President the power to take over privately-owned public utility or
business affected with public interest.
In Araneta v. Dinglasan,[134] this Court emphasized that legislative power, through which
extraordinary measures are exercised, remains in Congress even in times of crisis.
x x x
After all the criticisms that have been made against the efficiency of the system of the separation of
powers, the fact remains that the Constitution has set up this form of government, with all its defects and
shortcomings, in preference to the commingling of powers in one man or group of men. The Filipino people
by adopting parliamentary government have given notice that they share the faith of other democracyloving peoples in this system, with all its faults, as the ideal. The point is, under this framework of
government, legislation is preserved for Congress all the time, not excepting periods of crisis no matter how
serious. Never in the history of the United States, the basic features of whose Constitution have been
copied in ours, have specific functions of the legislative branch of enacting laws been surrendered to
another department unless we regard as legislating the carrying out of a legislative policy according to
prescribed standards; no, not even when that Republic was fighting a total war, or when it was engaged in a
life-and-death struggle to preserve the Union. The truth is that under our concept of constitutional
government, in times of extreme perils more than in normal circumstances the various branches,
executive, legislative, and judicial, given the ability to act, are called upon to perform the duties and
discharge the responsibilities committed to them respectively.

Following our interpretation of Section 17, Article XII, invoked by President Arroyo in issuing PP 1017, this
Court rules that such Proclamation does not authorize her during the emergency to temporarily take over or
direct the operation of any privately owned public utility or business affected with public interest without
authority from Congress.
Let it be emphasized that while the President alone can declare a state of national emergency, however,
without legislation, he has no
power to take over privately-owned public utility or business affected
with public interest. The President cannot decide whether exceptional
circumstances exist warranting
the take over of privately-owned
public utility or business affected with public interest. Nor can he
determine when such exceptional circumstances have ceased. Likewise, without legislation, the President
has no power to point out the types of businesses affected with public interest that should be taken over.
In short, the President has no absolute authority to exercise all the powers of the State under Section 17,
Article VII in the absence of an emergency powers act passed by Congress.

c. AS APPLIED CHALLENGE
One of the misfortunes of an emergency, particularly, that which pertains to security, is that military
necessity and the guaranteed rights of the individual are often not compatible. Our history reveals that in
the crucible of conflict, many rights are curtailed and trampled upon. Here, the right against unreasonable
search and seizure; the right against warrantless arrest; and the freedom of speech, of expression, of the
press, and of assembly under the Bill of Rights suffered the greatest blow.
Of the seven (7) petitions, three (3) indicate direct injury.
In G.R. No. 171396, petitioners David and Llamas alleged that, on February 24, 2006, they were arrested

without warrants on their way to EDSA to celebrate the 20th Anniversary of People Power I.
officers cited PP 1017 as basis of the arrest.

The arresting

In G.R. No. 171409, petitioners Cacho-Olivares and Tribune Publishing Co., Inc. claimed that on February 25,
2006, the CIDG operatives raided and ransacked without warrant their office. Three policemen were
assigned to guard their office as a possible source of destabilization. Again, the basis was PP 1017.
And in G.R. No. 171483, petitioners KMU and NAFLU-KMU et al. alleged that their members were turned
away and dispersed when they went to EDSA and later, to Ayala Avenue, to celebrate the 20th
Anniversary of People Power I.
A perusal of the direct injuries allegedly suffered by the said petitioners shows that they resulted
from the implementation, pursuant to G.O. No. 5, of PP 1017.
Can this Court adjudge as unconstitutional PP 1017 and G.O. No 5 on the basis of these illegal acts? In
general, does the illegal implementation of a law render it unconstitutional?
Settled is the rule that courts are not at liberty to declare statutes invalid although they may be abused and
misabused[135] and may afford an opportunity for abuse in the manner of application.[136] The validity of
a statute or ordinance is to be determined from its general purpose and its efficiency to accomplish the end
desired, not from its effects in a particular case.[137] PP 1017 is merely an invocation of the Presidents
calling-out power. Its general purpose is to command the AFP to suppress all forms of lawless violence,
invasion or rebellion. It had accomplished the end desired which prompted President Arroyo to issue PP
1021. But there is nothing in PP 1017 allowing the police, expressly or impliedly, to conduct illegal arrest,
search or violate the citizens constitutional rights.

Now, may this Court adjudge a law or ordinance unconstitutional on the ground that its implementor
committed illegal acts? The answer is no. The criterion by which the validity of the statute or ordinance is
to be measured is the essential basis for the exercise of power, and not a mere incidental result arising from
its exertion.[138] This is logical. Just imagine the absurdity of situations when laws maybe declared
unconstitutional just because the officers implementing them have acted arbitrarily. If this were so, judging
from the blunders committed by policemen in the cases passed upon by the Court, majority of the
provisions of the Revised Penal Code would have been declared unconstitutional a long time ago.

President Arroyo issued G.O. No. 5 to carry into effect the provisions of PP 1017. General orders are acts
and commands of the President in his capacity as Commander-in-Chief of the Armed Forces of the
Philippines. They are internal rules issued by the executive officer to his subordinates precisely for the
proper and efficient administration of law. Such rules and regulations create no relation except between the
official who issues them and the official who receives them.[139] They are based on and are the product of,
a relationship in which power is their source, and obedience, their object.[140] For these reasons, one
requirement for these rules to be valid is that they must be reasonable, not arbitrary or capricious.
G.O. No. 5 mandates the AFP and the PNP to immediately carry out the necessary and appropriate actions
and measures to suppress and prevent acts of terrorism and lawless violence.
Unlike the term lawless violence which is unarguably extant in our statutes and the Constitution, and
which is invariably associated with invasion, insurrection or rebellion, the phrase acts of terrorism is
still an amorphous and vague concept. Congress has yet to enact a law defining and punishing acts of
terrorism.

In fact, this definitional predicament or the absence of an agreed definition of terrorism confronts not
only our country, but the international
community as well. The following observations are quite apropos:
In the actual unipolar context of international relations, the fight against terrorism has become one of
the basic slogans when it comes to the justification of the use of force against certain states and against
groups operating internationally. Lists of states sponsoring terrorism and of terrorist organizations are
set up and constantly being updated according to criteria that are not always known to the public, but are
clearly determined by strategic interests.
The basic problem underlying all these military actions or threats of the use of force as the most recent
by the United States against Iraq consists in the absence of an agreed definition of terrorism.
Remarkable confusion persists in regard to the legal categorization of acts of violence either by states, by
armed groups such as liberation movements, or by individuals.
The dilemma can by summarized in the saying One countrys terrorist is another countrys freedom
fighter. The apparent contradiction or lack of consistency in the use of the term terrorism may further
be demonstrated by the historical fact that leaders of national liberation movements such as Nelson
Mandela in South Africa, Habib Bourgouiba in Tunisia, or Ahmed Ben Bella in Algeria, to mention only a few,
were originally labeled as terrorists by those who controlled the territory at the time, but later became
internationally respected statesmen.
What, then, is the defining criterion for terrorist acts the differentia specifica distinguishing those acts
from eventually legitimate acts of national resistance or self-defense?
Since the times of the Cold War the United Nations Organization has been trying in vain to reach a
consensus on the basic issue of definition. The organization has intensified its efforts recently, but has
been unable to bridge the gap between those who associate terrorism with any violent act by non-state
groups against civilians, state functionaries or infrastructure or military installations, and those who believe
in the concept of the legitimate use of force when resistance against foreign occupation or against
systematic oppression of ethnic and/or religious groups within a state is concerned.
The dilemma facing the international community can best be illustrated by reference to the contradicting
categorization of organizations and movements such as Palestine Liberation Organization (PLO) which is a
terrorist group for Israel and a liberation movement for Arabs and Muslims the Kashmiri resistance groups
who are terrorists in the perception of India, liberation fighters in that of Pakistan the earlier Contras in
Nicaragua freedom fighters for the United States, terrorists for the Socialist camp or, most drastically,
the Afghani Mujahedeen (later to become the Taliban movement): during the Cold War period they were a
group of freedom fighters for the West, nurtured by the United States, and a terrorist gang for the Soviet
Union. One could go on and on in enumerating examples of conflicting categorizations that cannot be
reconciled in any way because of opposing political interests that are at the roots of those perceptions.
How, then, can those contradicting definitions and conflicting perceptions and evaluations of one and the
same group and its actions be explained? In our analysis, the basic reason for these striking inconsistencies
lies in the divergent interest of states. Depending on whether a state is in the position of an occupying
power or in that of a rival, or adversary, of an occupying power in a given territory, the definition of
terrorism will fluctuate accordingly. A state may eventually see itself as protector of the rights of a
certain ethnic group outside its territory and will therefore speak of a liberation struggle, not of
terrorism when acts of violence by this group are concerned, and vice-versa.
The United Nations Organization has been unable to reach a decision on the definition of terrorism exactly

because of these conflicting interests of sovereign states that determine in each and every instance how a
particular armed movement (i.e. a non-state actor) is labeled in regard to the terrorists-freedom fighter
dichotomy. A policy of double standards on this vital issue of international affairs has been the
unavoidable consequence.
This definitional predicament of an organization consisting of sovereign states and not of peoples, in
spite of the emphasis in the Preamble to the United Nations Charter! has become even more serious in
the present global power constellation: one superpower exercises the decisive role in the Security Council,
former great powers of the Cold War era as well as medium powers are increasingly being marginalized;
and the problem has become even more acute since the terrorist attacks of 11 September 2001 I the United
States.[141]
The absence of a law defining acts of terrorism may result in abuse and oppression on the part of the
police or military. An illustration is when a group of persons are merely engaged in a drinking spree. Yet
the military or the police may consider the act as an act of terrorism and immediately arrest them pursuant
to G.O. No. 5. Obviously, this is abuse and oppression on their part. It must be remembered that an act
can only be considered a crime if there is a law defining the same as such and imposing the corresponding
penalty thereon.

So far, the word terrorism appears only once in our criminal laws, i.e., in P.D. No. 1835 dated January 16,
1981 enacted by President Marcos during the Martial Law regime. This decree is entitled Codifying The
Various Laws on Anti-Subversion and Increasing The Penalties for Membership in Subversive
Organizations. The word terrorism is mentioned in the following provision: That one who conspires
with any other person for the purpose of overthrowing the Government of the Philippines x x x by force,
violence, terrorism, x x x shall be punished by reclusion temporal x x x.

P.D. No. 1835 was repealed by E.O. No. 167 (which outlaws the Communist Party of the Philippines) enacted
by President Corazon Aquino on May 5, 1985. These two (2) laws, however, do not define acts of
terrorism. Since there is no law defining acts of terrorism, it is President Arroyo alone, under G.O. No.
5, who has the discretion to determine what acts constitute terrorism. Her judgment on this aspect is
absolute, without restrictions. Consequently, there can be indiscriminate arrest without warrants, breaking
into offices and residences, taking over the media enterprises, prohibition and dispersal of all assemblies
and gatherings unfriendly to the administration. All these can be effected in the name of G.O. No. 5. These
acts go far beyond the calling-out power of the President. Certainly, they violate the due process clause of
the Constitution. Thus, this Court declares that the acts of terrorism portion of G.O. No. 5 is
unconstitutional.

Significantly, there is nothing in G.O. No. 5 authorizing the military or police to commit acts beyond what
are necessary and appropriate to suppress and prevent lawless violence, the limitation of their authority in
pursuing the Order. Otherwise, such acts are considered illegal.

We first examine G.R. No. 171396 (David et al.)

The Constitution provides that the right of the people to be secured in their persons, houses, papers and
effects against unreasonable search and seizure of whatever nature and for any purpose shall be inviolable,
and no search warrant or warrant of arrest shall issue except upon probable cause to be determined
personally by the judge after examination under oath or affirmation of the complainant and the witnesses
he may produce, and particularly describing the place to be searched and the persons or things to be
seized.[142] The plain import of the language of the Constitution is that searches, seizures and arrests
are normally unreasonable unless authorized by a validly issued search warrant or warrant of arrest. Thus,
the fundamental protection given by this provision is that between person and police must stand the
protective authority of a magistrate clothed with power to issue or refuse to issue search warrants or
warrants of arrest.[143]

In the Brief Account[144] submitted by petitioner David, certain facts are established: first, he was
arrested without warrant; second, the PNP operatives arrested him on the basis of PP 1017; third, he was
brought at Camp Karingal, Quezon City where he was fingerprinted, photographed and booked like a
criminal suspect; fourth, he was treated brusquely by policemen who held his head and tried to push him
inside an unmarked car; fifth, he was charged with Violation of Batas Pambansa Bilang
No. 880[145]
and Inciting to Sedition; sixth, he was detained for seven (7) hours; and seventh, he was eventually
released for insufficiency of evidence.

Section 5, Rule 113 of the Revised Rules on Criminal Procedure provides:

Sec. 5. Arrest without warrant; when lawful. - A peace officer or a private person may, without a warrant,
arrest a person:
(a) When, in his presence, the person to be arrested has committed, is actually committing, or is attempting
to commit an offense.
(b) When an offense has just been committed and he has probable cause to believe based on personal
knowledge of facts or circumstances that the person to be arrested has committed it; and
x

x.

Neither of the two (2) exceptions mentioned above justifies petitioner Davids warrantless arrest. During
the inquest for the charges of inciting to sedition and violation of BP 880, all that the arresting officers
could invoke was their observation that some rallyists were wearing t-shirts with the invective Oust
Gloria Now and their erroneous assumption that petitioner David was the leader of the rally.[146]
Consequently, the Inquest Prosecutor ordered his immediate release on the ground of insufficiency of
evidence. He noted that petitioner David was not wearing the subject t-shirt and even if he was wearing it,
such fact is insufficient to charge him with inciting to sedition. Further, he also stated that there is
insufficient evidence for the charge of violation of BP 880 as it was not even known whether petitioner
David was the leader of the rally.[147]

But what made it doubly worse for petitioners David et al. is that not only was their right against
warrantless arrest violated, but also their right to peaceably assemble.

Section 4 of Article III guarantees:

No law shall be passed abridging the freedom of speech, of expression, or of the press, or the right of the
people peaceably to assemble and petition the government for redress of grievances.

Assembly means a right on the part of the citizens to meet peaceably for consultation in respect to
public affairs. It is a necessary consequence of our republican institution and complements the right of
speech. As in the case of freedom of expression, this right is not to be limited, much less denied, except on
a showing of a clear and present danger of a substantive evil that Congress has a right to prevent. In other
words, like other rights embraced in the freedom of expression, the right to assemble is not subject to
previous restraint or censorship.
It may not be conditioned upon the prior issuance of a permit or
authorization from the government authorities except, of course, if the assembly is intended to be held in a
public place, a permit for the use of such place, and not for the assembly itself, may be validly required.

The ringing truth here is that petitioner David, et al. were arrested while they were exercising their right to
peaceful assembly.
They were not committing any crime, neither was there a showing of a clear and
present danger that warranted the limitation of that right. As can be gleaned from circumstances, the
charges of inciting to sedition and violation of BP 880 were mere afterthought. Even the Solicitor General,
during the oral argument, failed to justify the arresting officers conduct. In De Jonge v. Oregon,[148] it
was held that peaceable assembly cannot be made a crime, thus:
Peaceable assembly for lawful discussion cannot be made a crime. The holding of meetings for peaceable
political action cannot be proscribed. Those who assist in the conduct of such meetings cannot be branded
as criminals on that score. The question, if the rights of free speech and peaceful assembly are not to be
preserved, is not as to the auspices under which the meeting was held but as to its purpose; not as to the
relations of the speakers, but whether their utterances transcend the bounds of the freedom of speech
which the Constitution protects. If the persons assembling have committed crimes elsewhere, if they have
formed or are engaged in a conspiracy against the public peace and order, they may be prosecuted for their
conspiracy or other violations of valid laws. But it is a different matter when the State, instead of
prosecuting them for such offenses, seizes upon mere participation in a peaceable assembly and a lawful
public discussion as the basis for a criminal charge.

On the basis of the above principles, the Court likewise considers the dispersal and arrest of the members
of KMU et al. (G.R. No. 171483) unwarranted. Apparently, their dispersal was done merely on the basis of
Malacaangs directive canceling all permits previously issued by local government units. This is arbitrary.
The wholesale cancellation of all permits to rally is a blatant disregard of the principle that freedom of
assembly is not to be limited, much less denied, except on a showing of a clear and present danger of a
substantive evil that the State has a right to prevent.[149] Tolerance is the rule and limitation is the
exception. Only upon a showing that an assembly presents a clear and present danger that the State may
deny the citizens right to exercise it. Indeed, respondents failed to show or convince the Court that the

rallyists committed acts amounting to lawless violence, invasion or rebellion. With the blanket revocation
of permits, the distinction between protected and unprotected assemblies was eliminated.

Moreover, under BP 880, the authority to regulate assemblies and rallies is lodged with the local
government units. They have the power to issue permits and to revoke such permits after due notice and
hearing on the determination of the presence of clear and present danger. Here, petitioners were not even
notified and heard on the revocation of their permits.[150] The first time they learned of it was at the time
of the dispersal. Such absence of notice is a fatal defect. When a persons right is restricted by
government action, it behooves a democratic government to see to it that the restriction is fair, reasonable,
and according to procedure.

G.R. No. 171409, (Cacho-Olivares, et al.) presents another facet of freedom of speech i.e., the freedom of
the press. Petitioners narration of facts, which the Solicitor General failed to refute, established the
following: first, the Daily Tribunes offices were searched without warrant; second, the police operatives
seized several materials for publication; third, the search was conducted at about 1:00 o clock in the
morning of February 25, 2006; fourth, the search was conducted in the absence of any official of the Daily
Tribune except the security guard of the building; and fifth, policemen stationed themselves at the vicinity
of the Daily Tribune offices.

Thereafter, a wave of warning came from government officials. Presidential Chief of Staff Michael
Defensor was quoted as saying that such raid was meant to show a strong presence, to tell media
outlets not to connive or do anything that would help the rebels in bringing down this government.
Director General Lomibao further stated that if they do not follow the standards and the standards are if
they would contribute to instability in the government, or if they do not subscribe to what is in General
Order No. 5 and Proc. No. 1017 we will recommend a takeover. National Telecommunications
Commissioner Ronald Solis urged television and radio networks to cooperate with the government for
the duration of the state of national emergency. He warned that his agency will not hesitate to recommend
the closure of any broadcast outfit that violates rules set out for media coverage during times when the
national security is threatened.[151]

The search is illegal. Rule 126 of The Revised Rules on Criminal Procedure lays down the steps in the
conduct of search and seizure. Section 4 requires that a search warrant be issued upon probable cause in
connection with one specific offence to be determined personally by the judge after examination under oath
or affirmation of the complainant and the witnesses he may produce. Section 8 mandates that the search
of a house, room, or any other premise be made in the presence of the lawful occupant thereof or any
member of his family or in the absence of the latter, in the presence of two (2) witnesses of sufficient age
and discretion residing in the same locality. And Section 9 states that the warrant must direct that it be
served in the daytime, unless the property is on the person or in the place ordered to be searched, in which
case a direction may be inserted that it be served at any time of the day or night. All these rules were
violated by the CIDG operatives.

Not only that, the search violated petitioners freedom of the press.
The best gauge of a free and
democratic society rests in the degree of freedom enjoyed by its media. In the Burgos v. Chief of Staff[152]
this Court held that -As heretofore stated, the premises searched were the business and printing offices of the "Metropolitan

Mail" and the "We Forum newspapers. As a consequence of the search and seizure, these premises were
padlocked and sealed, with the further result that the printing and publication of said newspapers were
discontinued.
Such closure is in the nature of previous restraint or censorship abhorrent to the freedom of the press
guaranteed under the fundamental law, and constitutes a virtual denial of petitioners' freedom to express
themselves in print. This state of being is patently anathematic to a democratic framework where a free,
alert and even militant press is essential for the political enlightenment and growth of the citizenry.

While admittedly, the Daily Tribune was not padlocked and sealed like the Metropolitan Mail and We
Forum newspapers in the above case, yet it cannot be denied that the CIDG operatives exceeded their
enforcement duties. The search and seizure of materials for publication, the stationing of policemen in the
vicinity of the The Daily Tribune offices, and the arrogant warning of government officials to media, are plain
censorship. It is that officious functionary of the repressive government who tells the citizen that he may
speak only if allowed to do so, and no more and no less than what he is permitted to say on pain of
punishment should he be so rash as to disobey.[153] Undoubtedly, the The Daily Tribune was subjected to
these arbitrary intrusions because of its anti-government sentiments.
This Court cannot tolerate the
blatant disregard of a constitutional right even if it involves the most defiant of our citizens. Freedom to
comment on public affairs is essential to the vitality of a representative democracy. It is the duty of the
courts to be watchful for the constitutional rights of the citizen, and against any stealthy encroachments
thereon. The motto should always be obsta principiis.[154]

Incidentally, during the oral arguments, the Solicitor General admitted that the search of the Tribunes
offices and the seizure of its materials for publication and other papers are illegal; and that the same are
inadmissible for any purpose, thus:
JUSTICE CALLEJO:
You made quite a mouthful of admission when you said that the policemen, when inspected the
Tribune for the purpose of gathering evidence and you admitted that the policemen were able to get the
clippings. Is that not in admission of the admissibility of these clippings that were taken from the Tribune?
SOLICITOR GENERAL BENIPAYO:
Under the law they would seem to be, if they were illegally seized, I think and I know, Your Honor,
and these are inadmissible for any purpose.[155]
xxx

xxx

xxx

SR. ASSO. JUSTICE PUNO:

These have been published in the past issues of the Daily Tribune; all you have to do is to get those
past issues. So why do you have to go there at 1 oclock in the morning and without any search warrant?
Did they become suddenly part of the evidence of rebellion or inciting to sedition or what?
SOLGEN BENIPAYO:
Well, it was the police that did that, Your Honor. Not upon my instructions.

SR. ASSO. JUSTICE PUNO:

Are you saying that the act of the policeman is illegal, it is not based on any law, and it is not based
on Proclamation 1017.
SOLGEN BENIPAYO:
It is not based on Proclamation 1017, Your Honor, because there is nothing in 1017 which says that
the police could go and inspect and gather clippings from Daily Tribune or any other newspaper.
SR. ASSO. JUSTICE PUNO:
Is it based on any law?
SOLGEN BENIPAYO:
As far as I know, no, Your Honor, from the facts, no.
SR. ASSO. JUSTICE PUNO:
So, it has no basis, no legal basis whatsoever?

SOLGEN BENIPAYO:
Maybe so, Your Honor. Maybe so, that is why I said, I dont know if it is premature to say this, we do
not condone this. If the people who have been injured by this would want to sue them, they can sue and
there are remedies for this.[156]

Likewise, the warrantless arrests and seizures executed by the police were, according to the Solicitor
General, illegal and cannot be condoned, thus:
CHIEF JUSTICE PANGANIBAN:
There seems to be some confusions if not contradiction in your theory.
SOLICITOR GENERAL BENIPAYO:
I dont know whether this will clarify. The acts, the supposed illegal or unlawful acts committed on
the occasion of 1017, as I said, it cannot be condoned. You cannot blame the President for, as you said, a
misapplication of the law. These are acts of the police officers, that is their responsibility.[157]

The Dissenting Opinion states that PP 1017 and G.O. No. 5 are constitutional in every aspect and should
result in no constitutional or statutory breaches if applied according to their letter.
The Court has passed upon the constitutionality of these issuances. Its ratiocination has been exhaustively
presented. At this point, suffice it to reiterate that PP 1017 is limited to the calling out by the President of
the military to prevent or suppress lawless violence, invasion or rebellion. When in implementing its
provisions, pursuant to G.O. No. 5, the military and the police committed acts which violate the citizens

rights under the Constitution, this Court has to declare such acts unconstitutional and illegal.
In this connection, Chief Justice Artemio V. Panganibans concurring opinion, attached hereto, is considered
an integral part of this ponencia.

SUMMATION
In sum, the lifting of PP 1017 through the issuance of PP 1021 a supervening event would have
normally rendered this case moot and academic. However, while PP 1017 was still operative, illegal acts
were committed allegedly in pursuance thereof. Besides, there is no guarantee that PP 1017, or one similar
to it, may not again be issued. Already, there have been media reports on April 30, 2006 that allegedly PP
1017 would be reimposed if the May 1 rallies become unruly and violent. Consequently, the
transcendental issues raised by the parties should not be evaded; they must now be resolved to prevent
future constitutional aberration.
The Court finds and so holds that PP 1017 is constitutional insofar as it constitutes a call by the President
for the AFP to prevent or suppress lawless violence. The proclamation is sustained by Section 18, Article VII
of the Constitution and the relevant jurisprudence discussed earlier. However, PP 1017s extraneous
provisions giving the President express or implied power (1) to issue decrees; (2) to direct the AFP to
enforce obedience to all laws even those not related to lawless violence as well as decrees promulgated by
the President; and (3) to impose standards on media or any form of prior restraint on the press, are ultra
vires and unconstitutional. The Court also rules that under Section 17, Article XII of the Constitution, the
President, in the absence of a legislation, cannot take over privately-owned public utility and private
business affected with public interest.

In the same vein, the Court finds G.O. No. 5 valid. It is an Order issued by the President acting as
Commander-in-Chief addressed to subalterns in the AFP to carry out the provisions of PP 1017.
Significantly, it also provides a valid standard that the military and the police should take only the
necessary and appropriate actions and measures to suppress and prevent acts of lawless violence. But
the words acts of terrorism found in G.O. No. 5 have not been legally defined and made punishable by
Congress and should thus be deemed deleted from the said G.O. While terrorism has been denounced
generally in media, no law has been enacted to guide the military, and eventually the courts, to determine
the limits of the AFPs authority in carrying out this portion of G.O. No. 5.

On the basis of the relevant and uncontested facts narrated earlier, it is also pristine clear that (1) the
warrantless arrest of petitioners Randolf S. David and Ronald Llamas; (2) the dispersal of the rallies and
warrantless arrest of the KMU and NAFLU-KMU members; (3) the imposition of standards on media or any
prior restraint on the press; and (4) the warrantless search of the Tribune offices and the whimsical seizures
of some articles for publication and other materials, are not authorized by the Constitution, the law and
jurisprudence. Not even by the valid provisions of PP 1017 and G.O. No. 5.

Other than this declaration of invalidity, this Court cannot impose any civil, criminal or administrative
sanctions on the individual police officers concerned. They have not been individually identified and given
their day in court. The civil complaints or causes of action and/or relevant criminal Informations have not
been presented before this Court. Elementary due process bars this Court from making any specific
pronouncement of civil, criminal or administrative liabilities.

It is well to remember that military power is a means to an end and substantive civil rights are ends in
themselves. How to give the military the power it needs to protect the Republic without unnecessarily
trampling individual rights is one of the eternal balancing tasks of a democratic state. During emergency,
governmental action may vary in breadth and intensity from normal times, yet they should not be arbitrary
as to unduly restrain our peoples liberty.
Perhaps, the vital lesson that we must learn from the theorists who studied the various competing political
philosophies is that, it is possible to grant government the authority to cope with crises without
surrendering the two vital principles of constitutionalism: the maintenance of legal limits to arbitrary power,
and political responsibility of the government to the governed.[158]
WHEREFORE, the Petitions are partly granted. The Court rules that PP 1017 is CONSTITUTIONAL insofar as
it constitutes a call by President Gloria Macapagal-Arroyo on the AFP to prevent or suppress lawless
violence. However, the provisions of PP 1017 commanding the AFP to enforce laws not related to lawless
violence, as well as decrees promulgated by the President, are declared UNCONSTITUTIONAL. In addition,
the provision in PP 1017 declaring national emergency under Section 17, Article VII of the Constitution is
CONSTITUTIONAL, but such declaration does not authorize the President to take over privately-owned public
utility or business affected with public interest without prior legislation.
G.O. No. 5 is CONSTITUTIONAL since it provides a standard by which the AFP and the PNP should implement
PP 1017, i.e. whatever is necessary and appropriate actions and measures to suppress and prevent acts of
lawless violence. Considering that acts of terrorism have not yet been defined and made punishable
by the Legislature, such portion of G.O. No. 5 is declared UNCONSTITUTIONAL.
The warrantless arrest of Randolf S. David and Ronald Llamas; the dispersal and warrantless arrest of the
KMU and NAFLU-KMU members during their rallies, in the absence of proof that these petitioners were
committing acts constituting lawless violence, invasion or rebellion and violating BP 880; the imposition of
standards on media or any form of prior restraint on the press, as well as the warrantless search of the
Tribune offices and whimsical seizure of its articles for publication and other materials, are declared
UNCONSTITUTIONAL.
No costs.
SO ORDERED.

AKBAYAN VS. AQUINO

DECISION
CARPIO MORALES, J.:
Petitioners non-government organizations, Congresspersons, citizens and taxpayers seek via the present
petition for mandamus and prohibition to obtain from respondents the full text of the Japan-Philippines
Economic Partnership Agreement (JPEPA) including the Philippine and Japanese offers submitted during the
negotiation process and all pertinent attachments and annexes thereto.
Petitioners Congressmen Lorenzo R. Taada III and Mario Joyo Aguja filed on January 25, 2005 House
Resolution No. 551 calling for an inquiry into the bilateral trade agreements then being negotiated by the
Philippine government, particularly the JPEPA. The Resolution became the basis of an inquiry subsequently
conducted by the House Special Committee on Globalization (the House Committee) into the negotiations of
the JPEPA.

In the course of its inquiry, the House Committee requested herein respondent Undersecretary Tomas
Aquino (Usec. Aquino), Chairman of the Philippine Coordinating Committee created under Executive Order
No. 213 (CREATION OF A PHILIPPINE COORDINATING COMMITTEE TO STUDY THE FEASIBILITY OF THE JAPANPHILIPPINES ECONOMIC PARTNERSHIP AGREEMENT)[1] to study and negotiate the proposed JPEPA, and to
furnish the Committee with a copy of the latest draft of the JPEPA. Usec. Aquino did not heed the request,
however.
Congressman Aguja later requested for the same document, but Usec. Aquino, by letter of November 2,
2005, replied that the Congressman shall be provided with a copy thereof once the negotiations are
completed and as soon as a thorough legal review of the proposed agreement has been conducted.
In a separate move, the House Committee, through Congressman Herminio G. Teves, requested Executive
Secretary Eduardo Ermita to furnish it with all documents on the subject including the latest draft of the
proposed agreement, the requests and offers etc.[2] Acting on the request, Secretary Ermita, by letter of
June 23, 2005, wrote Congressman Teves as follows:
In its letter dated 15 June 2005 (copy enclosed), [the] D[epartment of] F[oreign] A[ffairs] explains that the
Committees request to be furnished all documents on the JPEPA may be difficult to accomplish at this time,
since the proposed Agreement has been a work in progress for about three years. A copy of the draft JPEPA
will however be forwarded to the Committee as soon as the text thereof is settled and complete. (Emphasis
supplied)

Congressman Aguja also requested NEDA Director-General Romulo Neri and Tariff Commission Chairman
Edgardo Abon, by letter of July 1, 2005, for copies of the latest text of the JPEPA.
Chairman Abon replied, however, by letter of July 12, 2005 that the Tariff Commission does not have a copy
of the documents being requested, albeit he was certain that Usec. Aquino would provide the Congressman
with a copy once the negotiation is completed. And by letter of July 18, 2005, NEDA Assistant DirectorGeneral Margarita R. Songco informed the Congressman that his request addressed to Director-General Neri
had been forwarded to Usec. Aquino who would be in the best position to respond to the request.
In its third hearing conducted on August 31, 2005, the House Committee resolved to issue a subpoena for
the most recent draft of the JPEPA, but the same was not pursued because by Committee Chairman
Congressman Teves information, then House Speaker Jose de Venecia had requested him to hold in
abeyance the issuance of the subpoena until the President gives her consent to the disclosure of the
documents.[3]
Amid speculations that the JPEPA might be signed by the Philippine government within December 2005, the
present petition was filed on December 9, 2005.[4] The agreement was to be later signed on September 9,
2006 by President Gloria Macapagal-Arroyo and Japanese Prime Minister Junichiro Koizumi in Helsinki,
Finland, following which the President endorsed it to the Senate for its concurrence pursuant to Article VII,
Section 21 of the Constitution. To date, the JPEPA is still being deliberated upon by the Senate.
The JPEPA, which will be the first bilateral free trade agreement to be entered into by the Philippines with
another country in the event the Senate grants its consent to it, covers a broad range of topics which
respondents enumerate as follows: trade in goods, rules of origin, customs procedures, paperless trading,
trade in services, investment, intellectual property rights, government procurement, movement of natural
persons, cooperation, competition policy, mutual recognition, dispute avoidance and settlement,
improvement of the business environment, and general and final provisions.[5]
While the final text of the JPEPA has now been made accessible to the public since September 11, 2006,[6]
respondents do not dispute that, at the time the petition was filed up to the filing of petitioners Reply when

the JPEPA was still being negotiated the initial drafts thereof were kept from public view.
Before delving on the substantive grounds relied upon by petitioners in support of the petition, the Court
finds it necessary to first resolve some material procedural issues.
Standing
For a petition for mandamus such as the one at bar to be given due course, it must be instituted by a party
aggrieved by the alleged inaction of any tribunal, corporation, board or person which unlawfully excludes
said party from the enjoyment of a legal right.[7] Respondents deny that petitioners have such standing to
sue. [I]n the interest of a speedy and definitive resolution of the substantive issues raised, however,
respondents consider it sufficient to cite a portion of the ruling in Pimentel v. Office of Executive
Secretary[8] which emphasizes the need for a personal stake in the outcome of the controversy on
questions of standing.
In a petition anchored upon the right of the people to information on matters of public concern, which is a
public right by its very nature, petitioners need not show that they have any legal or special interest in the
result, it being sufficient to show that they are citizens and, therefore, part of the general public which
possesses the right.[9] As the present petition is anchored on the right to information and petitioners are all
suing in their capacity as citizens and groups of citizens including petitioners-members of the House of
Representatives who additionally are suing in their capacity as such, the standing of petitioners to file the
present suit is grounded in jurisprudence.
Mootness
Considering, however, that [t]he principal relief petitioners are praying for is the disclosure of the contents
of the JPEPA prior to its finalization between the two States parties,[10] public disclosure of the text of the
JPEPA after its signing by the President, during the pendency of the present petition, has been largely
rendered moot and academic.
With the Senate deliberations on the JPEPA still pending, the agreement as it now stands cannot yet be
considered as final and binding between the two States. Article 164 of the JPEPA itself provides that the
agreement does not take effect immediately upon the signing thereof. For it must still go through the
procedures required by the laws of each country for its entry into force, viz:
Article 164
Entry into Force
This Agreement shall enter into force on the thirtieth day after the date on which the Governments of the
Parties exchange diplomatic notes informing each other that their respective legal procedures necessary for
entry into force of this Agreement have been completed. It shall remain in force unless terminated as
provided for in Article 165.[11] (Emphasis supplied)

President Arroyos endorsement of the JPEPA to the Senate for concurrence is part of the legal procedures
which must be met prior to the agreements entry into force.
The text of the JPEPA having then been made accessible to the public, the petition has become moot and
academic to the extent that it seeks the disclosure of the full text thereof.
The petition is not entirely moot, however, because petitioners seek to obtain, not merely the text of the
JPEPA, but also the Philippine and Japanese offers in the course of the negotiations.[12]
A discussion of the substantive issues, insofar as they impinge on petitioners demand for access to the

Philippine and Japanese offers, is thus in order.

Grounds relied upon by petitioners

Petitioners assert, first, that the refusal of the government to disclose the documents bearing on the JPEPA
negotiations violates their right to information on matters of public concern[13] and contravenes other
constitutional provisions on transparency, such as that on the policy of full public disclosure of all
transactions involving public interest.[14] Second, they contend that non-disclosure of the same documents
undermines their right to effective and reasonable participation in all levels of social, political, and
economic decision-making.[15] Lastly, they proffer that divulging the contents of the JPEPA only after the
agreement has been concluded will effectively make the Senate into a mere rubber stamp of the Executive,
in violation of the principle of separation of powers.
Significantly, the grounds relied upon by petitioners for the disclosure of the latest text of the JPEPA are,
except for the last, the same as those cited for the disclosure of the Philippine and Japanese offers.
The first two grounds relied upon by petitioners which bear on the merits of respondents claim of privilege
shall be discussed. The last, being purely speculatory given that the Senate is still deliberating on the JPEPA,
shall not.
The JPEPA is a matter of public concern
To be covered by the right to information, the information sought must meet the threshold requirement that
it be a matter of public concern. Apropos is the teaching of Legaspi v. Civil Service Commission:
In determining whether or not a particular information is of public concern there is no rigid test which can
be applied. Public concern like public interest is a term that eludes exact definition. Both terms embrace a
broad spectrum of subjects which the public may want to know, either because these directly affect their
lives, or simply because such matters naturally arouse the interest of an ordinary citizen. In the final
analysis, it is for the courts to determine on a case by case basis whether the matter at issue is of interest
or importance, as it relates to or affects the public.[16] (Underscoring supplied)

From the nature of the JPEPA as an international trade agreement, it is evident that the Philippine and
Japanese offers submitted during the negotiations towards its execution are matters of public concern. This,
respondents do not dispute. They only claim that diplomatic negotiations are covered by the doctrine of
executive privilege, thus constituting an exception to the right to information and the policy of full public
disclosure.
Respondents claim of privilege
It is well-established in jurisprudence that neither the right to information nor the policy of full public
disclosure is absolute, there being matters which, albeit of public concern or public interest, are recognized
as privileged in nature. The types of information which may be considered privileged have been elucidated
in Almonte v. Vasquez,[17] Chavez v. PCGG,[18] Chavez v. Public Estates Authority,[19] and most recently in
Senate v. Ermita[20] where the Court reaffirmed the validity of the doctrine of executive privilege in this
jurisdiction and dwelt on its scope.
Whether a claim of executive privilege is valid depends on the ground invoked to justify it and the context
in which it is made.[21] In the present case, the ground for respondents claim of privilege is set forth in
their Comment, viz:

x x x The categories of information that may be considered privileged includes matters of diplomatic
character and under negotiation and review. In this case, the privileged character of the diplomatic
negotiations has been categorically invoked and clearly explained by respondents particularly respondent
DTI Senior Undersecretary.
The documents on the proposed JPEPA as well as the text which is subject to negotiations and legal review
by the parties fall under the exceptions to the right of access to information on matters of public concern
and policy of public disclosure. They come within the coverage of executive privilege. At the time when the
Committee was requesting for copies of such documents, the negotiations were ongoing as they are still
now and the text of the proposed JPEPA is still uncertain and subject to change. Considering the status and
nature of such documents then and now, these are evidently covered by executive privilege consistent with
existing legal provisions and settled jurisprudence.
Practical and strategic considerations likewise counsel against the disclosure of the rolling texts which may
undergo radical change or portions of which may be totally abandoned. Furthermore, the negotiations of the
representatives of the Philippines as well as of Japan must be allowed to explore alternatives in the course
of the negotiations in the same manner as judicial deliberations and working drafts of opinions are accorded
strict confidentiality.[22] (Emphasis and underscoring supplied)

The ground relied upon by respondents is thus not simply that the information sought involves a diplomatic
matter, but that it pertains to diplomatic negotiations then in progress.
Privileged character of diplomatic negotiations
The privileged character of diplomatic negotiations has been recognized in this jurisdiction. In discussing
valid limitations on the right to information, the Court in Chavez v. PCGG held that information on intergovernment exchanges prior to the conclusion of treaties and executive agreements may be subject to
reasonable safeguards for the sake of national interest.[23] Even earlier, the same privilege was upheld in
Peoples Movement for Press Freedom (PMPF) v. Manglapus[24] wherein the Court discussed the reasons for
the privilege in more precise terms.
In PMPF v. Manglapus, the therein petitioners were seeking information from the Presidents representatives
on the state of the then on-going negotiations of the RP-US Military Bases Agreement.[25] The Court denied
the petition, stressing that secrecy of negotiations with foreign countries is not violative of the
constitutional provisions of freedom of speech or of the press nor of the freedom of access to information.
The Resolution went on to state, thus:
The nature of diplomacy requires centralization of authority and expedition of decision which are inherent in
executive action. Another essential characteristic of diplomacy is its confidential nature. Although much has
been said about open and secret diplomacy, with disparagement of the latter, Secretaries of State Hughes
and Stimson have clearly analyzed and justified the practice. In the words of Mr. Stimson:
A complicated negotiation . . . cannot be carried through without many, many private talks and discussion,
man to man; many tentative suggestions and proposals. Delegates from other countries come and tell you
in confidence of their troubles at home and of their differences with other countries and with other
delegates; they tell you of what they would do under certain circumstances and would not do under other
circumstances. . . If these reports . . . should become public . . . who would ever trust American Delegations
in another conference? (United States Department of State, Press Releases, June 7, 1930, pp. 282-284.).
xxxx
There is frequent criticism of the secrecy in which negotiation with foreign powers on nearly all subjects is

concerned. This, it is claimed, is incompatible with the substance of democracy. As expressed by one writer,
It can be said that there is no more rigid system of silence anywhere in the world. (E.J. Young, Looking
Behind the Censorship, J. B. Lippincott Co., 1938) President Wilson in starting his efforts for the conclusion
of the World War declared that we must have open covenants, openly arrived at. He quickly abandoned his
thought.
No one who has studied the question believes that such a method of publicity is possible. In the moment
that negotiations are started, pressure groups attempt to muscle in. An ill-timed speech by one of the
parties or a frank declaration of the concession which are exacted or offered on both sides would quickly
lead to widespread propaganda to block the negotiations. After a treaty has been drafted and its terms are
fully published, there is ample opportunity for discussion before it is approved. (The New American
Government and Its Works, James T. Young, 4th Edition, p. 194) (Emphasis and underscoring supplied)

Still in PMPF v. Manglapus, the Court adopted the doctrine in U.S. v. Curtiss-Wright Export Corp.[26] that the
President is the sole organ of the nation in its negotiations with foreign countries, viz:
x x x In this vast external realm, with its important, complicated, delicate and manifold problems, the
President alone has the power to speak or listen as a representative of the nation. He makes treaties with
the advice and consent of the Senate; but he alone negotiates. Into the field of negotiation the Senate
cannot intrude; and Congress itself is powerless to invade it. As Marshall said in his great argument of
March 7, 1800, in the House of Representatives, The President is the sole organ of the nation in its external
relations, and its sole representative with foreign nations. Annals, 6th Cong., col. 613. . . (Emphasis
supplied; underscoring in the original)

Applying the principles adopted in PMPF v. Manglapus, it is clear that while the final text of the JPEPA may
not be kept perpetually confidential since there should be ample opportunity for discussion before [a treaty]
is approved the offers exchanged by the parties during the negotiations continue to be privileged even after
the JPEPA is published. It is reasonable to conclude that the Japanese representatives submitted their offers
with the understanding that historic confidentiality[27] would govern the same. Disclosing these offers
could impair the ability of the Philippines to deal not only with Japan but with other foreign governments in
future negotiations.
A ruling that Philippine offers in treaty negotiations should now be open to public scrutiny would discourage
future Philippine representatives from frankly expressing their views during negotiations. While, on first
impression, it appears wise to deter Philippine representatives from entering into compromises, it bears
noting that treaty negotiations, or any negotiation for that matter, normally involve a process of quid pro
quo, and oftentimes negotiators have to be willing to grant concessions in an area of lesser importance in
order to obtain more favorable terms in an area of greater national interest. Apropos are the following
observations of Benjamin S. Duval, Jr.:
x x x [T]hose involved in the practice of negotiations appear to be in agreement that publicity leads to
grandstanding, tends to freeze negotiating positions, and inhibits the give-and-take essential to successful
negotiation. As Sissela Bok points out, if negotiators have more to gain from being approved by their own
sides than by making a reasoned agreement with competitors or adversaries, then they are inclined to 'play
to the gallery . . .'' In fact, the public reaction may leave them little option. It would be a brave, or foolish,
Arab leader who expressed publicly a willingness for peace with Israel that did not involve the return of the
entire West Bank, or Israeli leader who stated publicly a willingness to remove Israel's existing settlements
from Judea and Samaria in return for peace.[28] (Emphasis supplied)

Indeed, by hampering the ability of our representatives to compromise, we may be jeopardizing higher
national goals for the sake of securing less critical ones.

Diplomatic negotiations, therefore, are recognized as privileged in this jurisdiction, the JPEPA negotiations
constituting no exception. It bears emphasis, however, that such privilege is only presumptive. For as
Senate v. Ermita holds, recognizing a type of information as privileged does not mean that it will be
considered privileged in all instances. Only after a consideration of the context in which the claim is made
may it be determined if there is a public interest that calls for the disclosure of the desired information,
strong enough to overcome its traditionally privileged status.
Whether petitioners have established the presence of such a public interest shall be discussed later. For
now, the Court shall first pass upon the arguments raised by petitioners against the application of PMPF v.
Manglapus to the present case.
Arguments proffered by petitioners against the application of PMPF v. Manglapus

Petitioners argue that PMPF v. Manglapus cannot be applied in toto to the present case, there being
substantial factual distinctions between the two.
To petitioners, the first and most fundamental distinction lies in the nature of the treaty involved. They
stress that PMPF v. Manglapus involved the Military Bases Agreement which necessarily pertained to
matters affecting national security; whereas the present case involves an economic treaty that seeks to
regulate trade and commerce between the Philippines and Japan, matters which, unlike those covered by
the Military Bases Agreement, are not so vital to national security to disallow their disclosure.
Petitioners argument betrays a faulty assumption that information, to be considered privileged, must
involve national security. The recognition in Senate v. Ermita[29] that executive privilege has encompassed
claims of varying kinds, such that it may even be more accurate to speak of executive privileges, cautions
against such generalization.
While there certainly are privileges grounded on the necessity of safeguarding national security such as
those involving military secrets, not all are founded thereon. One example is the informers privilege, or the
privilege of the Government not to disclose the identity of a person or persons who furnish information of
violations of law to officers charged with the enforcement of that law.[30] The suspect involved need not be
so notorious as to be a threat to national security for this privilege to apply in any given instance.
Otherwise, the privilege would be inapplicable in all but the most high-profile cases, in which case not only
would this be contrary to long-standing practice. It would also be highly prejudicial to law enforcement
efforts in general.
Also illustrative is the privilege accorded to presidential communications, which are presumed privileged
without distinguishing between those which involve matters of national security and those which do not, the
rationale for the privilege being that
x x x [a] frank exchange of exploratory ideas and assessments, free from the glare of publicity and pressure
by interested parties, is essential to protect the independence of decision-making of those tasked to
exercise Presidential, Legislative and Judicial power. x x x[31] (Emphasis supplied)

In the same way that the privilege for judicial deliberations does not depend on the nature of the case
deliberated upon, so presidential communications are privileged whether they involve matters of national
security.
It bears emphasis, however, that the privilege accorded to presidential communications is not absolute, one
significant qualification being that the Executive cannot, any more than the other branches of government,
invoke a general confidentiality privilege to shield its officials and employees from investigations by the
proper governmental institutions into possible criminal wrongdoing. [32] This qualification applies whether
the privilege is being invoked in the context of a judicial trial or a congressional investigation conducted in

aid of legislation.[33]
Closely related to the presidential communications privilege is the deliberative process privilege recognized
in the United States. As discussed by the U.S. Supreme Court in NLRB v. Sears, Roebuck & Co,[34]
deliberative process covers documents reflecting advisory opinions, recommendations and deliberations
comprising part of a process by which governmental decisions and policies are formulated. Notably, the
privileged status of such documents rests, not on the need to protect national security but, on the obvious
realization that officials will not communicate candidly among themselves if each remark is a potential item
of discovery and front page news, the objective of the privilege being to enhance the quality of agency
decisions. [35]
The diplomatic negotiations privilege bears a close resemblance to the deliberative process and presidential
communications privilege. It may be readily perceived that the rationale for the confidential character of
diplomatic negotiations, deliberative process, and presidential communications is similar, if not identical.
The earlier discussion on PMPF v. Manglapus[36] shows that the privilege for diplomatic negotiations is
meant to encourage a frank exchange of exploratory ideas between the negotiating parties by shielding
such negotiations from public view. Similar to the privilege for presidential communications, the diplomatic
negotiations privilege seeks, through the same means, to protect the independence in decision-making of
the President, particularly in its capacity as the sole organ of the nation in its external relations, and its sole
representative with foreign nations. And, as with the deliberative process privilege, the privilege accorded
to diplomatic negotiations arises, not on account of the content of the information per se, but because the
information is part of a process of deliberation which, in pursuit of the public interest, must be presumed
confidential.
The decision of the U.S. District Court, District of Columbia in Fulbright & Jaworski v. Department of the
Treasury[37] enlightens on the close relation between diplomatic negotiations and deliberative process
privileges. The plaintiffs in that case sought access to notes taken by a member of the U.S. negotiating
team during the U.S.-French tax treaty negotiations. Among the points noted therein were the issues to be
discussed, positions which the French and U.S. teams took on some points, the draft language agreed on,
and articles which needed to be amended. Upholding the confidentiality of those notes, Judge Green ruled,
thus:
Negotiations between two countries to draft a treaty represent a true example of a deliberative process.
Much give-and-take must occur for the countries to reach an accord. A description of the negotiations at
any one point would not provide an onlooker a summary of the discussions which could later be relied on as
law. It would not be working law as the points discussed and positions agreed on would be subject to
change at any date until the treaty was signed by the President and ratified by the Senate.
The policies behind the deliberative process privilege support non-disclosure. Much harm could accrue to
the negotiations process if these notes were revealed. Exposure of the pre-agreement positions of the
French negotiators might well offend foreign governments and would lead to less candor by the U. S. in
recording the events of the negotiations process. As several months pass in between negotiations, this lack
of record could hinder readily the U. S. negotiating team. Further disclosure would reveal prematurely
adopted policies. If these policies should be changed, public confusion would result easily.
Finally, releasing these snapshot views of the negotiations would be comparable to releasing drafts of the
treaty, particularly when the notes state the tentative provisions and language agreed on. As drafts of
regulations typically are protected by the deliberative process privilege, Arthur Andersen & Co. v. Internal
Revenue Service, C.A. No. 80-705 (D.C.Cir., May 21, 1982), drafts of treaties should be accorded the same
protection. (Emphasis and underscoring supplied)

Clearly, the privilege accorded to diplomatic negotiations follows as a logical consequence from the
privileged character of the deliberative process.

The Court is not unaware that in Center for International Environmental Law (CIEL), et al. v. Office of U.S.
Trade Representative[38] where the plaintiffs sought information relating to the just-completed negotiation
of a United States-Chile Free Trade Agreement the same district court, this time under Judge Friedman,
consciously refrained from applying the doctrine in Fulbright and ordered the disclosure of the information
being sought.

Since the factual milieu in CIEL seemed to call for the straight application of the doctrine in Fulbright, a
discussion of why the district court did not apply the same would help illumine this Courts own reasons for
deciding the present case along the lines of Fulbright.

In both Fulbright and CIEL, the U.S. government cited a statutory basis for withholding information, namely,
Exemption 5 of the Freedom of Information Act (FOIA).[39] In order to qualify for protection under
Exemption 5, a document must satisfy two conditions: (1) it must be either inter-agency or intra-agency in
nature, and (2) it must be both pre-decisional and part of the agency's deliberative or decision-making
process.[40]

Judge Friedman, in CIEL, himself cognizant of a superficial similarity of context between the two cases,
based his decision on what he perceived to be a significant distinction: he found the negotiators notes that
were sought in Fulbright to be clearly internal, whereas the documents being sought in CIEL were those
produced by or exchanged with an outside party, i.e. Chile. The documents subject of Fulbright being clearly
internal in character, the question of disclosure therein turned not on the threshold requirement of
Exemption 5 that the document be inter-agency, but on whether the documents were part of the agency's
pre-decisional deliberative process. On this basis, Judge Friedman found that Judge Green's discussion [in
Fulbright] of the harm that could result from disclosure therefore is irrelevant, since the documents at issue
[in CIEL] are not inter-agency, and the Court does not reach the question of deliberative process. (Emphasis
supplied)

In fine, Fulbright was not overturned. The court in CIEL merely found the same to be irrelevant in light of its
distinct factual setting. Whether this conclusion was valid a question on which this Court would not pass the
ruling in Fulbright that [n]egotiations between two countries to draft a treaty represent a true example of a
deliberative process was left standing, since the CIEL court explicitly stated that it did not reach the
question of deliberative process.

Going back to the present case, the Court recognizes that the information sought by petitioners includes
documents produced and communicated by a party external to the Philippine government, namely, the
Japanese representatives in the JPEPA negotiations, and to that extent this case is closer to the factual
circumstances of CIEL than those of Fulbright.

Nonetheless, for reasons which shall be discussed shortly, this Court echoes the principle articulated in

Fulbright that the public policy underlying the deliberative process privilege requires that diplomatic
negotiations should also be accorded privileged status, even if the documents subject of the present case
cannot be described as purely internal in character.

It need not be stressed that in CIEL, the court ordered the disclosure of information based on its finding that
the first requirement of FOIA Exemption 5 that the documents be inter-agency was not met. In determining
whether the government may validly refuse disclosure of the exchanges between the U.S. and Chile, it
necessarily had to deal with this requirement, it being laid down by a statute binding on them.

In this jurisdiction, however, there is no counterpart of the FOIA, nor is there any statutory requirement
similar to FOIA Exemption 5 in particular. Hence, Philippine courts, when assessing a claim of privilege for
diplomatic negotiations, are more free to focus directly on the issue of whether the privilege being claimed
is indeed supported by public policy, without having to consider as the CIEL court did if these negotiations
fulfill a formal requirement of being inter-agency. Important though that requirement may be in the context
of domestic negotiations, it need not be accorded the same significance when dealing with international
negotiations.

There being a public policy supporting a privilege for diplomatic negotiations for the reasons explained
above, the Court sees no reason to modify, much less abandon, the doctrine in PMPF v. Manglapus.

A second point petitioners proffer in their attempt to differentiate PMPF v. Manglapus from the present case
is the fact that the petitioners therein consisted entirely of members of the mass media, while petitioners in
the present case include members of the House of Representatives who invoke their right to information not
just as citizens but as members of Congress.

Petitioners thus conclude that the present case involves the right of members of Congress to demand
information on negotiations of international trade agreements from the Executive branch, a matter which
was not raised in PMPF v. Manglapus.
While indeed the petitioners in PMPF v. Manglapus consisted only of members of the mass media, it would
be incorrect to claim that the doctrine laid down therein has no bearing on a controversy such as the
present, where the demand for information has come from members of Congress, not only from private
citizens.
The privileged character accorded to diplomatic negotiations does not ipso facto lose all force and effect
simply because the same privilege is now being claimed under different circumstances. The probability of
the claim succeeding in the new context might differ, but to say that the privilege, as such, has no validity
at all in that context is another matter altogether.
The Courts statement in Senate v. Ermita that presidential refusals to furnish information may be actuated
by any of at least three distinct kinds of considerations [state secrets privilege, informers privilege, and a
generic privilege for internal deliberations], and may be asserted, with differing degrees of success, in the
context of either judicial or legislative investigations,[41] implies that a privilege, once recognized, may be

invoked under different procedural settings. That this principle holds true particularly with respect to
diplomatic negotiations may be inferred from PMPF v. Manglapus itself, where the Court held that it is the
President alone who negotiates treaties, and not even the Senate or the House of Representatives, unless
asked, may intrude upon that process.
Clearly, the privilege for diplomatic negotiations may be invoked not only against citizens demands for
information, but also in the context of legislative investigations.
Hence, the recognition granted in PMPF v. Manglapus to the privileged character of diplomatic negotiations
cannot be considered irrelevant in resolving the present case, the contextual differences between the two
cases notwithstanding.
As third and last point raised against the application of PMPF v. Manglapus in this case, petitioners proffer
that the socio-political and historical contexts of the two cases are worlds apart. They claim that the
constitutional traditions and concepts prevailing at the time PMPF v. Manglapus came about, particularly the
school of thought that the requirements of foreign policy and the ideals of transparency were incompatible
with each other or the incompatibility hypothesis, while valid when international relations were still
governed by power, politics and wars, are no longer so in this age of international cooperation.[42]
Without delving into petitioners assertions respecting the incompatibility hypothesis, the Court notes that
the ruling in PMPF v. Manglapus is grounded more on the nature of treaty negotiations as such than on a
particular socio-political school of thought. If petitioners are suggesting that the nature of treaty
negotiations have so changed that [a]n ill-timed speech by one of the parties or a frank declaration of the
concession which are exacted or offered on both sides no longer lead[s] to widespread propaganda to block
the negotiations, or that parties in treaty negotiations no longer expect their communications to be
governed by historic confidentiality, the burden is on them to substantiate the same. This petitioners failed
to discharge.
Whether the privilege applies only at certain stages of the negotiation process

Petitioners admit that diplomatic negotiations on the JPEPA are entitled to a reasonable amount of
confidentiality so as not to jeopardize the diplomatic process. They argue, however, that the same is
privileged only at certain stages of the negotiating process, after which such information must necessarily
be revealed to the public.[43] They add that the duty to disclose this information was vested in the
government when the negotiations moved from the formulation and exploratory stage to the firming up of
definite propositions or official recommendations, citing Chavez v. PCGG[44] and Chavez v. PEA.[45]
The following statement in Chavez v. PEA, however, suffices to show that the doctrine in both that case and
Chavez v. PCGG with regard to the duty to disclose definite propositions of the government does not apply
to diplomatic negotiations:
We rule, therefore, that the constitutional right to information includes official information on on-going
negotiations before a final contract. The information, however, must constitute definite propositions by the
government and should not cover recognized exceptions like privileged information, military and diplomatic
secrets and similar matters affecting national security and public order. x x x[46] (Emphasis and
underscoring supplied)

It follows from this ruling that even definite propositions of the government may not be disclosed if they fall
under recognized exceptions. The privilege for diplomatic negotiations is clearly among the recognized
exceptions, for the footnote to the immediately quoted ruling cites PMPF v. Manglapus itself as an authority.
Whether there is sufficient public interest to overcome the claim of privilege

It being established that diplomatic negotiations enjoy a presumptive privilege against disclosure, even
against the demands of members of Congress for information, the Court shall now determine whether
petitioners have shown the existence of a public interest sufficient to overcome the privilege in this
instance.
To clarify, there are at least two kinds of public interest that must be taken into account. One is the
presumed public interest in favor of keeping the subject information confidential, which is the reason for the
privilege in the first place, and the other is the public interest in favor of disclosure, the existence of which
must be shown by the party asking for information. [47]
The criteria to be employed in determining whether there is a sufficient public interest in favor of disclosure
may be gathered from cases such as U.S. v. Nixon,[48] Senate Select Committee on Presidential Campaign
Activities v. Nixon,[49] and In re Sealed Case.[50]
U.S. v. Nixon, which involved a claim of the presidential communications privilege against the subpoena
duces tecum of a district court in a criminal case, emphasized the need to balance such claim of privilege
against the constitutional duty of courts to ensure a fair administration of criminal justice.
x x x the allowance of the privilege to withhold evidence that is demonstrably relevant in a criminal trial
would cut deeply into the guarantee of due process of law and gravely impair the basic function of the
courts. A Presidents acknowledged need for confidentiality in the communications of his office is general in
nature, whereas the constitutional need for production of relevant evidence in a criminal proceeding is
specific and central to the fair adjudication of a particular criminal case in the administration of justice.
Without access to specific facts a criminal prosecution may be totally frustrated. The Presidents broad
interest in confidentiality of communications will not be vitiated by disclosure of a limited number of
conversations preliminarily shown to have some bearing on the pending criminal cases. (Emphasis, italics
and underscoring supplied)
Similarly, Senate Select Committee v. Nixon,[51] which involved a claim of the presidential communications
privilege against the subpoena duces tecum of a Senate committee, spoke of the need to balance such
claim with the duty of Congress to perform its legislative functions.
The staged decisional structure established in Nixon v. Sirica was designed to ensure that the President and
those upon whom he directly relies in the performance of his duties could continue to work under a general
assurance that their deliberations would remain confidential. So long as the presumption that the public
interest favors confidentiality can be defeated only by a strong showing of need by another institution of
government- a showing that the responsibilities of that institution cannot responsibly be fulfilled without
access to records of the President's deliberations- we believed in Nixon v. Sirica, and continue to believe,
that the effective functioning of the presidential office will not be impaired. x x x
xxxx
The sufficiency of the Committee's showing of need has come to depend, therefore, entirely on whether the
subpoenaed materials are critical to the performance of its legislative functions. x x x (Emphasis and
underscoring supplied)

In re Sealed Case[52] involved a claim of the deliberative process and presidential communications
privileges against a subpoena duces tecum of a grand jury. On the claim of deliberative process privilege,
the court stated:
The deliberative process privilege is a qualified privilege and can be overcome by a sufficient showing of
need. This need determination is to be made flexibly on a case-by-case, ad hoc basis. "[E]ach time [the

deliberative process privilege] is asserted the district court must undertake a fresh balancing of the
competing interests," taking into account factors such as "the relevance of the evidence," "the availability
of other evidence," "the seriousness of the litigation," "the role of the government," and the "possibility of
future timidity by government employees. x x x (Emphasis, italics and underscoring supplied)

Petitioners have failed to present the strong and sufficient showing of need referred to in the immediately
cited cases. The arguments they proffer to establish their entitlement to the subject documents fall short of
this standard.
Petitioners go on to assert that the non-involvement of the Filipino people in the JPEPA negotiation process
effectively results in the bargaining away of their economic and property rights without their knowledge and
participation, in violation of the due process clause of the Constitution. They claim, moreover, that it is
essential for the people to have access to the initial offers exchanged during the negotiations since only
through such disclosure can their constitutional right to effectively participate in decision-making be
brought to life in the context of international trade agreements.
Whether it can accurately be said that the Filipino people were not involved in the JPEPA negotiations is a
question of fact which this Court need not resolve. Suffice it to state that respondents had presented
documents purporting to show that public consultations were conducted on the JPEPA. Parenthetically,
petitioners consider these alleged consultations as woefully selective and inadequate.[53]
AT ALL EVENTS, since it is not disputed that the offers exchanged by the Philippine and Japanese
representatives have not been disclosed to the public, the Court shall pass upon the issue of whether
access to the documents bearing on them is, as petitioners claim, essential to their right to participate in
decision-making.
The case for petitioners has, of course, been immensely weakened by the disclosure of the full text of the
JPEPA to the public since September 11, 2006, even as it is still being deliberated upon by the Senate and,
therefore, not yet binding on the Philippines. Were the Senate to concur with the validity of the JPEPA at this
moment, there has already been, in the words of PMPF v. Manglapus, ample opportunity for discussion
before [the treaty] is approved.
The text of the JPEPA having been published, petitioners have failed to convince this Court that they will not
be able to meaningfully exercise their right to participate in decision-making unless the initial offers are also
published.
It is of public knowledge that various non-government sectors and private citizens have already publicly
expressed their views on the JPEPA, their comments not being limited to general observations thereon but
on its specific provisions. Numerous articles and statements critical of the JPEPA have been posted on the
Internet.[54] Given these developments, there is no basis for petitioners claim that access to the Philippine
and Japanese offers is essential to the exercise of their right to participate in decision-making.
Petitioner-members of the House of Representatives additionally anchor their claim to have a right to the
subject documents on the basis of Congress inherent power to regulate commerce, be it domestic or
international. They allege that Congress cannot meaningfully exercise the power to regulate international
trade agreements such as the JPEPA without being given copies of the initial offers exchanged during the
negotiations thereof. In the same vein, they argue that the President cannot exclude Congress from the
JPEPA negotiations since whatever power and authority the President has to negotiate international trade
agreements is derived only by delegation of Congress, pursuant to Article VI, Section 28(2) of the
Constitution and Sections 401 and 402 of Presidential Decree No. 1464.[55]
The subject of Article VI Section 28(2) of the Constitution is not the power to negotiate treaties and
international agreements, but the power to fix tariff rates, import and export quotas, and other taxes. Thus

it provides:
(2) The Congress may, by law, authorize the President to fix within specified limits, and subject to such
limitations and restrictions as it may impose, tariff rates, import and export quotas, tonnage and wharfage
dues, and other duties or imposts within the framework of the national development program of the
Government.

As to the power to negotiate treaties, the constitutional basis thereof is Section 21 of Article VII the article
on the Executive Department which states:
No treaty or international agreement shall be valid and effective unless concurred in by at least two-thirds
of all the Members of the Senate.

The doctrine in PMPF v. Manglapus that the treaty-making power is exclusive to the President, being the
sole organ of the nation in its external relations, was echoed in BAYAN v. Executive Secretary[56] where the
Court held:
By constitutional fiat and by the intrinsic nature of his office, the President, as head of State, is the sole
organ and authority in the external affairs of the country. In many ways, the President is the chief architect
of the nation's foreign policy; his "dominance in the field of foreign relations is (then) conceded." Wielding
vast powers and influence, his conduct in the external affairs of the nation, as Jefferson describes, is
executive altogether.
As regards the power to enter into treaties or international agreements, the Constitution vests the same in
the President, subject only to the concurrence of at least two thirds vote of all the members of the Senate.
In this light, the negotiation of the VFA and the subsequent ratification of the agreement are exclusive acts
which pertain solely to the President, in the lawful exercise of his vast executive and diplomatic powers
granted him no less than by the fundamental law itself. Into the field of negotiation the Senate cannot
intrude, and Congress itself is powerless to invade it. x x x (Italics in the original; emphasis and
underscoring supplied)

The same doctrine was reiterated even more recently in Pimentel v. Executive Secretary[57] where the
Court ruled:
In our system of government, the President, being the head of state, is regarded as the sole organ and
authority in external relations and is the country's sole representative with foreign nations. As the chief
architect of foreign policy, the President acts as the country's mouthpiece with respect to international
affairs. Hence, the President is vested with the authority to deal with foreign states and governments,
extend or withhold recognition, maintain diplomatic relations, enter into treaties, and otherwise transact the
business of foreign relations. In the realm of treaty-making, the President has the sole authority to negotiate
with other states.
Nonetheless, while the President has the sole authority to negotiate and enter into treaties, the Constitution
provides a limitation to his power by requiring the concurrence of 2/3 of all the members of the Senate for
the validity of the treaty entered into by him. x x x (Emphasis and underscoring supplied)

While the power then to fix tariff rates and other taxes clearly belongs to Congress, and is exercised by the
President only by delegation of that body, it has long been recognized that the power to enter into treaties

is vested directly and exclusively in the President, subject only to the concurrence of at least two-thirds of
all the Members of the Senate for the validity of the treaty. In this light, the authority of the President to
enter into trade agreements with foreign nations provided under P.D. 1464[58] may be interpreted as an
acknowledgment of a power already inherent in its office. It may not be used as basis to hold the President
or its representatives accountable to Congress for the conduct of treaty negotiations.
This is not to say, of course, that the Presidents power to enter into treaties is unlimited but for the
requirement of Senate concurrence, since the President must still ensure that all treaties will substantively
conform to all the relevant provisions of the Constitution.
It follows from the above discussion that Congress, while possessing vast legislative powers, may not
interfere in the field of treaty negotiations. While Article VII, Section 21 provides for Senate concurrence,
such pertains only to the validity of the treaty under consideration, not to the conduct of negotiations
attendant to its conclusion. Moreover, it is not even Congress as a whole that has been given the authority
to concur as a means of checking the treaty-making power of the President, but only the Senate.
Thus, as in the case of petitioners suing in their capacity as private citizens, petitioners-members of the
House of Representatives fail to present a sufficient showing of need that the information sought is critical
to the performance of the functions of Congress, functions that do not include treaty-negotiation.
Respondents alleged failure to timely claim executive privilege
On respondents invocation of executive privilege, petitioners find the same defective, not having been done
seasonably as it was raised only in their Comment to the present petition and not during the House
Committee hearings.
That respondents invoked the privilege for the first time only in their Comment to the present petition does
not mean that the claim of privilege should not be credited. Petitioners position presupposes that an
assertion of the privilege should have been made during the House Committee investigations, failing which
respondents are deemed to have waived it.
When the House Committee and petitioner-Congressman Aguja requested respondents for copies of the
documents subject of this case, respondents replied that the negotiations were still on-going and that the
draft of the JPEPA would be released once the text thereof is settled and complete. There was no intimation
that the requested copies are confidential in nature by reason of public policy. The response may not thus
be deemed a claim of privilege by the standards of Senate v. Ermita, which recognizes as claims of privilege
only those which are accompanied by precise and certain reasons for preserving the confidentiality of the
information being sought.
Respondents failure to claim the privilege during the House Committee hearings may not, however, be
construed as a waiver thereof by the Executive branch. As the immediately preceding paragraph indicates,
what respondents received from the House Committee and petitioner-Congressman Aguja were mere
requests for information. And as priorly stated, the House Committee itself refrained from pursuing its
earlier resolution to issue a subpoena duces tecum on account of then Speaker Jose de Venecias alleged
request to Committee Chairperson Congressman Teves to hold the same in abeyance.
While it is a salutary and noble practice for Congress to refrain from issuing subpoenas to executive officials
out of respect for their office until resort to it becomes necessary, the fact remains that such requests are
not a compulsory process. Being mere requests, they do not strictly call for an assertion of executive
privilege.
The privilege is an exemption to Congress power of inquiry.[59] So long as Congress itself finds no cause to
enforce such power, there is no strict necessity to assert the privilege. In this light, respondents failure to
invoke the privilege during the House Committee investigations did not amount to a waiver thereof.
The Court observes, however, that the claim of privilege appearing in respondents Comment to this petition
fails to satisfy in full the requirement laid down in Senate v. Ermita that the claim should be invoked by the

President or through the Executive Secretary by order of the President.[60] Respondents claim of privilege
is being sustained, however, its flaw notwithstanding, because of circumstances peculiar to the case.
The assertion of executive privilege by the Executive Secretary, who is one of the respondents herein,
without him adding the phrase by order of the President, shall be considered as partially complying with the
requirement laid down in Senate v. Ermita. The requirement that the phrase by order of the President
should accompany the Executive Secretarys claim of privilege is a new rule laid down for the first time in
Senate v. Ermita, which was not yet final and executory at the time respondents filed their Comment to the
petition.[61] A strict application of this requirement would thus be unwarranted in this case.

Response to the Dissenting Opinion of the Chief Justice

We are aware that behind the dissent of the Chief Justice lies a genuine zeal to protect our peoples right to
information against any abuse of executive privilege. It is a zeal that We fully share.
The Court, however, in its endeavor to guard against the abuse of executive privilege, should be careful not
to veer towards the opposite extreme, to the point that it would strike down as invalid even a legitimate
exercise thereof.
We respond only to the salient arguments of the Dissenting Opinion which have not yet been sufficiently
addressed above.
1. After its historical discussion on the allocation of power over international trade agreements in the United
States, the dissent concludes that it will be turning somersaults with history to contend that the President is
the sole organ for external relations in that jurisdiction. With regard to this opinion, We make only the
following observations:
There is, at least, a core meaning of the phrase sole organ of the nation in its external relations which is not
being disputed, namely, that the power to directly negotiate treaties and international agreements is vested
by our Constitution only in the Executive. Thus, the dissent states that Congress has the power to regulate
commerce with foreign nations but does not have the power to negotiate international agreements directly.
[62]
What is disputed is how this principle applies to the case at bar.
The dissent opines that petitioner-members of the House of Representatives, by asking for the subject JPEPA
documents, are not seeking to directly participate in the negotiations of the JPEPA, hence, they cannot be
prevented from gaining access to these documents.
On the other hand, We hold that this is one occasion where the following ruling in Agan v. PIATCO[63] and in
other cases both before and since should be applied:
This Court has long and consistently adhered to the legal maxim that those that cannot be done directly
cannot be done indirectly. To declare the PIATCO contracts valid despite the clear statutory prohibition
against a direct government guarantee would not only make a mockery of what the BOT Law seeks to
prevent -- which is to expose the government to the risk of incurring a monetary obligation resulting from a
contract of loan between the project proponent and its lenders and to which the Government is not a party
to -- but would also render the BOT Law useless for what it seeks to achieve - to make use of the resources
of the private sector in the financing, operation and maintenance of infrastructure and development
projects which are necessary for national growth and development but which the government,
unfortunately, could ill-afford to finance at this point in time.[64]
Similarly, while herein petitioners-members of the House of Representatives may not have been aiming to

participate in the negotiations directly, opening the JPEPA negotiations to their scrutiny even to the point of
giving them access to the offers exchanged between the Japanese and Philippine delegations would have
made a mockery of what the Constitution sought to prevent and rendered it useless for what it sought to
achieve when it vested the power of direct negotiation solely with the President.
What the U.S. Constitution sought to prevent and aimed to achieve in defining the treaty-making power of
the President, which our Constitution similarly defines, may be gathered from Hamiltons explanation of why
the U.S. Constitution excludes the House of Representatives from the treaty-making process:
x x x The fluctuating, and taking its future increase into account, the multitudinous composition of that
body, forbid us to expect in it those qualities which are essential to the proper execution of such a trust.
Accurate and comprehensive knowledge of foreign politics; a steady and systematic adherence to the same
views; a nice and uniform sensibility to national character, decision, secrecy and dispatch; are incompatible
with a body so variable and so numerous. The very complication of the business by introducing a necessity
of the concurrence of so many different bodies, would of itself afford a solid objection. The greater
frequency of the calls upon the house of representatives, and the greater length of time which it would
often be necessary to keep them together when convened, to obtain their sanction in the progressive
stages of a treaty, would be source of so great inconvenience and expense, as alone ought to condemn the
project.[65]
These considerations a fortiori apply in this jurisdiction, since the Philippine Constitution, unlike that of the
U.S., does not even grant the Senate the power to advise the Executive in the making of treaties, but only
vests in that body the power to concur in the validity of the treaty after negotiations have been concluded.
[66] Much less, therefore, should it be inferred that the House of Representatives has this power.
Since allowing petitioner-members of the House of Representatives access to the subject JPEPA documents
would set a precedent for future negotiations, leading to the contravention of the public interests
articulated above which the Constitution sought to protect, the subject documents should not be disclosed.
2. The dissent also asserts that respondents can no longer claim the diplomatic secrets privilege over the
subject JPEPA documents now that negotiations have been concluded, since their reasons for nondisclosure
cited in the June 23, 2005 letter of Sec. Ermita, and later in their Comment, necessarily apply only for as
long as the negotiations were still pending;
In their Comment, respondents contend that the negotiations of the representatives of the Philippines as
well as of Japan must be allowed to explore alternatives in the course of the negotiations in the same
manner as judicial deliberations and working drafts of opinions are accorded strict confidentiality. That
respondents liken the documents involved in the JPEPA negotiations to judicial deliberations and working
drafts of opinions evinces, by itself, that they were claiming confidentiality not only until, but even after, the
conclusion of the negotiations.
Judicial deliberations do not lose their confidential character once a decision has been promulgated by the
courts. The same holds true with respect to working drafts of opinions, which are comparable to intraagency recommendations. Such intra-agency recommendations are privileged even after the position under
consideration by the agency has developed into a definite proposition, hence, the rule in this jurisdiction
that agencies have the duty to disclose only definite propositions, and not the inter-agency and intraagency communications during the stage when common assertions are still being formulated.[67]
3. The dissent claims that petitioner-members of the House of Representatives have sufficiently shown their
need for the same documents to overcome the privilege. Again, We disagree.
The House Committee that initiated the investigations on the JPEPA did not pursue its earlier intention to
subpoena the documents. This strongly undermines the assertion that access to the same documents by
the House Committee is critical to the performance of its legislative functions. If the documents were
indeed critical, the House Committee should have, at the very least, issued a subpoena duces tecum or, like

what the Senate did in Senate v. Ermita, filed the present petition as a legislative body, rather than leaving
it to the discretion of individual Congressmen whether to pursue an action or not. Such acts would have
served as strong indicia that Congress itself finds the subject information to be critical to its legislative
functions.
Further, given that respondents have claimed executive privilege, petitioner-members of the House of
Representatives should have, at least, shown how its lack of access to the Philippine and Japanese offers
would hinder the intelligent crafting of legislation. Mere assertion that the JPEPA covers a subject matter
over which Congress has the power to legislate would not suffice. As Senate Select Committee v. Nixon[68]
held, the showing required to overcome the presumption favoring confidentiality turns, not only on the
nature and appropriateness of the function in the performance of which the material was sought, but also
the degree to which the material was necessary to its fulfillment. This petitioners failed to do.
Furthermore, from the time the final text of the JPEPA including its annexes and attachments was published,
petitioner-members of the House of Representatives have been free to use it for any legislative purpose
they may see fit. Since such publication, petitioners need, if any, specifically for the Philippine and Japanese
offers leading to the final version of the JPEPA, has become even less apparent.
In asserting that the balance in this instance tilts in favor of disclosing the JPEPA documents, the dissent
contends that the Executive has failed to show how disclosing them after the conclusion of negotiations
would impair the performance of its functions. The contention, with due respect, misplaces the onus
probandi. While, in keeping with the general presumption of transparency, the burden is initially on the
Executive to provide precise and certain reasons for upholding its claim of privilege, once the Executive is
able to show that the documents being sought are covered by a recognized privilege, the burden shifts to
the party seeking information to overcome the privilege by a strong showing of need.
When it was thus established that the JPEPA documents are covered by the privilege for diplomatic
negotiations pursuant to PMPF v. Manglapus, the presumption arose that their disclosure would impair the
performance of executive functions. It was then incumbent on petitioner- requesting parties to show that
they have a strong need for the information sufficient to overcome the privilege. They have not, however.
4. Respecting the failure of the Executive Secretary to explicitly state that he is claiming the privilege by
order of the President, the same may not be strictly applied to the privilege claim subject of this case.
When the Court in Senate v. Ermita limited the power of invoking the privilege to the President alone, it was
laying down a new rule for which there is no counterpart even in the United States from which the concept
of executive privilege was adopted. As held in the 2004 case of Judicial Watch, Inc. v. Department of Justice,
[69] citing In re Sealed Case,[70] the issue of whether a President must personally invoke the [presidential
communications] privilege remains an open question. U.S. v. Reynolds,[71] on the other hand, held that
[t]here must be a formal claim of privilege, lodged by the head of the department which has control over
the matter, after actual personal consideration by that officer.
The rule was thus laid down by this Court, not in adherence to any established precedent, but with the aim
of preventing the abuse of the privilege in light of its highly exceptional nature. The Courts recognition that
the Executive Secretary also bears the power to invoke the privilege, provided he does so by order of the
President, is meant to avoid laying down too rigid a rule, the Court being aware that it was laying down a
new restriction on executive privilege. It is with the same spirit that the Court should not be overly strict
with applying the same rule in this peculiar instance, where the claim of executive privilege occurred before
the judgment in Senate v. Ermita became final.
5. To show that PMPF v. Manglapus may not be applied in the present case, the dissent implies that the
Court therein erred in citing US v. Curtiss Wright[72] and the book entitled The New American Government
and Its Work[73] since these authorities, so the dissent claims, may not be used to calibrate the importance
of the right to information in the Philippine setting.

The dissent argues that since Curtiss-Wright referred to a conflict between the executive and legislative
branches of government, the factual setting thereof was different from that of PMPF v. Manglapus which
involved a collision between governmental power over the conduct of foreign affairs and the citizens right
to information.
That the Court could freely cite Curtiss-Wright a case that upholds the secrecy of diplomatic negotiations
against congressional demands for information in the course of laying down a ruling on the public right to
information only serves to underscore the principle mentioned earlier that the privileged character
accorded to diplomatic negotiations does not ipso facto lose all force and effect simply because the same
privilege is now being claimed under different circumstances.
PMPF v. Manglapus indeed involved a demand for information from private citizens and not an executivelegislative conflict, but so did Chavez v. PEA[74] which held that the [publics] right to information . . . does
not extend to matters recognized as privileged information under the separation of powers. What counts as
privileged information in an executive-legislative conflict is thus also recognized as such in cases involving
the publics right to information.
Chavez v. PCGG[75] also involved the publics right to information, yet the Court recognized as a valid
limitation to that right the same privileged information based on separation of powers closed-door Cabinet
meetings, executive sessions of either house of Congress, and the internal deliberations of the Supreme
Court.
These cases show that the Court has always regarded claims of privilege, whether in the context of an
executive-legislative conflict or a citizens demand for information, as closely intertwined, such that the
principles applicable to one are also applicable to the other.
The reason is obvious. If the validity of claims of privilege were to be assessed by entirely different criteria
in each context, this may give rise to the absurd result where Congress would be denied access to a
particular information because of a claim of executive privilege, but the general public would have access
to the same information, the claim of privilege notwithstanding.
Absurdity would be the ultimate result if, for instance, the Court adopts the clear and present danger test
for the assessment of claims of privilege against citizens demands for information. If executive information,
when demanded by a citizen, is privileged only when there is a clear and present danger of a substantive
evil that the State has a right to prevent, it would be very difficult for the Executive to establish the validity
of its claim in each instance. In contrast, if the demand comes from Congress, the Executive merely has to
show that the information is covered by a recognized privilege in order to shift the burden on Congress to
present a strong showing of need. This would lead to a situation where it would be more difficult for
Congress to access executive information than it would be for private citizens.
We maintain then that when the Executive has already shown that an information is covered by executive
privilege, the party demanding the information must present a strong showing of need, whether that party
is Congress or a private citizen.
The rule that the same showing of need test applies in both these contexts, however, should not be
construed as a denial of the importance of analyzing the context in which an executive privilege
controversy may happen to be placed. Rather, it affirms it, for it means that the specific need being shown
by the party seeking information in every particular instance is highly significant in determining whether to
uphold a claim of privilege. This need is, precisely, part of the context in light of which every claim of
privilege should be assessed.
Since, as demonstrated above, there are common principles that should be applied to executive privilege
controversies across different contexts, the Court in PMPF v. Manglapus did not err when it cited the Curtiss-

Wright case.
The claim that the book cited in PMPF v. Manglapus entitled The New American Government and Its Work
could not have taken into account the expanded statutory right to information in the FOIA assumes that the
observations in that book in support of the confidentiality of treaty negotiations would be different had it
been written after the FOIA. Such assumption is, with due respect, at best, speculative.
As to the claim in the dissent that [i]t is more doubtful if the same book be used to calibrate the importance
of the right of access to information in the Philippine setting considering its elevation as a constitutional
right, we submit that the elevation of such right as a constitutional right did not set it free from the
legitimate restrictions of executive privilege which is itself constitutionally-based.[76] Hence, the comments
in that book which were cited in PMPF v. Manglapus remain valid doctrine.
6. The dissent further asserts that the Court has never used need as a test to uphold or allow inroads into
rights guaranteed under the Constitution. With due respect, we assert otherwise. The Court has done so
before, albeit without using the term need.
In executive privilege controversies, the requirement that parties present a sufficient showing of need only
means, in substance, that they should show a public interest in favor of disclosure sufficient in degree to
overcome the claim of privilege.[77] Verily, the Court in such cases engages in a balancing of interests.
Such a balancing of interests is certainly not new in constitutional adjudication involving fundamental
rights. Secretary of Justice v. Lantion,[78] which was cited in the dissent, applied just such a test.
Given that the dissent has clarified that it does not seek to apply the clear and present danger test to the
present controversy, but the balancing test, there seems to be no substantial dispute between the position
laid down in this ponencia and that reflected in the dissent as to what test to apply. It would appear that the
only disagreement is on the results of applying that test in this instance.
The dissent, nonetheless, maintains that it suffices that information is of public concern for it to be covered
by the right, regardless of the publics need for the information, and that the same would hold true even if
they simply want to know it because it interests them. As has been stated earlier, however, there is no
dispute that the information subject of this case is a matter of public concern. The Court has earlier
concluded that it is a matter of public concern, not on the basis of any specific need shown by petitioners,
but from the very nature of the JPEPA as an international trade agreement.
However, when the Executive has as in this case invoked the privilege, and it has been established that the
subject information is indeed covered by the privilege being claimed, can a party overcome the same by
merely asserting that the information being demanded is a matter of public concern, without any further
showing required? Certainly not, for that would render the doctrine of executive privilege of no force and
effect whatsoever as a limitation on the right to information, because then the sole test in such
controversies would be whether an information is a matter of public concern.
Moreover, in view of the earlier discussions, we must bear in mind that, by disclosing the documents of the
JPEPA negotiations, the Philippine government runs the grave risk of betraying the trust reposed in it by the
Japanese representatives, indeed, by the Japanese government itself. How would the Philippine government
then explain itself when that happens? Surely, it cannot bear to say that it just had to release the
information because certain persons simply wanted to know it because it interests them.
Thus, the Court holds that, in determining whether an information is covered by the right to information, a
specific showing of need for such information is not a relevant consideration, but only whether the same is
a matter of public concern. When, however, the government has claimed executive privilege, and it has
established that the information is indeed covered by the same, then the party demanding it, if it is to
overcome the privilege, must show that that the information is vital, not simply for the satisfaction of its
curiosity, but for its ability to effectively and reasonably participate in social, political, and economic

decision-making.[79]
7. The dissent maintains that [t]he treaty has thus entered the ultimate stage where the people can
exercise their right to participate in the discussion whether the Senate should concur in its ratification or
not. (Emphasis supplied) It adds that this right will be diluted unless the people can have access to the
subject JPEPA documents. What, to the dissent, is a dilution of the right to participate in decision-making is,
to Us, simply a recognition of the qualified nature of the publics right to information. It is beyond dispute
that the right to information is not absolute and that the doctrine of executive privilege is a recognized
limitation on that right.
Moreover, contrary to the submission that the right to participate in decision-making would be diluted, We
reiterate that our people have been exercising their right to participate in the discussion on the issue of the
JPEPA, and they have been able to articulate their different opinions without need of access to the JPEPA
negotiation documents.
Thus, we hold that the balance in this case tilts in favor of executive privilege.
8. Against our ruling that the principles applied in U.S. v. Nixon, the Senate Select Committee case, and In
re Sealed Case, are similarly applicable to the present controversy, the dissent cites the caveat in the Nixon
case that the U.S. Court was there addressing only the Presidents assertion of privilege in the context of a
criminal trial, not a civil litigation nor a congressional demand for information. What this caveat means,
however, is only that courts must be careful not to hastily apply the ruling therein to other contexts. It does
not, however, absolutely mean that the principles applied in that case may never be applied in such
contexts.
Hence, U.S. courts have cited U.S. v. Nixon in support of their rulings on claims of executive privilege in
contexts other than a criminal trial, as in the case of Nixon v. Administrator of General Services[80] which
involved former President Nixons invocation of executive privilege to challenge the constitutionality of the
Presidential Recordings and Materials Preservation Act[81] and the above-mentioned In re Sealed Case
which involved a claim of privilege against a subpoena duces tecum issued in a grand jury investigation.
Indeed, in applying to the present case the principles found in U.S. v. Nixon and in the other cases already
mentioned, We are merely affirming what the Chief Justice stated in his Dissenting Opinion in Neri v. Senate
Committee on Accountability[82] a case involving an executive-legislative conflict over executive privilege.
That dissenting opinion stated that, while Nixon was not concerned with the balance between the
Presidents generalized interest in confidentiality and congressional demands for information, [n]onetheless
the [U.S.] Court laid down principles and procedures that can serve as torch lights to illumine us on the
scope and use of Presidential communication privilege in the case at bar.[83] While the Court was divided in
Neri, this opinion of the Chief Justice was not among the points of disagreement, and We similarly hold now
that the Nixon case is a useful guide in the proper resolution of the present controversy, notwithstanding
the difference in context.
Verily, while the Court should guard against the abuse of executive privilege, it should also give full
recognition to the validity of the privilege whenever it is claimed within the proper bounds of executive
power, as in this case. Otherwise, the Court would undermine its own credibility, for it would be perceived
as no longer aiming to strike a balance, but seeking merely to water down executive privilege to the point
of irrelevance.
Conclusion

To recapitulate, petitioners demand to be furnished with a copy of the full text of the JPEPA has become
moot and academic, it having been made accessible to the public since September 11, 2006. As for their
demand for copies of the Philippine and Japanese offers submitted during the JPEPA negotiations, the same
must be denied, respondents claim of executive privilege being valid.

Diplomatic negotiations have, since the Court promulgated its Resolution in PMPF v. Manglapus on
September 13, 1988, been recognized as privileged in this jurisdiction and the reasons proffered by
petitioners against the application of the ruling therein to the present case have not persuaded the Court.
Moreover, petitioners both private citizens and members of the House of Representatives have failed to
present a sufficient showing of need to overcome the claim of privilege in this case.
That the privilege was asserted for the first time in respondents Comment to the present petition, and not
during the hearings of the House Special Committee on Globalization, is of no moment, since it cannot be
interpreted as a waiver of the privilege on the part of the Executive branch.
For reasons already explained, this Decision shall not be interpreted as departing from the ruling in Senate
v. Ermita that executive privilege should be invoked by the President or through the Executive Secretary by
order of the President.

WHEREFORE, the petition is DISMISSED.

SO ORDERED.

G.R. No. L-23825

December 24, 1965

EMMANUEL PELAEZ, petitioner,

vs.
THE AUDITOR GENERAL, respondent.
CONCEPCION, J.:
During the period from September 4 to October 29, 1964 the President of the Philippines, purporting to act
pursuant to Section 68 of the Revised Administrative Code, issued Executive Orders Nos. 93 to 121, 124 and
126 to 129; creating thirty-three (33) municipalities enumerated in the margin.1 Soon after the date last
mentioned, or on November 10, 1964 petitioner Emmanuel Pelaez, as Vice President of the Philippines and
as taxpayer, instituted the present special civil action, for a writ of prohibition with preliminary injunction,
against the Auditor General, to restrain him, as well as his representatives and agents, from passing in audit
any expenditure of public funds in implementation of said executive orders and/or any disbursement by said
municipalities.
Petitioner alleges that said executive orders are null and void, upon the ground that said Section 68 has
been impliedly repealed by Republic Act No. 2370 and constitutes an undue delegation of legislative power.
Respondent maintains the contrary view and avers that the present action is premature and that not all
proper parties referring to the officials of the new political subdivisions in question have been
impleaded. Subsequently, the mayors of several municipalities adversely affected by the aforementioned
executive orders because the latter have taken away from the former the barrios composing the new
political subdivisions intervened in the case. Moreover, Attorneys Enrique M. Fernando and Emma
Quisumbing-Fernando were allowed to and did appear as amici curiae.
The third paragraph of Section 3 of Republic Act No. 2370, reads:
Barrios shall not be created or their boundaries altered nor their names changed except under the
provisions of this Act or by Act of Congress.
Pursuant to the first two (2) paragraphs of the same Section 3:

All barrios existing at the time of the passage of this Act shall come under the provisions hereof.
Upon petition of a majority of the voters in the areas affected, a new barrio may be created or the name of
an existing one may be changed by the provincial board of the province, upon recommendation of the
council of the municipality or municipalities in which the proposed barrio is stipulated. The recommendation
of the municipal council shall be embodied in a resolution approved by at least two-thirds of the entire
membership of the said council: Provided, however, That no new barrio may be created if its population is
less than five hundred persons.
Hence, since January 1, 1960, when Republic Act No. 2370 became effective, barrios may "not be created or
their boundaries altered nor their names changed" except by Act of Congress or of the corresponding
provincial board "upon petition of a majority of the voters in the areas affected" and the "recommendation
of the council of the municipality or municipalities in which the proposed barrio is situated." Petitioner
argues, accordingly: "If the President, under this new law, cannot even create a barrio, can he create a
municipality which is composed of several barrios, since barrios are units of municipalities?"
Respondent answers in the affirmative, upon the theory that a new municipality can be created without
creating new barrios, such as, by placing old barrios under the jurisdiction of the new municipality. This
theory overlooks, however, the main import of the petitioner's argument, which is that the statutory denial
of the presidential authority to create a new barrio implies a negation of the bigger power to create
municipalities, each of which consists of several barrios. The cogency and force of this argument is too
obvious to be denied or even questioned. Founded upon logic and experience, it cannot be offset except by
a clear manifestation of the intent of Congress to the contrary, and no such manifestation, subsequent to
the passage of Republic Act No. 2379, has been brought to our attention.
Moreover, section 68 of the Revised Administrative Code, upon which the disputed executive orders are
based, provides:
The (Governor-General) President of the Philippines may by executive order define the boundary, or
boundaries, of any province, subprovince, municipality, [township] municipal district, or other political
subdivision, and increase or diminish the territory comprised therein, may divide any province into one or
more subprovinces, separate any political division other than a province, into such portions as may be
required, merge any of such subdivisions or portions with another, name any new subdivision so created,
and may change the seat of government within any subdivision to such place therein as the public welfare
may require: Provided, That the authorization of the (Philippine Legislature) Congress of the Philippines shall
first be obtained whenever the boundary of any province or subprovince is to be defined or any province is
to be divided into one or more subprovinces. When action by the (Governor-General) President of the
Philippines in accordance herewith makes necessary a change of the territory under the jurisdiction of any
administrative officer or any judicial officer, the (Governor-General) President of the Philippines, with the
recommendation and advice of the head of the Department having executive control of such officer, shall
redistrict the territory of the several officers affected and assign such officers to the new districts so formed.
Upon the changing of the limits of political divisions in pursuance of the foregoing authority, an equitable
distribution of the funds and obligations of the divisions thereby affected shall be made in such manner as
may be recommended by the (Insular Auditor) Auditor General and approved by the (Governor-General)
President of the Philippines.
Respondent alleges that the power of the President to create municipalities under this section does not
amount to an undue delegation of legislative power, relying upon Municipality of Cardona vs. Municipality of
Binagonan (36 Phil. 547), which, he claims, has settled it. Such claim is untenable, for said case involved,
not the creation of a new municipality, but a mere transfer of territory from an already existing
municipality (Cardona) to another municipality (Binagonan), likewise, existing at the time of and prior to
said transfer (See Gov't of the P.I. ex rel. Municipality of Cardona vs. Municipality, of Binagonan [34 Phil.

518, 519-5201) in consequence of the fixing and definition, pursuant to Act No. 1748, of the common
boundaries of two municipalities.
It is obvious, however, that, whereas the power to fix such common boundary, in order to avoid or settle
conflicts of jurisdiction between adjoining municipalities, may partake of an administrative nature
involving, as it does, the adoption of means and ways to carry into effect the law creating said
municipalities the authority to create municipal corporations is essentially legislative in nature. In the
language of other courts, it is "strictly a legislative function" (State ex rel. Higgins vs. Aicklen, 119 S. 425,
January 2, 1959) or "solely and exclusively the exercise of legislative power" (Udall vs. Severn, May 29,
1938, 79 P. 2d 347-349). As the Supreme Court of Washington has put it (Territory ex rel. Kelly vs. Stewart,
February 13, 1890, 23 Pac. 405, 409), "municipal corporations are purely the creatures of statutes."
Although1a Congress may delegate to another branch of the Government the power to fill in the details in
the execution, enforcement or administration of a law, it is essential, to forestall a violation of the principle
of separation of powers, that said law: (a) be complete in itself it must set forth therein the policy to be
executed, carried out or implemented by the delegate2 and (b) fix a standard the limits of which are
sufficiently determinate or determinable to which the delegate must conform in the performance of his
functions.2a Indeed, without a statutory declaration of policy, the delegate would in effect, make or
formulate such policy, which is the essence of every law; and, without the aforementioned standard, there
would be no means to determine, with reasonable certainty, whether the delegate has acted within or
beyond the scope of his authority.2b Hence, he could thereby arrogate upon himself the power, not only to
make the law, but, also and this is worse to unmake it, by adopting measures inconsistent with the
end sought to be attained by the Act of Congress, thus nullifying the principle of separation of powers and
the system of checks and balances, and, consequently, undermining the very foundation of our Republican
system.
Section 68 of the Revised Administrative Code does not meet these well settled requirements for a valid
delegation of the power to fix the details in the enforcement of a law. It does not enunciate any policy to be
carried out or implemented by the President. Neither does it give a standard sufficiently precise to avoid the
evil effects above referred to. In this connection, we do not overlook the fact that, under the last clause of
the first sentence of Section 68, the President:
... may change the seat of the government within any subdivision to such place therein as the public
welfare may require.
It is apparent, however, from the language of this clause, that the phrase "as the public welfare may
require" qualified, not the clauses preceding the one just quoted, but only the place to which the seat of the
government may be transferred. This fact becomes more apparent when we consider that said Section 68
was originally Section 1 of Act No. 1748,3 which provided that, "whenever in the judgment of the GovernorGeneral the public welfare requires, he may, by executive order," effect the changes enumerated therein
(as in said section 68), including the change of the seat of the government "to such place ... as the public
interest requires." The opening statement of said Section 1 of Act No. 1748 which was not included in
Section 68 of the Revised Administrative Code governed the time at which, or the conditions under
which, the powers therein conferred could be exercised; whereas the last part of the first sentence of said
section referred exclusively to the place to which the seat of the government was to be transferred.
At any rate, the conclusion would be the same, insofar as the case at bar is concerned, even if we assumed
that the phrase "as the public welfare may require," in said Section 68, qualifies all other clauses thereof. It
is true that in Calalang vs. Williams (70 Phil. 726) and People vs. Rosenthal (68 Phil. 328), this Court had
upheld "public welfare" and "public interest," respectively, as sufficient standards for a valid delegation of
the authority to execute the law. But, the doctrine laid down in these cases as all judicial
pronouncements must be construed in relation to the specific facts and issues involved therein, outside
of which they do not constitute precedents and have no binding effect.4 The law construed in the Calalang
case conferred upon the Director of Public Works, with the approval of the Secretary of Public Works and

Communications, the power to issue rules and regulations to promote safe transit upon national roads and
streets. Upon the other hand, the Rosenthal case referred to the authority of the Insular Treasurer, under
Act No. 2581, to issue and cancel certificates or permits for the sale of speculative securities. Both cases
involved grants to administrative officers of powers related to the exercise of their administrative functions,
calling for the determination of questions of fact.
Such is not the nature of the powers dealt with in section 68. As above indicated, the creation of
municipalities, is not an administrative function, but one which is essentially and eminently legislative in
character. The question of whether or not "public interest" demands the exercise of such power is not one of
fact. it is "purely a legislative question "(Carolina-Virginia Coastal Highway vs. Coastal Turnpike Authority, 74
S.E. 2d. 310-313, 315-318), or a political question (Udall vs. Severn, 79 P. 2d. 347-349). As the Supreme
Court of Wisconsin has aptly characterized it, "the question as to whether incorporation is for the best
interest of the community in any case is emphatically a question of public policy and statecraft" (In re
Village of North Milwaukee, 67 N.W. 1033, 1035-1037).
For this reason, courts of justice have annulled, as constituting undue delegation of legislative powers, state
laws granting the judicial department, the power to determine whether certain territories should be
annexed to a particular municipality (Udall vs. Severn, supra, 258-359); or vesting in a Commission the right
to determine the plan and frame of government of proposed villages and what functions shall be exercised
by the same, although the powers and functions of the village are specifically limited by statute (In re
Municipal Charters, 86 Atl. 307-308); or conferring upon courts the authority to declare a given town or
village incorporated, and designate its metes and bounds, upon petition of a majority of the taxable
inhabitants thereof, setting forth the area desired to be included in such village (Territory ex rel Kelly vs.
Stewart, 23 Pac. 405-409); or authorizing the territory of a town, containing a given area and population, to
be incorporated as a town, on certain steps being taken by the inhabitants thereof and on certain
determination by a court and subsequent vote of the inhabitants in favor thereof, insofar as the court is
allowed to determine whether the lands embraced in the petition "ought justly" to be included in the village,
and whether the interest of the inhabitants will be promoted by such incorporation, and to enlarge and
diminish the boundaries of the proposed village "as justice may require" (In re Villages of North Milwaukee,
67 N.W. 1035-1037); or creating a Municipal Board of Control which shall determine whether or not the
laying out, construction or operation of a toll road is in the "public interest" and whether the requirements
of the law had been complied with, in which case the board shall enter an order creating a municipal
corporation and fixing the name of the same (Carolina-Virginia Coastal Highway vs. Coastal Turnpike
Authority, 74 S.E. 2d. 310).
Insofar as the validity of a delegation of power by Congress to the President is concerned, the case of
Schechter Poultry Corporation vs. U.S. (79 L. Ed. 1570) is quite relevant to the one at bar. The Schechter
case involved the constitutionality of Section 3 of the National Industrial Recovery Act authorizing the
President of the United States to approve "codes of fair competition" submitted to him by one or more trade
or industrial associations or corporations which "impose no inequitable restrictions on admission to
membership therein and are truly representative," provided that such codes are not designed "to promote
monopolies or to eliminate or oppress small enterprises and will not operate to discriminate against them,
and will tend to effectuate the policy" of said Act. The Federal Supreme Court held:
To summarize and conclude upon this point: Sec. 3 of the Recovery Act is without precedent. It supplies no
standards for any trade, industry or activity. It does not undertake to prescribe rules of conduct to be
applied to particular states of fact determined by appropriate administrative procedure. Instead of
prescribing rules of conduct, it authorizes the making of codes to prescribe them. For that legislative
undertaking, Sec. 3 sets up no standards, aside from the statement of the general aims of rehabilitation,
correction and expansion described in Sec. 1. In view of the scope of that broad declaration, and of the
nature of the few restrictions that are imposed, the discretion of the President in approving or prescribing
codes, and thus enacting laws for the government of trade and industry throughout the country, is virtually
unfettered. We think that the code making authority thus conferred is an unconstitutional delegation of
legislative power.

If the term "unfair competition" is so broad as to vest in the President a discretion that is "virtually
unfettered." and, consequently, tantamount to a delegation of legislative power, it is obvious that "public
welfare," which has even a broader connotation, leads to the same result. In fact, if the validity of the
delegation of powers made in Section 68 were upheld, there would no longer be any legal impediment to a
statutory grant of authority to the President to do anything which, in his opinion, may be required by public
welfare or public interest. Such grant of authority would be a virtual abdication of the powers of Congress in
favor of the Executive, and would bring about a total collapse of the democratic system established by our
Constitution, which it is the special duty and privilege of this Court to uphold.
It may not be amiss to note that the executive orders in question were issued after the legislative bills for
the creation of the municipalities involved in this case had failed to pass Congress. A better proof of the fact
that the issuance of said executive orders entails the exercise of purely legislative functions can hardly be
given.
Again, Section 10 (1) of Article VII of our fundamental law ordains:
The President shall have control of all the executive departments, bureaus, or offices, exercise general
supervision over all local governments as may be provided by law, and take care that the laws be faithfully
executed.
The power of control under this provision implies the right of the President to interfere in the exercise of
such discretion as may be vested by law in the officers of the executive departments, bureaus, or offices of
the national government, as well as to act in lieu of such officers. This power is denied by the Constitution
to the Executive, insofar as local governments are concerned. With respect to the latter, the fundamental
law permits him to wield no more authority than that of checking whether said local governments or the
officers thereof perform their duties as provided by statutory enactments. Hence, the President cannot
interfere with local governments, so long as the same or its officers act Within the scope of their authority.
He may not enact an ordinance which the municipal council has failed or refused to pass, even if it had
thereby violated a duty imposed thereto by law, although he may see to it that the corresponding provincial
officials take appropriate disciplinary action therefor. Neither may he vote, set aside or annul an ordinance
passed by said council within the scope of its jurisdiction, no matter how patently unwise it may be. He may
not even suspend an elective official of a regular municipality or take any disciplinary action against him,
except on appeal from a decision of the corresponding provincial board.5
Upon the other hand if the President could create a municipality, he could, in effect, remove any of its
officials, by creating a new municipality and including therein the barrio in which the official concerned
resides, for his office would thereby become vacant.6 Thus, by merely brandishing the power to create a
new municipality (if he had it), without actually creating it, he could compel local officials to submit to his
dictation, thereby, in effect, exercising over them the power of control denied to him by the Constitution.
Then, also, the power of control of the President over executive departments, bureaus or offices implies no
more than the authority to assume directly the functions thereof or to interfere in the exercise of discretion
by its officials. Manifestly, such control does not include the authority either to abolish an executive
department or bureau, or to create a new one. As a consequence, the alleged power of the President to
create municipal corporations would necessarily connote the exercise by him of an authority even greater
than that of control which he has over the executive departments, bureaus or offices. In other words,
Section 68 of the Revised Administrative Code does not merely fail to comply with the constitutional
mandate above quoted. Instead of giving the President less power over local governments than that vested
in him over the executive departments, bureaus or offices, it reverses the process and does the exact
opposite, by conferring upon him more power over municipal corporations than that which he has over said
executive departments, bureaus or offices.
In short, even if it did entail an undue delegation of legislative powers, as it certainly does, said Section 68,

as part of the Revised Administrative Code, approved on March 10, 1917, must be deemed repealed by the
subsequent adoption of the Constitution, in 1935, which is utterly incompatible and inconsistent with said
statutory enactment.7
There are only two (2) other points left for consideration, namely, respondent's claim (a) that "not all the
proper parties" referring to the officers of the newly created municipalities "have been impleaded in
this case," and (b) that "the present petition is premature."
As regards the first point, suffice it to say that the records do not show, and the parties do not claim, that
the officers of any of said municipalities have been appointed or elected and assumed office. At any rate,
the Solicitor General, who has appeared on behalf of respondent Auditor General, is the officer authorized
by law "to act and represent the Government of the Philippines, its offices and agents, in any official
investigation, proceeding or matter requiring the services of a lawyer" (Section 1661, Revised
Administrative Code), and, in connection with the creation of the aforementioned municipalities, which
involves a political, not proprietary, function, said local officials, if any, are mere agents or representatives
of the national government. Their interest in the case at bar has, accordingly, been, in effect, duly
represented.8
With respect to the second point, respondent alleges that he has not as yet acted on any of the executive
order & in question and has not intimated how he would act in connection therewith. It is, however, a
matter of common, public knowledge, subject to judicial cognizance, that the President has, for many years,
issued executive orders creating municipal corporations and that the same have been organized and in
actual operation, thus indicating, without peradventure of doubt, that the expenditures incidental thereto
have been sanctioned, approved or passed in audit by the General Auditing Office and its officials. There is
no reason to believe, therefore, that respondent would adopt a different policy as regards the new
municipalities involved in this case, in the absence of an allegation to such effect, and none has been made
by him.
WHEREFORE, the Executive Orders in question are hereby declared null and void ab initio and the
respondent permanently restrained from passing in audit any expenditure of public funds in implementation
of said Executive Orders or any disbursement by the municipalities above referred to. It is so ordered.
G.R. No. 166715

August 14, 2008

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

VINCENT S. ALBANO, ROMEO R. ROBISO, RENE B. GOROSPE and EDWIN R. SANDOVAL,
petitioners,
vs.
HON. CESAR V. PURISIMA, in his capacity as Secretary of Finance, HON. GUILLERMO L.
PARAYNO, JR., in his capacity as Commissioner of the Bureau of Internal Revenue, and HON.
ALBERTO D. LINA, in his Capacity as Commissioner of Bureau of Customs, respondents.
DECISION
CORONA, J.:
This petition for prohibition1 seeks to prevent respondents from implementing and enforcing Republic Act
(RA) 93352 (Attrition Act of 2005).
RA 9335 was enacted to optimize the revenue-generation capability and collection of the Bureau of Internal
Revenue (BIR) and the Bureau of Customs (BOC). The law intends to encourage BIR and BOC officials and
employees to exceed their revenue targets by providing a system of rewards and sanctions through the
creation of a Rewards and Incentives Fund (Fund) and a Revenue Performance Evaluation Board (Board).3 It
covers all officials and employees of the BIR and the BOC with at least six months of service, regardless of

employment status.4
The Fund is sourced from the collection of the BIR and the BOC in excess of their revenue targets for the
year, as determined by the Development Budget and Coordinating Committee (DBCC). Any incentive or
reward is taken from the fund and allocated to the BIR and the BOC in proportion to their contribution in the
excess collection of the targeted amount of tax revenue.5
The Boards in the BIR and the BOC are composed of the Secretary of the Department of Finance (DOF) or
his/her Undersecretary, the Secretary of the Department of Budget and Management (DBM) or his/her
Undersecretary, the Director General of the National Economic Development Authority (NEDA) or his/her
Deputy Director General, the Commissioners of the BIR and the BOC or their Deputy Commissioners, two
representatives from the rank-and-file employees and a representative from the officials nominated by their
recognized organization.6
Each Board has the duty to (1) prescribe the rules and guidelines for the allocation, distribution and release
of the Fund; (2) set criteria and procedures for removing from the service officials and employees whose
revenue collection falls short of the target; (3) terminate personnel in accordance with the criteria adopted
by the Board; (4) prescribe a system for performance evaluation; (5) perform other functions, including the
issuance of rules and regulations and (6) submit an annual report to Congress.7
The DOF, DBM, NEDA, BIR, BOC and the Civil Service Commission (CSC) were tasked to promulgate and
issue the implementing rules and regulations of RA 9335,8 to be approved by a Joint Congressional
Oversight Committee created for such purpose.9
Petitioners, invoking their right as taxpayers filed this petition challenging the constitutionality of RA 9335,
a tax reform legislation. They contend that, by establishing a system of rewards and incentives, the law
"transform[s] the officials and employees of the BIR and the BOC into mercenaries and bounty hunters" as
they will do their best only in consideration of such rewards. Thus, the system of rewards and incentives
invites corruption and undermines the constitutionally mandated duty of these officials and employees to
serve the people with utmost responsibility, integrity, loyalty and efficiency.
Petitioners also claim that limiting the scope of the system of rewards and incentives only to officials and
employees of the BIR and the BOC violates the constitutional guarantee of equal protection. There is no
valid basis for classification or distinction as to why such a system should not apply to officials and
employees of all other government agencies.
In addition, petitioners assert that the law unduly delegates the power to fix revenue targets to the
President as it lacks a sufficient standard on that matter. While Section 7(b) and (c) of RA 9335 provides
that BIR and BOC officials may be dismissed from the service if their revenue collections fall short of the
target by at least 7.5%, the law does not, however, fix the revenue targets to be achieved. Instead, the
fixing of revenue targets has been delegated to the President without sufficient standards. It will therefore
be easy for the President to fix an unrealistic and unattainable target in order to dismiss BIR or BOC
personnel.
Finally, petitioners assail the creation of a congressional oversight committee on the ground that it violates
the doctrine of separation of powers. While the legislative function is deemed accomplished and completed
upon the enactment and approval of the law, the creation of the congressional oversight committee permits
legislative participation in the implementation and enforcement of the law.
In their comment, respondents, through the Office of the Solicitor General, question the petition for being
premature as there is no actual case or controversy yet. Petitioners have not asserted any right or claim
that will necessitate the exercise of this Courts jurisdiction. Nevertheless, respondents acknowledge that
public policy requires the resolution of the constitutional issues involved in this case. They assert that the
allegation that the reward system will breed mercenaries is mere speculation and does not suffice to

invalidate the law. Seen in conjunction with the declared objective of RA 9335, the law validly classifies the
BIR and the BOC because the functions they perform are distinct from those of the other government
agencies and instrumentalities. Moreover, the law provides a sufficient standard that will guide the
executive in the implementation of its provisions. Lastly, the creation of the congressional oversight
committee under the law enhances, rather than violates, separation of powers. It ensures the fulfillment of
the legislative policy and serves as a check to any over-accumulation of power on the part of the executive
and the implementing agencies.
After a careful consideration of the conflicting contentions of the parties, the Court finds that petitioners
have failed to overcome the presumption of constitutionality in favor of RA 9335, except as shall hereafter
be discussed.
Actual Case And Ripeness
An actual case or controversy involves a conflict of legal rights, an assertion of opposite legal claims
susceptible of judicial adjudication.10 A closely related requirement is ripeness, that is, the question must
be ripe for adjudication. And a constitutional question is ripe for adjudication when the governmental act
being challenged has a direct adverse effect on the individual challenging it.11 Thus, to be ripe for judicial
adjudication, the petitioner must show a personal stake in the outcome of the case or an injury to himself
that can be redressed by a favorable decision of the Court.12
In this case, aside from the general claim that the dispute has ripened into a judicial controversy by the
mere enactment of the law even without any further overt act,13 petitioners fail either to assert any
specific and concrete legal claim or to demonstrate any direct adverse effect of the law on them. They are
unable to show a personal stake in the outcome of this case or an injury to themselves. On this account,
their petition is procedurally infirm.
This notwithstanding, public interest requires the resolution of the constitutional issues raised by
petitioners. The grave nature of their allegations tends to cast a cloud on the presumption of
constitutionality in favor of the law. And where an action of the legislative branch is alleged to have
infringed the Constitution, it becomes not only the right but in fact the duty of the judiciary to settle the
dispute.14
Accountability of
Public Officers
Section 1, Article 11 of the Constitution states:
Sec. 1. Public office is a public trust. Public officers and employees must at all times be accountable to the
people, serve them with utmost responsibility, integrity, loyalty, and efficiency, act with patriotism, and
justice, and lead modest lives.
Public office is a public trust. It must be discharged by its holder not for his own personal gain but for the
benefit of the public for whom he holds it in trust. By demanding accountability and service with
responsibility, integrity, loyalty, efficiency, patriotism and justice, all government officials and employees
have the duty to be responsive to the needs of the people they are called upon to serve.
Public officers enjoy the presumption of regularity in the performance of their duties. This presumption
necessarily obtains in favor of BIR and BOC officials and employees. RA 9335 operates on the basis thereof
and reinforces it by providing a system of rewards and sanctions for the purpose of encouraging the officials
and employees of the BIR and the BOC to exceed their revenue targets and optimize their revenuegeneration capability and collection.15
The presumption is disputable but proof to the contrary is required to rebut it. It cannot be overturned by

mere conjecture or denied in advance (as petitioners would have the Court do) specially in this case where
it is an underlying principle to advance a declared public policy.
Petitioners claim that the implementation of RA 9335 will turn BIR and BOC officials and employees into
"bounty hunters and mercenaries" is not only without any factual and legal basis; it is also purely
speculative.
A law enacted by Congress enjoys the strong presumption of constitutionality. To justify its nullification,
there must be a clear and unequivocal breach of the Constitution, not a doubtful and equivocal one.16 To
invalidate RA 9335 based on petitioners baseless supposition is an affront to the wisdom not only of the
legislature that passed it but also of the executive which approved it.
Public service is its own reward. Nevertheless, public officers may by law be rewarded for exemplary and
exceptional performance. A system of incentives for exceeding the set expectations of a public office is not
anathema to the concept of public accountability. In fact, it recognizes and reinforces dedication to duty,
industry, efficiency and loyalty to public service of deserving government personnel.
In United States v. Matthews,17 the U.S. Supreme Court validated a law which awards to officers of the
customs as well as other parties an amount not exceeding one-half of the net proceeds of forfeitures in
violation of the laws against smuggling. Citing Dorsheimer v. United States,18 the U.S. Supreme Court said:
The offer of a portion of such penalties to the collectors is to stimulate and reward their zeal and industry in
detecting fraudulent attempts to evade payment of duties and taxes.
In the same vein, employees of the BIR and the BOC may by law be entitled to a reward when, as a
consequence of their zeal in the enforcement of tax and customs laws, they exceed their revenue targets.
In addition, RA 9335 establishes safeguards to ensure that the reward will not be claimed if it will be either
the fruit of "bounty hunting or mercenary activity" or the product of the irregular performance of official
duties. One of these precautionary measures is embodied in Section 8 of the law:
SEC. 8. Liability of Officials, Examiners and Employees of the BIR and the BOC. The officials, examiners,
and employees of the [BIR] and the [BOC] who violate this Act or who are guilty of negligence, abuses or
acts of malfeasance or misfeasance or fail to exercise extraordinary diligence in the performance of their
duties shall be held liable for any loss or injury suffered by any business establishment or taxpayer as a
result of such violation, negligence, abuse, malfeasance, misfeasance or failure to exercise extraordinary
diligence.
Equal Protection
Equality guaranteed under the equal protection clause is equality under the same conditions and among
persons similarly situated; it is equality among equals, not similarity of treatment of persons who are
classified based on substantial differences in relation to the object to be accomplished.19 When things or
persons are different in fact or circumstance, they may be treated in law differently. In Victoriano v. Elizalde
Rope Workers Union,20 this Court declared:
The guaranty of equal protection of the laws is not a guaranty of equality in the application of the laws upon
all citizens of the [S]tate. It is not, therefore, a requirement, in order to avoid the constitutional prohibition
against inequality, that every man, woman and child should be affected alike by a statute. Equality of
operation of statutes does not mean indiscriminate operation on persons merely as such, but on persons
according to the circumstances surrounding them. It guarantees equality, not identity of rights. The
Constitution does not require that things which are different in fact be treated in law as though they were
the same. The equal protection clause does not forbid discrimination as to things that are different. It does
not prohibit legislation which is limited either in the object to which it is directed or by the territory within
which it is to operate.

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

xxx

xxx (emphasis supplied)

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

Sec. 23. The Bureau of Customs. The Bureau of Customs which shall be headed and subject to the
management and control of the Commissioner of Customs, who shall be appointed by the President upon
the recommendation of the Secretary[of the DOF] and hereinafter referred to as Commissioner, shall have
the following functions:

(1) Collect custom duties, taxes and the corresponding fees, charges and penalties;
(2) Account for all customs revenues collected;
(3) Exercise police authority for the enforcement of tariff and customs laws;
(4) Prevent and suppress smuggling, pilferage and all other economic frauds within all ports of entry;
(5) Supervise and control exports, imports, foreign mails and the clearance of vessels and aircrafts in all
ports of entry;
(6) Administer all legal requirements that are appropriate;
(7) Prevent and prosecute smuggling and other illegal activities in all ports under its jurisdiction;
(8) Exercise supervision and control over its constituent units;
(9) Perform such other functions as may be provided by law.25
xxx

xxx

xxx (emphasis supplied)

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

Percent (%) of the Excess Collection to Accrue to the Fund

30% or below
15%
More than 30%
15% of the first 30% plus 20% of the remaining excess
The Fund shall be deemed automatically appropriated the year immediately following the year when the
revenue collection target was exceeded and shall be released on the same fiscal year.
Revenue targets shall refer to the original estimated revenue collection expected of the BIR and the BOC for
a given fiscal year as stated in the Budget of Expenditures and Sources of Financing (BESF) submitted by
the President to Congress. The BIR and the BOC shall submit to the DBCC the distribution of the agencies
revenue targets as allocated among its revenue districts in the case of the BIR, and the collection districts
in the case of the BOC.
xxx

xxx

xxx (emphasis supplied)

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

xxx

xxx

(b) To set the criteria and procedures for removing from service officials and employees whose revenue
collection falls short of the target by at least seven and a half percent (7.5%), with due consideration of all
relevant factors affecting the level of collection as provided in the rules and regulations promulgated under
this Act, subject to civil service laws, rules and regulations and compliance with substantive and procedural
due process: Provided, That the following exemptions shall apply:
1. Where the district or area of responsibility is newly-created, not exceeding two years in operation, as has
no historical record of collection performance that can be used as basis for evaluation; and
2. Where the revenue or customs official or employee is a recent transferee in the middle of the period
under consideration unless the transfer was due to nonperformance of revenue targets or potential
nonperformance of revenue targets: Provided, however, That when the district or area of responsibility
covered by revenue or customs officials or employees has suffered from economic difficulties brought about
by natural calamities or force majeure or economic causes as may be determined by the Board, termination
shall be considered only after careful and proper review by the Board.
(c) To terminate personnel in accordance with the criteria adopted in the preceding paragraph: Provided,
That such decision shall be immediately executory: Provided, further, That the application of the criteria for

the separation of an official or employee from service under this Act shall be without prejudice to the
application of other relevant laws on accountability of public officers and employees, such as the Code of
Conduct and Ethical Standards of Public Officers and Employees and the Anti-Graft and Corrupt Practices
Act;
xxx

xxx

xxx (emphasis supplied)

Clearly, RA 9335 in no way violates the security of tenure of officials and employees of the BIR and the BOC.
The guarantee of security of tenure only means that an employee cannot be dismissed from the service for
causes other than those provided by law and only after due process is accorded the employee.31 In the
case of RA 9335, it lays down a reasonable yardstick for removal (when the revenue collection falls short of
the target by at least 7.5%) with due consideration of all relevant factors affecting the level of collection.
This standard is analogous to inefficiency and incompetence in the performance of official duties, a ground
for disciplinary action under civil service laws.32 The action for removal is also subject to civil service laws,
rules and regulations and compliance with substantive and procedural due process.
At any rate, this Court has recognized the following as sufficient standards: "public interest," "justice and
equity," "public convenience and welfare" and "simplicity, economy and welfare."33 In this case, the
declared policy of optimization of the revenue-generation capability and collection of the BIR and the BOC is
infused with public interest.
Separation Of Powers
Section 12 of RA 9335 provides:
SEC. 12. Joint Congressional Oversight Committee. There is hereby created a Joint Congressional
Oversight Committee composed of seven Members from the Senate and seven Members from the House of
Representatives. The Members from the Senate shall be appointed by the Senate President, with at least
two senators representing the minority. The Members from the House of Representatives shall be appointed
by the Speaker with at least two members representing the minority. After the Oversight Committee will
have approved the implementing rules and regulations (IRR) it shall thereafter become functus officio and
therefore cease to exist.
The Joint Congressional Oversight Committee in RA 9335 was created for the purpose of approving the
implementing rules and regulations (IRR) formulated by the DOF, DBM, NEDA, BIR, BOC and CSC. On May
22, 2006, it approved the said IRR. From then on, it became functus officio and ceased to exist. Hence, the
issue of its alleged encroachment on the executive function of implementing and enforcing the law may be
considered moot and academic.
This notwithstanding, this might be as good a time as any for the Court to confront the issue of the
constitutionality of the Joint Congressional Oversight Committee created under RA 9335 (or other similar
laws for that matter).
The scholarly discourse of Mr. Justice (now Chief Justice) Puno on the concept of congressional oversight in
Macalintal v. Commission on Elections34 is illuminating:
Concept and bases of congressional oversight
Broadly defined, the power of oversight embraces all activities undertaken by Congress to enhance its
understanding of and influence over the implementation of legislation it has enacted. Clearly, oversight
concerns post-enactment measures undertaken by Congress: (a) to monitor bureaucratic compliance with
program objectives, (b) to determine whether agencies are properly administered, (c) to eliminate executive
waste and dishonesty, (d) to prevent executive usurpation of legislative authority, and (d) to assess
executive conformity with the congressional perception of public interest.

The power of oversight has been held to be intrinsic in the grant of legislative power itself and integral to
the checks and balances inherent in a democratic system of government. x x x x x x x x x
Over the years, Congress has invoked its oversight power with increased frequency to check the perceived
"exponential accumulation of power" by the executive branch. By the beginning of the 20th century,
Congress has delegated an enormous amount of legislative authority to the executive branch and the
administrative agencies. Congress, thus, uses its oversight power to make sure that the administrative
agencies perform their functions within the authority delegated to them. x x x x x x x x x
Categories of congressional oversight functions
The acts done by Congress purportedly in the exercise of its oversight powers may be divided into three
categories, namely: scrutiny, investigation and supervision.
a. Scrutiny
Congressional scrutiny implies a lesser intensity and continuity of attention to administrative operations. Its
primary purpose is to determine economy and efficiency of the operation of government activities. In the
exercise of legislative scrutiny, Congress may request information and report from the other branches of
government. It can give recommendations or pass resolutions for consideration of the agency involved.
xxx

xxx

xxx

b. Congressional investigation
While congressional scrutiny is regarded as a passive process of looking at the facts that are readily
available, congressional investigation involves a more intense digging of facts. The power of Congress to
conduct investigation is recognized by the 1987 Constitution under section 21, Article VI, xxx
xxx
xxx
c. Legislative supervision
The third and most encompassing form by which Congress exercises its oversight power is thru legislative
supervision. "Supervision" connotes a continuing and informed awareness on the part of a congressional
committee regarding executive operations in a given administrative area. While both congressional scrutiny
and investigation involve inquiry into past executive branch actions in order to influence future executive
branch performance, congressional supervision allows Congress to scrutinize the exercise of delegated lawmaking authority, and permits Congress to retain part of that delegated authority.
Congress exercises supervision over the executive agencies through its veto power. It typically utilizes veto
provisions when granting the President or an executive agency the power to promulgate regulations with
the force of law. These provisions require the President or an agency to present the proposed regulations to
Congress, which retains a "right" to approve or disapprove any regulation before it takes effect. Such
legislative veto provisions usually provide that a proposed regulation will become a law after the expiration
of a certain period of time, only if Congress does not affirmatively disapprove of the regulation in the
meantime. Less frequently, the statute provides that a proposed regulation will become law if Congress
affirmatively approves it.
Supporters of legislative veto stress that it is necessary to maintain the balance of power between the
legislative and the executive branches of government as it offers lawmakers a way to delegate vast power
to the executive branch or to independent agencies while retaining the option to cancel particular exercise
of such power without having to pass new legislation or to repeal existing law. They contend that this
arrangement promotes democratic accountability as it provides legislative check on the activities of

unelected administrative agencies. One proponent thus explains:

It is too late to debate the merits of this delegation policy: the policy is too deeply embedded in our law and
practice. It suffices to say that the complexities of modern government have often led Congress-whether by
actual or perceived necessity- to legislate by declaring broad policy goals and general statutory standards,
leaving the choice of policy options to the discretion of an executive officer. Congress articulates legislative
aims, but leaves their implementation to the judgment of parties who may or may not have participated in
or agreed with the development of those aims. Consequently, absent safeguards, in many instances the
reverse of our constitutional scheme could be effected: Congress proposes, the Executive disposes. One
safeguard, of course, is the legislative power to enact new legislation or to change existing law. But without
some means of overseeing post enactment activities of the executive branch, Congress would be unable to
determine whether its policies have been implemented in accordance with legislative intent and thus
whether legislative intervention is appropriate.
Its opponents, however, criticize the legislative veto as undue encroachment upon the executive
prerogatives. They urge that any post-enactment measures undertaken by the legislative branch should be
limited to scrutiny and investigation; any measure beyond that would undermine the separation of powers
guaranteed by the Constitution. They contend that legislative veto constitutes an impermissible evasion of
the Presidents veto authority and intrusion into the powers vested in the executive or judicial branches of
government. Proponents counter that legislative veto enhances separation of powers as it prevents the
executive branch and independent agencies from accumulating too much power. They submit that reporting
requirements and congressional committee investigations allow Congress to scrutinize only the exercise of
delegated law-making authority. They do not allow Congress to review executive proposals before they take
effect and they do not afford the opportunity for ongoing and binding expressions of congressional intent. In
contrast, legislative veto permits Congress to participate prospectively in the approval or disapproval of
"subordinate law" or those enacted by the executive branch pursuant to a delegation of authority by
Congress. They further argue that legislative veto "is a necessary response by Congress to the accretion of
policy control by forces outside its chambers." In an era of delegated authority, they point out that
legislative veto "is the most efficient means Congress has yet devised to retain control over the evolution
and implementation of its policy as declared by statute."
In Immigration and Naturalization Service v. Chadha, the U.S. Supreme Court resolved the validity of
legislative veto provisions. The case arose from the order of the immigration judge suspending the
deportation of Chadha pursuant to 244(c)(1) of the Immigration and Nationality Act. The United States
House of Representatives passed a resolution vetoing the suspension pursuant to 244(c)(2) authorizing
either House of Congress, by resolution, to invalidate the decision of the executive branch to allow a
particular deportable alien to remain in the United States. The immigration judge reopened the deportation
proceedings to implement the House order and the alien was ordered deported. The Board of Immigration
Appeals dismissed the aliens appeal, holding that it had no power to declare unconstitutional an act of
Congress. The United States Court of Appeals for Ninth Circuit held that the House was without
constitutional authority to order the aliens deportation and that 244(c)(2) violated the constitutional
doctrine on separation of powers.
On appeal, the U.S. Supreme Court declared 244(c)(2) unconstitutional. But the Court shied away from the
issue of separation of powers and instead held that the provision violates the presentment clause and
bicameralism. It held that the one-house veto was essentially legislative in purpose and effect. As such, it is
subject to the procedures set out in Article I of the Constitution requiring the passage by a majority of both
Houses and presentment to the President. x x x x x x x x x
Two weeks after the Chadha decision, the Court upheld, in memorandum decision, two lower court decisions
invalidating the legislative veto provisions in the Natural Gas Policy Act of 1978 and the Federal Trade
Commission Improvement Act of 1980. Following this precedence, lower courts invalidated statutes
containing legislative veto provisions although some of these provisions required the approval of both
Houses of Congress and thus met the bicameralism requirement of Article I. Indeed, some of these veto

provisions were not even exercised.35 (emphasis supplied)

In Macalintal, given the concept and configuration of the power of congressional oversight and considering
the nature and powers of a constitutional body like the Commission on Elections, the Court struck down the
provision in RA 9189 (The Overseas Absentee Voting Act of 2003) creating a Joint Congressional Committee.
The committee was tasked not only to monitor and evaluate the implementation of the said law but also to
review, revise, amend and approve the IRR promulgated by the Commission on Elections. The Court held
that these functions infringed on the constitutional independence of the Commission on Elections.36
With this backdrop, it is clear that congressional oversight is not unconstitutional per se, meaning, it neither
necessarily constitutes an encroachment on the executive power to implement laws nor undermines the
constitutional separation of powers. Rather, it is integral to the checks and balances inherent in a
democratic system of government. It may in fact even enhance the separation of powers as it prevents the
over-accumulation of power in the executive branch.
However, to forestall the danger of congressional encroachment "beyond the legislative sphere," the
Constitution imposes two basic and related constraints on Congress.37 It may not vest itself, any of its
committees or its members with either executive or judicial power.38 And, when it exercises its legislative
power, it must follow the "single, finely wrought and exhaustively considered, procedures" specified under
the Constitution,39 including the procedure for enactment of laws and presentment.
Thus, any post-enactment congressional measure such as this should be limited to scrutiny and
investigation. In particular, congressional oversight must be confined to the following:
(1) scrutiny based primarily on Congress power of appropriation and the budget hearings conducted in
connection with it, its power to ask heads of departments to appear before and be heard by either of its
Houses on any matter pertaining to their departments and its power of confirmation40 and
(2) investigation and monitoring41 of the implementation of laws pursuant to the power of Congress to
conduct inquiries in aid of legislation.42
Any action or step beyond that will undermine the separation of powers guaranteed by the Constitution.
Legislative vetoes fall in this class.
Legislative veto is a statutory provision requiring the President or an administrative agency to present the
proposed implementing rules and regulations of a law to Congress which, by itself or through a committee
formed by it, retains a "right" or "power" to approve or disapprove such regulations before they take effect.
As such, a legislative veto in the form of a congressional oversight committee is in the form of an inwardturning delegation designed to attach a congressional leash (other than through scrutiny and investigation)
to an agency to which Congress has by law initially delegated broad powers.43 It radically changes the
design or structure of the Constitutions diagram of power as it entrusts to Congress a direct role in
enforcing, applying or implementing its own laws.44
Congress has two options when enacting legislation to define national policy within the broad horizons of its
legislative competence.45 It can itself formulate the details or it can assign to the executive branch the
responsibility for making necessary managerial decisions in conformity with those standards.46 In the latter
case, the law must be complete in all its essential terms and conditions when it leaves the hands of the
legislature.47 Thus, what is left for the executive branch or the concerned administrative agency when it
formulates rules and regulations implementing the law is to fill up details (supplementary rule-making) or
ascertain facts necessary to bring the law into actual operation (contingent rule-making).48
Administrative regulations enacted by administrative agencies to implement and interpret the law which
they are entrusted to enforce have the force of law and are entitled to respect.49 Such rules and
regulations partake of the nature of a statute50 and are just as binding as if they have been written in the

statute itself. As such, they have the force and effect of law and enjoy the presumption of constitutionality
and legality until they are set aside with finality in an appropriate case by a competent court.51 Congress,
in the guise of assuming the role of an overseer, may not pass upon their legality by subjecting them to its
stamp of approval without disturbing the calculated balance of powers established by the Constitution. In
exercising discretion to approve or disapprove the IRR based on a determination of whether or not they
conformed with the provisions of RA 9335, Congress arrogated judicial power unto itself, a power
exclusively vested in this Court by the Constitution.
Considered Opinion of
Mr. Justice Dante O. Tinga
Moreover, the requirement that the implementing rules of a law be subjected to approval by Congress as a
condition for their effectivity violates the cardinal constitutional principles of bicameralism and the rule on
presentment.52
Section 1, Article VI of the Constitution states:
Section 1. The legislative power shall be vested in the Congress of the Philippines which shall consist of a
Senate and a House of Representatives, except to the extent reserved to the people by the provision on
initiative and referendum. (emphasis supplied)
Legislative power (or the power to propose, enact, amend and repeal laws)53 is vested in Congress which
consists of two chambers, the Senate and the House of Representatives. A valid exercise of legislative
power requires the act of both chambers. Corrollarily, it can be exercised neither solely by one of the two
chambers nor by a committee of either or both chambers. Thus, assuming the validity of a legislative veto,
both a single-chamber legislative veto and a congressional committee legislative veto are invalid.
Additionally, Section 27(1), Article VI of the Constitution provides:
Section 27. (1) Every bill passed by the Congress shall, before it becomes a law, be presented to the
President. If he approves the same, he shall sign it, otherwise, he shall veto it and return the same with his
objections to the House where it originated, which shall enter the objections at large in its Journal and
proceed to reconsider it. If, after such reconsideration, two-thirds of all the Members of such House shall
agree to pass the bill, it shall be sent, together with the objections, to the other House by which it shall
likewise be reconsidered, and if approved by two-thirds of all the Members of that House, it shall become a
law. In all such cases, the votes of each House shall be determined by yeas or nays, and the names of the
members voting for or against shall be entered in its Journal. The President shall communicate his veto of
any bill to the House where it originated within thirty days after the date of receipt thereof; otherwise, it
shall become a law as if he had signed it. (emphasis supplied)
Every bill passed by Congress must be presented to the President for approval or veto. In the absence of
presentment to the President, no bill passed by Congress can become a law. In this sense, law-making
under the Constitution is a joint act of the Legislature and of the Executive. Assuming that legislative veto is
a valid legislative act with the force of law, it cannot take effect without such presentment even if approved
by both chambers of Congress.
In sum, two steps are required before a bill becomes a law. First, it must be approved by both Houses of
Congress.54 Second, it must be presented to and approved by the President.55 As summarized by Justice
Isagani Cruz56 and Fr. Joaquin G. Bernas, S.J.57, the following is the procedure for the approval of bills:
A bill is introduced by any member of the House of Representatives or the Senate except for some
measures that must originate only in the former chamber.
The first reading involves only a reading of the number and title of the measure and its referral by the

Senate President or the Speaker to the proper committee for study.

The bill may be "killed" in the committee or it may be recommended for approval, with or without
amendments, sometimes after public hearings are first held thereon. If there are other bills of the same
nature or purpose, they may all be consolidated into one bill under common authorship or as a committee
bill.
Once reported out, the bill shall be calendared for second reading. It is at this stage that the bill is read in
its entirety, scrutinized, debated upon and amended when desired. The second reading is the most
important stage in the passage of a bill.
The bill as approved on second reading is printed in its final form and copies thereof are distributed at least
three days before the third reading. On the third reading, the members merely register their votes and
explain them if they are allowed by the rules. No further debate is allowed.
Once the bill passes third reading, it is sent to the other chamber, where it will also undergo the three
readings. If there are differences between the versions approved by the two chambers, a conference
committee58 representing both Houses will draft a compromise measure that if ratified by the Senate and
the House of Representatives will then be submitted to the President for his consideration.
The bill is enrolled when printed as finally approved by the Congress, thereafter authenticated with the
signatures of the Senate President, the Speaker, and the Secretaries of their respective chambers59
The Presidents role in law-making.
The final step is submission to the President for approval. Once approved, it takes effect as law after the
required publication.60
Where Congress delegates the formulation of rules to implement the law it has enacted pursuant to
sufficient standards established in the said law, the law must be complete in all its essential terms and
conditions when it leaves the hands of the legislature. And it may be deemed to have left the hands of the
legislature when it becomes effective because it is only upon effectivity of the statute that legal rights and
obligations become available to those entitled by the language of the statute. Subject to the indispensable
requisite of publication under the due process clause,61 the determination as to when a law takes effect is
wholly the prerogative of Congress.62 As such, it is only upon its effectivity that a law may be executed and
the executive branch acquires the duties and powers to execute the said law. Before that point, the role of
the executive branch, particularly of the President, is limited to approving or vetoing the law.63
From the moment the law becomes effective, any provision of law that empowers Congress or any of its
members to play any role in the implementation or enforcement of the law violates the principle of
separation of powers and is thus unconstitutional. Under this principle, a provision that requires Congress or
its members to approve the implementing rules of a law after it has already taken effect shall be
unconstitutional, as is a provision that allows Congress or its members to overturn any directive or ruling
made by the members of the executive branch charged with the implementation of the law.
Following this rationale, Section 12 of RA 9335 should be struck down as unconstitutional. While there may
be similar provisions of other laws that may be invalidated for failure to pass this standard, the Court
refrains from invalidating them wholesale but will do so at the proper time when an appropriate case
assailing those provisions is brought before us.64
The next question to be resolved is: what is the effect of the unconstitutionality of Section 12 of RA 9335 on
the other provisions of the law? Will it render the entire law unconstitutional? No.
Section 13 of RA 9335 provides:

SEC. 13. Separability Clause. If any provision of this Act is declared invalid by a competent court, the
remainder of this Act or any provision not affected by such declaration of invalidity shall remain in force and
effect.
In Tatad v. Secretary of the Department of Energy,65 the Court laid down the following rules:
The general rule is that where part of a statute is void as repugnant to the Constitution, while another part
is valid, the valid portion, if separable from the invalid, may stand and be enforced. The presence of a
separability clause in a statute creates the presumption that the legislature intended separability, rather
than complete nullity of the statute. To justify this result, the valid portion must be so far independent of the
invalid portion that it is fair to presume that the legislature would have enacted it by itself if it had
supposed that it could not constitutionally enact the other. Enough must remain to make a complete,
intelligible and valid statute, which carries out the legislative intent. x x x
The exception to the general rule is that when the parts of a statute are so mutually dependent and
connected, as conditions, considerations, inducements, or compensations for each other, as to warrant a
belief that the legislature intended them as a whole, the nullity of one part will vitiate the rest. In making
the parts of the statute dependent, conditional, or connected with one another, the legislature intended the
statute to be carried out as a whole and would not have enacted it if one part is void, in which case if some
parts are unconstitutional, all the other provisions thus dependent, conditional, or connected must fall with
them.
The separability clause of RA 9335 reveals the intention of the legislature to isolate and detach any invalid
provision from the other provisions so that the latter may continue in force and effect. The valid portions
can stand independently of the invalid section. Without Section 12, the remaining provisions still constitute
a complete, intelligible and valid law which carries out the legislative intent to optimize the revenuegeneration capability and collection of the BIR and the BOC by providing for a system of rewards and
sanctions through the Rewards and Incentives Fund and a Revenue Performance Evaluation Board.
To be effective, administrative rules and regulations must be published in full if their purpose is to enforce
or implement existing law pursuant to a valid delegation. The IRR of RA 9335 were published on May 30,
2006 in two newspapers of general circulation66 and became effective 15 days thereafter.67 Until and
unless the contrary is shown, the IRR are presumed valid and effective even without the approval of the
Joint Congressional Oversight Committee.
WHEREFORE, the petition is hereby PARTIALLY GRANTED. Section 12 of RA 9335 creating a Joint
Congressional Oversight Committee to approve the implementing rules and regulations of the law is
declared UNCONSTITUTIONAL and therefore NULL and VOID. The constitutionality of the remaining
provisions of RA 9335 is UPHELD. Pursuant to Section 13 of RA 9335, the rest of the provisions remain in
force and effect.
SO ORDERED.
[G.R. No. 161414. January 17, 2005]
SULTAN OSOP B. CAMID, petitioner, vs. THE OFFICE OF THE PRESIDENT, DEPARTMENT OF THE
INTERIOR AND LOCAL GOVERNMENT, AUTONOMOUS REGION IN MUSLIM MINDANAO,
DEPARTMENT of FINANCE, DEPARTMENT of BUDGET AND MANAGEMENT, COMMISSION ON AUDIT,
and the CONGRESS OF THE PHILIPPINES (HOUSE of REPRESENTATIVES AND SENATE),
respondents.
DECISION
TINGA, J.:

This Petition for Certiorari presents this Court with the prospect of our own Brigadoon[1]the municipality of
Andong, Lanao del Surwhich like its counterpart in filmdom, is a town that is not supposed to exist yet is
anyway insisted by some as actually alive and thriving. Yet unlike in the movies, there is nothing mystical,
ghostly or anything even remotely charming about the purported existence of Andong. The creation of the
putative municipality was declared void ab initio by this Court four decades ago, but the present petition
insists that in spite of this insurmountable obstacle Andong thrives on, and hence, its legal personality
should be given judicial affirmation. We disagree.
The factual antecedents derive from the promulgation of our ruling in Pelaez v. Auditor General[2] in 1965.
As discussed therein, then President Diosdado Macapagal issued several Executive Orders[3] creating thirtythree (33) municipalities in Mindanao. Among them was Andong in Lanao del Sur which was created by
virtue of Executive Order No. 107.[4]
These executive orders were issued after legislative bills for the creation of municipalities involved in that
case had failed to pass Congress.[5] President Diosdado Macapagal justified the creation of these
municipalities citing his powers under Section 68 of the Revised Administrative Code. Then Vice-President
Emmanuel Pelaez filed a special civil action for a writ of prohibition, alleging in main that the Executive
Orders were null and void, Section 68 having been repealed by Republic Act No. 2370,[6] and said orders
constituting an undue delegation of legislative power.[7]
After due deliberation, the Court unanimously held that the challenged Executive Orders were null and void.
A majority of five justices, led by the ponente, Justice (later Chief Justice) Roberto Concepcion, ruled that
Section 68 of the Revised Administrative Code did not meet the well-settled requirements for a valid
delegation of legislative power to the executive branch,[8] while three justices opined that the nullity of the
issuances was the consequence of the enactment of the 1935 Constitution, which reduced the power of the
Chief Executive over local governments.[9] Pelaez was disposed in this wise:
WHEREFORE, the Executive Orders in question are declared null and void ab initio and the respondent
permanently restrained from passing in audit any expenditure of public funds in implementation of said
Executive Orders or any disbursement by the municipalities above referred to. It is so ordered.[10]
Among the Executive Orders annulled was Executive Order No. 107 which created the Municipality of
Andong. Nevertheless, the core issue presented in the present petition is the continued efficacy of the
judicial annulment of the Municipality of Andong.
Petitioner Sultan Osop B. Camid (Camid) represents himself as a current resident of Andong,[11] suing as a
private citizen and taxpayer whose locus standi is of public and paramount interest especially to the people
of the Municipality of Andong, Province of Lanao del Sur.[12] He alleges that Andong has metamorphosed
into a full-blown municipality with a complete set of officials appointed to handle essential services for the
municipality and its constituents,[13] even though he concedes that since 1968, no person has been
appointed, elected or qualified to serve any of the elective local government positions of Andong.[14]
Nonetheless, the municipality of Andong has its own high school, Bureau of Posts, a Department of
Education, Culture and Sports office, and at least seventeen (17) barangay units with their own respective
chairmen.[15] From 1964 until 1972, according to Camid, the public officials of Andong have been serving
their constituents through the minimal means and resources with least (sic) honorarium and recognition
from the Office of the then former President Diosdado Macapagal. Since the time of Martial Law in 1972,
Andong has allegedly been getting by despite the absence of public funds, with the Interim Officials serving
their constituents in their own little ways and means.[16]
In support of his claim that Andong remains in existence, Camid presents to this Court a Certification issued
by the Office of the Community Environment and Natural Resources (CENRO) of the Department of
Environment and Natural Resources (DENR) certifying the total land area of the Municipality of Andong,
created under Executive Order No. 107 issued [last] October 1, 1964.[17] He also submits a Certification
issued by the Provincial Statistics Office of Marawi City concerning the population of Andong, which is

pegged at fourteen thousand fifty nine (14,059) strong. Camid also enumerates a list of governmental
agencies and private groups that allegedly recognize Andong, and notes that other municipalities have
recommended to the Speaker of the Regional Legislative Assembly for the immediate implementation of the
revival or re-establishment of Andong.[18]
The petition assails a Certification dated 21 November 2003, issued by the Bureau of Local Government
Supervision of the Department of Interior and Local Government (DILG).[19] The Certification enumerates
eighteen (18) municipalities certified as existing, per DILG records. Notably, these eighteen (18)
municipalities are among the thirty-three (33), along with Andong, whose creations were voided by this
Court in Pelaez. These municipalities are Midaslip, Pitogo, Naga, and Bayog in Zamboanga del Sur; Siayan
and Pres. Manuel A. Roxas in Zamboanga del Norte; Magsaysay, Sta. Maria and New Corella in Davao;
Badiangan and Mina in Iloilo; Maguing in Lanao del Sur; Gloria in Oriental Mindoro; Maasim in Sarangani;
Kalilangan and Lantapan in Bukidnon; and Maco in Compostela Valley.[20]
Camid imputes grave abuse of discretion on the part of the DILG in not classifying [Andong] as a regular
existing municipality and in not including said municipality in its records and official database as [an]
existing regular municipality.[21] He characterizes such non-classification as unequal treatment to the
detriment of Andong, especially in light of the current recognition given to the eighteen (18) municipalities
similarly annulled by reason of Pelaez. As appropriate relief, Camid prays that the Court annul the DILG
Certification dated 21 November 2003; direct the DILG to classify Andong as a regular existing municipality;
all public respondents, to extend full recognition and support to Andong; the Department of Finance and the
Department of Budget and Management, to immediately release the internal revenue allotments of Andong;
and the public respondents, particularly the DILG, to recognize the Interim Local Officials of Andong.[22]
Moreover, Camid insists on the continuing validity of Executive Order No. 107. He argues that Pelaez has
already been modified by supervening events consisting of subsequent laws and jurisprudence. Particularly
cited is our Decision in Municipality of San Narciso v. Hon. Mendez,[23] wherein the Court affirmed the
unique status of the municipality of San Andres in Quezon as a de facto municipal corporation.[24] Similar
to Andong, the municipality of San Andres was created by way of executive order, precisely the manner
which the Court in Pelaez had declared as unconstitutional. Moreover, San Narciso cited, as Camid does,
Section 442(d) of the Local Government Code of 1991 as basis for the current recognition of the impugned
municipality. The provision reads:
Section 442. Requisites for Creation. - xxx
(d) Municipalities existing as of the date of the effectivity of this Code shall continue to exist and operate as
such. Existing municipal districts organized pursuant to presidential issuances or executive orders and
which have their respective sets of elective municipal officials holding office at the time of the effectivity of
(the) Code shall henceforth be considered as regular municipalities.[25]
There are several reasons why the petition must be dismissed. These can be better discerned upon
examination of the proper scope and application of Section 442(d), which does not sanction the recognition
of just any municipality. This point shall be further explained further on.
Notably, as pointed out by the public respondents, through the Office of the Solicitor General (OSG), the
case is not a fit subject for the special civil actions of certiorari and mandamus, as it pertains to the de novo
appreciation of factual questions. There is indeed no way to confirm several of Camids astonishing factual
allegations pertaining to the purported continuing operation of Andong in the decades since it was annulled
by this Court. No trial court has had the opportunity to ascertain the validity of these factual claims, the
appreciation of which is beyond the function of this Court since it is not a trier of facts.
The importance of proper factual ascertainment cannot be gainsaid, especially in light of the legal principles
governing the recognition of de facto municipal corporations. It has been opined that municipal
corporations may exist by prescription where it is shown that the community has claimed and exercised

corporate functions, with the knowledge and acquiescence of the legislature, and without interruption or
objection for period long enough to afford title by prescription.[26] These municipal corporations have
exercised their powers for a long period without objection on the part of the government that although no
charter is in existence, it is presumed that they were duly incorporated in the first place and that their
charters had been lost.[27] They are especially common in England, which, as well-worth noting, has
existed as a state for over a thousand years. The reason for the development of that rule in England is
understandable, since that country was settled long before the Roman conquest by nomadic Celtic tribes,
which could have hardly been expected to obtain a municipal charter in the absence of a national legal
authority.
In the United States, municipal corporations by prescription are less common, but it has been held that
when no charter or act of incorporation of a town can be found, it may be shown to have claimed and
exercised the powers of a town with the knowledge and assent of the legislature, and without objection or
interruption for so long a period as to furnish evidence of a prescriptive right.[28]
What is clearly essential is a factual demonstration of the continuous exercise by the municipal corporation
of its corporate powers, as well as the acquiescence thereto by the other instrumentalities of the state.
Camid does not have the opportunity to make an initial factual demonstration of those circumstances
before this Court. Indeed, the factual deficiencies aside, Camids plaint should have undergone the usual
administrative gauntlet and, once that was done, should have been filed first with the Court of Appeals,
which at least would have had the power to make the necessary factual determinations. Camids seeming
ignorance of the principles of exhaustion of administrative remedies and hierarchy of courts, as well as the
concomitant prematurity of the present petition, cannot be countenanced.
It is also difficult to capture the sense and viability of Camids present action. The assailed issuance is the
Certification issued by the DILG. But such Certification does not pretend to bear the authority to create or
revalidate a municipality. Certainly, the annulment of the Certification will really do nothing to serve Camids
ultimate cause- the recognition of Andong. Neither does the Certification even expressly refute the claim
that Andong still exists, as there is nothing in the document that comments on the present status of
Andong. Perhaps the Certification is assailed before this Court if only to present an actual issuance, rather
than a long-standing habit or pattern of action that can be annulled through the special civil action of
certiorari. Still, the relation of the Certification to Camids central argument is forlornly strained.
These disquisitions aside, the central issue remains whether a municipality whose creation by executive fiat
was previously voided by this Court may attain recognition in the absence of any curative or
reimplementing statute. Apparently, the question has never been decided before, San Narciso and its
kindred cases pertaining as they did to municipalities whose bases of creation were dubious yet were never
judicially nullified. The effect of Section 442(d) of the Local Government Code on municipalities such as
Andong warrants explanation. Besides, the residents of Andong who belabor under the impression that their
town still exists, much less those who may comport themselves as the municipalitys Interim Government,
would be well served by a rude awakening.
The Court can employ a simplistic approach in resolving the substantive aspect of the petition, merely by
pointing out that the Municipality of Andong never existed.[29] Executive Order No. 107, which established
Andong, was declared null and void ab initio in 1965 by this Court in Pelaez, along with thirty-three (33)
other executive orders. The phrase ab initio means from the beginning,[30] at first,[31] from the inception.
[32] Pelaez was never reversed by this Court but rather it was expressly affirmed in the cases of
Municipality of San Joaquin v. Siva,[33] Municipality of Malabang v. Benito,[34] and Municipality of Kapalong
v. Moya.[35] No subsequent ruling by this Court declared Pelaez as overturned or inoperative. No
subsequent legislation has been passed since 1965 creating a Municipality of Andong. Given these facts,
there is hardly any reason to elaborate why Andong does not exist as a duly constituted municipality.
This ratiocination does not admit to patent legal errors and has the additional virtue of blessed austerity.
Still, its sweeping adoption may not be advisedly appropriate in light of Section 442(d) of the Local

Government Code and our ruling in Municipality of San Narciso, both of which admit to the possibility of de
facto municipal corporations.
To understand the applicability of Municipality of San Narciso and Section 442(b) of the Local Government
Code to the situation of Andong, it is necessary again to consider the ramifications of our decision in Pelaez.
The eminent legal doctrine enunciated in Pelaez was that the President was then, and still is, not
empowered to create municipalities through executive issuances. The Court therein recognized that the
President has, for many years, issued executive orders creating municipal corporations, and that the same
have been organized and in actual operation . . . .[36] However, the Court ultimately nullified only those
thirty-three (33) municipalities, including Andong, created during the period from 4 September to 29
October 1964 whose existence petitioner Vice-President Pelaez had specifically assailed before this Court.
No pronouncement was made as to the other municipalities which had been previously created by the
President in the exercise of power the Court deemed unlawful.
Two years after Pelaez was decided, the issue again came to fore in Municipality of San Joaquin v. Siva.[37]
The Municipality of Lawigan was created by virtue of Executive Order No. 436 in 1961. Lawigan was not one
of the municipalities ordered annulled in Pelaez. A petition for prohibition was filed contesting the legality of
the executive order, again on the ground that Section 68 of the Revised Administrative Code was
unconstitutional. The trial court dismissed the petition, but the Supreme Court reversed the ruling and
entered a new decision declaring Executive Order No. 436 void ab initio. The Court reasoned without
elaboration that the issue had already been squarely taken up and settled in Pelaez which agreed with the
argument posed by the challengers to Lawigans validity.[38]
In the 1969 case of Municipality of Malabang v. Benito,[39] what was challenged is the validity of the
constitution of the Municipality of Balabagan in Lanao del Sur, also created by an executive order,[40] and
which, similar to Lawigan, was not one of the municipalities annulled in Pelaez. This time, the officials of
Balabagan invoked de facto status as a municipal corporation in order to dissuade the Court from nullifying
action. They alleged that its status as a de facto corporation cannot be collaterally attacked but should be
inquired into directly in an action for quo warranto at the instance of the State, and not by a private
individual as it was in that case. In response, the Court conceded that an inquiry into the legal existence of
a municipality is reserved to the State in a proceeding for quo warranto, but only if the municipal
corporation is a de facto corporation.[41]
Ultimately, the Court refused to acknowledge Balabagan as a de facto corporation, even though it had been
organized prior to the Courts decision in Pelaez. The Court declared void the executive order creating
Balabagan and restrained its municipal officials from performing their official duties and functions.[42] It
cited conflicting American authorities on whether a de facto corporation can exist where the statute or
charter creating it is unconstitutional.[43] But the Courts final conclusion was unequivocal that Balabagan
was not a de facto corporation.
In the cases where a de facto municipal corporation was recognized as such despite the fact that the
statute creating it was later invalidated, the decisions could fairly be made to rest on the consideration that
there was some other valid law giving corporate vitality to the organization. Hence, in the case at bar, the
mere fact that Balabagan was organized at a time when the statute had not been invalidated cannot
conceivably make it a de facto corporation, as, independently of the Administrative Code provision in
question, there is no other valid statute to give color of authority to its creation.[44]
The Court did clarify in Malabang that the previous acts done by the municipality in the exercise of its
corporate powers were not necessarily a nullity.[45] Camid devotes several pages of his petition in citing
this point,[46] yet the relevance of the citation is unclear considering that Camid does not assert the
validity of any corporate act of Andong prior to its judicial dissolution. Notwithstanding, the Court in
Malabang retained an emphatic attitude as to the unconstitutionality of the power of the President to create
municipal corporations by way of presidential promulgations, as authorized under Section 68 of the Revised

Administrative Code.
This principle was most recently affirmed in 1988, in Municipality of Kapalong v. Moya.[47] The municipality
of Santo Tomas, created by President Carlos P. Garcia, filed a complaint against another municipality, who
challenged Santo Tomass legal personality to institute suit. Again, Santo Tomas had not been expressly
nullified by prior judicial action, yet the Court refused to recognize its legal existence. The blunt but simple
ruling: Now then, as ruled in the Pelaez case supra, the President has no power to create a municipality.
Since [Santo Tomas] has no legal personality, it can not be a party to any civil action.[48]
Nevertheless, when the Court decided Municipality of San Narciso[49] in 1995, it indicated a shift in the
jurisprudential treatment of municipalities created through presidential issuances. The questioned
municipality of San Andres, Quezon was created on 20 August 1959 by Executive Order No. 353 issued by
President Carlos P. Garcia. Executive Order No. 353 was not one of the thirty-three issuances annulled by
Pelaez in 1965. The legal status of the Municipality of San Andres was first challenged only in 1989, through
a petition for quo warranto filed with the Regional Trial Court of Gumaca, Quezon, which did cite Pelaez as
authority.[50] The RTC dismissed the petition for lack of cause of action, and the petitioners therein
elevated the matter to this Court.
In dismissing the petition, the Court delved in the merits of the petition, if only to resolve further doubt on
the legal status of San Andres. It noted a circumstance which is not present in the case at barthat San
Andres was in existence for nearly thirty (30) years before its legality was challenged. The Court did not
declare the executive order creating San Andres null and void. Still, acting on the premise that the said
executive order was a complete nullity, the Court noted peculiar circumstances that led to the conclusion
that San Andres had attained the unique status of a de facto municipal corporation.[51] It noted that Pelaez
limited its nullificatory effect only to those executive orders specifically challenged therein, despite the fact
that the Court then could have very well extended the decision to invalidate San Andres as well.[52] This
statement squarely contradicts Camids reading of San Narciso that the creation of San Andres, just like
Andong, had been declared a complete nullity on the same ground of unconstitutional delegation of
legislative power found in Pelaez.[53]
The Court also considered the applicability of Section 442(d)[54] of the Local Government Code of 1991. It
clarified the implication of the provision as follows:
Equally significant is Section 442(d) of the Local Government Code to the effect that municipal districts
"organized pursuant to presidential issuances or executive orders and which have their respective sets of
elective municipal officials holding office at the time of the effectivity of (the) Code shall henceforth be
considered as regular municipalities." No pretension of unconstitutionality per se of Section 442(d) of the
Local Government Code is preferred. It is doubtful whether such a pretext, even if made, would succeed.
The power to create political subdivisions is a function of the legislature. Congress did just that when it has
incorporated Section 442(d) in the Code. Curative laws, which in essence are retrospective, and aimed at
giving "validity to acts done that would have been invalid under existing laws, as if existing laws have been
complied with," are validly accepted in this jurisdiction, subject to the usual qualification against
impairment of vested rights. (Emphasis supplied)[55]
The holding in San Narciso was subsequently affirmed in Municipality of Candijay v. Court of Appeals[56]
and Municipality of Jimenez v. Baz[57] In Candijay, the juridical personality of the Municipality of Alicia,
created in a 1949 executive order, was attacked only beginning in 1984. Pelaez was again invoked in
support of the challenge, but the Court refused to invalidate the municipality, citing San Narciso at length.
The Court noted that the situation of the Municipality of Alicia was strikingly similar to that in San Narciso;
hence, the town should likewise benefit from the effects of Section 442(d) of the Local Government Code,
and should [be] considered as a regular, de jure municipality. [58]
The valid existence of Municipality of Sinacaban, created in a 1949 executive order, was among the issues
raised in Jimenez. The Court, through Justice Mendoza, provided an expert summation of the evolution of

the rule.
The principal basis for the view that Sinacaban was not validly created as a municipal corporation is the
ruling in Pelaez v. Auditor General that the creation of municipal corporations is essentially a legislative
matter and therefore the President was without power to create by executive order the Municipality of
Sinacaban. The ruling in this case has been reiterated in a number of cases later decided. However, we
have since held that where a municipality created as such by executive order is later impliedly recognized
and its acts are accorded legal validity, its creation can no longer be questioned. In Municipality of San
Narciso, Quezon v. Mendez, Sr., this Court considered the following factors as having validated the creation
of a municipal corporation, which, like the Municipality of Sinacaban, was created by executive order of the
President before the ruling in Pelaez v. Auditor General: (1) the fact that for nearly 30 years the validity of
the creation of the municipality had never been challenged; (2) the fact that following the ruling in Pelaez
no quo warranto suit was filed to question the validity of the executive order creating such municipality; and
(3) the fact that the municipality was later classified as a fifth class municipality, organized as part of a
municipal circuit court and considered part of a legislative district in the Constitution apportioning the seats
in the House of Representatives. Above all, it was held that whatever doubt there might be as to the de jure
character of the municipality must be deemed to have been put to rest by the Local Government Code of
1991 (R. A. No. 7160), 442(d) of which provides that "municipal districts organized pursuant to presidential
issuances or executive orders and which have their respective sets of elective officials holding office at the
time of the effectivity of this Code shall henceforth be considered as regular municipalities."
Here, the same factors are present so as to confer on Sinacaban the status of at least a de facto municipal
corporation in the sense that its legal existence has been recognized and acquiesced publicly and officially.
Sinacaban had been in existence for sixteen years when Pelaez v. Auditor General was decided on
December 24, 1965. Yet the validity of E.O. No. 258 creating it had never been questioned. Created in 1949,
it was only 40 years later that its existence was questioned and only because it had laid claim to an area
that apparently is desired for its revenue. This fact must be underscored because under Rule 66, 16 of the
Rules of Court, a quo warranto suit against a corporation for forfeiture of its charter must be commenced
within five (5) years from the time the act complained of was done or committed. On the contrary, the State
and even the Municipality of Jimenez itself have recognized Sinacaban's corporate existence. Under
Administrative Order No. 33 dated June 13, 1978 of this Court, as reiterated by 31 of the Judiciary
Reorganization Act of 1980 (B. P. Blg. 129), Sinacaban is constituted part of a municipal circuit for purposes
of the establishment of Municipal Circuit Trial Courts in the country. For its part, Jimenez had earlier
recognized Sinacaban in 1950 by entering into an agreement with it regarding their common boundary. The
agreement was embodied in Resolution No. 77 of the Provincial Board of Misamis Occidental.
Indeed Sinacaban has attained de jure status by virtue of the Ordinance appended to the 1987 Constitution,
apportioning legislative districts throughout the country, which considered Sinacaban part of the Second
District of Misamis Occidental. Moreover, following the ruling in Municipality of San Narciso, Quezon v.
Mendez, Sr., 442(d) of the Local Government Code of 1991 must be deemed to have cured any defect in the
creation of Sinacaban.[59]
From this survey of relevant jurisprudence, we can gather the applicable rules. Pelaez and its offspring
cases ruled that the President has no power to create municipalities, yet limited its nullificatory effects to
the particular municipalities challenged in actual cases before this Court. However, with the promulgation of
the Local Government Code in 1991, the legal cloud was lifted over the municipalities similarly created by
executive order but not judicially annulled. The de facto status of such municipalities as San Andres, Alicia
and Sinacaban was recognized by this Court, and Section 442(b) of the Local Government Code deemed
curative whatever legal defects to title these municipalities had labored under.
Is Andong similarly entitled to recognition as a de facto municipal corporation? It is not. There are eminent
differences between Andong and municipalities such as San Andres, Alicia and Sinacaban. Most prominent
is the fact that the executive order creating Andong was expressly annulled by order of this Court in 1965. If
we were to affirm Andongs de facto status by reason of its alleged continued existence despite its

nullification, we would in effect be condoning defiance of a valid order of this Court. Court decisions cannot
obviously lose their efficacy due to the sheer defiance by the parties aggrieved.
It bears noting that based on Camids own admissions, Andong does not meet the requisites set forth by
Section 442(d) of the Local Government Code. Section 442(d) requires that in order that the municipality
created by executive order may receive recognition, they must have their respective set of elective
municipal officials holding office at the time of the effectivity of [the Local Government] Code. Camid admits
that Andong has never elected its municipal officers at all.[60] This incapacity ties in with the fact that
Andong was judicially annulled in 1965. Out of obeisance to our ruling in Pelaez, the national government
ceased to recognize the existence of Andong, depriving it of its share of the public funds, and refusing to
conduct municipal elections for the void municipality.
The failure to appropriate funds for Andong and the absence of elections in the municipality in the last four
decades are eloquent indicia of the non-recognition by the State of the existence of the town. The
certifications relied upon by Camid, issued by the DENR-CENRO and the National Statistics Office, can
hardly serve the purpose of attesting to Andongs legal efficacy. In fact, both these certifications qualify that
they were issued upon the request of Camid, to support the restoration or re-operation of the Municipality of
Andong, Lanao del Sur,[61] thus obviously conceding that the municipality is at present inoperative.
We may likewise pay attention to the Ordinance appended to the 1987 Constitution, which had also been
relied upon in Jimenez and San Narciso. This Ordinance, which apportioned the seats of the House of
Representatives to the different legislative districts in the Philippines, enumerates the various municipalities
that are encompassed by the various legislative districts. Andong is not listed therein as among the
municipalities of Lanao del Sur, or of any other province for that matter.[62] On the other hand, the
municipalities of San Andres, Alicia and Sinacaban are mentioned in the Ordinance as part of Quezon,[63]
Bohol,[64] and Misamis Occidental[65] respectively.
How about the eighteen (18) municipalities similarly nullified in Pelaez but certified as existing in the DILG
Certification presented by Camid? The petition fails to mention that subsequent to the ruling in Pelaez,
legislation was enacted to reconstitute these municipalities.[66] It is thus not surprising that the DILG
certified the existence of these eighteen (18) municipalities, or that these towns are among the
municipalities enumerated in the Ordinance appended to the Constitution. Andong has not been similarly
reestablished through statute. Clearly then, the fact that there are valid organic statutes passed by
legislation recreating these eighteen (18) municipalities is sufficient legal basis to accord a different legal
treatment to Andong as against these eighteen (18) other municipalities.
We thus assert the proper purview to Section 442(d) of the Local Government Codethat it does not serve to
affirm or reconstitute the judicially dissolved municipalities such as Andong, which had been previously
created by presidential issuances or executive orders. The provision affirms the legal personalities only of
those municipalities such as San Narciso, Alicia, and Sinacaban, which may have been created using the
same infirm legal basis, yet were fortunate enough not to have been judicially annulled. On the other hand,
the municipalities judicially dissolved in cases such as Pelaez, San Joaquin, and Malabang, remain
inexistent, unless recreated through specific legislative enactments, as done with the eighteen (18)
municipalities certified by the DILG. Those municipalities derive their legal personality not from the
presidential issuances or executive orders which originally created them or from Section 442(d), but from
the respective legislative statutes which were enacted to revive them.
And what now of Andong and its residents? Certainly, neither Pelaez or this decision has obliterated Andong
into a hole on the ground. The legal effect of the nullification of Andong in Pelaez was to revert the
constituent barrios of the voided town back into their original municipalities, namely the municipalities of
Lumbatan, Butig and Tubaran.[67] These three municipalities subsist to this day as part of Lanao del Sur,
[68] and presumably continue to exercise corporate powers over the barrios which once belonged to
Andong.

If there is truly a strong impulse calling for the reconstitution of Andong, the solution is through the
legislature and not judicial confirmation of void title. If indeed the residents of Andong have, all these years,
been governed not by their proper municipal governments but by a ragtag Interim Government, then an
expedient political and legislative solution is perhaps necessary. Yet we can hardly sanction the retention of
Andongs legal personality solely on the basis of collective amnesia that may have allowed Andong to
somehow pretend itself into existence despite its judicial dissolution. Maybe those who insist Andong still
exists prefer to remain unperturbed in their blissful ignorance, like the inhabitants of the cave in Platos
famed allegory. But the time has come for the light to seep in, and for the petitioner and like-minded
persons to awaken to legal reality.
WHEREFORE, the Petition is DISMISSED for lack of merit. Costs against petitioner.
SO ORDERED.

G.R.

No.

L-20620

August 15, 1974

REPUBLIC OF THE PHILIPPINES, plaintiff-appellant,
vs.
CARMEN M. VDA. DE CASTELLVI, ET AL., defendants-appellees.

ZALDIVAR, J.:p
Appeal from the decision of the Court of First Instance of Pampanga in its Civil Case No. 1623, an
expropriation proceeding.
Plaintiff-appellant, the Republic of the Philippines, (hereinafter referred to as the Republic) filed, on June 26,
1959, a complaint for eminent domain against defendant-appellee, Carmen M. Vda. de Castellvi, judicial
administratrix of the estate of the late Alfonso de Castellvi (hereinafter referred to as Castellvi), over a
parcel of land situated in the barrio of San Jose, Floridablanca, Pampanga, described as follows:
A parcel of land, Lot No. 199-B Bureau of Lands Plan Swo 23666. Bounded on the NE by Maria Nieves
Toledo-Gozun; on the SE by national road; on the SW by AFP reservation, and on the NW by AFP reservation.
Containing an area of 759,299 square meters, more or less, and registered in the name of Alfonso Castellvi
under TCT No. 13631 of the Register of Pampanga ...;
and against defendant-appellee Maria Nieves Toledo Gozun (hereinafter referred to as Toledo-Gozun over
two parcels of land described as follows:
A parcel of land (Portion Lot Blk-1, Bureau of Lands Plan Psd, 26254. Bounded on the NE by Lot 3, on the SE
by Lot 3; on the SW by Lot 1-B, Blk. 2 (equivalent to Lot 199-B Swo 23666; on the NW by AFP military
reservation. Containing an area of 450,273 square meters, more or less and registered in the name of Maria
Nieves Toledo-Gozun under TCT No. 8708 of the Register of Deeds of Pampanga. ..., and
A parcel of land (Portion of lot 3, Blk-1, Bureau of Lands Plan Psd 26254. Bounded on the NE by Lot No. 3, on
the SE by school lot and national road, on the SW by Lot 1-B Blk 2 (equivalent to Lot 199-B Swo 23666), on
the NW by Lot 1-B, Blk-1. Containing an area of 88,772 square meters, more or less, and registered in the
name of Maria Nieves Toledo Gozun under TCT No. 8708 of the Register of Deeds of Pampanga, ....
In its complaint, the Republic alleged, among other things, that the fair market value of the above-

mentioned lands, according to the Committee on Appraisal for the Province of Pampanga, was not more
than P2,000 per hectare, or a total market value of P259,669.10; and prayed, that the provisional value of
the lands be fixed at P259.669.10, that the court authorizes plaintiff to take immediate possession of the
lands upon deposit of that amount with the Provincial Treasurer of Pampanga; that the court appoints three
commissioners to ascertain and report to the court the just compensation for the property sought to be
expropriated, and that the court issues thereafter a final order of condemnation.
On June 29, 1959 the trial court issued an order fixing the provisional value of the lands at P259,669.10.
In her "motion to dismiss" filed on July 14, 1959, Castellvi alleged, among other things, that the land under
her administration, being a residential land, had a fair market value of P15.00 per square meter, so it had a
total market value of P11,389,485.00; that the Republic, through the Armed Forces of the Philippines,
particularly the Philippine Air Force, had been, despite repeated demands, illegally occupying her property
since July 1, 1956, thereby preventing her from using and disposing of it, thus causing her damages by way
of unrealized profits. This defendant prayed that the complaint be dismissed, or that the Republic be
ordered to pay her P15.00 per square meter, or a total of P11,389,485.00, plus interest thereon at 6% per
annum from July 1, 1956; that the Republic be ordered to pay her P5,000,000.00 as unrealized profits, and
the costs of the suit.
By order of the trial court, dated August, 1959, Amparo C. Diaz, Dolores G. viuda de Gil, Paloma Castellvi,
Carmen Castellvi, Rafael Castellvi, Luis Castellvi, Natividad Castellvi de Raquiza, Jose Castellvi and Consuelo
Castellvi were allowed to intervene as parties defendants. Subsequently, Joaquin V. Gozun, Jr., husband of
defendant Nieves Toledo Gozun, was also allowed by the court to intervene as a party defendant.
After the Republic had deposited with the Provincial Treasurer of Pampanga the amount of P259,669.10, the
trial court ordered that the Republic be placed in possession of the lands. The Republic was actually placed
in possession of the lands on August 10,
1959. 1
In her "motion to dismiss", dated October 22, 1959, Toledo-Gozun alleged, among other things, that her two
parcels of land were residential lands, in fact a portion with an area of 343,303 square meters had already
been subdivided into different lots for sale to the general public, and the remaining portion had already
been set aside for expansion sites of the already completed subdivisions; that the fair market value of said
lands was P15.00 per square meter, so they had a total market value of P8,085,675.00; and she prayed that
the complaint be dismissed, or that she be paid the amount of P8,085,675.00, plus interest thereon at the
rate of 6% per annum from October 13, 1959, and attorney's fees in the amount of P50,000.00.
Intervenors Jose Castellvi and Consuelo Castellvi in their answer, filed on February 11, 1960, and also
intervenor Joaquin Gozun, Jr., husband of defendant Maria Nieves Toledo-Gozun, in his motion to dismiss,
dated May 27, 1960, all alleged that the value of the lands sought to be expropriated was at the rate of
P15.00 per square meter.
On November 4, 1959, the trial court authorized the Provincial Treasurer of Pampanga to pay defendant
Toledo-Gozun the sum of P107,609.00 as provisional value of her lands. 2 On May 16, 1960 the trial Court
authorized the Provincial Treasurer of Pampanga to pay defendant Castellvi the amount of P151,859.80 as
provisional value of the land under her administration, and ordered said defendant to deposit the amount
with the Philippine National Bank under the supervision of the Deputy Clerk of Court. In another order of
May 16, 1960 the trial Court entered an order of condemnation. 3
The trial Court appointed three commissioners: Atty. Amadeo Yuzon, Clerk of Court, as commissioner for the
court; Atty. Felicisimo G. Pamandanan, counsel of the Philippine National Bank Branch at Floridablanca, for
the plaintiff; and Atty. Leonardo F. Lansangan, Filipino legal counsel at Clark Air Base, for the defendants.
The Commissioners, after having qualified themselves, proceeded to the performance of their duties.

On March 15,1961 the Commissioners submitted their report and recommendation, wherein, after having
determined that the lands sought to be expropriated were residential lands, they recommended
unanimously that the lowest price that should be paid was P10.00 per square meter, for both the lands of
Castellvi and Toledo-Gozun; that an additional P5,000.00 be paid to Toledo-Gozun for improvements found
on her land; that legal interest on the compensation, computed from August 10, 1959, be paid after
deducting the amounts already paid to the owners, and that no consequential damages be awarded. 4 The
Commissioners' report was objected to by all the parties in the case by defendants Castellvi and ToledoGozun, who insisted that the fair market value of their lands should be fixed at P15.00 per square meter;
and by the Republic, which insisted that the price to be paid for the lands should be fixed at P0.20 per
square meter. 5
After the parties-defendants and intervenors had filed their respective memoranda, and the Republic, after
several extensions of time, had adopted as its memorandum its objections to the report of the
Commissioners, the trial court, on May 26, 1961, rendered its decision 6 the dispositive portion of which
reads as follows:
WHEREFORE, taking into account all the foregoing circumstances, and that the lands are titled, ... the rising
trend of land values ..., and the lowered purchasing power of the Philippine peso, the court finds that the
unanimous recommendation of the commissioners of ten (P10.00) pesos per square meter for the three lots
of the defendants subject of this action is fair and just.
xxx

xxx
xxx

The plaintiff will pay 6% interest per annum on the total value of the lands of defendant Toledo-Gozun since
(sic) the amount deposited as provisional value from August 10, 1959 until full payment is made to said
defendant or deposit therefor is made in court.
In respect to the defendant Castellvi, interest at 6% per annum will also be paid by the plaintiff to
defendant Castellvi from July 1, 1956 when plaintiff commenced its illegal possession of the Castellvi land
when the instant action had not yet been commenced to July 10, 1959 when the provisional value thereof
was actually deposited in court, on the total value of the said (Castellvi) land as herein adjudged. The same
rate of interest shall be paid from July 11, 1959 on the total value of the land herein adjudged minus the
amount deposited as provisional value, or P151,859.80, such interest to run until full payment is made to
said defendant or deposit therefor is made in court. All the intervenors having failed to produce evidence in
support of their respective interventions, said interventions are ordered dismissed.
The costs shall be charged to the plaintiff.
On June 21, 1961 the Republic filed a motion for a new trial and/or reconsideration, upon the grounds of
newly-discovered evidence, that the decision was not supported by the evidence, and that the decision was
against the law, against which motion defendants Castellvi and Toledo-Gozun filed their respective
oppositions. On July 8, 1961 when the motion of the Republic for new trial and/or reconsideration was called
for hearing, the Republic filed a supplemental motion for new trial upon the ground of additional newlydiscovered evidence. This motion for new trial and/or reconsideration was denied by the court on July 12,
1961.
On July 17, 1961 the Republic gave notice of its intention to appeal from the decision of May 26, 1961 and
the order of July 12, 1961. Defendant Castellvi also filed, on July 17, 1961, her notice of appeal from the
decision of the trial court.
The Republic filed various ex-parte motions for extension of time within which to file its record on appeal.
The Republic's record on appeal was finally submitted on December 6, 1961.

Defendants Castellvi and Toledo-Gozun filed not only a joint opposition to the approval of the Republic's
record on appeal, but also a joint memorandum in support of their opposition. The Republic also filed a
memorandum in support of its prayer for the approval of its record on appeal. On December 27, 1961 the
trial court issued an order declaring both the record on appeal filed by the Republic, and the record on
appeal filed by defendant Castellvi as having been filed out of time, thereby dismissing both appeals.
On January 11, 1962 the Republic filed a "motion to strike out the order of December 27, 1961 and for
reconsideration", and subsequently an amended record on appeal, against which motion the defendants
Castellvi and Toledo-Gozun filed their opposition. On July 26, 1962 the trial court issued an order, stating
that "in the interest of expediency, the questions raised may be properly and finally determined by the
Supreme Court," and at the same time it ordered the Solicitor General to submit a record on appeal
containing copies of orders and pleadings specified therein. In an order dated November 19, 1962, the trial
court approved the Republic's record on appeal as amended.
Defendant Castellvi did not insist on her appeal. Defendant Toledo-Gozun did not appeal.
The motion to dismiss the Republic's appeal was reiterated by appellees Castellvi and Toledo-Gozun before
this Court, but this Court denied the motion.
In her motion of August 11, 1964, appellee Castellvi sought to increase the provisional value of her land.
The Republic, in its comment on Castellvi's motion, opposed the same. This Court denied Castellvi's motion
in a resolution dated October 2,1964.
The motion of appellees, Castellvi and Toledo-Gozun, dated October 6, 1969, praying that they be
authorized to mortgage the lands subject of expropriation, was denied by this Court or October 14, 1969.
On February 14, 1972, Attys. Alberto Cacnio, and Associates, counsel for the estate of the late Don Alfonso
de Castellvi in the expropriation proceedings, filed a notice of attorney's lien, stating that as per agreement
with the administrator of the estate of Don Alfonso de Castellvi they shall receive by way of attorney's fees,
"the sum equivalent to ten per centum of whatever the court may finally decide as the expropriated price of
the property subject matter of the case."
--------Before this Court, the Republic contends that the lower court erred:
1.
In
finding the price of P10 per square meter of the lands subject of the instant proceedings as just
compensation;
2.
In
holding that the "taking" of the properties under expropriation commenced with the filing of this action;
3.
In
ordering plaintiff-appellant to pay 6% interest on the adjudged value of the Castellvi property to start from
July of 1956;
4.
denying plaintiff-appellant's motion for new trial based on newly discovered evidence.

In

In its brief, the Republic discusses the second error assigned as the first issue to be considered. We shall
follow the sequence of the Republic's discussion.
1.

In

support of the assigned error that the lower court erred in holding that the "taking" of the properties under
expropriation commenced with the filing of the complaint in this case, the Republic argues that the "taking"
should be reckoned from the year 1947 when by virtue of a special lease agreement between the Republic
and appellee Castellvi, the former was granted the "right and privilege" to buy the property should the
lessor wish to terminate the lease, and that in the event of such sale, it was stipulated that the fair market
value should be as of the time of occupancy; and that the permanent improvements amounting to more
that half a million pesos constructed during a period of twelve years on the land, subject of expropriation,
were indicative of an agreed pattern of permanency and stability of occupancy by the Philippine Air Force in
the interest of national Security. 7
Appellee Castellvi, on the other hand, maintains that the "taking" of property under the power of eminent
domain requires two essential elements, to wit: (1) entrance and occupation by condemn or upon the
private property for more than a momentary or limited period, and (2) devoting it to a public use in such a
way as to oust the owner and deprive him of all beneficial enjoyment of the property. This appellee argues
that in the instant case the first element is wanting, for the contract of lease relied upon provides for a
lease from year to year; that the second element is also wanting, because the Republic was paying the
lessor Castellvi a monthly rental of P445.58; and that the contract of lease does not grant the Republic the
"right and privilege" to buy the premises "at the value at the time of occupancy." 8
Appellee Toledo-Gozun did not comment on the Republic's argument in support of the second error
assigned, because as far as she was concerned the Republic had not taken possession of her lands prior to
August 10, 1959. 9
In order to better comprehend the issues raised in the appeal, in so far as the Castellvi property is
concerned, it should be noted that the Castellvi property had been occupied by the Philippine Air Force
since 1947 under a contract of lease, typified by the contract marked Exh. 4-Castellvi, the pertinent
portions of which read:
CONTRACT OF LEASE
This AGREEMENT OF LEASE MADE AND ENTERED into by and between INTESTATE ESTATE OF ALFONSO DE
CASTELLVI, represented by CARMEN M. DE CASTELLVI, Judicial Administratrix ... hereinafter called the
LESSOR and THE REPUBLIC OF THE PHILIPPINES represented by MAJ. GEN. CALIXTO DUQUE, Chief of Staff of
the ARMED FORCES OF THE PHILIPPINES, hereinafter called the LESSEE,
WITNESSETH:
1.
For
and in consideration of the rentals hereinafter reserved and the mutual terms, covenants and conditions of
the parties, the LESSOR has, and by these presents does, lease and let unto the LESSEE the following
described land together with the improvements thereon and appurtenances thereof, viz:
Un Terreno, Lote No. 27 del Plano de subdivision Psu 34752, parte de la hacienda de Campauit, situado en
el Barrio de San Jose, Municipio de Floridablanca Pampanga. ... midiendo una extension superficial de cuatro
milliones once mil cuatro cientos trienta y cinco (4,001,435) [sic] metros cuadrados, mas o menos.
Out of the above described property, 75.93 hectares thereof are actually occupied and covered by this
contract. .
Above lot is more particularly described in TCT No. 1016, province of
Pampanga ...
of which premises, the LESSOR warrants that he/she/they/is/are the registered owner(s) and with full
authority to execute a contract of this nature.

2.
The
term of this lease shall be for the period beginning July 1, 1952 the date the premises were occupied by the
PHILIPPINE AIR FORCE, AFP until June 30, 1953, subject to renewal for another year at the option of the
LESSEE or unless sooner terminated by the LESSEE as hereinafter provided.
3.
The
LESSOR hereby warrants that the LESSEE shall have quiet, peaceful and undisturbed possession of the
demised premises throughout the full term or period of this lease and the LESSOR undertakes without cost
to the LESSEE to eject all trespassers, but should the LESSOR fail to do so, the LESSEE at its option may
proceed to do so at the expense of the LESSOR. The LESSOR further agrees that should he/she/they sell or
encumber all or any part of the herein described premises during the period of this lease, any conveyance
will be conditioned on the right of the LESSEE hereunder.
4.
The
LESSEE shall pay to the LESSOR as monthly rentals under this lease the sum of FOUR HUNDRED FIFTY-FIVE
PESOS & 58/100 (P455.58) ...
5.
The
LESSEE may, at any time prior to the termination of this lease, use the property for any purpose or
purposes and, at its own costs and expense make alteration, install facilities and fixtures and errect
additions ... which facilities or fixtures ... so placed in, upon or attached to the said premises shall be and
remain property of the LESSEE and may be removed therefrom by the LESSEE prior to the termination of
this lease. The LESSEE shall surrender possession of the premises upon the expiration or termination of this
lease and if so required by the LESSOR, shall return the premises in substantially the same condition as that
existing at the time same were first occupied by the AFP, reasonable and ordinary wear and tear and
damages by the elements or by circumstances over which the LESSEE has no control excepted: PROVIDED,
that if the LESSOR so requires the return of the premises in such condition, the LESSOR shall give written
notice thereof to the LESSEE at least twenty (20) days before the termination of the lease and provided,
further, that should the LESSOR give notice within the time specified above, the LESSEE shall have the right
and privilege to compensate the LESSOR at the fair value or the equivalent, in lieu of performance of its
obligation, if any, to restore the premises. Fair value is to be determined as the value at the time of
occupancy less fair wear and tear and depreciation during the period of this lease.
6.
The
LESSEE may terminate this lease at any time during the term hereof by giving written notice to the LESSOR
at least thirty (30) days in advance ...
7.
The
LESSEE should not be responsible, except under special legislation for any damages to the premises by
reason of combat operations, acts of GOD, the elements or other acts and deeds not due to the negligence
on the part of the LESSEE.
8.
This
LEASE AGREEMENT supersedes and voids any and all agreements and undertakings, oral or written,
previously entered into between the parties covering the property herein leased, the same having been
merged herein. This AGREEMENT may not be modified or altered except by instrument in writing only duly
signed by the parties. 10
It was stipulated by the parties, that "the foregoing contract of lease (Exh. 4, Castellvi) is 'similar in terms
and conditions, including the date', with the annual contracts entered into from year to year between
defendant Castellvi and the Republic of the Philippines (p. 17, t.s.n., Vol. III)". 11 It is undisputed, therefore,
that the Republic occupied Castellvi's land from July 1, 1947, by virtue of the above-mentioned contract, on
a year to year basis (from July 1 of each year to June 30 of the succeeding year) under the terms and

conditions therein stated.

Before the expiration of the contract of lease on June 30, 1956 the Republic sought to renew the same but
Castellvi refused. When the AFP refused to vacate the leased premises after the termination of the contract,
on July 11, 1956, Castellvi wrote to the Chief of Staff, AFP, informing the latter that the heirs of the property
had decided not to continue leasing the property in question because they had decided to subdivide the
land for sale to the general public, demanding that the property be vacated within 30 days from receipt of
the letter, and that the premises be returned in substantially the same condition as before occupancy (Exh.
5 Castellvi). A follow-up letter was sent on January 12, 1957, demanding the delivery and return of the
property within one month from said date (Exh. 6 Castellvi). On January 30, 1957, Lieutenant General
Alfonso Arellano, Chief of Staff, answered the letter of Castellvi, saying that it was difficult for the army to
vacate the premises in view of the permanent installations and other facilities worth almost P500,000.00
that were erected and already established on the property, and that, there being no other recourse, the
acquisition of the property by means of expropriation proceedings would be recommended to the President
(Exhibit "7" Castellvi).
Defendant Castellvi then brought suit in the Court of First Instance of Pampanga, in Civil Case No. 1458, to
eject the Philippine Air Force from the land. While this ejectment case was pending, the Republic instituted
these expropriation proceedings, and, as stated earlier in this opinion, the Republic was placed in
possession of the lands on August 10, 1959, On November 21, 1959, the Court of First Instance of
Pampanga, dismissed Civil Case No. 1458, upon petition of the parties, in an order which, in part, reads as
follows:
1.
Plaintiff has agreed, as a matter of fact has already signed an agreement with defendants, whereby she has
agreed to receive the rent of the lands, subject matter of the instant case from June 30, 1966 up to 1959
when the Philippine Air Force was placed in possession by virtue of an order of the Court upon depositing
the provisional amount as fixed by the Provincial Appraisal Committee with the Provincial Treasurer of
Pampanga;
2.
That because of the above-cited agreement wherein the administratrix decided to get the rent
corresponding to the rent from 1956 up to 1959 and considering that this action is one of illegal detainer
and/or to recover the possession of said land by virtue of non-payment of rents, the instant case now has
become moot and academic and/or by virtue of the agreement signed by plaintiff, she has waived her
cause of action in the above-entitled case. 12
The Republic urges that the "taking " of Castellvi's property should be deemed as of the year 1947 by virtue
of afore-quoted lease agreement. In American Jurisprudence, Vol. 26, 2nd edition, Section 157, on the
subject of "Eminent Domain, we read the definition of "taking" (in eminent domain) as follows:
Taking' under the power of eminent domain may be defined generally as entering upon private property for
more than a momentary period, and, under the warrant or color of legal authority, devoting it to a public
use, or otherwise informally appropriating or injuriously affecting it in such a way as substantially to oust
the owner and deprive him of all beneficial enjoyment thereof. 13
Pursuant to the aforecited authority, a number of circumstances must be present in the "taking" of property
for purposes of eminent domain.
First, the expropriator must enter a private property. This circumstance is present in the instant case, when
by virtue of the lease agreement the Republic, through the AFP, took possession of the property of Castellvi.

Second, the entrance into private property must be for more than a momentary period. "Momentary"
means, "lasting but a moment; of but a moment's duration" (The Oxford English Dictionary, Volume VI,
page 596); "lasting a very short time; transitory; having a very brief life; operative or recurring at every
moment" (Webster's Third International Dictionary, 1963 edition.) The word "momentary" when applied to
possession or occupancy of (real) property should be construed to mean "a limited period" not indefinite
or permanent. The aforecited lease contract was for a period of one year, renewable from year to year. The
entry on the property, under the lease, is temporary, and considered transitory. The fact that the Republic,
through the AFP, constructed some installations of a permanent nature does not alter the fact that the entry
into the land was transitory, or intended to last a year, although renewable from year to year by consent of
'The owner of the land. By express provision of the lease agreement the Republic, as lessee, undertook to
return the premises in substantially the same condition as at the time the property was first occupied by
the AFP. It is claimed that the intention of the lessee was to occupy the land permanently, as may be
inferred from the construction of permanent improvements. But this "intention" cannot prevail over the
clear and express terms of the lease contract. Intent is to be deduced from the language employed by the
parties, and the terms 'of the contract, when unambiguous, as in the instant case, are conclusive in the
absence of averment and proof of mistake or fraud the question being not what the intention was, but
what is expressed in the language used. (City of Manila v. Rizal Park Co., Inc., 53 Phil. 515, 525); Magdalena
Estate, Inc. v. Myrick, 71 Phil. 344, 348). Moreover, in order to judge the intention of the contracting parties,
their contemporaneous and subsequent acts shall be principally considered (Art. 1371, Civil Code). If the
intention of the lessee (Republic) in 1947 was really to occupy permanently Castellvi's property, why was
the contract of lease entered into on year to year basis? Why was the lease agreement renewed from year
to year? Why did not the Republic expropriate this land of Castellvi in 1949 when, according to the Republic
itself, it expropriated the other parcels of land that it occupied at the same time as the Castellvi land, for
the purpose of converting them into a jet air base? 14 It might really have been the intention of the
Republic to expropriate the lands in question at some future time, but certainly mere notice - much less an
implied notice of such intention on the part of the Republic to expropriate the lands in the future did not,
and could not, bind the landowner, nor bind the land itself. The expropriation must be actually commenced
in court (Republic vs. Baylosis, et al., 96 Phil. 461, 484).
Third, the entry into the property should be under warrant or color of legal authority. This circumstance in
the "taking" may be considered as present in the instant case, because the Republic entered the Castellvi
property as lessee.
Fourth, the property must be devoted to a public use or otherwise informally appropriated or injuriously
affected. It may be conceded that the circumstance of the property being devoted to public use is present
because the property was used by the air force of the AFP.
Fifth, the utilization of the property for public use must be in such a way as to oust the owner and deprive
him of all beneficial enjoyment of the property. In the instant case, the entry of the Republic into the
property and its utilization of the same for public use did not oust Castellvi and deprive her of all beneficial
enjoyment of the property. Castellvi remained as owner, and was continuously recognized as owner by the
Republic, as shown by the renewal of the lease contract from year to year, and by the provision in the lease
contract whereby the Republic undertook to return the property to Castellvi when the lease was terminated.
Neither was Castellvi deprived of all the beneficial enjoyment of the property, because the Republic was
bound to pay, and had been paying, Castellvi the agreed monthly rentals until the time when it filed the
complaint for eminent domain on June 26, 1959.
It is clear, therefore, that the "taking" of Catellvi's property for purposes of eminent domain cannot be
considered to have taken place in 1947 when the Republic commenced to occupy the property as lessee
thereof. We find merit in the contention of Castellvi that two essential elements in the "taking" of property
under the power of eminent domain, namely: (1) that the entrance and occupation by the condemnor must
be for a permanent, or indefinite period, and (2) that in devoting the property to public use the owner was
ousted from the property and deprived of its beneficial use, were not present when the Republic entered

and occupied the Castellvi property in 1947.

Untenable also is the Republic's contention that although the contract between the parties was one of lease
on a year to year basis, it was "in reality a more or less permanent right to occupy the premises under the
guise of lease with the 'right and privilege' to buy the property should the lessor wish to terminate the
lease," and "the right to buy the property is merged as an integral part of the lease relationship ... so much
so that the fair market value has been agreed upon, not, as of the time of purchase, but as of the time of
occupancy" 15 We cannot accept the Republic's contention that a lease on a year to year basis can give rise
to a permanent right to occupy, since by express legal provision a lease made for a determinate time, as
was the lease of Castellvi's land in the instant case, ceases upon the day fixed, without need of a demand
(Article 1669, Civil Code). Neither can it be said that the right of eminent domain may be exercised by
simply leasing the premises to be expropriated (Rule 67, Section 1, Rules of Court). Nor can it be accepted
that the Republic would enter into a contract of lease where its real intention was to buy, or why the
Republic should enter into a simulated contract of lease ("under the guise of lease", as expressed by
counsel for the Republic) when all the time the Republic had the right of eminent domain, and could
expropriate Castellvi's land if it wanted to without resorting to any guise whatsoever. Neither can we see
how a right to buy could be merged in a contract of lease in the absence of any agreement between the
parties to that effect. To sustain the contention of the Republic is to sanction a practice whereby in order to
secure a low price for a land which the government intends to expropriate (or would eventually expropriate)
it would first negotiate with the owner of the land to lease the land (for say ten or twenty years) then
expropriate the same when the lease is about to terminate, then claim that the "taking" of the property for
the purposes of the expropriation be reckoned as of the date when the Government started to occupy the
property under the lease, and then assert that the value of the property being expropriated be reckoned as
of the start of the lease, in spite of the fact that the value of the property, for many good reasons, had in
the meantime increased during the period of the lease. This would be sanctioning what obviously is a
deceptive scheme, which would have the effect of depriving the owner of the property of its true and fair
market value at the time when the expropriation proceedings were actually instituted in court. The
Republic's claim that it had the "right and privilege" to buy the property at the value that it had at the time
when it first occupied the property as lessee nowhere appears in the lease contract. What was agreed
expressly in paragraph No. 5 of the lease agreement was that, should the lessor require the lessee to return
the premises in the same condition as at the time the same was first occupied by the AFP, the lessee would
have the "right and privilege" (or option) of paying the lessor what it would fairly cost to put the premises in
the same condition as it was at the commencement of the lease, in lieu of the lessee's performance of the
undertaking to put the land in said condition. The "fair value" at the time of occupancy, mentioned in the
lease agreement, does not refer to the value of the property if bought by the lessee, but refers to the cost
of restoring the property in the same condition as of the time when the lessee took possession of the
property. Such fair value cannot refer to the purchase price, for purchase was never intended by the parties
to the lease contract. It is a rule in the interpretation of contracts that "However general the terms of a
contract may be, they shall not be understood to comprehend things that are distinct and cases that are
different from those upon which the parties intended to agree" (Art. 1372, Civil Code).
We hold, therefore, that the "taking" of the Castellvi property should not be reckoned as of the year 1947
when the Republic first occupied the same pursuant to the contract of lease, and that the just
compensation to be paid for the Castellvi property should not be determined on the basis of the value of the
property as of that year. The lower court did not commit an error when it held that the "taking" of the
property under expropriation commenced with the filing of the complaint in this case.
Under Section 4 of Rule 67 of the Rules of Court, 16 the "just compensation" is to be determined as of the
date of the filing of the complaint. This Court has ruled that when the taking of the property sought to be
expropriated coincides with the commencement of the expropriation proceedings, or takes place
subsequent to the filing of the complaint for eminent domain, the just compensation should be determined
as of the date of the filing of the complaint. (Republic vs. Philippine National Bank, L-14158, April 12, 1961,
1 SCRA 957, 961-962). In the instant case, it is undisputed that the Republic was placed in possession of the
Castellvi property, by authority of the court, on August 10, 1959. The "taking" of the Castellvi property for

the purposes of determining the just compensation to be paid must, therefore, be reckoned as of June 26,
1959 when the complaint for eminent domain was filed.
Regarding the two parcels of land of Toledo-Gozun, also sought to be expropriated, which had never been
under lease to the Republic, the Republic was placed in possession of said lands, also by authority of the
court, on August 10, 1959, The taking of those lands, therefore, must also be reckoned as of June 26, 1959,
the date of the filing of the complaint for eminent domain.
2.
Regarding the first assigned error discussed as the second issue the Republic maintains that, even
assuming that the value of the expropriated lands is to be determined as of June 26, 1959, the price of
P10.00 per square meter fixed by the lower court "is not only exhorbitant but also unconscionable, and
almost fantastic". On the other hand, both Castellvi and Toledo-Gozun maintain that their lands are
residential lands with a fair market value of not less than P15.00 per square meter.
The lower court found, and declared, that the lands of Castellvi and Toledo-Gozun are residential lands. The
finding of the lower court is in consonance with the unanimous opinion of the three commissioners who, in
their report to the court, declared that the lands are residential lands.
The Republic assails the finding that the lands are residential, contending that the plans of the appellees to
convert the lands into subdivision for residential purposes were only on paper, there being no overt acts on
the part of the appellees which indicated that the subdivision project had been commenced, so that any
compensation to be awarded on the basis of the plans would be speculative. The Republic's contention is
not well taken. We find evidence showing that the lands in question had ceased to be devoted to the
production of agricultural crops, that they had become adaptable for residential purposes, and that the
appellees had actually taken steps to convert their lands into residential subdivisions even before the
Republic filed the complaint for eminent domain. In the case of City of Manila vs. Corrales (32 Phil. 82, 98)
this Court laid down basic guidelines in determining the value of the property expropriated for public
purposes. This Court said:
In determining the value of land appropriated for public purposes, the same consideration are to be
regarded as in a sale of property between private parties. The inquiry, in such cases, must be what is the
property worth in the market, viewed not merely with reference to the uses to which it is at the time
applied, but with reference to the uses to which it is plainly adapted, that is to say, What is it worth from its
availability for valuable uses?
So many and varied are the circumstances to be taken into account in determining the value of property
condemned for public purposes, that it is practically impossible to formulate a rule to govern its
appraisement in all cases. Exceptional circumstances will modify the most carefully guarded rule, but, as a
general thing, we should say that the compensation of the owner is to be estimated by reference to the use
for which the property is suitable, having regard to the existing business or wants of the community, or
such as may be reasonably expected in the immediate future. (Miss. and Rum River Boom Co. vs. Patterson,
98 U.S., 403).
In expropriation proceedings, therefore, the owner of the land has the right to its value for the use for which
it would bring the most in the market. 17 The owner may thus show every advantage that his property
possesses, present and prospective, in order that the price it could be sold for in the market may be
satisfactorily determined. 18 The owner may also show that the property is suitable for division into village
or town lots. 19
The trial court, therefore, correctly considered, among other circumstances, the proposed subdivision plans
of the lands sought to be expropriated in finding that those lands are residential lots. This finding of the

lower court is supported not only by the unanimous opinion of the commissioners, as embodied in their
report, but also by the Provincial Appraisal Committee of the province of Pampanga composed of the
Provincial Treasurer, the Provincial Auditor and the District Engineer. In the minutes of the meeting of the
Provincial Appraisal Committee, held on May 14, 1959 (Exh. 13-Castellvi) We read in its Resolution No. 10
the following:
3.
Since 1957 the land has been classified as residential in view of its proximity to the air base and due to the
fact that it was not being devoted to agriculture. In fact, there is a plan to convert it into a subdivision for
residential purposes. The taxes due on the property have been paid based on its classification as residential
land;
The evidence shows that Castellvi broached the idea of subdividing her land into residential lots as early as
July 11, 1956 in her letter to the Chief of Staff of the Armed Forces of the Philippines. (Exh. 5-Castellvi) As a
matter of fact, the layout of the subdivision plan was tentatively approved by the National Planning
Commission on September 7, 1956. (Exh. 8-Castellvi). The land of Castellvi had not been devoted to
agriculture since 1947 when it was leased to the Philippine Army. In 1957 said land was classified as
residential, and taxes based on its classification as residential had been paid since then (Exh. 13-Castellvi).
The location of the Castellvi land justifies its suitability for a residential subdivision. As found by the trial
court, "It is at the left side of the entrance of the Basa Air Base and bounded on two sides by roads (Exh.
13-Castellvi), paragraphs 1 and 2, Exh. 12-Castellvi), the poblacion, (of Floridablanca) the municipal
building, and the Pampanga Sugar Mills are closed by. The barrio schoolhouse and chapel are also near
(T.S.N. November 23,1960, p. 68)." 20
The lands of Toledo-Gozun (Lot 1-B and Lot 3) are practically of the same condition as the land of Castellvi.
The lands of Toledo-Gozun adjoin the land of Castellvi. They are also contiguous to the Basa Air Base, and
are along the road. These lands are near the barrio schoolhouse, the barrio chapel, the Pampanga Sugar
Mills, and the poblacion of Floridablanca (Exhs. 1, 3 and 4-Toledo-Gozun). As a matter of fact, regarding lot
1-B it had already been surveyed and subdivided, and its conversion into a residential subdivision was
tentatively approved by the National Planning Commission on July 8, 1959 (Exhs. 5 and 6 Toledo-Gozun). As
early as June, 1958, no less than 32 man connected with the Philippine Air Force among them
commissioned officers, non-commission officers, and enlisted men had requested Mr. and Mrs. Joaquin D.
Gozun to open a subdivision on their lands in question (Exhs. 8, 8-A to 8-ZZ-Toledo-Gozun). 21
We agree with the findings, and the conclusions, of the lower court that the lands that are the subject of
expropriation in the present case, as of August 10, 1959 when the same were taken possession of by the
Republic, were residential lands and were adaptable for use as residential subdivisions. Indeed, the owners
of these lands have the right to their value for the use for which they would bring the most in the market at
the time the same were taken from them. The most important issue to be resolved in the present case
relates to the question of what is the just compensation that should be paid to the appellees.
The Republic asserts that the fair market value of the lands of the appellees is P.20 per square meter. The
Republic cites the case of Republic vs. Narciso, et al., L-6594, which this Court decided on May 18, 1956.
The Narciso case involved lands that belonged to Castellvi and Toledo-Gozun, and to one Donata
Montemayor, which were expropriated by the Republic in 1949 and which are now the site of the Basa Air
Base. In the Narciso case this Court fixed the fair market value at P.20 per square meter. The lands that are
sought to be expropriated in the present case being contiguous to the lands involved in the Narciso case, it
is the stand of the Republic that the price that should be fixed for the lands now in question should also be
at P.20 per square meter.
We can not sustain the stand of the Republic. We find that the price of P.20 per square meter, as fixed by
this Court in the Narciso case, was based on the allegation of the defendants (owners) in their answer to the

complaint for eminent domain in that case that the price of their lands was P2,000.00 per hectare and that
was the price that they asked the court to pay them. This Court said, then, that the owners of the land could
not be given more than what they had asked, notwithstanding the recommendation of the majority of the
Commission on Appraisal which was adopted by the trial court that the fair market value of the lands
was P3,000.00 per hectare. We also find that the price of P.20 per square meter in the Narciso case was
considered the fair market value of the lands as of the year 1949 when the expropriation proceedings were
instituted, and at that time the lands were classified as sugar lands, and assessed for taxation purposes at
around P400.00 per hectare, or P.04 per square meter. 22 While the lands involved in the present case, like
the lands involved in the Narciso case, might have a fair market value of P.20 per square meter in 1949, it
can not be denied that ten years later, in 1959, when the present proceedings were instituted, the value of
those lands had increased considerably. The evidence shows that since 1949 those lands were no longer
cultivated as sugar lands, and in 1959 those lands were already classified, and assessed for taxation
purposes, as residential lands. In 1959 the land of Castellvi was assessed at P1.00 per square meter. 23
The Republic also points out that the Provincial Appraisal Committee of Pampanga, in its resolution No. 5 of
February 15, 1957 (Exhibit D), recommended the sum of P.20 per square meter as the fair valuation of the
Castellvi property. We find that this resolution was made by the Republic the basis in asking the court to fix
the provisional value of the lands sought to be expropriated at P259,669.10, which was approved by the
court. 24 It must be considered, however, that the amount fixed as the provisional value of the lands that
are being expropriated does not necessarily represent the true and correct value of the land. The value is
only "provisional" or "tentative", to serve as the basis for the immediate occupancy of the property being
expropriated by the condemnor. The records show that this resolution No. 5 was repealed by the same
Provincial Committee on Appraisal in its resolution No. 10 of May 14, 1959 (Exhibit 13-Castellvi). In that
resolution No. 10, the appraisal committee stated that "The Committee has observed that the value of the
land in this locality has increased since 1957 ...", and recommended the price of P1.50 per square meter. It
follows, therefore, that, contrary to the stand of the Republic, that resolution No. 5 of the Provincial
Appraisal Committee can not be made the basis for fixing the fair market value of the lands of Castellvi and
Toledo-Gozun.
The Republic further relied on the certification of the Acting Assistant Provincial Assessor of Pampanga,
dated February 8, 1961 (Exhibit K), to the effect that in 1950 the lands of Toledo-Gozun were classified
partly as sugar land and partly as urban land, and that the sugar land was assessed at P.40 per square
meter, while part of the urban land was assessed at P.40 per square meter and part at P.20 per square
meter; and that in 1956 the Castellvi land was classified as sugar land and was assessed at P450.00 per
hectare, or P.045 per square meter. We can not also consider this certification of the Acting Assistant
Provincial Assessor as a basis for fixing the fair market value of the lands of Castellvi and Toledo-Gozun
because, as the evidence shows, the lands in question, in 1957, were already classified and assessed for
taxation purposes as residential lands. The certification of the assessor refers to the year 1950 as far as the
lands of Toledo-Gozun are concerned, and to the year 1956 as far as the land of Castellvi is concerned.
Moreover, this Court has held that the valuation fixed for the purposes of the assessment of the land for
taxation purposes can not bind the landowner where the latter did not intervene in fixing it. 25
On the other hand, the Commissioners, appointed by the court to appraise the lands that were being
expropriated, recommended to the court that the price of P10.00 per square meter would be the fair market
value of the lands. The commissioners made their recommendation on the basis of their observation after
several ocular inspections of the lands, of their own personal knowledge of land values in the province of
Pampanga, of the testimonies of the owners of the land, and other witnesses, and of documentary evidence
presented by the appellees. Both Castellvi and Toledo-Gozun testified that the fair market value of their
respective land was at P15.00 per square meter. The documentary evidence considered by the
commissioners consisted of deeds of sale of residential lands in the town of San Fernando and in Angeles
City, in the province of Pampanga, which were sold at prices ranging from P8.00 to P20.00 per square meter
(Exhibits 15, 16, 17, 18, 19, 20, 21, 22, 23-Castellvi). The commissioners also considered the decision in
Civil Case No. 1531 of the Court of First Instance of Pampanga, entitled Republic vs. Sabina Tablante, which
was expropriation case filed on January 13, 1959, involving a parcel of land adjacent to the Clark Air Base in

Angeles City, where the court fixed the price at P18.00 per square meter (Exhibit 14-Castellvi). In their
report, the commissioners, among other things, said:
... This expropriation case is specially pointed out, because the circumstances and factors involved therein
are similar in many respects to the defendants' lands in this case. The land in Civil Case No. 1531 of this
Court and the lands in the present case (Civil Case No. 1623) are both near the air bases, the Clark Air Base
and the Basa Air Base respectively. There is a national road fronting them and are situated in a first-class
municipality. As added advantage it may be said that the Basa Air Base land is very near the sugar mill at
Del Carmen, Floridablanca, Pampanga, owned by the Pampanga Sugar Mills. Also just stone's throw away
from the same lands is a beautiful vacation spot at Palacol, a sitio of the town of Floridablanca, which
counts with a natural swimming pool for vacationists on weekends. These advantages are not found in the
case of the Clark Air Base. The defendants' lands are nearer to the poblacion of Floridablanca then Clark Air
Base is nearer (sic) to the poblacion of Angeles, Pampanga.
The deeds of absolute sale, according to the undersigned commissioners, as well as the land in Civil Case
No. 1531 are competent evidence, because they were executed during the year 1959 and before August 10
of the same year. More specifically so the land at Clark Air Base which coincidentally is the subject matter in
the complaint in said Civil Case No. 1531, it having been filed on January 13, 1959 and the taking of the
land involved therein was ordered by the Court of First Instance of Pampanga on January 15, 1959, several
months before the lands in this case were taken by the plaintiffs ....
From the above and considering further that the lowest as well as the highest price per square meter
obtainable in the market of Pampanga relative to subdivision lots within its jurisdiction in the year 1959 is
very well known by the Commissioners, the Commission finds that the lowest price that can be awarded to
the lands in question is P10.00 per square meter. 26
The lower court did not altogether accept the findings of the Commissioners based on the documentary
evidence, but it considered the documentary evidence as basis for comparison in determining land values.
The lower court arrived at the conclusion that "the unanimous recommendation of the commissioners of ten
(P10.00) pesos per square meter for the three lots of the defendants subject of this action is fair and just".
27 In arriving at its conclusion, the lower court took into consideration, among other circumstances, that the
lands are titled, that there is a rising trend of land values, and the lowered purchasing power of the
Philippine peso.
In the case of Manila Railroad Co. vs. Caligsihan, 40 Phil. 326, 328, this Court said:
A court of first instance or, on appeal, the Supreme Court, may change or modify the report of the
commissioners by increasing or reducing the amount of the award if the facts of the case so justify. While
great weight is attached to the report of the commissioners, yet a court may substitute therefor its estimate
of the value of the property as gathered from the record in certain cases, as, where the commissioners have
applied illegal principles to the evidence submitted to them, or where they have disregarded a clear
preponderance of evidence, or where the amount allowed is either palpably inadequate or excessive. 28
The report of the commissioners of appraisal in condemnation proceedings are not binding, but merely
advisory in character, as far as the court is concerned. 29 In our analysis of the report of the
commissioners, We find points that merit serious consideration in the determination of the just
compensation that should be paid to Castellvi and Toledo-Gozun for their lands. It should be noted that the
commissioners had made ocular inspections of the lands and had considered the nature and similarities of
said lands in relation to the lands in other places in the province of Pampanga, like San Fernando and
Angeles City. We cannot disregard the observations of the commissioners regarding the circumstances that
make the lands in question suited for residential purposes their location near the Basa Air Base, just like
the lands in Angeles City that are near the Clark Air Base, and the facilities that obtain because of their
nearness to the big sugar central of the Pampanga Sugar mills, and to the flourishing first class town of
Floridablanca. It is true that the lands in question are not in the territory of San Fernando and Angeles City,

but, considering the facilities of modern communications, the town of Floridablanca may be considered
practically adjacent to San Fernando and Angeles City. It is not out of place, therefore, to compare the land
values in Floridablanca to the land values in San Fernando and Angeles City, and form an idea of the value
of the lands in Floridablanca with reference to the land values in those two other communities.
The important factor in expropriation proceeding is that the owner is awarded the just compensation for his
property. We have carefully studied the record, and the evidence, in this case, and after considering the
circumstances attending the lands in question We have arrived at the conclusion that the price of P10.00
per square meter, as recommended by the commissioners and adopted by the lower court, is quite high. It
is Our considered view that the price of P5.00 per square meter would be a fair valuation of the lands in
question and would constitute a just compensation to the owners thereof. In arriving at this conclusion We
have particularly taken into consideration the resolution of the Provincial Committee on Appraisal of the
province of Pampanga informing, among others, that in the year 1959 the land of Castellvi could be sold for
from P3.00 to P4.00 per square meter, while the land of Toledo-Gozun could be sold for from P2.50 to P3.00
per square meter. The Court has weighed all the circumstances relating to this expropriations proceedings,
and in fixing the price of the lands that are being expropriated the Court arrived at a happy medium
between the price as recommended by the commissioners and approved by the court, and the price
advocated by the Republic. This Court has also taken judicial notice of the fact that the value of the
Philippine peso has considerably gone down since the year 1959. 30 Considering that the lands of Castellvi
and Toledo-Gozun are adjoining each other, and are of the same nature, the Court has deemed it proper to
fix the same price for all these lands.
3.
The
third issue raised by the Republic relates to the payment of interest. The Republic maintains that the lower
court erred when it ordered the Republic to pay Castellvi interest at the rate of 6% per annum on the total
amount adjudged as the value of the land of Castellvi, from July 1, 1956 to July 10, 1959. We find merit in
this assignment of error.
In ordering the Republic to pay 6% interest on the total value of the land of Castellvi from July 1, 1956 to
July 10, 1959, the lower court held that the Republic had illegally possessed the land of Castellvi from July 1,
1956, after its lease of the land had expired on June 30, 1956, until August 10, 1959 when the Republic was
placed in possession of the land pursuant to the writ of possession issued by the court. What really
happened was that the Republic continued to occupy the land of Castellvi after the expiration of its lease on
June 30, 1956, so much so that Castellvi filed an ejectment case against the Republic in the Court of First
Instance of Pampanga. 31 However, while that ejectment case was pending, the Republic filed the
complaint for eminent domain in the present case and was placed in possession of the land on August 10,
1959, and because of the institution of the expropriation proceedings the ejectment case was later
dismissed. In the order dismissing the ejectment case, the Court of First Instance of Pampanga said:
Plaintiff has agreed, as a matter of fact has already signed an agreement with defendants, whereby she had
agreed to receive the rent of the lands, subject matter of the instant case from June 30, 1956 up to 1959
when the Philippine Air Force was placed in possession by virtue of an order of the Court upon depositing
the provisional amount as fixed by the Provincial Appraisal Committee with the Provincial Treasurer of
Pampanga; ...
If Castellvi had agreed to receive the rentals from June 30, 1956 to August 10, 1959, she should be
considered as having allowed her land to be leased to the Republic until August 10, 1959, and she could not
at the same time be entitled to the payment of interest during the same period on the amount awarded her
as the just compensation of her land. The Republic, therefore, should pay Castellvi interest at the rate of 6%
per annum on the value of her land, minus the provisional value that was deposited, only from July 10, 1959
when it deposited in court the provisional value of the land.
4.
The
fourth error assigned by the Republic relates to the denial by the lower court of its motion for a new trial

based on nearly discovered evidence. We do not find merit in this assignment of error.
After the lower court had decided this case on May 26, 1961, the Republic filed a motion for a new trial,
supplemented by another motion, both based upon the ground of newly discovered evidence. The alleged
newly discovered evidence in the motion filed on June 21, 1961 was a deed of absolute sale-executed on
January 25, 1961, showing that a certain Serafin Francisco had sold to Pablo L. Narciso a parcel of sugar
land having an area of 100,000 square meters with a sugar quota of 100 piculs, covered by P.A. No. 1701,
situated in Barrio Fortuna, Floridablanca, for P14,000, or P.14 per square meter.
In the supplemental motion, the alleged newly discovered evidence were: (1) a deed of sale of some 35,000
square meters of land situated at Floridablanca for P7,500.00 (or about P.21 per square meter) executed in
July, 1959, by the spouses Evelyn D. Laird and Cornelio G. Laird in favor of spouses Bienvenido S. Aguas and
Josefina Q. Aguas; and (2) a deed of absolute sale of a parcel of land having an area of 4,120,101 square
meters, including the sugar quota covered by Plantation Audit No. 161 1345, situated at Floridablanca,
Pampanga, for P860.00 per hectare (a little less than P.09 per square meter) executed on October 22, 1957
by Jesus Toledo y Mendoza in favor of the Land Tenure Administration.
We find that the lower court acted correctly when it denied the motions for a new trial.
To warrant the granting of a new trial based on the ground of newly discovered evidence, it must appear
that the evidence was discovered after the trial; that even with the exercise of due diligence, the evidence
could not have been discovered and produced at the trial; and that the evidence is of such a nature as to
alter the result of the case if admitted. 32 The lower court correctly ruled that these requisites were not
complied with.
The lower court, in a well-reasoned order, found that the sales made by Serafin Francisco to Pablo Narciso
and that made by Jesus Toledo to the Land Tenure Administration were immaterial and irrelevant, because
those sales covered sugarlands with sugar quotas, while the lands sought to be expropriated in the instant
case are residential lands. The lower court also concluded that the land sold by the spouses Laird to the
spouses Aguas was a sugar land.
We agree with the trial court. In eminent domain proceedings, in order that evidence as to the sale price of
other lands may be admitted in evidence to prove the fair market value of the land sought to be
expropriated, the lands must, among other things, be shown to be similar.
But even assuming, gratia argumenti, that the lands mentioned in those deeds of sale were residential, the
evidence would still not warrant the grant of a new trial, for said evidence could have been discovered and
produced at the trial, and they cannot be considered newly discovered evidence as contemplated in Section
1(b) of Rule 37 of the Rules of Court. Regarding this point, the trial court said:
The Court will now show that there was no reasonable diligence employed.
The land described in the deed of sale executed by Serafin Francisco, copy of which is attached to the
original motion, is covered by a Certificate of Title issued by the Office of the Register of Deeds of
Pampanga. There is no question in the mind of the court but this document passed through the Office of the
Register of Deeds for the purpose of transferring the title or annotating the sale on the certificate of title. It
is true that Fiscal Lagman went to the Office of the Register of Deeds to check conveyances which may be
presented in the evidence in this case as it is now sought to be done by virtue of the motions at bar, Fiscal
Lagman, one of the lawyers of the plaintiff, did not exercise reasonable diligence as required by the rules.
The assertion that he only went to the office of the Register of Deeds 'now and then' to check the records in
that office only shows the half-hazard [sic] manner by which the plaintiff looked for evidence to be
presented during the hearing before the Commissioners, if it is at all true that Fiscal Lagman did what he is
supposed to have done according to Solicitor Padua. It would have been the easiest matter for plaintiff to
move for the issuance of a subpoena duces tecum directing the Register of Deeds of Pampanga to come to

testify and to bring with him all documents found in his office pertaining to sales of land in Floridablanca
adjacent to or near the lands in question executed or recorded from 1958 to the present. Even this
elementary precaution was not done by plaintiff's numerous attorneys.
The same can be said of the deeds of sale attached to the supplementary motion. They refer to lands
covered by certificate of title issued by the Register of Deeds of Pampanga. For the same reason they could
have been easily discovered if reasonable diligence has been exerted by the numerous lawyers of the
plaintiff in this case. It is noteworthy that all these deeds of sale could be found in several government
offices, namely, in the Office of the Register of Deeds of Pampanga, the Office of the Provincial Assessor of
Pampanga, the Office of the Clerk of Court as a part of notarial reports of notaries public that acknowledged
these documents, or in the archives of the National Library. In respect to Annex 'B' of the supplementary
motion copy of the document could also be found in the Office of the Land Tenure Administration, another
government entity. Any lawyer with a modicum of ability handling this expropriation case would have right
away though [sic] of digging up documents diligently showing conveyances of lands near or around the
parcels of land sought to be expropriated in this case in the offices that would have naturally come to his
mind such as the offices mentioned above, and had counsel for the movant really exercised the reasonable
diligence required by the Rule' undoubtedly they would have been able to find these documents and/or
caused the issuance of subpoena duces tecum. ...
It is also recalled that during the hearing before the Court of the Report and Recommendation of the
Commissioners and objection thereto, Solicitor Padua made the observation:
I understand, Your Honor, that there was a sale that took place in this place of land recently where the land
was sold for P0.20 which is contiguous to this land.
The Court gave him permission to submit said document subject to the approval of the Court. ... This was
before the decision was rendered, and later promulgated on May 26, 1961 or more than one month after
Solicitor Padua made the above observation. He could have, therefore, checked up the alleged sale and
moved for a reopening to adduce further evidence. He did not do so. He forgot to present the evidence at a
more propitious time. Now, he seeks to introduce said evidence under the guise of newly-discovered
evidence. Unfortunately the Court cannot classify it as newly-discovered evidence, because tinder the
circumstances, the correct qualification that can be given is 'forgotten evidence'. Forgotten however, is not
newly-discovered
evidence. 33
The granting or denial of a motion for new trial is, as a general rule, discretionary with the trial court, whose
judgment should not be disturbed unless there is a clear showing of abuse of discretion. 34 We do not see
any abuse of discretion on the part of the lower court when it denied the motions for a new trial.
WHEREFORE, the decision appealed from is modified, as follows:
(a)
the
lands of appellees Carmen Vda. de Castellvi and Maria Nieves Toledo-Gozun, as described in the complaint,
are declared expropriated for public use;
(b)
fair market value of the lands of the appellees is fixed at P5.00 per square meter;

the

(c)
the
Republic must pay appellee Castellvi the sum of P3,796,495.00 as just compensation for her one parcel of
land that has an area of 759,299 square meters, minus the sum of P151,859.80 that she withdrew out of
the amount that was deposited in court as the provisional value of the land, with interest at the rate of 6%
per annum from July 10, 1959 until the day full payment is made or deposited in court;

(d)
the
Republic must pay appellee Toledo-Gozun the sum of P2,695,225.00 as the just compensation for her two
parcels of land that have a total area of 539,045 square meters, minus the sum of P107,809.00 that she
withdrew out of the amount that was deposited in court as the provisional value of her lands, with interest
at the rate of 6%, per annum from July 10, 1959 until the day full payment is made or deposited in court; (e)
the attorney's lien of Atty. Alberto Cacnio is enforced; and
(f)
the
costs should be paid by appellant Republic of the Philippines, as provided in Section 12, Rule 67, and in
Section 13, Rule 141, of the Rules of Court.
IT IS SO ORDERED.

G.R. No. 161656. June 29, 2005]

REPUBLIC OF THE PHILIPPINES, GENERAL ROMEO ZULUETA, COMMODORE EDGARDO GALEOS,
ANTONIO CABALUNA, DOROTEO MANTOS & FLORENCIO BELOTINDOS, petitioners, vs. VICENTE
G. LIM, respondent.
RESOLUTION
SANDOVAL-GUTIERREZ, J.:
Justice is the first virtue of social institutions.[1] When the state wields its power of eminent domain, there
arises a correlative obligation on its part to pay the owner of the expropriated property a just compensation.
If it fails, there is a clear case of injustice that must be redressed. In the present case, fifty-seven (57) years
have lapsed from the time the Decision in the subject expropriation proceedings became final, but still the
Republic of the Philippines, herein petitioner, has not compensated the owner of the property. To tolerate
such prolonged inaction on its part is to encourage distrust and resentment among our people the very
vices that corrode the ties of civility and tempt men to act in ways they would otherwise shun.
A revisit of the pertinent facts in the instant case is imperative.
On September 5, 1938, the Republic of the Philippines (Republic) instituted a special civil action for
expropriation with the Court of First Instance (CFI) of Cebu, docketed as Civil Case No. 781, involving Lots
932 and 939 of the Banilad Friar Land Estate, Lahug, Cebu City, for the purpose of establishing a military
reservation for the Philippine Army. Lot 932 was registered in the name of Gervasia Denzon under Transfer
Certificate of Title (TCT) No. 14921 with an area of 25,137 square meters, while Lot 939 was in the name of
Eulalia Denzon and covered by TCT No. 12560 consisting of 13,164 square meters.
After depositing P9,500.00 with the Philippine National Bank, pursuant to the Order of the CFI dated October
19, 1938, the Republic took possession of the lots. Thereafter, or on May 14, 1940, the CFI rendered its
Decision ordering the Republic to pay the Denzons the sum of P4,062.10 as just compensation.
The Denzons interposed an appeal to the Court of Appeals but it was dismissed on March 11, 1948. An
entry of judgment was made on April 5, 1948.
In 1950, Jose Galeos, one of the heirs of the Denzons, filed with the National Airports Corporation a claim for
rentals for the two lots, but it denied knowledge of the matter. Another heir, Nestor Belocura, brought the
claim to the Office of then President Carlos Garcia who wrote the Civil Aeronautics Administration and the
Secretary of National Defense to expedite action on said claim. On September 6, 1961, Lt. Manuel Cabal
rejected the claim but expressed willingness to pay the appraised value of the lots within a reasonable time.
For failure of the Republic to pay for the lots, on September 20, 1961, the Denzons successors-in-interest,

Francisca Galeos-Valdehueza and Josefina Galeos-Panerio,[2] filed with the same CFI an action for recovery
of possession with damages against the Republic and officers of the Armed Forces of the Philippines in
possession of the property. The case was docketed as Civil Case No. R-7208.
In the interim or on November 9, 1961, TCT Nos. 23934 and 23935 covering Lots 932 and 939 were issued
in the names of Francisca Valdehueza and Josefina Panerio, respectively. Annotated thereon was the phrase
subject to the priority of the National Airports Corporation to acquire said parcels of land, Lots 932 and 939
upon previous payment of a reasonable market value.
On July 31, 1962, the CFI promulgated its Decision in favor of Valdehueza and Panerio, holding that they are
the owners and have retained their right as such over Lots 932 and 939 because of the Republics failure to
pay the amount of P4,062.10, adjudged in the expropriation proceedings. However, in view of the
annotation on their land titles, they were ordered to execute a deed of sale in favor of the Republic. In view
of the differences in money value from 1940 up to the present, the court adjusted the market value at
P16,248.40, to be paid with 6% interest per annum from April 5, 1948, date of entry in the expropriation
proceedings, until full payment.
After their motion for reconsideration was denied, Valdehueza and Panerio appealed from the CFI Decision,
in view of the amount in controversy, directly to this Court. The case was docketed as No. L-21032.[3] On
May 19, 1966, this Court rendered its Decision affirming the CFI Decision. It held that Valdehueza and
Panerio are still the registered owners of Lots 932 and 939, there having been no payment of just
compensation by the Republic. Apparently, this Court found nothing in the records to show that the Republic
paid the owners or their successors-in-interest according to the CFI decision. While it deposited the amount
of P9,500,00, and said deposit was allegedly disbursed, however, the payees could not be ascertained.
Notwithstanding the above finding, this Court still ruled that Valdehueza and Panerio are not entitled to
recover possession of the lots but may only demand the payment of their fair market value, ratiocinating as
follows:
Appellants would contend that: (1) possession of Lots 932 and 939 should be restored to them as owners of
the same; (2) the Republic should be ordered to pay rentals for the use of said lots, plus attorneys fees; and
(3) the court a quo in the present suit had no power to fix the value of the lots and order the execution of
the deed of sale after payment.
It is true that plaintiffs are still the registered owners of the land, there not having been a transfer of said
lots in favor of the Government. The records do not show that the Government paid the owners or their
successors-in-interest according to the 1940 CFI decision although, as stated, P9,500.00 was deposited by
it, and said deposit had been disbursed. With the records lost, however, it cannot be known who received
the money (Exh. 14 says: It is further certified that the corresponding Vouchers and pertinent Journal and
Cash Book were destroyed during the last World War, and therefore the names of the payees concerned
cannot be ascertained.) And the Government now admits that there is no available record showing that
payment for the value of the lots in question has been made (Stipulation of Facts, par. 9, Rec. on Appeal, p.
28).
The points in dispute are whether such payment can still be made and, if so, in what amount. Said lots have
been the subject of expropriation proceedings. By final and executory judgment in said proceedings, they
were condemned for public use, as part of an airport, and ordered sold to the Government. In fact, the
abovementioned title certificates secured by plaintiffs over said lots contained annotations of the right of
the National Airports Corporation (now CAA) to pay for and acquire them. It follows that both by virtue of
the judgment, long final, in the expropriation suit, as well as the annotations upon their title certificates,
plaintiffs are not entitled to recover possession of their expropriated lots which are still devoted to the
public use for which they were expropriated but only to demand the fair market value of the same.
Meanwhile, in 1964, Valdehueza and Panerio mortgaged Lot 932 to Vicente Lim, herein respondent,[4] as

security for their loans. For their failure to pay Lim despite demand, he had the mortgage foreclosed in
1976. Thus, TCT No. 23934 was cancelled, and in lieu thereof, TCT No. 63894 was issued in his name.
On August 20, 1992, respondent Lim filed a complaint for quieting of title with the Regional Trial Court
(RTC), Branch 10, Cebu City, against General Romeo Zulueta, as Commander of the Armed Forces of the
Philippines, Commodore Edgardo Galeos, as Commander of Naval District V of the Philippine Navy, Antonio
Cabaluna, Doroteo Mantos and Florencio Belotindos, herein petitioners. Subsequently, he amended the
complaint to implead the Republic.
On May 4, 2001, the RTC rendered a decision in favor of respondent, thus:
WHEREFORE, judgment is hereby rendered in favor of plaintiff Vicente Lim and against all defendants,
public and private, declaring plaintiff Vicente Lim the absolute and exclusive owner of Lot No. 932 with all
the rights of an absolute owner including the right to possession. The monetary claims in the complaint and
in the counter claims contained in the answer of defendants are ordered Dismissed.
Petitioners elevated the case to the Court of Appeals, docketed therein as CA-G.R. CV No. 72915. In its
Decision[5] dated September 18, 2003, the Appellate Court sustained the RTC Decision, thus:
Obviously, defendant-appellant Republic evaded its duty of paying what was due to the landowners. The
expropriation proceedings had already become final in the late 1940s and yet, up to now, or more than fifty
(50) years after, the Republic had not yet paid the compensation fixed by the court while continuously
reaping benefits from the expropriated property to the prejudice of the landowner. x x x. This is contrary to
the rules of fair play because the concept of just compensation embraces not only the correct
determination of the amount to be paid to the owners of the land, but also the payment for the land within
a reasonable time from its taking. Without prompt payment, compensation cannot be considered just for
the property owner is made to suffer the consequence of being immediately deprived of his land while
being made to wait for a decade or more, in this case more than 50 years, before actually receiving the
amount necessary to cope with the loss. To allow the taking of the landowners properties, and in the
meantime leave them empty-handed by withholding payment of compensation while the government
speculates on whether or not it will pursue expropriation, or worse, for government to subsequently decide
to abandon the property and return it to the landowners, is undoubtedly an oppressive exercise of eminent
domain that must never be sanctioned. (Land Bank of the Philippines vs. Court of Appeals, 258 SCRA 404).
xxxxxx
An action to quiet title is a common law remedy for the removal of any cloud or doubt or uncertainty on the
title to real property. It is essential for the plaintiff or complainant to have a legal or equitable title or
interest in the real property, which is the subject matter of the action. Also the deed, claim, encumbrance or
proceeding that is being alleged as cloud on plaintiffs title must be shown to be in fact invalid or inoperative
despite its prima facie appearance of validity or legal efficacy (Robles vs. Court of Appeals, 328 SCRA 97). In
view of the foregoing discussion, clearly, the claim of defendant-appellant Republic constitutes a cloud,
doubt or uncertainty on the title of plaintiff-appellee Vicente Lim that can be removed by an action to quiet
title.
WHEREFORE, in view of the foregoing, and finding no reversible error in the appealed May 4, 2001 Decision
of Branch 9, Regional Trial Court of Cebu City, in Civil Case No. CEB-12701, the said decision is UPHELD AND
AFFIRMED. Accordingly, the appeal is DISMISSED for lack of merit.
Undaunted, petitioners, through the Office of the Solicitor General, filed with this Court a petition for review
on certiorari alleging that the Republic has remained the owner of Lot 932 as held by this Court in
Valdehueza vs. Republic.[6]
In our Resolution dated March 1, 2004, we denied the petition outright on the ground that the Court of

Appeals did not commit a reversible error. Petitioners filed an urgent motion for reconsideration but we
denied the same with finality in our Resolution of May 17, 2004.
On May 18, 2004, respondent filed an ex-parte motion for the issuance of an entry of judgment. We only
noted the motion in our Resolution of July 12, 2004.
On July 7, 2004, petitioners filed an urgent plea/motion for clarification, which is actually a second motion
for reconsideration. Thus, in our Resolution of September 6, 2004, we simply noted without action the
motion considering that the instant petition was already denied with finality in our Resolution of May 17,
2004.
On October 29, 2004, petitioners filed a very urgent motion for leave to file a motion for reconsideration of
our Resolution dated September 6, 2004 (with prayer to refer the case to the En Banc). They maintain that
the Republics right of ownership has been settled in Valdehueza.
The basic issue for our resolution is whether the Republic has retained ownership of Lot 932 despite its
failure to pay respondents predecessors-in-interest the just compensation therefor pursuant to the
judgment of the CFI rendered as early as May 14, 1940.
Initially, we must rule on the procedural obstacle.
While we commend the Republic for the zeal with which it pursues the present case, we reiterate that its
urgent motion for clarification filed on July 7, 2004 is actually a second motion for reconsideration. This
motion is prohibited under Section 2, Rule 52, of the 1997 Rules of Civil Procedure, as amended, which
provides:
Sec. 2. Second motion for reconsideration. No second motion for reconsideration of a judgment or final
resolution by the same party shall be entertained.
Consequently, as mentioned earlier, we simply noted without action the motion since petitioners petition
was already denied with finality.
Considering the Republics urgent and serious insistence that it is still the owner of Lot 932 and in the
interest of justice, we take another hard look at the controversial issue in order to determine the veracity of
petitioners stance.
One of the basic principles enshrined in our Constitution is that no person shall be deprived of his private
property without due process of law; and in expropriation cases, an essential element of due process is that
there must be just compensation whenever private property is taken for public use.[7] Accordingly, Section
9, Article III, of our Constitution mandates: Private property shall not be taken for public use without just
compensation.
The Republic disregarded the foregoing provision when it failed and refused to pay respondents
predecessors-in-interest the just compensation for Lots 932 and 939. The length of time and the manner
with which it evaded payment demonstrate its arbitrary high-handedness and confiscatory attitude. The
final judgment in the expropriation proceedings (Civil Case No. 781) was entered on April 5, 1948. More
than half of a century has passed, yet, to this day, the landowner, now respondent, has remained emptyhanded. Undoubtedly, over 50 years of delayed payment cannot, in any way, be viewed as fair. This is more
so when such delay is accompanied by bureaucratic hassles. Apparent from Valdehueza is the fact that
respondents predecessors-in-interest were given a run around by the Republics officials and agents. In
1950, despite the benefits it derived from the use of the two lots, the National Airports Corporation denied
knowledge of the claim of respondents predecessors-in-interest. Even President Garcia, who sent a letter to
the Civil Aeronautics Administration and the Secretary of National Defense to expedite the payment, failed
in granting relief to them. And, on September 6, 1961, while the Chief of Staff of the Armed Forces

expressed willingness to pay the appraised value of the lots, nothing happened.
The Court of Appeals is correct in saying that Republics delay is contrary to the rules of fair play, as just
compensation embraces not only the correct determination of the amount to be paid to the owners of the
land, but also the payment for the land within a reasonable time from its taking. Without prompt payment,
compensation cannot be considered just. In jurisdictions similar to ours, where an entry to the expropriated
property precedes the payment of compensation, it has been held that if the compensation is not paid in a
reasonable time, the party may be treated as a trespasser ab initio.[8]
Corollarily, in Provincial Government of Sorsogon vs. Vda. De Villaroya,[9] similar to the present case, this
Court expressed its disgust over the governments vexatious delay in the payment of just compensation,
thus:
The petitioners have been waiting for more than thirty years to be paid for their land which was taken for
use as a public high school. As a matter of fair procedure, it is the duty of the Government, whenever it
takes property from private persons against their will, to supply all required documentation and facilitate
payment of just compensation. The imposition of unreasonable requirements and vexatious delays before
effecting payment is not only galling and arbitrary but a rich source of discontent with government. There
should be some kind of swift and effective recourse against unfeeling and uncaring acts of middle or lower
level bureaucrats.
We feel the same way in the instant case.
More than anything else, however, it is the obstinacy of the Republic that prompted us to dismiss its
petition outright. As early as May 19, 1966, in Valdehueza, this Court mandated the Republic to pay
respondents predecessors-in-interest the sum of P16,248.40 as reasonable market value of the two lots in
question. Unfortunately, it did not comply and allowed several decades to pass without obeying this Courts
mandate. Such prolonged obstinacy bespeaks of lack of respect to private rights and to the rule of law,
which we cannot countenance. It is tantamount to confiscation of private property. While it is true that all
private properties are subject to the need of government, and the government may take them whenever
the necessity or the exigency of the occasion demands, however, the Constitution guarantees that when
this governmental right of expropriation is exercised, it shall be attended by compensation.[10] From the
taking of private property by the government under the power of eminent domain, there arises an implied
promise to compensate the owner for his loss.[11]
Significantly, the above-mentioned provision of Section 9, Article III of the Constitution is not a grant but a
limitation of power. This limiting function is in keeping with the philosophy of the Bill of Rights against the
arbitrary exercise of governmental powers to the detriment of the individuals rights. Given this function, the
provision should therefore be strictly interpreted against the expropriator, the government, and liberally in
favor of the property owner.[12]
Ironically, in opposing respondents claim, the Republic is invoking this Courts Decision in Valdehueza, a
Decision it utterly defied. How could the Republic acquire ownership over Lot 932 when it has not paid its
owner the just compensation, required by law, for more than 50 years? The recognized rule is that title to
the property expropriated shall pass from the owner to the expropriator only upon full payment of the just
compensation. Jurisprudence on this settled principle is consistent both here and in other democratic
jurisdictions. In Association of Small Landowners in the Philippines, Inc. et al., vs. Secretary of Agrarian
Reform,[13] thus:
Title to property which is the subject of condemnation proceedings does not vest the condemnor until the
judgment fixing just compensation is entered and paid, but the condemnors title relates back to the date on
which the petition under the Eminent Domain Act, or the commissioners report under the Local
Improvement Act, is filed.

x x x Although the right to appropriate and use land taken for a canal is complete at the time of entry, title
to the property taken remains in the owner until payment is actually made. (Emphasis supplied.)
In Kennedy v. Indianapolis, the US Supreme Court cited several cases holding that title to property does not
pass to the condemnor until just compensation had actually been made. In fact, the decisions appear to be
uniform to this effect. As early as 1838, in Rubottom v. McLure, it was held that actual payment to the
owner of the condemned property was a condition precedent to the investment of the title to the property
in the State albeit not to the appropriation of it to public use. In Rexford v. Knight, the Court of Appeals of
New York said that the construction upon the statutes was that the fee did not vest in the State until the
payment of the compensation although the authority to enter upon and appropriate the land was complete
prior to the payment. Kennedy further said that both on principle and authority the rule is . . . that the right
to enter on and use the property is complete, as soon as the property is actually appropriated under the
authority of law for a public use, but that the title does not pass from the owner without his consent, until
just compensation has been made to him.
Our own Supreme Court has held in Visayan Refining Co. v. Camus and Paredes, that:
If the laws which we have exhibited or cited in the preceding discussion are attentively examined it will be
apparent that the method of expropriation adopted in this jurisdiction is such as to afford absolute
reassurance that no piece of land can be finally and irrevocably taken from an unwilling owner until
compensation is paid...(Emphasis supplied.)
Clearly, without full payment of just compensation, there can be no transfer of title from the landowner to
the expropriator. Otherwise stated, the Republics acquisition of ownership is conditioned upon the full
payment of just compensation within a reasonable time.[14]
Significantly, in Municipality of Bian v. Garcia[15] this Court ruled that the expropriation of lands consists of
two stages, to wit:
x x x The first is concerned with the determination of the authority of the plaintiff to exercise the power of
eminent domain and the propriety of its exercise in the context of the facts involved in the suit. It ends with
an order, if not of dismissal of the action, of condemnation declaring that the plaintiff has a lawful right to
take the property sought to be condemned, for the public use or purpose described in the complaint, upon
the payment of just compensation to be determined as of the date of the filing of the complaint x x x.
The second phase of the eminent domain action is concerned with the determination by the court of the
just compensation for the property sought to be taken. This is done by the court with the assistance of not
more than three (3) commissioners. x x x.
It is only upon the completion of these two stages that expropriation is said to have been completed. In
Republic v. Salem Investment Corporation,[16] we ruled that, the process is not completed until payment of
just compensation. Thus, here, the failure of the Republic to pay respondent and his predecessors-ininterest for a period of 57 years rendered the expropriation process incomplete.
The Republic now argues that under Valdehueza, respondent is not entitled to recover possession of Lot 932
but only to demand payment of its fair market value. Of course, we are aware of the doctrine that nonpayment of just compensation (in an expropriation proceedings) does not entitle the private landowners to
recover possession of the expropriated lots. This is our ruling in the recent cases of Republic of the
Philippines vs. Court of Appeals, et al.,[17] and Reyes vs. National Housing Authority.[18] However, the facts
of the present case do not justify its application. It bears stressing that the Republic was ordered to pay just
compensation twice, the first was in the expropriation proceedings and the second, in Valdehueza. Fiftyseven (57) years have passed since then. We cannot but construe the Republics failure to pay just
compensation as a deliberate refusal on its part. Under such circumstance, recovery of possession is in
order. In several jurisdictions, the courts held that recovery of possession may be had when property has

been wrongfully taken or is wrongfully retained by one claiming to act under the power of eminent
domain[19] or where a rightful entry is made and the party condemning refuses to pay the compensation
which has been assessed or agreed upon;[20] or fails or refuses to have the compensation assessed and
paid.[21]
The Republic also contends that where there have been constructions being used by the military, as in this
case, public interest demands that the present suit should not be sustained.
It must be emphasized that an individual cannot be deprived of his property for the public convenience.[22]
In Association of Small Landowners in the Philippines, Inc. vs. Secretary of Agrarian Reform,[23] we ruled:
One of the basic principles of the democratic system is that where the rights of the individual are
concerned, the end does not justify the means. It is not enough that there be a valid objective; it is also
necessary that the means employed to pursue it be in keeping with the Constitution. Mere expediency will
not excuse constitutional shortcuts. There is no question that not even the strongest moral conviction or the
most urgent public need, subject only to a few notable exceptions, will excuse the bypassing of an
individual's rights. It is no exaggeration to say that a person invoking a right guaranteed under Article III of
the Constitution is a majority of one even as against the rest of the nation who would deny him that right.
The right covers the persons life, his liberty and his property under Section 1 of Article III of the
Constitution. With regard to his property, the owner enjoys the added protection of Section 9, which
reaffirms the familiar rule that private property shall not be taken for public use without just compensation.
The Republics assertion that the defense of the State will be in grave danger if we shall order the reversion
of Lot 932 to respondent is an overstatement. First, Lot 932 had ceased to operate as an airport. What
remains in the site is just the National Historical Institutes marking stating that Lot 932 is the former
location of Lahug Airport. And second, there are only thirteen (13) structures located on Lot 932, eight (8) of
which are residence apartments of military personnel. Only two (2) buildings are actually used as training
centers. Thus, practically speaking, the reversion of Lot 932 to respondent will only affect a handful of
military personnel. It will not result to irreparable damage or damage beyond pecuniary estimation, as what
the Republic vehemently claims.
We thus rule that the special circumstances prevailing in this case entitle respondent to recover possession
of the expropriated lot from the Republic. Unless this form of swift and effective relief is granted to him, the
grave injustice committed against his predecessors-in-interest, though no fault or negligence on their part,
will be perpetuated. Let this case, therefore, serve as a wake-up call to the Republic that in the exercise of
its power of eminent domain, necessarily in derogation of private rights, it must comply with the
Constitutional limitations. This Court, as the guardian of the peoples right, will not stand still in the face of
the Republics oppressive and confiscatory taking of private property, as in this case.
At this point, it may be argued that respondent Vicente Lim acted in bad faith in entering into a contract of
mortgage with Valdehueza and Panerio despite the clear annotation in TCT No. 23934 that Lot 932 is
subject to the priority of the National Airports Corporation [to acquire said parcels of land] x x x upon
previous payment of a reasonable market value.
The issue of whether or not respondent acted in bad faith is immaterial considering that the Republic did
not complete the expropriation process. In short, it failed to perfect its title over Lot 932 by its failure to pay
just compensation. The issue of bad faith would have assumed relevance if the Republic actually acquired
title over Lot 932. In such a case, even if respondents title was registered first, it would be the Republics
title or right of ownership that shall be upheld. But now, assuming that respondent was in bad faith, can
such fact vest upon the Republic a better title over Lot 932? We believe not. This is because in the first
place, the Republic has no title to speak of.
At any rate, assuming that respondent had indeed knowledge of the annotation, still nothing would have

prevented him from entering into a mortgage contract involving Lot 932 while the expropriation proceeding
was pending. Any person who deals with a property subject of an expropriation does so at his own risk,
taking into account the ultimate possibility of losing the property in favor of the government. Here, the
annotation merely served as a caveat that the Republic had a preferential right to acquire Lot 932 upon its
payment of a reasonable market value. It did not proscribe Valdehueza and Panerio from exercising their
rights of ownership including their right to mortgage or even to dispose of their property. In Republic vs.
Salem Investment Corporation,[24] we recognized the owners absolute right over his property pending
completion of the expropriation proceeding, thus:
It is only upon the completion of these two stages that expropriation is said to have been completed.
Moreover, it is only upon payment of just compensation that title over the property passes to the
government. Therefore, until the action for expropriation has been completed and terminated, ownership
over the property being expropriated remains with the registered owner. Consequently, the latter can
exercise all rights pertaining to an owner, including the right to dispose of his property subject to the power
of the State ultimately to acquire it through expropriation.
It bears emphasis that when Valdehueza and Panerio mortgaged Lot 932 to respondent in 1964, they were
still the owners thereof and their title had not yet passed to the petitioner Republic. In fact, it never did.
Such title or ownership was rendered conclusive when we categorically ruled in Valdehueza that: It is true
that plaintiffs are still the registered owners of the land, there not having been a transfer of said lots in
favor of the Government.
For respondents part, it is reasonable to conclude that he entered into the contract of mortgage with
Valdehueza and Panerio fully aware of the extent of his right as a mortgagee. A mortgage is merely an
accessory contract intended to secure the performance of the principal obligation. One of its characteristics
is that it is inseparable from the property. It adheres to the property regardless of who its owner may
subsequently be.[25] Respondent must have known that even if Lot 932 is ultimately expropriated by the
Republic, still, his right as a mortgagee is protected. In this regard, Article 2127 of the Civil Code provides:
Art. 2127. The mortgage extends to the natural accessions, to the improvements, growing fruits, and the
rents or income not yet received when the obligation becomes due, and to the amount of the indemnity
granted or owing to the proprietor from the insurers of the property mortgaged, or in virtue of expropriation
for public use, with the declarations, amplifications, and limitations established by law, whether the estate
remains in the possession of the mortgagor or it passes in the hands of a third person.
In summation, while the prevailing doctrine is that the non-payment of just compensation does not entitle
the private landowner to recover possession of the expropriated lots,[26] however, in cases where the
government failed to pay just compensation within five (5)[27] years from the finality of the judgment in the
expropriation proceedings, the owners concerned shall have the right to recover possession of their
property. This is in consonance with the principle that the government cannot keep the property and
dishonor the judgment.[28] To be sure, the five-year period limitation will encourage the government to pay
just compensation punctually. This is in keeping with justice and equity. After all, it is the duty of the
government, whenever it takes property from private persons against their will, to facilitate the payment of
just compensation. In Cosculluela v. Court of Appeals,[29] we defined just compensation as not only the
correct determination of the amount to be paid to the property owner but also the payment of the property
within a reasonable time. Without prompt payment, compensation cannot be considered just.
WHEREFORE, the assailed Decision of the Court of Appeals in CA-G.R. CV No. 72915 is AFFIRMED in toto.
The Republics motion for reconsideration of our Resolution dated March 1, 2004 is DENIED with FINALITY. No
further pleadings will be allowed.
Let an entry of judgment be made in this case.

SO ORDERED.
G.R. No. L-24693

July 31, 1967

ERMITA-MALATE HOTEL AND MOTEL OPERATORS ASSOCIATION, INC., HOTEL DEL MAR INC. and
GO CHIU, petitioners-appellees,
vs.
THE HONORABLE CITY MAYOR OF MANILA, respondent-appellant.
VICTOR ALABANZA, intervenor-appellee.
FERNANDO, J.:
The principal question in this appeal from a judgment of the lower court in an action for prohibition is
whether Ordinance No. 4760 of the City of Manila is violative of the due process clause. The lower court
held that it is and adjudged it "unconstitutional, and, therefore, null and void." For reasons to be more
specifically set forth, such judgment must be reversed, there being a failure of the requisite showing to
sustain an attack against its validity.
The petition for prohibition against Ordinance No. 4760 was filed on July 5, 1963 by the petitioners, ErmitaMalate Hotel and Motel Operators Association, one of its members, Hotel del Mar Inc., and a certain Go
Chiu, who is "the president and general manager of the second petitioner" against the respondent Mayor of
the City of Manila who was sued in his capacity as such "charged with the general power and duty to
enforce ordinances of the City of Manila and to give the necessary orders for the faithful execution and
enforcement of such ordinances." (par. 1). It was alleged that the petitioner non-stock corporation is
dedicated to the promotion and protection of the interest of its eighteen (18) members "operating hotels
and motels, characterized as legitimate businesses duly licensed by both national and city authorities,
regularly paying taxes, employing and giving livelihood to not less than 2,500 person and representing an
investment of more than P3 million."1 (par. 2). It was then alleged that on June 13, 1963, the Municipal
Board of the City of Manila enacted Ordinance No. 4760, approved on June 14, 1963 by the then Vice-Mayor
Herminio Astorga, who was at the time acting as Mayor of the City of Manila. (par. 3).
After which the alleged grievances against the ordinance were set forth in detail. There was the assertion of
its being beyond the powers of the Municipal Board of the City of Manila to enact insofar as it would
regulate motels, on the ground that in the revised charter of the City of Manila or in any other law, no
reference is made to motels; that Section 1 of the challenged ordinance is unconstitutional and void for
being unreasonable and violative of due process insofar as it would impose P6,000.00 fee per annum for
first class motels and P4,500.00 for second class motels; that the provision in the same section which would
require the owner, manager, keeper or duly authorized representative of a hotel, motel, or lodging house to
refrain from entertaining or accepting any guest or customer or letting any room or other quarter to any
person or persons without his filling up the prescribed form in a lobby open to public view at all times and in
his presence, wherein the surname, given name and middle name, the date of birth, the address, the
occupation, the sex, the nationality, the length of stay and the number of companions in the room, if any,
with the name, relationship, age and sex would be specified, with data furnished as to his residence
certificate as well as his passport number, if any, coupled with a certification that a person signing such
form has personally filled it up and affixed his signature in the presence of such owner, manager, keeper or
duly authorized representative, with such registration forms and records kept and bound together, it also
being provided that the premises and facilities of such hotels, motels and lodging houses would be open for
inspection either by the City Mayor, or the Chief of Police, or their duly authorized representatives is
unconstitutional and void again on due process grounds, not only for being arbitrary, unreasonable or
oppressive but also for being vague, indefinite and uncertain, and likewise for the alleged invasion of the
right to privacy and the guaranty against self-incrimination; that Section 2 of the challenged ordinance
classifying motels into two classes and requiring the maintenance of certain minimum facilities in first class
motels such as a telephone in each room, a dining room or, restaurant and laundry similarly offends against
the due process clause for being arbitrary, unreasonable and oppressive, a conclusion which applies to the

portion of the ordinance requiring second class motels to have a dining room; that the provision of Section 2
of the challenged ordinance prohibiting a person less than 18 years old from being accepted in such hotels,
motels, lodging houses, tavern or common inn unless accompanied by parents or a lawful guardian and
making it unlawful for the owner, manager, keeper or duly authorized representative of such establishments
to lease any room or portion thereof more than twice every 24 hours, runs counter to the due process
guaranty for lack of certainty and for its unreasonable, arbitrary and oppressive character; and that insofar
as the penalty provided for in Section 4 of the challenged ordinance for a subsequent conviction would,
cause the automatic cancellation of the license of the offended party, in effect causing the destruction of
the business and loss of its investments, there is once again a transgression of the due process clause.
There was a plea for the issuance of preliminary injunction and for a final judgment declaring the above
ordinance null and void and unenforceable. The lower court on July 6, 1963 issued a writ of preliminary
injunction ordering respondent Mayor to refrain from enforcing said Ordinance No. 4760 from and after July
8, 1963.
In the a answer filed on August 3, 1963, there was an admission of the personal circumstances regarding
the respondent Mayor and of the fact that petitioners are licensed to engage in the hotel or motel business
in the City of Manila, of the provisions of the cited Ordinance but a denial of its alleged nullity, whether on
statutory or constitutional grounds. After setting forth that the petition did fail to state a cause of action and
that the challenged ordinance bears a reasonable relation, to a proper purpose, which is to curb immorality,
a valid and proper exercise of the police power and that only the guests or customers not before the court
could complain of the alleged invasion of the right to privacy and the guaranty against self incrimination,
with the assertion that the issuance of the preliminary injunction ex parte was contrary to law, respondent
Mayor prayed for, its dissolution and the dismissal of the petition.
Instead of evidence being offered by both parties, there was submitted a stipulation of facts dated
September 28, 1964, which reads:
1. That the petitioners Ermita-Malate Hotel and Motel Operators Association, Inc. and Hotel del Mar Inc. are
duly organized and existing under the laws of the Philippines, both with offices in the City of Manila, while
the petitioner Go Chin is the president and general manager of Hotel del Mar Inc., and the intervenor Victor
Alabanza is a resident of Baguio City, all having the capacity to sue and be sued;
2. That the respondent Mayor is the duly elected and incumbent City Mayor and chief executive of the City
of Manila charged with the general power and duty to enforce ordinances of the City of Manila and to give
the necessary orders for the faithful execution and enforcement of such ordinances;
3. That the petitioners are duly licensed to engage in the business of operating hotels and motels in Malate
and Ermita districts in Manila;
4. That on June 13, 1963, the Municipal Board of the City of Manila enacted Ordinance No. 4760, which was
approved on June 14, 1963, by Vice-Mayor Herminio Astorga, then the acting City Mayor of Manila, in the
absence of the respondent regular City Mayor, amending sections 661, 662, 668-a, 668-b and 669 of the
compilation of the ordinances of the City of Manila besides inserting therein three new sections. This
ordinance is similar to the one vetoed by the respondent Mayor (Annex A) for the reasons stated in its 4th
Indorsement dated February 15, 1963 (Annex B);
5. That the explanatory note signed by then Councilor Herminio Astorga was submitted with the proposed
ordinance (now Ordinance 4760) to the Municipal Board, copy of which is attached hereto as Annex C;
6. That the City of Manila derived in 1963 an annual income of P101,904.05 from license fees paid by the
105 hotels and motels (including herein petitioners) operating in the City of Manila.1wph1.t
Thereafter came a memorandum for respondent on January 22, 1965, wherein stress was laid on the

presumption of the validity of the challenged ordinance, the burden of showing its lack of conformity to the
Constitution resting on the party who assails it, citing not only U.S. v. Salaveria, but likewise applicable
American authorities. Such a memorandum likewise refuted point by point the arguments advanced by
petitioners against its validity. Then barely two weeks later, on February 4, 1965, the memorandum for
petitioners was filed reiterating in detail what was set forth in the petition, with citations of what they
considered to be applicable American authorities and praying for a judgment declaring the challenged
ordinance "null and void and unenforceable" and making permanent the writ of preliminary injunction
issued.
After referring to the motels and hotels, which are members of the petitioners association, and referring to
the alleged constitutional questions raised by the party, the lower court observed: "The only remaining
issue here being purely a question of law, the parties, with the nod of the Court, agreed to file memoranda
and thereafter, to submit the case for decision of the Court." It does appear obvious then that without any
evidence submitted by the parties, the decision passed upon the alleged infirmity on constitutional grounds
of the challenged ordinance, dismissing as is undoubtedly right and proper the untenable objection on the
alleged lack of authority of the City of Manila to regulate motels, and came to the conclusion that "the
challenged Ordinance No. 4760 of the City of Manila, would be unconstitutional and, therefore, null and
void." It made permanent the preliminary injunction issued against respondent Mayor and his agents "to
restrain him from enforcing the ordinance in question." Hence this appeal.
As noted at the outset, the judgment must be reversed. A decent regard for constitutional doctrines of a
fundamental character ought to have admonished the lower court against such a sweeping condemnation
of the challenged ordinance. Its decision cannot be allowed to stand, consistently with what has hitherto
been the accepted standards of constitutional adjudication, in both procedural and substantive aspects.
Primarily what calls for a reversal of such a decision is the absence of any evidence to offset the
presumption of validity that attaches to a challenged statute or ordinance. As was expressed categorically
by Justice Malcolm: "The presumption is all in favor of validity x x x . The action of the elected
representatives of the people cannot be lightly set aside. The councilors must, in the very nature of things,
be familiar with the necessities of their particular municipality and with all the facts and circumstances
which surround the subject and necessitate action. The local legislative body, by enacting the ordinance,
has in effect given notice that the regulations are essential to the well being of the people x x x . The
Judiciary should not lightly set aside legislative action when there is not a clear invasion of personal or
property rights under the guise of police regulation.2
It admits of no doubt therefore that there being a presumption of validity, the necessity for evidence to
rebut it is unavoidable, unless the statute or ordinance is void on its face which is not the case here. The
principle has been nowhere better expressed than in the leading case of O'Gorman & Young v. Hartford Fire
Insurance Co.,3 where the American Supreme Court through Justice Brandeis tersely and succinctly
summed up the matter thus: The statute here questioned deals with a subject clearly within the scope of
the police power. We are asked to declare it void on the ground that the specific method of regulation
prescribed is unreasonable and hence deprives the plaintiff of due process of law. As underlying questions
of fact may condition the constitutionality of legislation of this character, the resumption of constitutionality
must prevail in the absence of some factual foundation of record for overthrowing the statute." No such
factual foundation being laid in the present case, the lower court deciding the matter on the pleadings and
the stipulation of facts, the presumption of validity must prevail and the judgment against the ordinance set
aside.
Nor may petitioners assert with plausibility that on its face the ordinance is fatally defective as being
repugnant to the due process clause of the Constitution. The mantle of protection associated with the due
process guaranty does not cover petitioners. This particular manifestation of a police power measure being
specifically aimed to safeguard public morals is immune from such imputation of nullity resting purely on
conjecture and unsupported by anything of substance. To hold otherwise would be to unduly restrict and
narrow the scope of police power which has been properly characterized as the most essential, insistent

and the least limitable of powers,4 extending as it does "to all the great public needs."5 It would be, to
paraphrase another leading decision, to destroy the very purpose of the state if it could be deprived or
allowed itself to be deprived of its competence to promote public health, public morals, public safety and
the genera welfare.6 Negatively put, police power is "that inherent and plenary power in the State which
enables it to prohibit all that is hurt full to the comfort, safety, and welfare of society.7
There is no question but that the challenged ordinance was precisely enacted to minimize certain practices
hurtful to public morals. The explanatory note of the Councilor Herminio Astorga included as annex to the
stipulation of facts, speaks of the alarming increase in the rate of prostitution, adultery and fornication in
Manila traceable in great part to the existence of motels, which "provide a necessary atmosphere for
clandestine entry, presence and exit" and thus become the "ideal haven for prostitutes and thrill-seekers."
The challenged ordinance then proposes to check the clandestine harboring of transients and guests of
these establishments by requiring these transients and guests to fill up a registration form, prepared for the
purpose, in a lobby open to public view at all times, and by introducing several other amendatory provisions
calculated to shatter the privacy that characterizes the registration of transients and guests." Moreover, the
increase in the licensed fees was intended to discourage "establishments of the kind from operating for
purpose other than legal" and at the same time, to increase "the income of the city government." It would
appear therefore that the stipulation of facts, far from sustaining any attack against the validity of the
ordinance, argues eloquently for it.
It is a fact worth noting that this Court has invariably stamped with the seal of its approval, ordinances
punishing vagrancy and classifying a pimp or procurer as a vagrant;8 provide a license tax for and
regulating the maintenance or operation of public dance halls;9 prohibiting gambling;10 prohibiting
jueteng;11 and monte;12 prohibiting playing of panguingui on days other than Sundays or legal holidays;13
prohibiting the operation of pinball machines;14 and prohibiting any person from keeping, conducting or
maintaining an opium joint or visiting a place where opium is smoked or otherwise used,15 all of which are
intended to protect public morals.
On the legislative organs of the government, whether national or local, primarily rest the exercise of the
police power, which, it cannot be too often emphasized, is the power to prescribe regulations to promote
the health, morals, peace, good order, safety and general welfare of the people. In view of the requirements
of due process, equal protection and other applicable constitutional guaranties however, the exercise of
such police power insofar as it may affect the life, liberty or property of any person is subject to judicial
inquiry. Where such exercise of police power may be considered as either capricious, whimsical, unjust or
unreasonable, a denial of due process or a violation of any other applicable constitutional guaranty may call
for correction by the courts.
We are thus led to considering the insistent, almost shrill tone, in which the objection is raised to the
question of due process.16 There is no controlling and precise definition of due process. It furnishes though
a standard to which the governmental action should conform in order that deprivation of life, liberty or
property, in each appropriate case, be valid. What then is the standard of due process which must exist
both as a procedural and a substantive requisite to free the challenged ordinance, or any governmental
action for that matter, from the imputation of legal infirmity sufficient to spell its doom? It is responsiveness
to the supremacy of reason, obedience to the dictates of justice. Negatively put, arbitrariness is ruled out
and unfairness avoided. To satisfy the due process requirement, official action, to paraphrase Cardozo, must
not outrun the bounds of reason and result in sheer oppression. Due process is thus hostile to any official
action marred by lack of reasonableness. Correctly it has been identified as freedom from arbitrariness. It is
the embodiment of the sporting idea of fair play.17 It exacts fealty "to those strivings for justice" and judges
the act of officialdom of whatever branch "in the light of reason drawn from considerations of fairness that
reflect [democratic] traditions of legal and political thought."18 It is not a narrow or "technical conception
with fixed content unrelated to time, place and circumstances,"19 decisions based on such a clause
requiring a "close and perceptive inquiry into fundamental principles of our society."20 Questions of due
process are not to be treated narrowly or pedantically in slavery to form or phrases.21

It would thus be an affront to reason to stigmatize an ordinance enacted precisely to meet what a municipal
lawmaking body considers an evil of rather serious proportion an arbitrary and capricious exercise of
authority. It would seem that what should be deemed unreasonable and what would amount to an
abdication of the power to govern is inaction in the face of an admitted deterioration of the state of public
morals. To be more specific, the Municipal Board of the City of Manila felt the need for a remedial measure.
It provided it with the enactment of the challenged ordinance. A strong case must be found in the records,
and, as has been set forth, none is even attempted here to attach to an ordinance of such character the
taint of nullity for an alleged failure to meet the due process requirement. Nor does it lend any semblance
even of deceptive plausibility to petitioners' indictment of Ordinance No. 4760 on due process grounds to
single out such features as the increased fees for motels and hotels, the curtailment of the area of freedom
to contract, and, in certain particulars, its alleged vagueness.
Admittedly there was a decided increase of the annual license fees provided for by the challenged
ordinance for hotels and motels, 150% for the former and over 200% for the latter, first-class motels being
required to pay a P6,000 annual fee and second-class motels, P4,500 yearly. It has been the settled law
however, as far back as 1922 that municipal license fees could be classified into those imposed for
regulating occupations or regular enterprises, for the regulation or restriction of non-useful occupations or
enterprises and for revenue purposes only.22 As was explained more in detail in the above Cu Unjieng case:
(2) Licenses for non-useful occupations are also incidental to the police power and the right to exact a fee
may be implied from the power to license and regulate, but in fixing amount of the license fees the
municipal corporations are allowed a much wider discretion in this class of cases than in the former, and
aside from applying the well-known legal principle that municipal ordinances must not be unreasonable,
oppressive, or tyrannical, courts have, as a general rule, declined to interfere with such discretion. The
desirability of imposing restraint upon the number of persons who might otherwise engage in non-useful
enterprises is, of course, generally an important factor in the determination of the amount of this kind of
license fee. Hence license fees clearly in the nature of privilege taxes for revenue have frequently been
upheld, especially in of licenses for the sale of liquors. In fact, in the latter cases the fees have rarely been
declared unreasonable.23
Moreover in the equally leading case of Lutz v. Araneta24 this Court affirmed the doctrine earlier announced
by the American Supreme Court that taxation may be made to implement the state's police power. Only the
other day, this Court had occasion to affirm that the broad taxing authority conferred by the Local
Autonomy Act of 1959 to cities and municipalities is sufficiently plenary to cover a wide range of subjects
with the only limitation that the tax so levied is for public purposes, just and uniform.25
As a matter of fact, even without reference to the wide latitude enjoyed by the City of Manila in imposing
licenses for revenue, it has been explicitly held in one case that "much discretion is given to municipal
corporations in determining the amount," here the license fee of the operator of a massage clinic, even if it
were viewed purely as a police power measure.26 The discussion of this particular matter may fitly close
with this pertinent citation from another decision of significance: "It is urged on behalf of the plaintiffsappellees that the enforcement of the ordinance could deprive them of their lawful occupation and means
of livelihood because they can not rent stalls in the public markets. But it appears that plaintiffs are also
dealers in refrigerated or cold storage meat, the sale of which outside the city markets under certain
conditions is permitted x x x . And surely, the mere fact, that some individuals in the community may be
deprived of their present business or a particular mode of earning a living cannot prevent the exercise of
the police power. As was said in a case, persons licensed to pursue occupations which may in the public
need and interest be affected by the exercise of the police power embark in these occupations subject to
the disadvantages which may result from the legal exercise of that power."27
Nor does the restriction on the freedom to contract, insofar as the challenged ordinance makes it unlawful
for the owner, manager, keeper or duly authorized representative of any hotel, motel, lodging house,
tavern, common inn or the like, to lease or rent room or portion thereof more than twice every 24 hours,
with a proviso that in all cases full payment shall be charged, call for a different conclusion. Again, such a
limitation cannot be viewed as a transgression against the command of due process. It is neither

unreasonable nor arbitrary. Precisely it was intended to curb the opportunity for the immoral or illegitimate
use to which such premises could be, and, according to the explanatory note, are being devoted. How could
it then be arbitrary or oppressive when there appears a correspondence between the undeniable existence
of an undesirable situation and the legislative attempt at correction. Moreover, petitioners cannot be
unaware that every regulation of conduct amounts to curtailment of liberty which as pointed out by Justice
Malcolm cannot be absolute. Thus: "One thought which runs through all these different conceptions of
liberty is plainly apparent. It is this: 'Liberty' as understood in democracies, is not license; it is 'liberty
regulated by law.' Implied in the term is restraint by law for the good of the individual and for the greater
good of the peace and order of society and the general well-being. No man can do exactly as he pleases.
Every man must renounce unbridled license. The right of the individual is necessarily subject to reasonable
restraint by general law for the common good x x x The liberty of the citizen may be restrained in the
interest of the public health, or of the public order and safety, or otherwise within the proper scope of the
police power."28
A similar observation was made by Justice Laurel: "Public welfare, then, lies at the bottom of the enactment
of said law, and the state in order to promote the general welfare may interfere with personal liberty, with
property, and with business and occupations. Persons and property may be subjected to all kinds of
restraints and burdens, in order to secure the general comfort, health, and prosperity of the state x x x To
this fundamental aim of our Government the rights of the individual are subordinated. Liberty is a blessing
without which life is a misery, but liberty should not be made to prevail over authority because then society
will fall into anarchy. Neither should authority be made to prevail over liberty because then the individual
will fall into slavery. The citizen should achieve the required balance of liberty and authority in his mind
through education and personal discipline, so that there may be established the resultant equilibrium,
which means peace and order and happiness for all.29
It is noteworthy that the only decision of this Court nullifying legislation because of undue deprivation of
freedom to contract, People v. Pomar,30 no longer "retains its virtuality as a living principle. The policy of
laissez faire has to some extent given way to the assumption by the government of the right of intervention
even in contractual relations affected with public interest.31 What may be stressed sufficiently is that if the
liberty involved were freedom of the mind or the person, the standard for the validity of governmental acts
is much more rigorous and exacting, but where the liberty curtailed affects at the most rights of property,
the permissible scope of regulatory measure is wider.32 How justify then the allegation of a denial of due
process?
Lastly, there is the attempt to impugn the ordinance on another due process ground by invoking the
principles of vagueness or uncertainty. It would appear from a recital in the petition itself that what seems
to be the gravamen of the alleged grievance is that the provisions are too detailed and specific rather than
vague or uncertain. Petitioners, however, point to the requirement that a guest should give the name,
relationship, age and sex of the companion or companions as indefinite and uncertain in view of the
necessity for determining whether the companion or companions referred to are those arriving with the
customer or guest at the time of the registry or entering the room With him at about the same time or
coming at any indefinite time later to join him; a proviso in one of its sections which cast doubt as to
whether the maintenance of a restaurant in a motel is dependent upon the discretion of its owners or
operators; another proviso which from their standpoint would require a guess as to whether the "full rate of
payment" to be charged for every such lease thereof means a full day's or merely a half-day's rate. It may
be asked, do these allegations suffice to render the ordinance void on its face for alleged vagueness or
uncertainty? To ask the question is to answer it. From Connally v. General Construction Co.33 to Adderley v.
Florida,34 the principle has been consistently upheld that what makes a statute susceptible to such a
charge is an enactment either forbidding or requiring the doing of an act that men of common intelligence
must necessarily guess at its meaning and differ as to its application. Is this the situation before us? A
citation from Justice Holmes would prove illuminating: "We agree to all the generalities about not supplying
criminal laws with what they omit but there is no canon against using common sense in construing laws as
saying what they obviously mean."35

That is all then that this case presents. As it stands, with all due allowance for the arguments pressed with
such vigor and determination, the attack against the validity of the challenged ordinance cannot be
considered a success. Far from it. Respect for constitutional law principles so uniformly held and so
uninterruptedly adhered to by this Court compels a reversal of the appealed decision.
Wherefore, the judgment of the lower court is reversed and the injunction issued lifted forthwith. With costs.
Reyes, J.B.L., Makalintal, Bengzon, J.P., Zaldivar, Sanchez, Castro and Angeles, JJ., concur.
Concepcion, C.J. and Dizon, J., are on leave.

[G.R. No. 135962. March 27, 2000]

METROPOLITAN MANILA DEVELOPMENT
ASSOCIATION, INC., respondent.

AUTHORITY,

petitioner,

vs.

BEL-AIR

VILLAGE

DECISION
PUNO, J.:
Not infrequently, the government is tempted to take legal shortcuts to solve urgent problems of the people.
But even when government is armed with the best of intention, we cannot allow it to run roughshod over
the rule of law. Again, we let the hammer fall and fall hard on the illegal attempt of the MMDA to open for
public use a private road in a private subdivision. While we hold that the general welfare should be
promoted, we stress that it should not be achieved at the expense of the rule of law. h Y
Petitioner MMDA is a government agency tasked with the delivery of basic services in Metro Manila.
Respondent Bel-Air Village Association, Inc. (BAVA) is a non-stock, non-profit corporation whose members
are homeowners in Bel-Air Village, a private subdivision in Makati City. Respondent BAVA is the registered
owner of Neptune Street, a road inside Bel-Air Village.
On December 30, 1995, respondent received from petitioner, through its Chairman, a notice dated
December 22, 1995 requesting respondent to open Neptune Street to public vehicular traffic starting
January 2, 1996. The notice reads: Court
"SUBJECT: NOTICE of the Opening of Neptune Street to Traffic
"Dear President Lindo,
"Please be informed that pursuant to the mandate of the MMDA law or Republic Act No. 7924 which requires
the Authority to rationalize the use of roads and/or thoroughfares for the safe and convenient movement of
persons, Neptune Street shall be opened to vehicular traffic effective January 2, 1996.
"In view whereof, the undersigned requests you to voluntarily open the points of entry and exit on said
street.
"Thank you for your cooperation and whatever assistance that may be extended by your association to the
MMDA personnel who will be directing traffic in the area.
"Finally, we are furnishing you with a copy of the handwritten instruction of the President on the matter.
"Very truly yours,
PROSPERO I. ORETA

Chairman"[1]
On the same day, respondent was apprised that the perimeter wall separating the subdivision from the
adjacent Kalayaan Avenue would be demolished. Sppedsc
On January 2, 1996, respondent instituted against petitioner before the Regional Trial Court, Branch 136,
Makati City, Civil Case No. 96-001 for injunction. Respondent prayed for the issuance of a temporary
restraining order and preliminary injunction enjoining the opening of Neptune Street and prohibiting the
demolition of the perimeter wall. The trial court issued a temporary restraining order the following day.
On January 23, 1996, after due hearing, the trial court denied issuance of a preliminary injunction.[2]
Respondent questioned the denial before the Court of Appeals in CA-G.R. SP No. 39549. The appellate court
conducted an ocular inspection of Neptune Street[3] and on February 13, 1996, it issued a writ of
preliminary injunction enjoining the implementation of the MMDAs proposed action.[4]
On January 28, 1997, the appellate court rendered a Decision on the merits of the case finding that the
MMDA has no authority to order the opening of Neptune Street, a private subdivision road and cause the
demolition of its perimeter walls. It held that the authority is lodged in the City Council of Makati by
ordinance. The decision disposed of as follows: Jurissc
"WHEREFORE, the Petition is GRANTED; the challenged Order dated January 23, 1995, in Civil Case No. 96001, is SET ASIDE and the Writ of Preliminary Injunction issued on February 13, 1996 is hereby made
permanent.
"For want of sustainable substantiation, the Motion to Cite Roberto L. del Rosario in contempt is denied.[5]
"No pronouncement as to costs.
"SO ORDERED."[6]
The Motion for Reconsideration of the decision was denied on September 28, 1998. Hence, this recourse.
Jksm
Petitioner MMDA raises the following questions:
"I
HAS THE METROPOLITAN MANILA DEVELOPMENT AUTHORITY (MMDA) THE MANDATE TO OPEN NEPTUNE
STREET TO PUBLIC TRAFFIC PURSUANT TO ITS REGULATORY AND POLICE POWERS?
II
IS THE PASSAGE OF AN ORDINANCE A CONDITION PRECEDENT BEFORE THE MMDA MAY ORDER THE
OPENING OF SUBDIVISION ROADS TO PUBLIC TRAFFIC?
III
IS RESPONDENT BEL-AIR VILLAGE ASSOCIATION, INC. ESTOPPED FROM DENYING OR ASSAILING THE
AUTHORITY OF THE MMDA TO OPEN THE SUBJECT STREET? Jlexj
V
WAS RESPONDENT DEPRIVED OF DUE PROCESS DESPITE THE SEVERAL MEETINGS HELD BETWEEN MMDA

AND THE AFFECTED BEL-AIR RESIDENTS AND BAVA OFFICERS?

V
HAS RESPONDENT COME TO COURT WITH UNCLEAN HANDS?"[7]
Neptune Street is owned by respondent BAVA. It is a private road inside Bel-Air Village, a private residential
subdivision in the heart of the financial and commercial district of Makati City. It runs parallel to Kalayaan
Avenue, a national road open to the general public. Dividing the two (2) streets is a concrete perimeter wall
approximately fifteen (15) feet high. The western end of Neptune Street intersects Nicanor Garcia, formerly
Reposo Street, a subdivision road open to public vehicular traffic, while its eastern end intersects Makati
Avenue, a national road. Both ends of Neptune Street are guarded by iron gates. Edp mis
Petitioner MMDA claims that it has the authority to open Neptune Street to public traffic because it is an
agent of the state endowed with police power in the delivery of basic services in Metro Manila. One of these
basic services is traffic management which involves the regulation of the use of thoroughfares to insure the
safety, convenience and welfare of the general public. It is alleged that the police power of MMDA was
affirmed by this Court in the consolidated cases of Sangalang v. Intermediate Appellate Court.[8] From the
premise that it has police power, it is now urged that there is no need for the City of Makati to enact an
ordinance opening Neptune street to the public.[9]
Police power is an inherent attribute of sovereignty. It has been defined as the power vested by the
Constitution in the legislature to make, ordain, and establish all manner of wholesome and reasonable laws,
statutes and ordinances, either with penalties or without, not repugnant to the Constitution, as they shall
judge to be for the good and welfare of the commonwealth, and for the subjects of the same.[10] The power
is plenary and its scope is vast and pervasive, reaching and justifying measures for public health, public
safety, public morals, and the general welfare.[11]
It bears stressing that police power is lodged primarily in the National Legislature.[12] It cannot be
exercised by any group or body of individuals not possessing legislative power.[13] The National Legislature,
however, may delegate this power to the President and administrative boards as well as the lawmaking
bodies of municipal corporations or local government units.[14] Once delegated, the agents can exercise
only such legislative powers as are conferred on them by the national lawmaking body.[15]
A local government is a "political subdivision of a nation or state which is constituted by law and has
substantial control of local affairs."[16] The Local Government Code of 1991 defines a local government unit
as a "body politic and corporate"[17]-- one endowed with powers as a political subdivision of the National
Government and as a corporate entity representing the inhabitants of its territory.[18] Local government
units are the provinces, cities, municipalities and barangays.[19] They are also the territorial and political
subdivisions of the state.[20]
Our Congress delegated police power to the local government units in the Local Government Code of 1991.
This delegation is found in Section 16 of the same Code, known as the general welfare clause, viz: Chief
"Sec. 16. General Welfare.Every local government unit shall exercise the powers expressly granted, those
necessarily implied therefrom, as well as powers necessary, appropriate, or incidental for its efficient and
effective governance, and those which are essential to the promotion of the general welfare. Within their
respective territorial jurisdictions, local government units shall ensure and support, among other things, the
preservation and enrichment of culture, promote health and safety, enhance the right of the people to a
balanced ecology, encourage and support the development of appropriate and self-reliant scientific and
technological capabilities, improve public morals, enhance economic prosperity and social justice, promote
full employment among their residents, maintain peace and order, and preserve the comfort and
convenience of their inhabitants."[21]

Local government units exercise police power through their respective legislative bodies. The legislative
body of the provincial government is the sangguniang panlalawigan, that of the city government is the
sangguniang panlungsod, that of the municipal government is the sangguniang bayan, and that of the
barangay is the sangguniang barangay. The Local Government Code of 1991 empowers the sangguniang
panlalawigan, sangguniang panlungsod and sangguniang bayan to "enact ordinances, approve resolutions
and appropriate funds for the general welfare of the [province, city or municipality, as the case may be],
and its inhabitants pursuant to Section 16 of the Code and in the proper exercise of the corporate powers of
the [province, city municipality] provided under the Code x x x."[22] The same Code gives the sangguniang
barangay the power to "enact ordinances as may be necessary to discharge the responsibilities conferred
upon it by law or ordinance and to promote the general welfare of the inhabitants thereon."[23]
Metropolitan or Metro Manila is a body composed of several local government units - i.e., twelve (12) cities
and five (5) municipalities, namely, the cities of Caloocan, Manila, Mandaluyong, Makati, Pasay, Pasig,
Quezon, Muntinlupa, Las Pinas, Marikina, Paranaque and Valenzuela, and the municipalities of Malabon, ,
Navotas, , Pateros, San Juan and Taguig. With the passage of Republic Act (R. A.) No. 7924[24] in 1995,
Metropolitan Manila was declared as a "special development and administrative region" and the
Administration of "metro-wide" basic services affecting the region placed under "a development authority"
referred to as the MMDA.[25]
"Metro-wide services" are those "services which have metro-wide impact and transcend local political
boundaries or entail huge expenditures such that it would not be viable for said services to be provided by
the individual local government units comprising Metro Manila."[26] There are seven (7) basic metro-wide
services and the scope of these services cover the following: (1) development planning; (2) transport and
traffic management; (3) solid waste disposal and management; (4) flood control and sewerage
management; (5) urban renewal, zoning and land use planning, and shelter services; (6) health and
sanitation, urban protection and pollution control; and (7) public safety. The basic service of transport and
traffic management includes the following: Lexjuris
"(b) Transport and traffic management which include the formulation, coordination, and monitoring of
policies, standards, programs and projects to rationalize the existing transport operations, infrastructure
requirements, the use of thoroughfares, and promotion of safe and convenient movement of persons and
goods; provision for the mass transport system and the institution of a system to regulate road users;
administration and implementation of all traffic enforcement operations, traffic engineering services and
traffic education programs, including the institution of a single ticketing system in Metropolitan Manila;"[27]
In the delivery of the seven (7) basic services, the MMDA has the following powers and functions: Esm
"Sec. 5. Functions and powers of the Metro Manila Development Authority.The MMDA shall:
(a) Formulate, coordinate and regulate the implementation of medium and long-term plans and programs
for the delivery of metro-wide services, land use and physical development within Metropolitan Manila,
consistent with national development objectives and priorities;
(b) Prepare, coordinate and regulate the implementation of medium-term investment programs for metrowide services which shall indicate sources and uses of funds for priority programs and projects, and which
shall include the packaging of projects and presentation to funding institutions; Esmsc
(c) Undertake and manage on its own metro-wide programs and projects for the delivery of specific services
under its jurisdiction, subject to the approval of the Council. For this purpose, MMDA can create appropriate
project management offices;
(d) Coordinate and monitor the implementation of such plans, programs and projects in Metro Manila;
identify bottlenecks and adopt solutions to problems of implementation;

(e) The MMDA shall set the policies concerning traffic in Metro Manila, and shall coordinate and regulate the
implementation of all programs and projects concerning traffic management, specifically pertaining to
enforcement, engineering and education. Upon request, it shall be extended assistance and cooperation,
including but not limited to, assignment of personnel, by all other government agencies and offices
concerned;
(f) Install and administer a single ticketing system, fix, impose and collect fines and penalties for all kinds of
violations of traffic rules and regulations, whether moving or non-moving in nature, and confiscate and
suspend or revoke drivers licenses in the enforcement of such traffic laws and regulations, the provisions of
RA 4136 and PD 1605 to the contrary notwithstanding. For this purpose, the Authority shall impose all traffic
laws and regulations in Metro Manila, through its traffic operation center, and may deputize members of the
PNP, traffic enforcers of local government units, duly licensed security guards, or members of nongovernmental organizations to whom may be delegated certain authority, subject to such conditions and
requirements as the Authority may impose; and
(g) Perform other related functions required to achieve the objectives of the MMDA, including the
undertaking of delivery of basic services to the local government units, when deemed necessary subject to
prior coordination with and consent of the local government unit concerned." Jurismis
The implementation of the MMDAs plans, programs and projects is undertaken by the local government
units, national government agencies, accredited peoples organizations, non-governmental organizations,
and the private sector as well as by the MMDA itself. For this purpose, the MMDA has the power to enter into
contracts, memoranda of agreement and other cooperative arrangements with these bodies for the delivery
of the required services within Metro Manila.[28]
The governing board of the MMDA is the Metro Manila Council. The Council is composed of the mayors of
the component 12 cities and 5 municipalities, the president of the Metro Manila Vice-Mayors League and the
president of the Metro Manila Councilors League.[29] The Council is headed by a Chairman who is
appointed by the President and vested with the rank of cabinet member. As the policy-making body of the
MMDA, the Metro Manila Council approves metro-wide plans, programs and projects, and issues the
necessary rules and regulations for the implementation of said plans; it approves the annual budget of the
MMDA and promulgates the rules and regulations for the delivery of basic services, collection of service and
regulatory fees, fines and penalties. These functions are particularly enumerated as follows: LEX
"Sec. 6. Functions of the Metro Manila Council. (a) The Council shall be the policy-making body of the MMDA;
(b) It shall approve metro-wide plans, programs and projects and issue rules and regulations deemed
necessary by the MMDA to carry out the purposes of this Act;
(c) It may increase the rate of allowances and per diems of the members of the Council to be effective
during the term of the succeeding Council. It shall fix the compensation of the officers and personnel of the
MMDA, and approve the annual budget thereof for submission to the Department of Budget and
Management (DBM);
(d) It shall promulgate rules and regulations and set policies and standards for metro-wide application
governing the delivery of basic services, prescribe and collect service and regulatory fees, and impose and
collect fines and penalties." Jj sc
Clearly, the scope of the MMDAs function is limited to the delivery of the seven (7) basic services. One of
these is transport and traffic management which includes the formulation and monitoring of policies,
standards and projects to rationalize the existing transport operations, infrastructure requirements, the use
of thoroughfares and promotion of the safe movement of persons and goods. It also covers the mass

transport system and the institution of a system of road regulation, the administration of all traffic
enforcement operations, traffic engineering services and traffic education programs, including the
institution of a single ticketing system in Metro Manila for traffic violations. Under this service, the MMDA is
expressly authorized "to set the policies concerning traffic" and "coordinate and regulate the
implementation of all traffic management programs." In addition, the MMDA may "install and administer a
single ticketing system," fix, impose and collect fines and penalties for all traffic violations. Ca-lrsc
It will be noted that the powers of the MMDA are limited to the following acts: formulation, coordination,
regulation, implementation, preparation, management, monitoring, setting of policies, installation of a
system and administration. There is no syllable in R. A. No. 7924 that grants the MMDA police power, let
alone legislative power. Even the Metro Manila Council has not been delegated any legislative power. Unlike
the legislative bodies of the local government units, there is no provision in R. A. No. 7924 that empowers
the MMDA or its Council to "enact ordinances, approve resolutions and appropriate funds for the general
welfare" of the inhabitants of Metro Manila. The MMDA is, as termed in the charter itself, a "development
authority."[30] It is an agency created for the purpose of laying down policies and coordinating with the
various national government agencies, peoples organizations, non-governmental organizations and the
private sector for the efficient and expeditious delivery of basic services in the vast metropolitan area. All
its functions are administrative in nature and these are actually summed up in the charter itself, viz:
"Sec. 2. Creation of the Metropolitan Manila Development Authority. -- x x x.
The MMDA shall perform planning, monitoring and coordinative functions, and in the process exercise
regulatory and supervisory authority over the delivery of metro-wide services within Metro Manila, without
diminution of the autonomy of the local government units concerning purely local matters."[31]
Petitioner cannot seek refuge in the cases of Sangalang v. Intermediate Appellate Court[32] where we
upheld a zoning ordinance issued by the Metro Manila Commission (MMC), the predecessor of the MMDA, as
an exercise of police power. The first Sangalang decision was on the merits of the petition,[33] while the
second decision denied reconsideration of the first case and in addition discussed the case of Yabut v. Court
of Appeals.[34]
Sangalang v. IAC involved five (5) consolidated petitions filed by respondent BAVA and three residents of
Bel-Air Village against other residents of the Village and the Ayala Corporation, formerly the Makati
Development Corporation, as the developer of the subdivision. The petitioners sought to enforce certain
restrictive easements in the deeds of sale over their respective lots in the subdivision. These were the
prohibition on the setting up of commercial and advertising signs on the lots, and the condition that the lots
be used only for residential purposes. Petitioners alleged that respondents, who were residents along Jupiter
Street of the subdivision, converted their residences into commercial establishments in violation of the
"deed restrictions," and that respondent Ayala Corporation ushered in the full commercialization" of Jupiter
Street by tearing down the perimeter wall that separated the commercial from the residential section of the
village.[35]
The petitions were dismissed based on Ordinance No. 81 of the Municipal Council of Makati and Ordinance
No. 81-01 of the Metro Manila Commission (MMC). Municipal Ordinance No. 81 classified Bel-Air Village as a
Class A Residential Zone, with its boundary in the south extending to the center line of Jupiter Street. The
Municipal Ordinance was adopted by the MMC under the Comprehensive Zoning Ordinance for the National
Capital Region and promulgated as MMC Ordinance No. 81-01. Bel-Air Village was indicated therein as
bounded by Jupiter Street and the block adjacent thereto was classified as a High Intensity Commercial
Zone.[36]
We ruled that since both Ordinances recognized Jupiter Street as the boundary between Bel-Air Village and
the commercial district, Jupiter Street was not for the exclusive benefit of Bel-Air residents. We also held
that the perimeter wall on said street was constructed not to separate the residential from the commercial
blocks but simply for security reasons, hence, in tearing down said wall, Ayala Corporation did not violate

the "deed restrictions" in the deeds of sale. Scc-alr

We upheld the ordinances, specifically MMC Ordinance No. 81-01, as a legitimate exercise of police power.
[37] The power of the MMC and the Makati Municipal Council to enact zoning ordinances for the general
welfare prevailed over the "deed restrictions".
In the second Sangalang/Yabut decision, we held that the opening of Jupiter Street was warranted by the
demands of the common good in terms of "traffic decongestion and public convenience." Jupiter was
opened by the Municipal Mayor to alleviate traffic congestion along the public streets adjacent to the
Village.[38] The same reason was given for the opening to public vehicular traffic of Orbit Street, a road
inside the same village. The destruction of the gate in Orbit Street was also made under the police power of
the municipal government. The gate, like the perimeter wall along Jupiter, was a public nuisance because it
hindered and impaired the use of property, hence, its summary abatement by the mayor was proper and
legal.[39]
Contrary to petitioners claim, the two Sangalang cases do not apply to the case at bar. Firstly, both involved
zoning ordinances passed by the municipal council of Makati and the MMC. In the instant case, the basis for
the proposed opening of Neptune Street is contained in the notice of December 22, 1995 sent by petitioner
to respondent BAVA, through its president. The notice does not cite any ordinance or law, either by the
Sangguniang Panlungsod of Makati City or by the MMDA, as the legal basis for the proposed opening of
Neptune Street. Petitioner MMDA simply relied on its authority under its charter "to rationalize the use of
roads and/or thoroughfares for the safe and convenient movement of persons." Rationalizing the use of
roads and thoroughfares is one of the acts that fall within the scope of transport and traffic management.
By no stretch of the imagination, however, can this be interpreted as an express or implied grant of
ordinance-making power, much less police power. Misjuris
Secondly, the MMDA is not the same entity as the MMC in Sangalang. Although the MMC is the forerunner of
the present MMDA, an examination of Presidential Decree (P. D.) No. 824, the charter of the MMC, shows
that the latter possessed greater powers which were not bestowed on the present MMDA. Jjlex
Metropolitan Manila was first created in 1975 by Presidential Decree (P.D.) No. 824. It comprised the Greater
Manila Area composed of the contiguous four (4) cities of Manila, Quezon, Pasay and Caloocan, and the
thirteen (13) municipalities of Makati, Mandaluyong, San Juan, Las Pinas, Malabon, Navotas, Pasig, Pateros,
Paranaque, Marikina, Muntinlupa and Taguig in the province of Rizal, and Valenzuela in the province of
Bulacan.[40] Metropolitan Manila was created as a response to the finding that the rapid growth of
population and the increase of social and economic requirements in these areas demand a call for
simultaneous and unified development; that the public services rendered by the respective local
governments could be administered more efficiently and economically if integrated under a system of
central planning; and this coordination, "especially in the maintenance of peace and order and the
eradication of social and economic ills that fanned the flames of rebellion and discontent [were] part of
reform measures under Martial Law essential to the safety and security of the State."[41]
Metropolitan Manila was established as a "public corporation" with the following powers: Calrs-pped
"Section 1. Creation of the Metropolitan Manila.There is hereby created a public corporation, to be known as
the Metropolitan Manila, vested with powers and attributes of a corporation including the power to make
contracts, sue and be sued, acquire, purchase, expropriate, hold, transfer and dispose of property and such
other powers as are necessary to carry out its purposes. The Corporation shall be administered by a
Commission created under this Decree."[42]
The administration of Metropolitan Manila was placed under the Metro Manila Commission (MMC) vested
with the following powers:
"Sec. 4. Powers and Functions of the Commission. - The Commission shall have the following powers and

functions:
1. To act as a central government to establish and administer programs and provide services common to
the area;
2. To levy and collect taxes and special assessments, borrow and expend money and issue bonds, revenue
certificates, and other obligations of indebtedness. Existing tax measures should, however, continue to be
operative until otherwise modified or repealed by the Commission;
3. To charge and collect fees for the use of public service facilities;
4. To appropriate money for the operation of the metropolitan government and review appropriations for the
city and municipal units within its jurisdiction with authority to disapprove the same if found to be not in
accordance with the established policies of the Commission, without prejudice to any contractual obligation
of the local government units involved existing at the time of approval of this Decree;
5. To review, amend, revise or repeal all ordinances, resolutions and acts of cities and municipalities within
Metropolitan Manila;
6. To enact or approve ordinances, resolutions and to fix penalties for any violation thereof which shall not
exceed a fine of P10,000.00 or imprisonment of six years or both such fine and imprisonment for a single
offense;
7. To perform general administrative, executive and policy-making functions;
8. To establish a fire control operation center, which shall direct the fire services of the city and municipal
governments in the metropolitan area;
9. To establish a garbage disposal operation center, which shall direct garbage collection and disposal in the
metropolitan area;
10. To establish and operate a transport and traffic center, which shall direct traffic activities; Jjjuris
11. To coordinate and monitor governmental and private activities pertaining to essential services such as
transportation, flood control and drainage, water supply and sewerage, social, health and environmental
services, housing, park development, and others;
12. To insure and monitor the undertaking of a comprehensive social, economic and physical planning and
development of the area;
13. To study the feasibility of increasing barangay participation in the affairs of their respective local
governments and to propose to the President of the Philippines definite programs and policies for
implementation;
14. To submit within thirty (30) days after the close of each fiscal year an annual report to the President of
the Philippines and to submit a periodic report whenever deemed necessary; and
15. To perform such other tasks as may be assigned or directed by the President of the Philippines." Sc jj
The MMC was the "central government" of Metro Manila for the purpose of establishing and administering
programs providing services common to the area. As a "central government" it had the power to levy and
collect taxes and special assessments, the power to charge and collect fees; the power to appropriate
money for its operation, and at the same time, review appropriations for the city and municipal units within
its jurisdiction. It was bestowed the power to enact or approve ordinances, resolutions and fix penalties for

violation of such ordinances and resolutions. It also had the power to review, amend, revise or repeal all
ordinances, resolutions and acts of any of the four (4) cities and thirteen (13) municipalities comprising
Metro Manila.
P. D. No. 824 further provided:
"Sec. 9. Until otherwise provided, the governments of the four cities and thirteen municipalities in the
Metropolitan Manila shall continue to exist in their present form except as may be inconsistent with this
Decree. The members of the existing city and municipal councils in Metropolitan Manila shall, upon
promulgation of this Decree, and until December 31, 1975, become members of the Sangguniang Bayan
which is hereby created for every city and municipality of Metropolitan Manila.
In addition, the Sangguniang Bayan shall be composed of as many barangay captains as may be
determined and chosen by the Commission, and such number of representatives from other sectors of the
society as may be appointed by the President upon recommendation of the Commission.
x x x.
The Sangguniang Bayan may recommend to the Commission ordinances, resolutions or such measures as it
may adopt; Provided, that no such ordinance, resolution or measure shall become effective, until after its
approval by the Commission; and Provided further, that the power to impose taxes and other levies, the
power to appropriate money and the power to pass ordinances or resolutions with penal sanctions shall be
vested exclusively in the Commission."
The creation of the MMC also carried with it the creation of the Sangguniang Bayan. This was composed of
the members of the component city and municipal councils, barangay captains chosen by the MMC and
sectoral representatives appointed by the President. The Sangguniang Bayan had the power to recommend
to the MMC the adoption of ordinances, resolutions or measures. It was the MMC itself, however, that
possessed legislative powers. All ordinances, resolutions and measures recommended by the Sangguniang
Bayan were subject to the MMCs approval. Moreover, the power to impose taxes and other levies, the power
to appropriate money, and the power to pass ordinances or resolutions with penal sanctions were vested
exclusively in the MMC. Sce-dp
Thus, Metropolitan Manila had a "central government," i.e., the MMC which fully possessed legislative and
police powers. Whatever legislative powers the component cities and municipalities had were all subject to
review and approval by the MMC.
After President Corazon Aquino assumed power, there was a clamor to restore the autonomy of the local
government units in Metro Manila. Hence, Sections 1 and 2 of Article X of the 1987 Constitution provided: Sj
cj
"Section 1. The territorial and political subdivisions of the Republic of the Philippines are the provinces,
cities, municipalities and barangays. There shall be autonomous regions in Muslim Mindanao and the
Cordilleras as herein provided.
Section 2. The territorial and political subdivisions shall enjoy local autonomy."
The Constitution, however, recognized the necessity of creating metropolitan regions not only in the
existing National Capital Region but also in potential equivalents in the Visayas and Mindanao.[43] Section
11 of the same Article X thus provided:
"Section 11. The Congress may, by law, create special metropolitan political subdivisions, subject to a
plebiscite as set forth in Section 10 hereof. The component cities and municipalities shall retain their basic
autonomy and shall be entitled to their own local executives and legislative assemblies. The jurisdiction of

the metropolitan authority that will thereby be created shall be limited to basic services requiring
coordination."
The Constitution itself expressly provides that Congress may, by law, create "special metropolitan political
subdivisions" which shall be subject to approval by a majority of the votes cast in a plebiscite in the political
units directly affected; the jurisdiction of this subdivision shall be limited to basic services requiring
coordination; and the cities and municipalities comprising this subdivision shall retain their basic autonomy
and their own local executive and legislative assemblies.[44] Pending enactment of this law, the Transitory
Provisions of the Constitution gave the President of the Philippines the power to constitute the Metropolitan
Authority, viz:
"Section 8. Until otherwise provided by Congress, the President may constitute the Metropolitan Authority to
be composed of the heads of all local government units comprising the Metropolitan Manila area."[45]
In 1990, President Aquino issued Executive Order (E. O.) No. 392 and constituted the Metropolitan Manila
Authority (MMA). The powers and functions of the MMC were devolved to the MMA.[46] It ought to be
stressed, however, that not all powers and functions of the MMC were passed to the MMA. The MMAs power
was limited to the "delivery of basic urban services requiring coordination in Metropolitan Manila."[47] The
MMAs governing body, the Metropolitan Manila Council, although composed of the mayors of the
component cities and municipalities, was merely given the power of: (1) formulation of policies on the
delivery of basic services requiring coordination and consolidation; and (2) promulgation of resolutions and
other issuances, approval of a code of basic services and the exercise of its rule-making power.[48]
Under the 1987 Constitution, the local government units became primarily responsible for the governance
of their respective political subdivisions. The MMAs jurisdiction was limited to addressing common problems
involving basic services that transcended local boundaries. It did not have legislative power. Its power was
merely to provide the local government units technical assistance in the preparation of local development
plans. Any semblance of legislative power it had was confined to a "review [of] legislation proposed by the
local legislative assemblies to ensure consistency among local governments and with the comprehensive
development plan of Metro Manila," and to "advise the local governments accordingly."[49]
When R.A. No. 7924 took effect, Metropolitan Manila became a "special development and administrative
region" and the MMDA a "special development authority" whose functions were "without prejudice to the
autonomy of the affected local government units." The character of the MMDA was clearly defined in the
legislative debates enacting its charter.
R. A. No. 7924 originated as House Bill No. 14170/ 11116 and was introduced by several legislators led by
Dante Tinga, Roilo Golez and Feliciano Belmonte. It was presented to the House of Representatives by the
Committee on Local Governments chaired by Congressman Ciriaco R. Alfelor. The bill was a product of
Committee consultations with the local government units in the National Capital Region (NCR), with former
Chairmen of the MMC and MMA,[50] and career officials of said agencies. When the bill was first taken up by
the Committee on Local Governments, the following debate took place:
"THE CHAIRMAN [Hon. Ciriaco Alfelor]: Okay, Let me explain. This has been debated a long time ago, you
know. Its a special we can create a special metropolitan political subdivision. Supreme
Actually, there are only six (6) political subdivisions provided for in the Constitution: barangay, municipality,
city, province, and we have the Autonomous Region of Mindanao and we have the Cordillera. So we have 6.
Now.
HON. [Elias] LOPEZ: May I interrupt, Mr. Chairman. In the case of the Autonomous Region, that is also
specifically mandated by the Constitution.
THE CHAIRMAN: Thats correct. But it is considered to be a political subdivision. What is the meaning of a

political subdivision? Meaning to say, that it has its own government, it has its own political personality, it
has the power to tax, and all governmental powers: police power and everything. All right. Authority is
different; because it does not have its own government. It is only a council, it is an organization of political
subdivision, powers, no, which is not imbued with any political power. Esmmis
If you go over Section 6, where the powers and functions of the Metro Manila Development Authority, it is
purely coordinative. And it provides here that the council is policy-making. All right.
Under the Constitution is a Metropolitan Authority with coordinative power. Meaning to say, it coordinates
all of the different basic services which have to be delivered to the constituency. All right.
There is now a problem. Each local government unit is given its respective as a political subdivision.
Kalookan has its powers, as provided for and protected and guaranteed by the Constitution. All right, the
exercise. However, in the exercise of that power, it might be deleterious and disadvantageous to other local
government units. So, we are forming an authority where all of these will be members and then set up a
policy in order that the basic services can be effectively coordinated. All right. justice
Of course, we cannot deny that the MMDA has to survive. We have to provide some funds, resources. But it
does not possess any political power. We do not elect the Governor. We do not have the power to tax. As a
matter of fact, I was trying to intimate to the author that it must have the power to sue and be sued
because it coordinates. All right. It coordinates practically all these basic services so that the flow and the
distribution of the basic services will be continuous. Like traffic, we cannot deny that. Its before our eyes.
Sewerage, flood control, water system, peace and order, we cannot deny these. Its right on our face. We
have to look for a solution. What would be the right solution? All right, we envision that there should be a
coordinating agency and it is called an authority. All right, if you do not want to call it an authority, its
alright. We may call it a council or maybe a management agency.
x x x."[51]
Clearly, the MMDA is not a political unit of government. The power delegated to the MMDA is that given to
the Metro Manila Council to promulgate administrative rules and regulations in the implementation of the
MMDAs functions. There is no grant of authority to enact ordinances and regulations for the general welfare
of the inhabitants of the metropolis. This was explicitly stated in the last Committee deliberations prior to
the bills presentation to Congress. Thus: Ed-p
"THE CHAIRMAN: Yeah, but we have to go over the suggested revision. I think this was already approved
before, but it was reconsidered in view of the proposals, set-up, to make the MMDA stronger. Okay, so if
there is no objection to paragraph "f" And then next is paragraph "b," under Section 6. "It shall approve
metro-wide plans, programs and projects and issue ordinances or resolutions deemed necessary by the
MMDA to carry out the purposes of this Act." Do you have the powers? Does the MMDA because that takes
the form of a local government unit, a political subdivision.
HON. [Feliciano] BELMONTE: Yes, I believe so, your Honor. When we say that it has the policies, its very
clear that those policies must be followed. Otherwise, whats the use of empowering it to come out with
policies. Now, the policies may be in the form of a resolution or it may be in the form of a ordinance. The
term "ordinance" in this case really gives it more teeth, your honor. Otherwise, we are going to see a
situation where you have the power to adopt the policy but you cannot really make it stick as in the case
now, and I think here is Chairman Bunye. I think he will agree that that is the case now. Youve got the power
to set a policy, the body wants to follow your policy, then we say lets call it an ordinance and see if they will
not follow it.
THE CHAIRMAN: Thats very nice. I like that. However, there is a constitutional impediment. You are making
this MMDA a political subdivision. The creation of the MMDA would be subject to a plebiscite. That is what
Im trying to avoid. Ive been trying to avoid this kind of predicament. Under the Constitution it states: if it is

a political subdivision, once it is created it has to be subject to a plebiscite. Im trying to make this as
administrative. Thats why we place the Chairman as a cabinet rank.
HON. BELMONTE: All right, Mr. Chairman, okay, what you are saying there is .
THE CHAIRMAN: In setting up ordinances, it is a political exercise. Believe me.
HON. [Elias] LOPEZ: Mr. Chairman, it can be changed into issuances of rules and regulations. That would be
it shall also be enforced. Jksm
HON. BELMONTE: Okay, I will .
HON. LOPEZ: And you can also say that violation of such rule, you impose a sanction. But you know,
ordinance has a different legal connotation.
HON. BELMONTE: All right. I defer to that opinion, your Honor. sc
THE CHAIRMAN: So instead of ordinances, say rules and regulations.
HON. BELMONTE: Or resolutions. Actually, they are actually considering resolutions now.
THE CHAIRMAN: Rules and resolutions.
HON. BELMONTE: Rules, regulations and resolutions."[52]
The draft of H. B. No. 14170/ 11116 was presented by the Committee to the House of Representatives. The
explanatory note to the bill stated that the proposed MMDA is a "development authority" which is a
"national agency, not a political government unit."[53] The explanatory note was adopted as the
sponsorship speech of the Committee on Local Governments. No interpellations or debates were made on
the floor and no amendments introduced. The bill was approved on second reading on the same day it was
presented.[54]
When the bill was forwarded to the Senate, several amendments were made. These amendments, however,
did not affect the nature of the MMDA as originally conceived in the House of Representatives.[55]
It is thus beyond doubt that the MMDA is not a local government unit or a public corporation endowed with
legislative power. It is not even a "special metropolitan political subdivision" as contemplated in Section 11,
Article X of the Constitution. The creation of a "special metropolitan political subdivision" requires the
approval by a majority of the votes cast in a plebiscite in the political units directly affected.[56] R. A. No.
7924 was not submitted to the inhabitants of Metro Manila in a plebiscite. The Chairman of the MMDA is not
an official elected by the people, but appointed by the President with the rank and privileges of a cabinet
member. In fact, part of his function is to perform such other duties as may be assigned to him by the
President,[57] whereas in local government units, the President merely exercises supervisory authority. This
emphasizes the administrative character of the MMDA. Newmiso
Clearly then, the MMC under P. D. No. 824 is not the same entity as the MMDA under R. A. No. 7924. Unlike
the MMC, the MMDA has no power to enact ordinances for the welfare of the community. It is the local
government units, acting through their respective legislative councils, that possess legislative power and
police power. In the case at bar, the Sangguniang Panlungsod of Makati City did not pass any ordinance or
resolution ordering the opening of Neptune Street, hence, its proposed opening by petitioner MMDA is
illegal and the respondent Court of Appeals did not err in so ruling. We desist from ruling on the other issues
as they are unnecessary. Esmso
We stress that this decision does not make light of the MMDAs noble efforts to solve the chaotic traffic

condition in Metro Manila. Everyday, traffic jams and traffic bottlenecks plague the metropolis. Even our
once sprawling boulevards and avenues are now crammed with cars while city streets are clogged with
motorists and pedestrians. Traffic has become a social malaise affecting our peoples productivity and the
efficient delivery of goods and services in the country. The MMDA was created to put some order in the
metropolitan transportation system but unfortunately the powers granted by its charter are limited. Its good
intentions cannot justify the opening for public use of a private street in a private subdivision without any
legal warrant. The promotion of the general welfare is not antithetical to the preservation of the rule of law.
Sdjad
IN VIEW WHEREOF, the petition is denied. The Decision and Resolution of the Court of Appeals in CA-G.R. SP
No. 39549 are affirmed. Sppedsc
SO ORDERED.

G.R. No. 111097

20, 1994

July

MAYOR PABLO P. MAGTAJAS & THE CITY OF CAGAYAN DE ORO, petitioners,

vs.
PRYCE PROPERTIES CORPORATION, INC. & PHILIPPINE AMUSEMENT AND GAMING CORPORATION,
respondents.

CRUZ, J.:
There was instant opposition when PAGCOR announced the opening of a casino in Cagayan de Oro City.
Civic organizations angrily denounced the project. The religious elements echoed the objection and so did
the women's groups and the youth. Demonstrations were led by the mayor and the city legislators. The
media trumpeted the protest, describing the casino as an affront to the welfare of the city.
The trouble arose when in 1992, flush with its tremendous success in several cities, PAGCOR decided to
expand its operations to Cagayan de Oro City. To this end, it leased a portion of a building belonging to
Pryce Properties Corporation, Inc., one of the herein private respondents, renovated and equipped the
same, and prepared to inaugurate its casino there during the Christmas season.
The reaction of the Sangguniang Panlungsod of Cagayan de Oro City was swift and hostile. On December 7,
1992, it enacted Ordinance No. 3353 reading as follows:
ORDINANCE NO. 3353
AN ORDINANCE PROHIBITING THE ISSUANCE OF BUSINESS PERMIT AND CANCELLING EXISTING BUSINESS
PERMIT TO ANY ESTABLISHMENT FOR THE USING AND ALLOWING TO BE USED ITS PREMISES OR PORTION
THEREOF FOR THE OPERATION OF CASINO.
BE IT ORDAINED by the Sangguniang Panlungsod of the City of Cagayan de Oro, in session assembled that:
Sec. 1.

That pursuant to the policy of the city banning the operation of casino within its territorial jurisdiction, no
business permit shall be issued to any person, partnership or corporation for the operation of casino within
the city limits.
Sec. 2.

That it shall be a violation of existing business permit by any persons, partnership or corporation to use its
business establishment or portion thereof, or allow the use thereof by others for casino operation and other
gambling activities.
Sec. 3.

PENALTIES. Any violation of such existing business permit as defined in the preceding section shall suffer
the following penalties, to wit:
a)
Suspension of the business permit for sixty (60) days for the first offense and a fine of P1,000.00/day
b)
Suspension of the business permit for Six (6) months for the second offense, and a fine of P3,000.00/day
c)
Permanent revocation of the business permit and imprisonment of One (1) year, for the third and
subsequent offenses.
Sec. 4.
This Ordinance shall take effect ten (10) days from publication thereof.

Nor was this all. On January 4, 1993, it adopted a sterner Ordinance No. 3375-93 reading as follows:
ORDINANCE NO. 3375-93
AN ORDINANCE PROHIBITING THE OPERATION OF CASINO AND PROVIDING PENALTY FOR VIOLATION
THEREFOR.
WHEREAS, the City Council established a policy as early as 1990 against CASINO under its Resolution No.
2295;
WHEREAS, on October 14, 1992, the City Council passed another Resolution No. 2673, reiterating its policy
against the establishment of CASINO;
WHEREAS, subsequently, thereafter, it likewise passed Ordinance No. 3353, prohibiting the issuance of
Business Permit and to cancel existing Business Permit to any establishment for the using and allowing to
be used its premises or portion thereof for the operation of CASINO;
WHEREAS, under Art. 3, section 458, No. (4), sub paragraph VI of the Local Government Code of 1991 (Rep.
Act 7160) and under Art. 99, No. (4), Paragraph VI of the implementing rules of the Local Government Code,
the City Council as the Legislative Body shall enact measure to suppress any activity inimical to public
morals and general welfare of the people and/or regulate or prohibit such activity pertaining to amusement
or entertainment in order to protect social and moral welfare of the community;
NOW THEREFORE,
BE IT ORDAINED by the City Council in session duly assembled that:
Sec. 1.
The operation of gambling CASINO in the City of Cagayan de Oro is hereby prohibited.

Sec. 2.
Any violation of this Ordinance shall be subject to the following penalties:

a)
Administrative fine of P5,000.00 shall be imposed against the proprietor, partnership or corporation
undertaking the operation, conduct, maintenance of gambling CASINO in the City and closure thereof;
b)
Imprisonment of not less than six (6) months nor more than one (1) year or a fine in the amount of
P5,000.00 or both at the discretion of the court against the manager, supervisor, and/or any person
responsible in the establishment, conduct and maintenance of gambling CASINO.
Sec. 3.

This Ordinance shall take effect ten (10) days after its publication in a local newspaper of general
circulation.
Pryce assailed the ordinances before the Court of Appeals, where it was joined by PAGCOR as intervenor
and supplemental petitioner. Their challenge succeeded. On March 31, 1993, the Court of Appeals declared
the ordinances invalid and issued the writ prayed for to prohibit their enforcement. 1 Reconsideration of this
decision was denied on July 13, 1993. 2
Cagayan de Oro City and its mayor are now before us in this petition for review under Rule 45 of the Rules
of Court. 3 They aver that the respondent Court of Appeals erred in holding that:
1.
Under existing laws, the Sangguniang Panlungsod of the City of Cagayan de Oro does not have the power
and authority to prohibit the establishment and operation of a PAGCOR gambling casino within the City's
territorial limits.
2.
The
phrase "gambling and other prohibited games of chance" found in Sec. 458, par. (a), sub-par. (1) (v) of
R.A. 7160 could only mean "illegal gambling."
3.
questioned Ordinances in effect annul P.D. 1869 and are therefore invalid on that point.

The

4.
The
questioned Ordinances are discriminatory to casino and partial to cockfighting and are therefore invalid on
that point.
5.
The
questioned Ordinances are not reasonable, not consonant with the general powers and purposes of the
instrumentality concerned and inconsistent with the laws or policy of the State.
6.
It
had no option but to follow the ruling in the case of Basco, et al. v. PAGCOR, G.R. No. 91649, May 14, 1991,
197 SCRA 53 in disposing of the issues presented in this present case.
PAGCOR is a corporation created directly by P.D. 1869 to help centralize and regulate all games of chance,

including casinos on land and sea within the territorial jurisdiction of the Philippines. In Basco v. Philippine
Amusements and Gaming Corporation, 4 this Court sustained the constitutionality of the decree and even
cited the benefits of the entity to the national economy as the third highest revenue-earner in the
government, next only to the BIR and the Bureau of Customs.
Cagayan de Oro City, like other local political subdivisions, is empowered to enact ordinances for the
purposes indicated in the Local Government Code. It is expressly vested with the police power under what is
known as the General Welfare Clause now embodied in Section 16 as follows:
Sec. 16.

General Welfare. Every local government unit shall exercise the powers expressly granted, those
necessarily implied therefrom, as well as powers necessary, appropriate, or incidental for its efficient and
effective governance, and those which are essential to the promotion of the general welfare. Within their
respective territorial jurisdictions, local government units shall ensure and support, among other things, the
preservation and enrichment of culture, promote health and safety, enhance the right of the people to a
balanced ecology, encourage and support the development of appropriate and self-reliant scientific and
technological capabilities, improve public morals, enhance economic prosperity and social justice, promote
full employment among their residents, maintain peace and order, and preserve the comfort and
convenience of their inhabitants.
In addition, Section 458 of the said Code specifically declares that:
Sec. 458.

Powers, Duties, Functions and Compensation. (a) The Sangguniang Panlungsod, as the legislative body of
the city, shall enact ordinances, approve resolutions and appropriate funds for the general welfare of the
city and its inhabitants pursuant to Section 16 of this Code and in the proper exercise of the corporate
powers of the city as provided for under Section 22 of this Code, and shall:
(1)
Approve ordinances and pass resolutions necessary for an efficient and effective city government, and in
this connection, shall:
xxx

xxx
xxx

(v)
Enact ordinances intended to prevent, suppress and impose appropriate penalties for habitual drunkenness
in public places, vagrancy, mendicancy, prostitution, establishment and maintenance of houses of ill repute,
gambling and other prohibited games of chance, fraudulent devices and ways to obtain money or property,
drug addiction, maintenance of drug dens, drug pushing, juvenile delinquency, the printing, distribution or
exhibition of obscene or pornographic materials or publications, and such other activities inimical to the
welfare and morals of the inhabitants of the city;
This section also authorizes the local government units to regulate properties and businesses within their
territorial limits in the interest of the general welfare. 5
The petitioners argue that by virtue of these provisions, the Sangguniang Panlungsod may prohibit the
operation of casinos because they involve games of chance, which are detrimental to the people. Gambling
is not allowed by general law and even by the Constitution itself. The legislative power conferred upon local
government units may be exercised over all kinds of gambling and not only over "illegal gambling" as the
respondents erroneously argue. Even if the operation of casinos may have been permitted under P.D. 1869,

the government of Cagayan de Oro City has the authority to prohibit them within its territory pursuant to
the authority entrusted to it by the Local Government Code.
It is submitted that this interpretation is consonant with the policy of local autonomy as mandated in Article
II, Section 25, and Article X of the Constitution, as well as various other provisions therein seeking to
strengthen the character of the nation. In giving the local government units the power to prevent or
suppress gambling and other social problems, the Local Government Code has recognized the competence
of such communities to determine and adopt the measures best expected to promote the general welfare of
their inhabitants in line with the policies of the State.
The petitioners also stress that when the Code expressly authorized the local government units to prevent
and suppress gambling and other prohibited games of chance, like craps, baccarat, blackjack and roulette,
it meant all forms of gambling without distinction. Ubi lex non distinguit, nec nos distinguere debemos. 6
Otherwise, it would have expressly excluded from the scope of their power casinos and other forms of
gambling authorized by special law, as it could have easily done. The fact that it did not do so simply means
that the local government units are permitted to prohibit all kinds of gambling within their territories,
including the operation of casinos.
The adoption of the Local Government Code, it is pointed out, had the effect of modifying the charter of the
PAGCOR. The Code is not only a later enactment than P.D. 1869 and so is deemed to prevail in case of
inconsistencies between them. More than this, the powers of the PAGCOR under the decree are expressly
discontinued by the Code insofar as they do not conform to its philosophy and provisions, pursuant to Par.
(f) of its repealing clause reading as follows:
(f)
All
general and special laws, acts, city charters, decrees, executive orders, proclamations and administrative
regulations, or part or parts thereof which are inconsistent with any of the provisions of this Code are
hereby repealed or modified accordingly.
It is also maintained that assuming there is doubt regarding the effect of the Local Government Code on
P.D. 1869, the doubt must be resolved in favor of the petitioners, in accordance with the direction in the
Code calling for its liberal interpretation in favor of the local government units. Section 5 of the Code
specifically provides:
Sec.

5.

Rules of Interpretation. In the interpretation of the provisions of this Code, the following rules shall apply:
(a)
Any
provision on a power of a local government unit shall be liberally interpreted in its favor, and in case of
doubt, any question thereon shall be resolved in favor of devolution of powers and of the lower local
government unit. Any fair and reasonable doubt as to the existence of the power shall be interpreted in
favor of the local government unit concerned;
xxx

xxx
xxx

(c)
The
general welfare provisions in this Code shall be liberally interpreted to give more powers to local
government units in accelerating economic development and upgrading the quality of life for the people in
the community; . . . (Emphasis supplied.)
Finally, the petitioners also attack gambling as intrinsically harmful and cite various provisions of the

Constitution and several decisions of this Court expressive of the general and official disapprobation of the
vice. They invoke the State policies on the family and the proper upbringing of the youth and, as might be
expected, call attention to the old case of U.S. v. Salaveria, 7 which sustained a municipal ordinance
prohibiting the playing of panguingue. The petitioners decry the immorality of gambling. They also impugn
the wisdom of P.D. 1869 (which they describe as "a martial law instrument") in creating PAGCOR and
authorizing it to operate casinos "on land and sea within the territorial jurisdiction of the Philippines."
This is the opportune time to stress an important point.
The morality of gambling is not a justiciable issue. Gambling is not illegal per se. While it is generally
considered inimical to the interests of the people, there is nothing in the Constitution categorically
proscribing or penalizing gambling or, for that matter, even mentioning it at all. It is left to Congress to deal
with the activity as it sees fit. In the exercise of its own discretion, the legislature may prohibit gambling
altogether or allow it without limitation or it may prohibit some forms of gambling and allow others for
whatever reasons it may consider sufficient. Thus, it has prohibited jueteng and monte but permits lotteries,
cockfighting and horse-racing. In making such choices, Congress has consulted its own wisdom, which this
Court has no authority to review, much less reverse. Well has it been said that courts do not sit to resolve
the merits of conflicting theories. 8 That is the prerogative of the political departments. It is settled that
questions regarding the wisdom, morality, or practicibility of statutes are not addressed to the judiciary but
may be resolved only by the legislative and executive departments, to which the function belongs in our
scheme of government. That function is exclusive. Whichever way these branches decide, they are
answerable only to their own conscience and the constituents who will ultimately judge their acts, and not
to the courts of justice.
The only question we can and shall resolve in this petition is the validity of Ordinance No. 3355 and
Ordinance No. 3375-93 as enacted by the Sangguniang Panlungsod of Cagayan de Oro City. And we shall do
so only by the criteria laid down by law and not by our own convictions on the propriety of gambling.
The tests of a valid ordinance are well established. A long line of decisions 9 has held that to be valid, an
ordinance must conform to the following substantive requirements:
1)
must not contravene the constitution or any statute.

It

2)
must not be unfair or oppressive.

It

3)
must not be partial or discriminatory.

It

4)
must not prohibit but may regulate trade.

It

5)
must be general and consistent with public policy.

It

6)
must not be unreasonable.

It

We begin by observing that under Sec. 458 of the Local Government Code, local government units are
authorized to prevent or suppress, among others, "gambling and other prohibited games of chance."
Obviously, this provision excludes games of chance which are not prohibited but are in fact permitted by
law. The petitioners are less than accurate in claiming that the Code could have excluded such games of
chance but did not. In fact it does. The language of the section is clear and unmistakable. Under the rule of

noscitur a sociis, a word or phrase should be interpreted in relation to, or given the same meaning of, words
with which it is associated. Accordingly, we conclude that since the word "gambling" is associated with "and
other prohibited games of chance," the word should be read as referring to only illegal gambling which, like
the other prohibited games of chance, must be prevented or suppressed.
We could stop here as this interpretation should settle the problem quite conclusively. But we will not. The
vigorous efforts of the petitioners on behalf of the inhabitants of Cagayan de Oro City, and the earnestness
of their advocacy, deserve more than short shrift from this Court.
The apparent flaw in the ordinances in question is that they contravene P.D. 1869 and the public policy
embodied therein insofar as they prevent PAGCOR from exercising the power conferred on it to operate a
casino in Cagayan de Oro City. The petitioners have an ingenious answer to this misgiving. They deny that it
is the ordinances that have changed P.D. 1869 for an ordinance admittedly cannot prevail against a statute.
Their theory is that the change has been made by the Local Government Code itself, which was also
enacted by the national lawmaking authority. In their view, the decree has been, not really repealed by the
Code, but merely "modified pro tanto" in the sense that PAGCOR cannot now operate a casino over the
objection of the local government unit concerned. This modification of P.D. 1869 by the Local Government
Code is permissible because one law can change or repeal another law.
It seems to us that the petitioners are playing with words. While insisting that the decree has only been
"modified pro tanto," they are actually arguing that it is already dead, repealed and useless for all intents
and purposes because the Code has shorn PAGCOR of all power to centralize and regulate casinos. Strictly
speaking, its operations may now be not only prohibited by the local government unit; in fact, the
prohibition is not only discretionary but mandated by Section 458 of the Code if the word "shall" as used
therein is to be given its accepted meaning. Local government units have now no choice but to prevent and
suppress gambling, which in the petitioners' view includes both legal and illegal gambling. Under this
construction, PAGCOR will have no more games of chance to regulate or centralize as they must all be
prohibited by the local government units pursuant to the mandatory duty imposed upon them by the Code.
In this situation, PAGCOR cannot continue to exist except only as a toothless tiger or a white elephant and
will no longer be able to exercise its powers as a prime source of government revenue through the
operation of casinos.
It is noteworthy that the petitioners have cited only Par. (f) of the repealing clause, conveniently discarding
the rest of the provision which painstakingly mentions the specific laws or the parts thereof which are
repealed (or modified) by the Code. Significantly, P.D. 1869 is not one of them. A reading of the entire
repealing clause, which is reproduced below, will disclose the omission:
Sec.

534.

Repealing Clause. (a) Batas Pambansa Blg. 337, otherwise known as the "Local Government Code,"
Executive Order No. 112 (1987), and Executive Order No. 319 (1988) are hereby repealed.
(b)
Presidential Decree Nos. 684, 1191, 1508 and such other decrees, orders, instructions, memoranda and
issuances related to or concerning the barangay are hereby repealed.
(c)
The
provisions of Sections 2, 3, and 4 of Republic Act No. 1939 regarding hospital fund; Section 3, a (3) and b (2)
of Republic Act. No. 5447 regarding the Special Education Fund; Presidential Decree No. 144 as amended by
Presidential Decree Nos. 559 and 1741; Presidential Decree No. 231 as amended; Presidential Decree No.
436 as amended by Presidential Decree No. 558; and Presidential Decree Nos. 381, 436, 464, 477, 526,
632, 752, and 1136 are hereby repealed and rendered of no force and effect.

(d)
Presidential Decree No. 1594 is hereby repealed insofar as it governs locally-funded projects.
(e)
The
following provisions are hereby repealed or amended insofar as they are inconsistent with the provisions of
this Code: Sections 2, 16, and 29 of Presidential Decree No. 704; Sections 12 of Presidential Decree No. 87,
as amended; Sections 52, 53, 66, 67, 68, 69, 70, 71, 72, 73, and 74 of Presidential Decree No. 463, as
amended; and Section 16 of Presidential Decree No. 972, as amended, and
(f)
All
general and special laws, acts, city charters, decrees, executive orders, proclamations and administrative
regulations, or part or parts thereof which are inconsistent with any of the provisions of this Code are
hereby repealed or modified accordingly.
Furthermore, it is a familiar rule that implied repeals are not lightly presumed in the absence of a clear and
unmistakable showing of such intention. In Lichauco & Co. v. Apostol, 10 this Court explained:
The cases relating to the subject of repeal by implication all proceed on the assumption that if the act of
later date clearly reveals an intention on the part of the lawmaking power to abrogate the prior law, this
intention must be given effect; but there must always be a sufficient revelation of this intention, and it has
become an unbending rule of statutory construction that the intention to repeal a former law will not be
imputed to the Legislature when it appears that the two statutes, or provisions, with reference to which the
question arises bear to each other the relation of general to special.
There is no sufficient indication of an implied repeal of P.D. 1869. On the contrary, as the private respondent
points out, PAGCOR is mentioned as the source of funding in two later enactments of Congress, to wit, R.A.
7309, creating a Board of Claims under the Department of Justice for the benefit of victims of unjust
punishment or detention or of violent crimes, and R.A. 7648, providing for measures for the solution of the
power crisis. PAGCOR revenues are tapped by these two statutes. This would show that the PAGCOR charter
has not been repealed by the Local Government Code but has in fact been improved as it were to make the
entity more responsive to the fiscal problems of the government.
It is a canon of legal hermeneutics that instead of pitting one statute against another in an inevitably
destructive confrontation, courts must exert every effort to reconcile them, remembering that both laws
deserve a becoming respect as the handiwork of a coordinate branch of the government. On the
assumption of a conflict between P.D. 1869 and the Code, the proper action is not to uphold one and annul
the other but to give effect to both by harmonizing them if possible. This is possible in the case before us.
The proper resolution of the problem at hand is to hold that under the Local Government Code, local
government units may (and indeed must) prevent and suppress all kinds of gambling within their territories
except only those allowed by statutes like P.D. 1869. The exception reserved in such laws must be read into
the Code, to make both the Code and such laws equally effective and mutually complementary.
This approach would also affirm that there are indeed two kinds of gambling, to wit, the illegal and those
authorized by law. Legalized gambling is not a modern concept; it is probably as old as illegal gambling, if
not indeed more so. The petitioners' suggestion that the Code authorizes them to prohibit all kinds of
gambling would erase the distinction between these two forms of gambling without a clear indication that
this is the will of the legislature. Plausibly, following this theory, the City of Manila could, by mere ordinance,
prohibit the Philippine Charity Sweepstakes Office from conducting a lottery as authorized by R.A. 1169 and
B.P. 42 or stop the races at the San Lazaro Hippodrome as authorized by R.A. 309 and R.A. 983.
In light of all the above considerations, we see no way of arriving at the conclusion urged on us by the

petitioners that the ordinances in question are valid. On the contrary, we find that the ordinances violate
P.D. 1869, which has the character and force of a statute, as well as the public policy expressed in the
decree allowing the playing of certain games of chance despite the prohibition of gambling in general.
The rationale of the requirement that the ordinances should not contravene a statute is obvious. Municipal
governments are only agents of the national government. Local councils exercise only delegated legislative
powers conferred on them by Congress as the national lawmaking body. The delegate cannot be superior to
the principal or exercise powers higher than those of the latter. It is a heresy to suggest that the local
government units can undo the acts of Congress, from which they have derived their power in the first
place, and negate by mere ordinance the mandate of the statute.
Municipal corporations owe their origin to, and derive their powers and rights wholly from the legislature. It
breathes into them the breath of life, without which they cannot exist. As it creates, so it may destroy. As it
may destroy, it may abridge and control. Unless there is some constitutional limitation on the right, the
legislature might, by a single act, and if we can suppose it capable of so great a folly and so great a wrong,
sweep from existence all of the municipal corporations in the State, and the corporation could not prevent
it. We know of no limitation on the right so far as to the corporation themselves are concerned. They are, so
to phrase it, the mere tenants at will of the legislature. 11
This basic relationship between the national legislature and the local government units has not been
enfeebled by the new provisions in the Constitution strengthening the policy of local autonomy. Without
meaning to detract from that policy, we here confirm that Congress retains control of the local government
units although in significantly reduced degree now than under our previous Constitutions. The power to
create still includes the power to destroy. The power to grant still includes the power to withhold or recall.
True, there are certain notable innovations in the Constitution, like the direct conferment on the local
government units of the power to tax, 12 which cannot now be withdrawn by mere statute. By and large,
however, the national legislature is still the principal of the local government units, which cannot defy its
will or modify or violate it.
The Court understands and admires the concern of the petitioners for the welfare of their constituents and
their apprehensions that the welfare of Cagayan de Oro City will be endangered by the opening of the
casino. We share the view that "the hope of large or easy gain, obtained without special effort, turns the
head of the workman" 13 and that "habitual gambling is a cause of laziness and ruin." 14 In People v.
Gorostiza, 15 we declared: "The social scourge of gambling must be stamped out. The laws against
gambling must be enforced to the limit." George Washington called gambling "the child of avarice, the
brother of iniquity and the father of mischief." Nevertheless, we must recognize the power of the legislature
to decide, in its own wisdom, to legalize certain forms of gambling, as was done in P.D. 1869 and impliedly
affirmed in the Local Government Code. That decision can be revoked by this Court only if it contravenes
the Constitution as the touchstone of all official acts. We do not find such contravention here.
We hold that the power of PAGCOR to centralize and regulate all games of chance, including casinos on land
and sea within the territorial jurisdiction of the Philippines, remains unimpaired. P.D. 1869 has not been
modified by the Local Government Code, which empowers the local government units to prevent or
suppress only those forms of gambling prohibited by law.
Casino gambling is authorized by P.D. 1869. This decree has the status of a statute that cannot be amended
or nullified by a mere ordinance. Hence, it was not competent for the Sangguniang Panlungsod of Cagayan
de Oro City to enact Ordinance No. 3353 prohibiting the use of buildings for the operation of a casino and
Ordinance No. 3375-93 prohibiting the operation of casinos. For all their praiseworthy motives, these
ordinances are contrary to P.D. 1869 and the public policy announced therein and are therefore ultra vires
and void.
WHEREFORE, the petition is DENIED and the challenged decision of the respondent Court of Appeals is
AFFIRMED, with costs against the petitioners. It is so ordered.

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