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Republic of the Philippines

SUPREME COURT
Manila

EN BANC

G.R. No. 88211 September 15, 1989

FERDINAND E. MARCOS, IMELDA R. MARCOS, FERDINAND R. MARCOS, JR., IRENE M.


ARANETA, IMEE MANOTOC, TOMAS MANOTOC, GREGORIO ARANETA, PACIFICO E.
MARCOS, NICANOR YIGUEZ and PHILIPPINE CONSTITUTION ASSOCIATION
(PHILCONSA), represented by its President, CONRADO F. ESTRELLA, petitioners,
vs.
HONORABLE RAUL MANGLAPUS, CATALINO MACARAIG, SEDFREY ORDOEZ,
MIRIAM DEFENSOR SANTIAGO, FIDEL RAMOS, RENATO DE VILLA, in their capacity
as Secretary of Foreign Affairs, Executive Secretary, Secretary of Justice, Immigration
Commissioner, Secretary of National Defense and Chief of Staff,
respectively, respondents.

CORTES, J.:

Before the Court is a contreversy of grave national importance. While ostensibly only legal
issues are involved, the Court's decision in this case would undeniably have a profound effect
on the political, economic and other aspects of national life.

We recall that in February 1986, Ferdinand E. Marcos was deposed from the presidency via
the non-violent "people power" revolution and forced into exile. In his stead, Corazon C.
Aquino was declared President of the Republic under a revolutionary government. Her
ascension to and consilidation of power have not been unchallenged. The failed Manila Hotel
coup in 1986 led by political leaders of Mr. Marcos, the takeover of television station Channel
7 by rebel troops led by Col. Canlas with the support of "Marcos loyalists" and the
unseccessful plot of the Marcos spouses to surreptitiously return from Hawii with mercenaries
aboard an aircraft chartered by a Lebanese arms dealer [Manila Bulletin, January 30, 1987]
awakened the nation to the capacity of the Marcoses to stir trouble even from afar and to the
fanaticism and blind loyalty of their followers in the country. The ratification of the 1987
Constitution enshrined the victory of "people power" and also clearly reinforced the
constitutional moorings of Mrs. Aquino's presidency. This did not, however, stop bloody
challenges to the government. On August 28, 1987, Col. Gregorio Honasan, one of the major
players in the February Revolution, led a failed coup that left scores of people, both
combatants and civilians, dead. There were several other armed sorties of lesser significance,
but the message they conveyed was the same a split in the ranks of the military
establishment that thraetened civilian supremacy over military and brought to the fore the
realization that civilian government could be at the mercy of a fractious military.

But the armed threats to the Government were not only found in misguided elements and
among rabid followers of Mr. Marcos. There are also the communist insurgency and the
seccessionist movement in Mindanao which gained ground during the rule of Mr. Marcos, to
the extent that the communists have set up a parallel government of their own on the areas
they effectively control while the separatist are virtually free to move about in armed bands.
There has been no let up on this groups' determination to wrest power from the govermnent.
Not only through resort to arms but also to through the use of propaganda have they been
successful in dreating chaos and destabilizing the country.

Nor are the woes of the Republic purely political. The accumulated foreign debt and the
plunder of the nation attributed to Mr. Marcos and his cronies left the economy devastated.
The efforts at economic recovery, three years after Mrs. Aquino assumed office, have yet to
show concrete results in alleviating the poverty of the masses, while the recovery of the
ill-gotten wealth of the Marcoses has remained elusive.

Now, Mr. Marcos, in his deathbed, has signified his wish to return to the Philipppines to die.
But Mrs. Aquino, considering the dire consequences to the nation of his return at a time when
the stability of government is threatened from various directions and the economy is just
beginning to rise and move forward, has stood firmly on the decision to bar the return of Mr.
Marcos and his family.

The Petition

This case is unique. It should not create a precedent, for the case of a dictator forced out of
office and into exile after causing twenty years of political, economic and social havoc in the
country and who within the short space of three years seeks to return, is in a class by itself.

This petition for mandamus and prohibition asks the Courts to order the respondents to issue
travel documents to Mr. Marcos and the immediate members of his family and to enjoin the
implementation of the President's decision to bar their return to the Philippines.

The Issue

Th issue is basically one of power: whether or not, in the exercise of the powers granted by
the Constitution, the President may prohibit the Marcoses from returning to the Philippines.

According to the petitioners, the resolution of the case would depend on the resolution of the
following issues:

1. Does the President have the power to bar the return of former President Marcos and family
to the Philippines?

a. Is this a political question?

2. Assuming that the President has the power to bar former President Marcos and his family
from returning to the Philippines, in the interest of "national security, public safety or public
health

a. Has the President made a finding that the return of former President Marcos and his family
to the Philippines is a clear and present danger to national security, public safety or public
health?

b. Assuming that she has made that finding

(1) Have the requirements of due process been complied with in making such finding?

(2) Has there been prior notice to petitioners?


(3) Has there been a hearing?

(4) Assuming that notice and hearing may be dispensed with, has the President's decision,
including the grounds upon which it was based, been made known to petitioners so that they
may controvert the same?

c. Is the President's determination that the return of former President Marcos and his family to
the Philippines is a clear and present danger to national security, public safety, or public
health a political question?

d. Assuming that the Court may inquire as to whether the return of former President Marcos
and his family is a clear and present danger to national security, public safety, or public health,
have respondents established such fact?

3. Have the respondents, therefore, in implementing the President's decision to bar the return
of former President Marcos and his family, acted and would be acting without jurisdiction, or in
excess of jurisdiction, or with grave abuse of discretion, in performing any act which would
effectively bar the return of former President Marcos and his family to the Philippines?
[Memorandum for Petitioners, pp. 5-7; Rollo, pp. 234-236.1

The case for petitioners is founded on the assertion that the right of the Marcoses to return to
the Philippines is guaranteed under the following provisions of the Bill of Rights, to wit:

Section 1. No person shall be deprived of life, liberty, or property without due process of law,
nor shall any person be denied the equal protection of the laws.

xxx xxx xxx

Section 6. The liberty of abode and of changing the same within the limits prescribed by law
shall not be impaired except upon lawful order of the court. Neither shall the right to travel be
impaired except in the interest of national security, public safety, or public health, as may be
provided by law.

The petitioners contend that the President is without power to impair the liberty of abode of
the Marcoses because only a court may do so "within the limits prescribed by law." Nor may
the President impair their right to travel because no law has authorized her to do so. They
advance the view that before the right to travel may be impaired by any authority or agency of
the government, there must be legislation to that effect.

The petitioners further assert that under international law, the right of Mr. Marcos and his
family to return to the Philippines is guaranteed.

The Universal Declaration of Human Rights provides:

Article 13. (1) Everyone has the right to freedom of movement and residence within the
borders of each state.

(2) Everyone has the right to leave any country, including his own, and to return to his country.

Likewise, the International Covenant on Civil and Political Rights, which had been ratified by
the Philippines, provides:
Article 12

1) Everyone lawfully within the territory of a State shall, within that territory, have the right to
liberty of movement and freedom to choose his residence.

2) Everyone shall be free to leave any country, including his own.

3) The above-mentioned rights shall not be subject to any restrictions except those which are
provided by law, are necessary to protect national security, public order (order public), public
health or morals or the rights and freedoms of others, and are consistent with the other rights
recognized in the present Covenant.

4) No one shall be arbitrarily deprived of the right to enter his own country.

On the other hand, the respondents' principal argument is that the issue in this case involves
a political question which is non-justiciable. According to the Solicitor General:

As petitioners couch it, the question involved is simply whether or not petitioners Ferdinand E.
Marcos and his family have the right to travel and liberty of abode. Petitioners invoke these
constitutional rights in vacuo without reference to attendant circumstances.

Respondents submit that in its proper formulation, the issue is whether or not petitioners
Ferdinand E. Marcos and family have the right to return to the Philippines and reside here at
this time in the face of the determination by the President that such return and residence will
endanger national security and public safety.

It may be conceded that as formulated by petitioners, the question is not a political question
as it involves merely a determination of what the law provides on the matter and application
thereof to petitioners Ferdinand E. Marcos and family. But when the question is whether the
two rights claimed by petitioners Ferdinand E. Marcos and family impinge on or collide with
the more primordial and transcendental right of the State to security and safety of its nationals,
the question becomes political and this Honorable Court can not consider it.

There are thus gradations to the question, to wit:

Do petitioners Ferdinand E. Marcos and family have the right to return to the Philippines and
reestablish their residence here? This is clearly a justiciable question which this Honorable
Court can decide.

Do petitioners Ferdinand E. Marcos and family have their right to return to the Philippines and
reestablish their residence here even if their return and residence here will endanger national
security and public safety? this is still a justiciable question which this Honorable Court can
decide.

Is there danger to national security and public safety if petitioners Ferdinand E. Marcos and
family shall return to the Philippines and establish their residence here? This is now a political
question which this Honorable Court can not decide for it falls within the exclusive authority
and competence of the President of the Philippines. [Memorandum for Respondents, pp. 9-11;
Rollo, pp. 297-299.]
Respondents argue for the primacy of the right of the State to national security over individual
rights. In support thereof, they cite Article II of the Constitution, to wit:

Section 4. The prime duty of the Government is to serve and protect the people. The
Government may call upon the people to defend the State and, in the fulfillment thereof, all
citizens may be required, under conditions provided by law, to render personal, military, or
civil service.

Section 5. The maintenance of peace and order, the protection of life, liberty, and property,
and the promotion of the general welfare are essential for the enjoyment by all the people of
the blessings of democracy.

Respondents also point out that the decision to ban Mr. Marcos and family from returning to
the Philippines for reasons of national security and public safety has international precedents.
Rafael Trujillo of the Dominican Republic, Anastacio Somoza Jr. of Nicaragua, Jorge Ubico of
Guatemala, Fulgencio batista of Cuba, King Farouk of Egypt, Maximiliano Hernandez
Martinez of El Salvador, and Marcos Perez Jimenez of Venezuela were among the deposed
dictators whose return to their homelands was prevented by their governments. [See
Statement of Foreign Affairs Secretary Raul S. Manglapus, quoted in Memorandum for
Respondents, pp. 26-32; Rollo, pp. 314-319.]

The parties are in agreement that the underlying issue is one of the scope of presidential
power and its limits. We, however, view this issue in a different light. Although we give due
weight to the parties' formulation of the issues, we are not bound by its narrow confines in
arriving at a solution to the controversy.

At the outset, we must state that it would not do to view the case within the confines of the
right to travel and the import of the decisions of the U.S. Supreme Court in the leading cases
of Kent v. Dulles [357 U.S. 116, 78 SCt 1113, 2 L Ed. 2d 1204] and Haig v. Agee [453 U.S.
280, 101 SCt 2766, 69 L Ed. 2d 640) which affirmed the right to travel and recognized
exceptions to the exercise thereof, respectively.

It must be emphasized that the individual right involved is not the right to travel from the
Philippines to other countries or within the Philippines. These are what the right to travel
would normally connote. Essentially, the right involved is the right to return to one's country, a
totally distinct right under international law, independent from although related to the right to
travel. Thus, the Universal Declaration of Humans Rights and the International Covenant on
Civil and Political Rights treat the right to freedom of movement and abode within the territory
of a state, the right to leave a country, and the right to enter one's country as separate and
distinct rights. The Declaration speaks of the "right to freedom of movement and residence
within the borders of each state" [Art. 13(l)] separately from the "right to leave any country,
including his own, and to return to his country." [Art. 13(2).] On the other hand, the Covenant
guarantees the "right to liberty of movement and freedom to choose his residence" [Art. 12(l)]
and the right to "be free to leave any country, including his own." [Art. 12(2)] which rights may
be restricted by such laws as "are necessary to protect national security, public order, public
health or morals or enter qqqs own country" of which one cannot be "arbitrarily deprived." [Art.
12(4).] It would therefore be inappropriate to construe the limitations to the right to return to
one's country in the same context as those pertaining to the liberty of abode and the right to
travel.

The right to return to one's country is not among the rights specifically guaranteed in the Bill of
Rights, which treats only of the liberty of abode and the right to travel, but it is our
well-considered view that the right to return may be considered, as a generally accepted
principle of international law and, under our Constitution, is part of the law of the land [Art. II,
Sec. 2 of the Constitution.] However, it is distinct and separate from the right to travel and
enjoys a different protection under the International Covenant of Civil and Political Rights, i.e.,
against being "arbitrarily deprived" thereof [Art. 12 (4).]

Thus, the rulings in the cases Kent and Haig which refer to the issuance of passports for the
purpose of effectively exercising the right to travel are not determinative of this case and are
only tangentially material insofar as they relate to a conflict between executive action and the
exercise of a protected right. The issue before the Court is novel and without precedent in
Philippine, and even in American jurisprudence.

Consequently, resolution by the Court of the well-debated issue of whether or not there can
be limitations on the right to travel in the absence of legislation to that effect is rendered
unnecessary. An appropriate case for its resolution will have to be awaited.

Having clarified the substance of the legal issue, we find now a need to explain the
methodology for its resolution. Our resolution of the issue will involve a two-tiered approach.
We shall first resolve whether or not the President has the power under the Constitution, to
bar the Marcoses from returning to the Philippines. Then, we shall determine, pursuant to the
express power of the Court under the Constitution in Article VIII, Section 1, whether or not the
President acted arbitrarily or with grave abuse of discretion amounting to lack or excess of
jurisdiction when she determined that the return of the Marcose's to the Philippines poses a
serious threat to national interest and welfare and decided to bar their return.

Executive Power

The 1987 Constitution has fully restored the separation of powers of the three great branches
of government. To recall the words of Justice Laurel in Angara v. Electoral Commission [63
Phil. 139 (1936)], "the Constitution has blocked but with deft strokes and in bold lines,
allotment of power to the executive, the legislative and the judicial departments of the
government." [At 157.1 Thus, the 1987 Constitution explicitly provides that "[the legislative
power shall be vested in the Congress of the Philippines" Art VI, Sec. 11, "[t]he executive
power shall bevested in the President of the Philippines" [Art. VII, Sec. 11, and "[te judicial
power shall be vested in one Supreme Court and in such lower courts as may be established
by law" [Art. VIII, Sec. 1.] These provisions not only establish a separation of powers by actual
division [Angara v. Electoral Commission, supra] but also confer plenary legislative, executive
and judicial powers subject only to limitations provided in the Constitution. For as the
Supreme Court in Ocampo v. Cabangis [15 Phil. 626 (1910)] pointed out "a grant of the
legislative power means a grant of all legislative power; and a grant of the judicial power
means a grant of all the judicial power which may be exercised under the government." [At
631-632.1 If this can be said of the legislative power which is exercised by two chambers with
a combined membership of more than two hundred members and of the judicial power which
is vested in a hierarchy of courts, it can equally be said of the executive power which is vested
in one official the President.

As stated above, the Constitution provides that "[t]he executive power shall be vested in the
President of the Philippines." [Art. VII, Sec. 1]. However, it does not define what is meant by
executive power" although in the same article it touches on the exercise of certain powers by
the President, i.e., the power of control over all executive departments, bureaus and offices,
the power to execute the laws, the appointing power, the powers under the
commander-in-chief clause, the power to grant reprieves, commutations and pardons, the
power to grant amnesty with the concurrence of Congress, the power to contract or guarantee
foreign loans, the power to enter into treaties or international agreements, the power to submit
the budget to Congress, and the power to address Congress [Art. VII, Sec. 14-23].

The inevitable question then arises: by enumerating certain powers of the President did the
framers of the Constitution intend that the President shall exercise those specific powers and
no other? Are these se enumerated powers the breadth and scope of "executive power"?
Petitioners advance the view that the President's powers are limited to those specifically
enumerated in the 1987 Constitution. Thus, they assert: "The President has enumerated
powers, and what is not enumerated is impliedly denied to her. Inclusion unius est exclusio
alterius[Memorandum for Petitioners, p. 4- Rollo p. 233.1 This argument brings to mind the
institution of the U.S. Presidency after which ours is legally patterned.**

Corwin, in his monumental volume on the President of the United States grappled with the
same problem. He said:

Article II is the most loosely drawn chapter of the Constitution. To those who think that a
constitution ought to settle everything beforehand it should be a nightmare; by the same token,
to those who think that constitution makers ought to leave considerable leeway for the future
play of political forces, it should be a vision realized.

We encounter this characteristic of Article 11 in its opening words: "The executive power shall
be vested in a President of the United States of America." . . .. [The President: Office and
Powers, 17871957, pp. 3-4.]

Reviewing how the powers of the U.S. President were exercised by the different persons who
held the office from Washington to the early 1900's, and the swing from the presidency by
commission to Lincoln's dictatorship, he concluded that "what the presidency is at any
particular moment depends in important measure on who is President." [At 30.]

This view is shared by Schlesinger who wrote in The Imperial Presidency:

For the American Presidency was a peculiarly personal institution. it remained of course, an
agency of government subject to unvarying demands and duties no remained, of cas
President. But, more than most agencies of government, it changed shape, intensity and
ethos according to the man in charge. Each President's distinctive temperament and
character, his values, standards, style, his habits, expectations, Idiosyncrasies, compulsions,
phobias recast the WhiteHouse and pervaded the entire government. The executive branch,
said Clark Clifford, was a chameleon, taking its color from the character and personality of the
President. The thrust of the office, its impact on the constitutional order, therefore altered from
President to President. Above all, the way each President understood it as his personal
obligation to inform and involve the Congress, to earn and hold the confidence of the
electorate and to render an accounting to the nation and posterity determined whether he
strengthened or weakened the constitutional order. [At 212- 213.]

We do not say that the presidency is what Mrs. Aquino says it is or what she does but, rather,
that the consideration of tradition and the development of presidential power under the
different constitutions are essential for a complete understanding of the extent of and
limitations to the President's powers under the 1987 Constitution. The 1935 Constitution
created a strong President with explicitly broader powers than the U.S. President. The 1973
Constitution attempted to modify the system of government into the parliamentary type, with
the President as a mere figurehead, but through numerous amendments, the President
became even more powerful, to the point that he was also the de facto Legislature. The 1987
Constitution, however, brought back the presidential system of government and restored the
separation of legislative, executive and judicial powers by their actual distribution among three
distinct branches of government with provision for checks and balances.

It would not be accurate, however, to state that "executive power" is the power to enforce the
laws, for the President is head of state as well as head of government and whatever powers
inhere in such positions pertain to the office unless the Constitution itself withholds it.
Furthermore, the Constitution itself provides that the execution of the laws is only one of the
powers of the President. It also grants the President other powers that do not involve the
execution of any provision of law, e.g., his power over the country's foreign relations.

On these premises, we hold the view that although the 1987 Constitution imposes limitations
on the exercise ofspecific powers of the President, it maintains intact what is traditionally
considered as within the scope of "executive power." Corollarily, the powers of the President
cannot be said to be limited only to the specific powers enumerated in the Constitution. In
other words, executive power is more than the sum of specific powers so enumerated,

It has been advanced that whatever power inherent in the government that is neither
legislative nor judicial has to be executive. Thus, in the landmark decision of Springer v.
Government of the Philippine Islands, 277 U.S. 189 (1928), on the issue of who between the
Governor-General of the Philippines and the Legislature may vote the shares of stock held by
the Government to elect directors in the National Coal Company and the Philippine National
Bank, the U.S. Supreme Court, in upholding the power of the Governor-General to do so,
said:

...Here the members of the legislature who constitute a majority of the "board" and
"committee" respectively, are not charged with the performance of any legislative functions or
with the doing of anything which is in aid of performance of any such functions by the
legislature. Putting aside for the moment the question whether the duties devolved upon
these members are vested by the Organic Act in the Governor-General, it is clear that they
are not legislative in character, and still more clear that they are not judicial. The fact that they
do not fall within the authority of either of these two constitutes logical ground for concluding
that they do fall within that of the remaining one among which the powers of government are
divided ....[At 202-203; Emphasis supplied.]

We are not unmindful of Justice Holmes' strong dissent. But in his enduring words of dissent
we find reinforcement for the view that it would indeed be a folly to construe the powers of a
branch of government to embrace only what are specifically mentioned in the Constitution:

The great ordinances of the Constitution do not establish and divide fields of black and white.
Even the more specific of them are found to terminate in a penumbra shading gradually from
one extreme to the other. ....

xxx xxx xxx

It does not seem to need argument to show that however we may disguise it by veiling words
we do not and cannot carry out the distinction between legislative and executive action with
mathematical precision and divide the branches into watertight compartments, were it ever so
desirable to do so, which I am far from believing that it is, or that the Constitution requires. [At
210- 211.]
The Power Involved

The Constitution declares among the guiding principles that "[t]he prime duty of
theGovernment is to serve and protect the people" and that "[t]he maintenance of peace and
order,the protection of life, liberty, and property, and the promotion of the general welfare are
essential for the enjoyment by all the people of the blessings of democracy." [Art. II, Secs. 4
and 5.]

Admittedly, service and protection of the people, the maintenance of peace and order, the
protection of life, liberty and property, and the promotion of the general welfare are essentially
ideals to guide governmental action. But such does not mean that they are empty words.
Thus, in the exercise of presidential functions, in drawing a plan of government, and in
directing implementing action for these plans, or from another point of view, in making any
decision as President of the Republic, the President has to consider these principles, among
other things, and adhere to them.

Faced with the problem of whether or not the time is right to allow the Marcoses to return to
the Philippines, the President is, under the Constitution, constrained to consider these basic
principles in arriving at a decision. More than that, having sworn to defend and uphold the
Constitution, the President has the obligation under the Constitution to protect the people,
promote their welfare and advance the national interest. It must be borne in mind that the
Constitution, aside from being an allocation of power is also a social contract whereby the
people have surrendered their sovereign powers to the State for the common good. Hence,
lest the officers of the Government exercising the powers delegated by the people forget and
the servants of the people become rulers, the Constitution reminds everyone that
"[s]overeignty resides in the people and all government authority emanates from them." [Art. II,
Sec. 1.]

The resolution of the problem is made difficult because the persons who seek to return to the
country are the deposed dictator and his family at whose door the travails of the country are
laid and from whom billions of dollars believed to be ill-gotten wealth are sought to be
recovered. The constitutional guarantees they invoke are neither absolute nor inflexible. For
the exercise of even the preferred freedoms of speech and ofexpression, although couched in
absolute terms, admits of limits and must be adjusted to the requirements of equally important
public interests [Zaldivar v. Sandiganbayan, G.R. Nos. 79690-707, October 7, 1981.]

To the President, the problem is one of balancing the general welfare and the common good
against the exercise of rights of certain individuals. The power involved is the President's
residual power to protect the general welfare of the people. It is founded on the duty of the
President, as steward of the people. To paraphrase Theodore Roosevelt, it is not only the
power of the President but also his duty to do anything not forbidden by the Constitution or the
laws that the needs of the nation demand [See Corwin, supra, at 153]. It is a power borne by
the President's duty to preserve and defend the Constitution. It also may be viewed as a
power implicit in the President's duty to take care that the laws are faithfully executed
[see Hyman, The American President, where the author advances the view that an allowance
of discretionary power is unavoidable in any government and is best lodged in the President].

More particularly, this case calls for the exercise of the President's powers as protector of the
peace. Rossiter The American Presidency].The power of the President to keep the peace is
not limited merely to exercising the commander-in-chief powers in times of emergency or to
leading the State against external and internal threats to its existence. The President is not
only clothed with extraordinary powers in times of emergency, but is also tasked with
attending to the day-to-day problems of maintaining peace and order and ensuring domestic
tranquility in times when no foreign foe appears on the horizon. Wide discretion, within the
bounds of law, in fulfilling presidential duties in times of peace is not in any way diminished by
the relative want of an emergency specified in the commander-in-chief provision. For in
making the President commander-in-chief the enumeration of powers that follow cannot be
said to exclude the President's exercising as Commander-in- Chief powers short of the calling
of the armed forces, or suspending the privilege of the writ of habeas corpus or declaring
martial law, in order to keep the peace, and maintain public order and security.

That the President has the power under the Constitution to bar the Marcose's from returning
has been recognized by memembers of the Legislature, and is manifested by the Resolution
proposed in the House of Representatives and signed by 103 of its members urging the
President to allow Mr. Marcos to return to the Philippines "as a genuine unselfish gesture for
true national reconciliation and as irrevocable proof of our collective adherence to
uncompromising respect for human rights under the Constitution and our laws." [House
Resolution No. 1342, Rollo, p. 321.1 The Resolution does not question the President's power
to bar the Marcoses from returning to the Philippines, rather, it appeals to the President's
sense of compassion to allow a man to come home to die in his country.

What we are saying in effect is that the request or demand of the Marcoses to be allowed to
return to the Philippines cannot be considered in the light solely of the constitutional
provisions guaranteeing liberty of abode and the right to travel, subject to certain exceptions,
or of case law which clearly never contemplated situations even remotely similar to the
present one. It must be treated as a matter that is appropriately addressed to those residual
unstated powers of the President which are implicit in and correlative to the paramount duty
residing in that office to safeguard and protect general welfare. In that context, such request
or demand should submit to the exercise of a broader discretion on the part of the President
to determine whether it must be granted or denied.

The Extent of Review

Under the Constitution, judicial power includes the duty to determine whether or not there has
been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any
branch or instrumentality of the Government." [Art. VIII, Sec. 1] Given this wording, we cannot
agree with the Solicitor General that the issue constitutes a political question which is beyond
the jurisdiction of the Court to decide.

The present Constitution limits resort to the political question doctrine and broadens the
scope of judicial inquiry into areas which the Court, under previous constitutions, would have
normally left to the political departments to decide. But nonetheless there remain issues
beyond the Court's jurisdiction the determination of which is exclusively for the President, for
Congress or for the people themselves through a plebiscite or referendum. We cannot, for
example, question the President's recognition of a foreign government, no matter how
premature or improvident such action may appear. We cannot set aside a presidential pardon
though it may appear to us that the beneficiary is totally undeserving of the grant. Nor can we
amend the Constitution under the guise of resolving a dispute brought before us because the
power is reserved to the people.

There is nothing in the case before us that precludes our determination thereof on the political
question doctrine. The deliberations of the Constitutional Commission cited by petitioners
show that the framers intended to widen the scope of judicial review but they did not intend
courts of justice to settle all actual controversies before them. When political questions are
involved, the Constitution limits the determination to whether or not there has been a grave
abuse of discretion amounting to lack or excess of jurisdiction on the part of the official whose
action is being questioned. If grave abuse is not established, the Court will not substitute its
judgment for that of the official concerned and decide a matter which by its nature or by law is
for the latter alone to decide. In this light, it would appear clear that the second paragraph of
Article VIII, Section 1 of the Constitution, defining "judicial power," which specifically
empowers the courts to determine whether or not there has been a grave abuse of discretion
on the part of any branch or instrumentality of the government, incorporates in the
fundamental law the ruling inLansang v. Garcia [G.R. No. L-33964, December 11, 1971, 42
SCRA 4481 that:]

Article VII of the [1935] Constitution vests in the Executive the power to suspend the privilege
of the writ of habeas corpus under specified conditions. Pursuant to the principle of separation
of powers underlying our system of government, the Executive is supreme within his own
sphere. However, the separation of powers, under the Constitution, is not absolute. What is
more, it goes hand in hand with the system of checks and balances, under which the
Executive is supreme, as regards the suspension of the privilege, but only if and when he acts
within the sphere alloted to him by the Basic Law, and the authority to determine whether or
not he has so acted is vested in the Judicial Department, which, in this respect, is, in turn,
constitutionally supreme. In the exercise of such authority, the function of the Court is merely
to check not to supplant the Executive, or to ascertain merely whether he has gone beyond
the constitutional limits of his jurisdiction, not to exercise the power vested in him or to
determine the wisdom of his act [At 479-480.]

Accordingly, the question for the Court to determine is whether or not there exist factual bases
for the President to conclude that it was in the national interest to bar the return of the
Marcoses to the Philippines. If such postulates do exist, it cannot be said that she has acted,
or acts, arbitrarily or that she has gravely abused her discretion in deciding to bar their return.

We find that from the pleadings filed by the parties, from their oral arguments, and the facts
revealed during the briefing in chambers by the Chief of Staff of the Armed Forces of the
Philippines and the National Security Adviser, wherein petitioners and respondents were
represented, there exist factual bases for the President's decision..

The Court cannot close its eyes to present realities and pretend that the country is not
besieged from within by a well-organized communist insurgency, a separatist movement in
Mindanao, rightist conspiracies to grab power, urban terrorism, the murder with impunity of
military men, police officers and civilian officials, to mention only a few. The documented
history of the efforts of the Marcose's and their followers to destabilize the country, as earlier
narrated in this ponencia bolsters the conclusion that the return of the Marcoses at this time
would only exacerbate and intensify the violence directed against the State and instigate
more chaos.

As divergent and discordant forces, the enemies of the State may be contained. The military
establishment has given assurances that it could handle the threats posed by particular
groups. But it is the catalytic effect of the return of the Marcoses that may prove to be the
proverbial final straw that would break the camel's back. With these before her, the President
cannot be said to have acted arbitrarily and capriciously and whimsically in determining that
the return of the Marcoses poses a serious threat to the national interest and welfare and in
prohibiting their return.
It will not do to argue that if the return of the Marcoses to the Philippines will cause the
escalation of violence against the State, that would be the time for the President to step in and
exercise the commander-in-chief powers granted her by the Constitution to suppress or
stamp out such violence. The State, acting through the Government, is not precluded from
taking pre- emptive action against threats to its existence if, though still nascent they are
perceived as apt to become serious and direct. Protection of the people is the essence of the
duty of government. The preservation of the State the fruition of the people's sovereignty is an
obligation in the highest order. The President, sworn to preserve and defend the Constitution
and to see the faithful execution the laws, cannot shirk from that responsibility.

We cannot also lose sight of the fact that the country is only now beginning to recover from
the hardships brought about by the plunder of the economy attributed to the Marcoses and
their close associates and relatives, many of whom are still here in the Philippines in a
position to destabilize the country, while the Government has barely scratched the surface, so
to speak, in its efforts to recover the enormous wealth stashed away by the Marcoses in
foreign jurisdictions. Then, We cannot ignore the continually increasing burden imposed on
the economy by the excessive foreign borrowing during the Marcos regime, which stifles and
stagnates development and is one of the root causes of widespread poverty and all its
attendant ills. The resulting precarious state of our economy is of common knowledge and is
easily within the ambit of judicial notice.

The President has determined that the destabilization caused by the return of the Marcoses
would wipe away the gains achieved during the past few years and lead to total economic
collapse. Given what is within our individual and common knowledge of the state of the
economy, we cannot argue with that determination.

WHEREFORE, and it being our well-considered opinion that the President did not act
arbitrarily or with grave abuse of discretion in determining that the return of former President
Marcos and his family at the present time and under present circumstances poses a serious
threat to national interest and welfare and in prohibiting their return to the Philippines, the
instant petition is hereby DISMISSED.

SO ORDERED.

Separate Opinions

FERNAN, C.J., concurring:

"The threats to national security and public order are real the mounting Communist
insurgency, a simmering separatist movement, a restive studentry, widespread labor disputes,
militant farmer groups. . . . Each of these threats is an explosive ingredient in a steaming
cauldron which could blow up if not handled properly." 1

These are not my words. They belong to my distinguished colleague in the Court, Mr. Justice
Hugo E. Gutierrez, Jr. But they express eloquently the basis of my full concurrence to the
exhaustive and well-written ponencia of Mme. Justice Irene R. Cortes.
Presidential powers and prerogatives are not fixed but fluctuate. They are not derived solely
from a particular constitutional clause or article or from an express statutory grant. Their limits
are likely to depend on the imperatives of events and contemporary imponderables rather
than on abstract theories of law. History and time-honored principles of constitutional law
have conceded to the Executive Branch certain powers in times of crisis or grave and
imperative national emergency. Many terms are applied to these powers: "residual,"
"inherent," 44 moral," "implied," "aggregate," "emergency." whatever they may be called, the
fact is that these powers exist, as they must if the governance function of the Executive
Branch is to be carried out effectively and efficiently. It is in this context that the power of the
President to allow or disallow the Marcoses to return to the Philippines should be viewed. By
reason of its impact on national peace and order in these admittedly critical times, said
question cannot be withdrawn from the competence of the Executive Branch to decide.

And indeed, the return of the deposed President, his wife and children cannot but pose a clear
and present danger to public order and safety. One needs only to recall the series of
destabilizing actions attempted by the so-called Marcos loyalists as well as the ultra-rightist
groups during the EDSA Revolution's aftermath to realize this. The most publicized of these
offensives is the Manila Hotel incident which occurred barely five (5) months after the
People's Power Revolution. Around 10,000 Marcos supporters, backed by 300 loyalist
soldiers led by Brigadier General Jose Zumel and Lt. Col. Reynaldo Cabauatan converged at
the Manila Hotel to witness the oath-taking of Arturo Tolentino as acting president of the
Philippines. The public disorder and peril to life and limb of the citizens engendered by this
event subsided only upon the eventual surrender of the loyalist soldiers to the authorities.

Then followed the Channel 7, Sangley, Villamor, Horseshoe Drive and Camp Aguinaldo
incidents. Military rebels waged simultaneous offensives in different parts of Metro Manila and
Sangley Point in Cavite. A hundred rebel soldiers took over Channel 7 and its radio station
DZBB. About 74 soldier rebels attacked Villamor Air Base, while another group struck at
Sangley Point in Cavite and held the 15th Air Force Strike wing commander and his deputy
hostage. Troops on board several vehicles attempted to enter Gate I of Camp Aguinaldo even
as another batch of 200 soldiers encamped at Horseshoe Village.

Another destabilization plot was carried out in April, 1987 by enlisted personnel who forced
their way through Gate 1 of Fort Bonifacio. They stormed into the army stockade but having
failed to convince their incarcerated members to unite in their cause, had to give up nine (9)
hours later.

And who can forget the August 28, 1987 coup attempt which almost toppled the Aquino
Government? Launched not by Marcos loyalists, but by another ultra-rightist group in the
military led by Col. Gregorio "Gringo" Honasan who remains at large to date, this most serious
attempt to wrest control of the government resulted in the death of many civilians.

Members of the so-called Black Forest Commando were able to cart away high-powered
firearms and ammunition from the Camp Crame Armory during a raid conducted in June 1988.
Most of the group members were, however, captured in Antipolo, Rizal. The same group was
involved in an unsuccessful plot known as Oplan Balik Saya which sought the return of
Marcos to the country.

A more recent threat to public order, peace and safety was the attempt of a group named
CEDECOR to mobilize civilians from nearby provinces to act as blockading forces at different
Metro Manila areas for the projected link-up of Marcos military loyalist troops with the group of
Honasan. The pseudo "people power" movement was neutralized thru checkpoints set up by
the authorities along major road arteries where the members were arrested or forced to turn
back.

While not all of these disruptive incidents may be traced directly to the Marcoses, their
occurrence militates heavily against the wisdom of allowing the Marcoses' return. Not only will
the Marcoses' presence embolden their followers toward similar actions, but any such action
would be seized upon as an opportunity by other enemies of the State, such as the
Communist Party of the Philippines and the NPA'S, the Muslim secessionists and extreme
rightists of the RAM, to wage an offensive against the government. Certainly, the state
through its executive branch has the power, nay, the responsibility and obligation, to prevent a
grave and serious threat to its safety from arising.

Apparently lost amidst the debate on whether or not to allow the Marcoses to return to the
Philippines is one factor, which albeit, at first blush appears to be extra legal, constitutes a
valid justification for disallowing the requested return. I refer to the public pulse. It must be
remembered that the ouster of the Marcoses from the Philippines came about as an
unexpected, but certainly welcomed, result of the unprecedented peoples power" revolution.
Millions of our people braved military tanks and firepower, kept vigil, prayed, and in countless
manner and ways contributed time, effort and money to put an end to an evidently untenable
claim to power of a dictator. The removal of the Marcoses from the Philippines was a moral
victory for the Filipino people; and the installation of the present administration, a realization of
and obedience to the people's Will.

Failing in legal arguments for the allowance of the Marcoses' return, appeal is being made to
sympathy, compassion and even Filipino tradition. The political and economic gains we have
achieved during the past three years are however too valuable and precious to gamble away
on purely compassionate considerations. Neither could public peace, order and safety be
sacrificed for an individual's wish to die in his own country. Verily in the balancing of interests,
the scales tilt in favor of presidential prerogative, which we do not find to have been gravely
abused or arbitrarily exercised, to ban the Marcoses from returning to the Philippines.

GUTIERREZ, JR., J., dissenting

"The Constitution ... is a law for rulers and people, equally in war and in peace, and covers
with the shield of its protection all classes of men, at all times, and under all circumstances.
No doctrine involving more pernicious consequences was ever invented by the wit of man
than that any of its provisions can be suspended during any of the great exigencies of
government." (Ex Parte Milligan, 4 Wall. 2; 18 L. Ed. 281 [1866])

Since our days as law students, we have proclaimed the stirring words of Ex Parte Milligan as
self-evident truth. But faced with a hard and delicate case, we now hesitate to qive substance
to their meaning. The Court has permitted a basic freedom enshrined in the Bill of Rights to be
taken away by Government.

There is only one Bill of Rights with the same interpretation of liberty and the same guarantee
of freedom for both unloved and despised persons on one hand and the rest who are not so
stigmatized on the other.

I am, therefore, disturbed by the majority ruling which declares that it should not be a
precedent. We are interpreting the Constitution for only one person and constituting him into a
class by himself. The Constitution is a law for all classes of men at all times. To have a person
as one class by himself smacks of unequal protection of the laws.
With all due respect for the majority in the Court, I believe that the issue before us is one of
rights and not of power. Mr. Marcos is insensate and would not live if separated from the
machines which have taken over the functions of his kidneys and other organs. To treat him at
this point as one with full panoply of power against whom the forces of Government should be
marshalled is totally unrealistic. The Government has the power to arrest and punish him. But
does it have the power to deny him his right to come home and die among familiar
surroundings?

Hence, this dissent.

The Bill of Rights provides:

Sec. 6. The liberty of abode and of changing the same within the limits prescribed by law shall
not be impaired except upon lawful order of the court. Neither shall the right to travel be
impaired except in the interest of national security, public safety, or public health, as may be
provided by law. (Emphasis supplied, Section 6, Art. 111, Constitution)

To have the petition dismissed, the Solicitor General repeats a ritual invocation of national
security and public safety which is hauntingly familiar because it was pleaded so often by
petitioner Ferdinand E. Marcos to justify his acts under martial law. There is, however, no
showing of the existence of a law prescribing the limits of the power to impair and the
occasions for its exercise. And except for citing breaches of law and order, the more serious
of which were totally unrelated to Mr. Marcos and which the military was able to readily quell,
the respondents have not pointed to any grave exigency which permits the use of
untrammeled Governmental power in this case and the indefinite suspension of the
constitutional right to travel.

The respondents' basic argument is that the issue before us is a political question beyond our
jurisdiction to consider. They contend that the decision to ban former President Marcos, and
his family on grounds of national security and public safety is vested by the Constitution in the
President alone. The determination should not be questioned before this Court. The
President's finding of danger to the nation should be conclusive on the Court.

What is a political question?

In Vera v. Avelino (77 Phil. 192, 223 [1946], the Court stated:

xxx xxx xxx

It is a well-settled doctrine that political questions are not within the province of the judiciary,
except to the extent that power to deal with such questions has been conferred on the courts
by express constitutional or statutory provisions. It is not so easy, however, to define the
phrase political question, nor to determine what matters fall within its scope. It is frequently
used to designate all questions that he outside the scope of the judicial power. More properly,
however, it means those questions which, under the constitution, are to be decided by the
people in their sovereign capacity, or in regard to which full discretionary authority has been
delegated to the legislative or executive branch of the government.

We defined a political question in Taniada v. Cuenco (103 Phil. 1051, 1066 [1957]), as
follows:
In short, the term 'Political question' connotes, in legal parlance, what it means in ordinary
parlance, namely, a question of policy. In other words, in the language of Corpus Juris
Secundum (supra), it refers to 'those questions which, under the Constitution, are to be
decided by the people in their sovereign capacity, or in regard to which full discretionary
authority has been delegated to the Legislature or executive branch of the Government. It is
concerned with issues dependent upon the wisdom, not legality, of a particular measure.

The most often quoted definition of political question was made by Justice William J. Brennan
Jr., who penned the decision of the United States Supreme Court in Baker v. Carr (369 US
186,82, S. Ct. 691, L. Ed. 2d. 663 [1962]). The ingredients of a political question as formulated
in Baker v. Carr are:

It is apparent that several formulations which vary slightly according to the settings in which
the questions arise may describe a political question, which identifies it as essentially a
function of the separation of powers. Prominent on the surface of any case held to involve a
political question is found a textually demonstrable constitutional commitment of the issue to a
coordinate political department; or a lack of judicially discoverable and manageable standards
for resolving it; or the impossibility of deciding without an initial policy determination of a kind
clearly for non-judicial discretion; or the impossibility of a court's undertaking independent
resolution without expressing lack of the respect due coordinate branches of government; or
an unusual need for unquestioning adherence to a political decision already made; or
potentiality of embarrassment from multifarious pronouncements by various departments on
one question.

For a political question to exist, there must be in the Constitution a power vested exclusively in
the President or Congress, the exercise of which the court should not examine or prohibit. A
claim of plenary or inherent power against a civil right which claim is not found in a specific
provision is dangerous. Neither should we validate a roving commission allowing public
officials to strike where they please and to override everything which to them represents evil.
The entire Government is bound by the rule of law.

The respondents have not pointed to any provision of the Constitution which commits or vests
the determination of the question raised to us solely in the President.

The authority implied in Section 6 of the Bill of Rights itself does not exist because no law has
been enacted specifying the circumstances when the right may be impaired in the interest of
national security or public safety. The power is in Congress, not the Executive.

The closest resort to a textile demonstrable constitutional commitment of power may be found
in the commander-in-chief clause which allows the President to call out the armed forces in
case of lawless violence, invasion or rebellion and to suspend the privilege of the writ
of habeas corpus or proclaim martial law in the event of invasion or rebellion, when the public
safety requires it.

There is, however, no showing, not even a claim that the followers of former President Marcos
are engaging in rebellion or that he is in a position to lead them. Neither is it claimed that there
is a need to suspend the privilege of the writ of habeas corpus or proclaim martial law
because of the arrival of Mr. Marcos and his family. To be sure, there may be disturbances
but not of a magnitude as would compel this Court to resort to a doctrine of non- justiceability
and to ignore a plea for the enforcement of an express Bill of Rights guarantee.
The respondents themselves are hard-pressed to state who or what constitutes a Marcos
"loyalist." The constant insinuations that the "loyalist" group is heavily funded by Mr. Marcos
and his cronies and that the "loyalists" engaging in rallies and demonstrations have to be paid
individual allowances to do so constitute the strongest indication that the hard core "loyalists"
who would follow Marcos right or wrong are so few in number that they could not possibly
destabilize the government, much less mount a serious attempt to overthrow it.

Not every person who would allow Mr. Marcos to come home can be tagged a "loyalist." It is
in the best of Filipino customs and traditions to allow a dying person to return to his home and
breath his last in his native surroundings. Out of the 103 Congressmen who passed the
House resolution urging permission for his return, there are those who dislike Mr. Marcos
intensely or who suffered under his regime. There are also many Filipinos who believe that in
the spirit of national unity and reconciliation Mr. Marcos and his family should be permitted to
return to the Philippines and that such a return would deprive his fanatic followers of any
further reason to engage in rallies and demonstrations.

The Court, however, should view the return of Mr. Marcos and his family solely in the light of
the constitutional guarantee of liberty of abode and the citizen's right to travel as against the
respondents' contention that national security and public safety would be endangered by a
grant of the petition.

Apart from the absence of any text in the Constitution committing the issue exclusively to the
President, there is likewise no dearth of decisional data, no unmanageable standards which
stand in the way of a judicial determination.

Section 6 of the Bill of Rights states categorically that the liberty of abode and of changing the
same within the limits prescribed by law may be impaired only upon a lawful order of a court.
Not by an executive officer. Not even by the President. Section 6 further provides that the right
to travel, and this obviously includes the right to travelout of or back into the Philippines,
cannot be impaired except in the interest of national security, public safety, or public
health, as may be provided by law.

There is no law setting the limits on a citizen's right to move from one part of the country to
another or from the Philippines to a foreign country or from a foreign country to the Philippines.
The laws cited by the Solicitor General immigration, health, quarantine, passports, motor
vehicle, destierro probation, and parole are all inapplicable insofar as the return of Mr. Marcos
and family is concerned. There is absolutely no showing how any of these statutes and
regulations could serve as a basis to bar their coming home.

There is also no disrespect for a Presidential determination if we grant the petition. We would
simply be applying the Constitution, in the preservation and defense of which all of us in
Government, the President and Congress included, are sworn to participate. Significantly, the
President herself has stated that the Court has the last word when it comes to constitutional
liberties and that she would abide by our decision.

As early as 1983, it was noted that this Court has not been very receptive to the invocation of
the political question doctrine by government lawyers. (See Morales, Jr. .v Ponce Enrile, 121
SCRA 538 [1983]).

Many of those now occupying the highest positions in the executive departments, Congress,
and the judiciary criticized this Court for using what they felt was a doctrine of convenience,
expediency, utility or subservience. Every major challenge to the acts of petitioner Ferdinand
E. Marcos under his authoritarian regime the proclamation of martial law, the ratification of a
new constitution, the arrest and detention of "enemies of the State" without charges being
filed against them, the dissolution of Congress and the exercise by the President of legislative
powers, the trial of civilians for civil offenses by military tribunals, the seizure of some of the
country's biggest corporations, the taking over or closure of newspaper offices, radio and
television stations and other forms of media, the proposals to amend the Constitution, etc.
was invariably met by an invocation that the petition involved a political question. It is indeed
poetic justice that the political question doctrine so often invoked by then President Marcos to
justify his acts is now being used against him and his family. Unfortunately, the Court should
not and is not allowed to indulge in such a persiflage. We are bound by the Constitution.

The dim view of the doctrine's use was such that when the present Constitution was drafted, a
broad definition of judicial power was added to the vesting in the Supreme Court and statutory
courts of said power.

The second paragraph of Section 1, Article VIII of the Constitution provides:

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.

This new provision was enacted to preclude this Court from using the political question
doctrine as a means to avoid having to make decisions simply because they are too
controversial, displeasing to the President or Congress, inordinately unpopular, or which may
be ignored and not enforced.

The framers of the Constitution believed that the free use of the political question doctrine
allowed the Court during the Marcos years to fall back on prudence, institutional difficulties,
complexity of issues, momentousness of consequences or a fear that it was extravagantly
extending judicial power in the cases where it refused to examine and strike down an exercise
of authoritarian power. Parenthetically, at least two of the respondents and their counsel were
among the most vigorous critics of Mr. Marcos (the main petitioner) and his use of the political
question doctrine. The Constitution was accordingly amended. We are now precluded by its
mandate from refusing to invalidate a political use of power through a convenient resort to the
question doctrine. We are compelled to decide what would have been non-justiceable under
our decisions interpreting earlier fundamental charters.

This is not to state that there can be no more political questions which we may refuse to
resolve. There are still some political questions which only the President, Congress, or a
plebiscite may decide. Definitely, the issue before us is not one of them.

The Constitution requires the Court "to determine whether or not there has been a grave
abuse of discretion amounting to lack or excess of jurisdiction."

How do we determine a grave abuse of discretion?

The tested procedure is to require the parties to present evidence. Unfortunately,


considerations of national security do not readily lend themselves to the presentation of proof
before a court of justice. The vital information essential to an objective determination is
usually highly classified and it cannot be rebutted by those who seek to overthrow the
government. As early as Barcelon v. Baker (5 Phil. 87, 93 [19051), the Court was faced with a
similar situation. It posed a rhetorical question. If after investigating conditions in the
Archipelago or any part thereof, the President finds that public safety requires the suspension
of the privilege of the writ of habeas corpus, can the judicial department investigate the same
facts and declare that no such conditions exist?

In the effort to follow the "grave abuse of discretion" formula in the second paragraph of
Section 1, Article VIII of the Constitution, the court granted the Solicitor General's offer that
the military give us a closed door factual briefing with a lawyer for the petitioners and a lawyer
for the respondents present.

The results of the briefing call to mind the concurrence of Justice Vicente Abad Santos
in Morales, Jr. v. Enrile, (121 SCRA 538, 592 [19831):

How can this Court determine the factual basis in order that it can ascertain whether or not the
president acted arbitrarily in suspending the writ when, in the truth words of Montenegro, with
its very limited machinery fit] cannot be in better position [than the Executive Branch] to
ascertain or evaluate the conditions prevailing in the Archipelago? (At p. 887). The answer is
obvious. It must rely on the Executive Branch which has the appropriate civil and military
machinery for the facts. This was the method which had to be used in Lansang. This Court
relied heavily on classified information supplied by the military. Accordingly, an incongruous
situation obtained. For this Court, relied on the very branch of the government whose act was
in question to obtain the facts. And as should be expected the Executive Branch supplied
information to support its position and this Court was in no situation to disprove them. It was a
case of the defendant judging the suit. After all is said and done, the attempt by its Court to
determine whether or not the President acted arbitrarily in suspending the writ was a useless
and futile exercise.

There is still another reason why this Court should maintain a detached attitude and refrain
from giving the seal of approval to the act of the Executive Branch. For it is possible that the
suspension of the writ lacks popular support because of one reason or another. But when this
Court declares that the suspension is not arbitrary (because it cannot do otherwise upon the
facts given to it by the Executive Branch) it in effect participates in the decision-making
process. It assumes a task which it is not equipped to handle; it lends its prestige and
credibility to an unpopular act.

The other method is to avail of judicial notice. In this particular case, judicial notice would be
the only basis for determining the clear and present danger to national security and public
safety. The majority of the Court has taken judicial notice of the Communist rebellion, the
separatist movement, the rightist conspiracies, and urban terrorism. But is it fair to blame the
present day Marcos for these incidents? All these problems are totally unrelated to the
Marcos of today and, in fact, are led by people who have always opposed him. If we use the
problems of Government as excuses for denying a person's right to come home, we will never
run out of justifying reasons. These problems or others like them will always be with us.

Significantly, we do not have to look into the factual bases of the ban Marcos policy in order to
ascertain whether or not the respondents acted with grave abuse of discretion. Nor are we
forced to fall back upon judicial notice of the implications of a Marcos return to his home to
buttress a conclusion.

In the first place, there has never been a pronouncement by the President that a clear and
present danger to national security and public safety will arise if Mr. Marcos and his family are
allowed to return to the Philippines. It was only after the present petition was filed that the
alleged danger to national security and public safety conveniently surfaced in the
respondents' pleadings. Secondly, President Aquino herself limits the reason for the ban
Marcos policy to (1) national welfare and interest and (2) the continuing need to preserve
the gains achieved in terms of recovery and stability. (See page 7, respondents' Comment at
page 73 of Rollo). Neither ground satisfies the criteria of national security and public safety.
The President has been quoted as stating that the vast majority of Filipinos support her
position. (The Journal, front page, January 24,1989) We cannot validate their stance simply
because it is a popular one. Supreme Court decisions do not have to be popular as long as
they follow the Constitution and the law. The President's original position "that it is not in the
interest of the nation that Marcos be allowed to return at this time" has not changed. (Manila
Times, front page, February 7, 1989). On February 11, 1989, the President is reported to
have stated that "considerations of the highest national good dictate that we preserve the
substantial economic and political gains of the past three years" in justifying her firm refusal to
allow the return of Mr. Marcos despite his failing health. (Daily Globe, front page, February 15,
1989). "Interest of the nation national good," and "preserving economic and political gains,"
cannot be equated with national security or public order. They are too generic and sweeping
to serve as grounds for the denial of a constitutional right. The Bill of Rights commands that
the right to travel may not be impaired except on the stated grounds of national security,
public safety, or public health and with the added requirement that such impairment must be
"as provided by law." The constitutional command cannot be negated by mere
generalizations.

There is an actual rebellion not by Marcos followers but by the New Peoples' Army. Feeding
as it does on injustice, ignorance, poverty, and other aspects at under-development, the
Communist rebellion is the clearest and most present danger to national security and
constitutional freedoms. Nobody has suggested that one way to quell it would be to catch and
exile its leaders, Mr. Marcos himself was forced to flee the country because of "peoples'
power." Yet, there is no move to arrest and exile the leaders of student groups, teachers'
organizations, pea ant and labor federations, transport workers, and government unions
whose threatened mass actions would definitely endanger national security and the stability of
government. We fail to see how Mr. Marcos could be a greater danger.

The fear that Communist rebels, Bangsa Moro secessionists, the Honasan ex-soldiers, the
hard core loyalists, and other dissatisfied elements would suddenly unite to overthrow the
Republic should a dying Marcos come home is too speculative and unsubstantial a ground for
denying a constitutional right. It is not shown how extremists from the right and the left who
loathe each other could find a rallying point in the coming of Mr. Marcos.

The "confluence theory" of the Solicitor General or what the majority calls "catalytic effect,"
which alone sustains the claim of danger to national security is fraught with perilous
implications. Any difficult problem or any troublesome person can be substituted for the
Marcos threat as the catalysing factor. The alleged confluence of NPAs, secessionists, radical
elements, renegade soldiers, etc., would still be present. Challenged by any critic or any
serious problem, the Government can state that the situation threatens a confluence of rebel
forces and proceed to ride roughshod over civil liberties in the name of national security.
Today, a passport is denied. Tomorrow, a newspaper may be closed. Public assemblies may
be prohibited. Human rights may be violated. Yesterday, the right to travel of Senators
Benigno Aquino, Jr. and Jovito Salonga was curtailed. Today, it is the right of Mr. Marcos and
family. Who will be tomorrow's pariahs I deeply regret that the Court's decision to use the
political question doctrine in a situation where it does not apply raises all kinds of disturbing
possibilities.
I must emphasize that General Renato de Villa, the Chief of Staff of the Armed Forces, has
personally assured the Court that a rebellion of the above combined groups will not succeed
and that the military is on top of the situation. Where then is the clear danger to national
security? The Court has taken judicial notice of something which even the military denies.
There would be severe strains on military capabilities according to General de Villa. There
would be set-backs in the expected eradication of the Communist threat. There would be
other serious problems but all can be successfully contained by the military. I must stress that
no reference was made to a clear and present danger to national security as would allow an
overriding of the Bill of Rights.

The Solicitor General's argument that the failure of Congress to enact a statute defining the
parameters of the right to travel and to freely choose one's abode has constrained the
President to fill in the vacuum, is too reminiscent of Amendment No. 6 of the martial law
Constitution to warrant serious consideration. Amendment No. 6 allowed Marcos to issue
decrees whenever the Batasang Pambansa failed or was unable to act adequately on any
matter for any reason that in his judgment required immediate action. When the Bill of Rights
provides that a right may not be impaired except in the interest of national security, public
safety, or public health and further requires that a law must provide when such specifically
defined interests are prejudiced or require protection, the inaction of Congress does not give
reason for the respondents to assume the grounds for its impairment.

The fact that the Marcoses have been indicted before American federal courts does not
obstruct us from ruling against an unconstitutional assertion of power by Philippine officials.
Let the United States apply its laws. We have to be true to our own.

Mr. Marcos may be too ill to withstand the rigors of a transpacific flight. The agony of traveling
while hooked up to machines which have taken over the functions of his heart, lungs, and
kidneys may hasten his death. The physical condition of Mr. Marcos does not justify our
ignoring or refusing to act on his claim to a basic right which is legally demandable and
enforceable. For his own good, it might be preferable to stay where he is. But he invokes a
constitutional right. We have no power to deny it to him.

The issuance of a passport may be discretionary but it should not be withheld if to do so would
run counter to a constitutional guarantee. Besides, the petitioners are not asking for passports
and nothing else. Any travel documents or any formal lifting of the Marcos ban as would allow
international airlines to sell them tickets would suffice.

With all due respect for the majority opinion, I disagree with its dictum on the right to travel. I
do not think we should differentiate the right to return home from the right to go abroad or to
move around in the Philippines. If at all, the right to come home must be more preferred than
any other aspect of the right to travel. It was precisely the banning by Mr. Marcos of the right
to travel by Senators Benigno Aquino, Jr., Jovito Salonga, and scores of other "undesirables"
and "threats to national security" during that unfortunate period which led the framers of our
present Constitution not only to re-enact but to strengthen the declaration of this right. Media
often asks, "what else is new?" I submit that we now have a freedom loving and humane
regime. I regret that the Court's decision in this case sets back the gains that our country has
achieved in terms of human rights, especially human rights for those whom we do not like or
those who are against us.

The respondent Secretary of Foreign Affairs, Raul S. Manglapus has disclosed a list of former
dictators who were barred by their successors from returning to their respective countries.
There is no showing that the countries involved have constitutions which guarantee the liberty
of abode and the freedom to travel and that despite such constitutional protections, the courts
have validated the "ban a return" policy. Neither is it shown that the successors of the listed
dictators are as deeply committed to democratic principles and as observant of constitutional
protections as President Aquino.

It is indeed regrettable that some followers of the former President are conducting a campaign
to sow discord and to divide the nation. Opposition to the government no matter how odious
or disgusting is, however, insufficient ground to ignore a constitutional guarantee.

During the protracted deliberations on this case, the question was asked is the Government
helpless to defend itself against a threat to national security? Does the President have to
suspend the privilege of the writ of habeas corpus or proclaim martial law? Can she not take
less drastic measures?

Of course, the Government can act. It can have Mr. Marcos arrested and tried in court. The
Government has more than ample powers under eixisting law to deal with a person who
transgresses the peace and imperils public safety. But the denial of travel papers is not one of
those powers because the Bill of Rights says so. There is no law prescribing exile in a foreign
land as the penalty for hurting the Nation.

Considering all the foregoing, I vote to GRANT the petition.

CRUZ, J., dissenting:

It is my belief that the petitioner, as a citizen of the Philippines, is entitled to return to and live
and die in his own country. I say this with a heavy heart but say it nonetheless. That
conviction is not diminished one whit simply because many believe Marcos to be beneath
contempt and undeserving of the very liberties he flounted when he was the absolute ruler of
this land.

The right of the United States government to detain him is not the question before us, nor can
we resolve it. The question we must answer is whether or not, assuming that Marcos is
permitted to leave Hawaii (which may depend on the action we take today), the respondents
have acted with grave abuse of discretion in barring him from his own country.

My reluctant conclusion is that they have, absent the proof they said they were prepared to
offer, but could not, that the petitioner's return would prejudice the security of the State.

I was the one who, in the open hearing held on June 27,1989, asked the Solicitor General if
the government was prepared to prove the justification for opposing the herein petition, i.e.
that it had not acted arbitrarily. He said it was. Accordingly, the Court, appreciating the
classified nature of the information expected, scheduled a closed-door hearing on July
25,1988. The Solicitor General and three representatives from the military appeared for the
respondents, together with former Senator Arturo M. Tolentino, representing the petitioners.

In about two hours of briefing, the government failed dismally to show that the return of
Marcos dead or alive would pose a threat to the national security as it had alleged. The fears
expressed by its representatives were based on mere conjectures of political and economic
destabilization without any single piece of concrete evidence to back up their apprehensions.
Amazingly, however, the majority has come to the conclusion that there exist "factual bases
for the President's decision" to bar Marcos's return. That is not my recollection of the
impressions of the Court after that hearing.

In holding that the President of the Philippines has residual powers in addition to the specific
powers granted by the Constitution, the Court is taking a great leap backward and reinstating
the discredited doctrine announced in Planas v. Gil (67 Phil. 62). This does not square with
the announced policy of the Constitutional Commission, which was precisely to limit rather
than expand presidential powers, as a reaction to the excesses of the past dictatorship.

I can only repeat Justice Black's wry observation in the Steel Seizure Case (343 U.S. 579)
that if it was true that the President had been granted the totality of executive power, "it is
difficult to see why our forefathers bothered to add several specific items, including some
trifling ones, . . . I cannot accept the view that this clause is a grant in bulk of all conceivable
executive power but regard it as an allocation to the presidential office of the generic powers
thereafter stated."

I have no illusion that the stand I am taking will be met with paeans of praise, considering that
Marcos is perhaps the most detested man in the entire history of our country. But we are not
concerned here with popularity and personalities. As a judge, I am not swayed by what
Justice Cardozo called the "hooting throng" that may make us see things through the prisms
of prejudice. I bear in mind that when I sit in judgment as a member of this Court, I must cast
all personal feelings aside.

The issue before us must be resolved with total objectivity, on the basis only of the
established facts and the applicable law and not of wounds that still fester and scars that have
not healed. And not even of fear, for fear is a phantom. That phantom did not rise when the
people stood fast at EDSA against the threat of total massacre in defense at last of their
freedom.

I cannot turn back on the lessons of liberty that I taught for more than three decades as a
professor of Constitutional Law. These principles have not changed simply because I am now
on the Court or a new administration is in power and the shoe is on the other foot.

Like the martyred Ninoy Aquino who also wanted to come back to the Philippines against the
prohibitions of the government then, Marcos is entitled to the same right to travel and the
liberty of abode that his adversary invoked. These rights are guaranteed by the Constitution to
all individuals, including the patriot and the homesick and the prodigal son returning, and
tyrants and charlatans and scoundrels of every stripe.

I vote to grant the petition.

PARAS, J., dissenting:

I dissent. Already, some people refer to us as a nation without discipline. Are we ready to be
also called a society without compassion?

The issue as to whether or not former President Ferdinand E. Marcos should be allowed to
return to the Philippines may be resolved by answering two simple questions: Does he have
the right to return to his own country and should national safety and security deny him this
right?
There is no dispute that the former President is still a Filipino citizen and both under the
Universal Declaration of Human Rights and the 1987 Constitution of the Philippines, he has
the right to return to his own country exceptonly if prevented by the demands of national
safety and national security.

Our Armed Forces have failed to prove this danger. They are bereft of hard evidence, and all
they can rely on is sheer speculation. True, there is some danger but there is no showing as
to the extent.

It is incredible that one man alone together with his family, who had been ousted from this
country by popular will, can arouse an entire country to rise in morbid sympathy for the cause
he once espoused.

It is therefore clear to me, all other opinions to the contrary notwithstanding, that the former
President should be allowed to return to our country under the conditions that he and the
members of his family be under house arrest in his hometown in Ilocos Norte, and should
President Marcos or any member of his family die, the body should not be taken out of the
municipality of confinement and should be buried within ten (10) days from date.

If we do this, our country shall have maintained its regard for fundamental human rights, for
national discipline, and for human compassion.

PADILLA, J., dissenting:

I dissent. As I see it, the core issue in this case is, which right will prevail in the conflict
between the right of a Filipino, Ferdinand E. Marcos, to return to the Philippines, and the right
of the Philippine Government to bar such return in the interest of national security and public
safety. In this context, the issue is clearly justiciable involving, as it does, colliding assertions
of individual right and governmental power. Issues of this nature more than explain why the
1986 Constitutional Commission, led by the illustrious former Chief Justice Roberto
Concepcion, incorporated in the 1987 Constitution, the new provision on the power of Judicial
Review, viz:

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. Article VIII, Section 1, par. 2; (Emphasis
supplied)

Mr. Marcos invokes in his favor the specific and precise constitutional right of every Filipino to
travel which, in the language of the Constitution, shall not be impaired "except in the interest
of national security, public safety, or public health, as may be provided by law" (Art. III, Sec. 6).
That the right to travel comprises the right to travel within the country, to travel out of the
country and to return to the country (Philippines), is hardly disputable. Short of all such
components, the right to travel is meaningless. The real question arises in the interpretation of
the qualifications attached by the Constitution to such right to travel.

Petitioners contend that, in the absence of restricting legislation, the right to travel is absolute.
I do not agree. It is my view that, with or without restricting legislation, the interest of national
security, public safety or public health can justify and even require restrictions on the right to
travel, and that the clause "as may be provided by law" contained in Article III, Section 6 of the
1987 Constitution merely declares a constitutional leave or permission for Congress to enact
laws that may restrict the right to travel in the interest of national security, public safety or
public health. I do not, therefore, accept the petitioners' submission that, in the absence of
enabling legislation, the Philippine Government is powerless to restrict travel even when such
restriction is demanded by national security, public safety or public health, The power of the
State, in particular cases, to restrict travel of its citizens finds abundant support in the police
power of the state wich may be exercised to preserve and maintain government as well as
promote the general welfare of the greatest number of people.

And yet, the power of the State, acting through a government in authority at any given time, to
restrict travel, even if founded on police power, cannot be absolute and unlimited under all
circumstances, much less, can it be arbitrary and irrational.

Mr. Marcos, I repeat, comes before the Court as a Filipino, invoking a specific constitutional
right, i.e., the right to return to the country. 1 Have the respondents presented sufficient evidence
to offset or override the exercise of this right invoked by Mr. Marcos? Stated differently, have the
respondents shown to the Court sufficient factual bases and data which would justify their reliance
on national security and public safety in negating the right to return invoked by Mr. Marcos?

I have given these questions a searching examination. I have carefully weighed and assessed
the "briefing" given the Court by the highest military authorities of the land last 28 July 1989. 1
have searched, but in vain, for convincing evidence that would defeat and overcome the right
of Mr. Marcos as a Filipino to return to this country. It appears to me that the apprehensions
entertained and expressed by the respondents, including those conveyed through the military,
do not, with all due respect, escalate to proportions of national security or public safety. They
appear to be more speculative than real, obsessive rather than factual. Moreover, such
apprehensions even if translated into realities, would be "under control," as admitted to the
Court by said military authorities, given the resources and facilities at the command of
government. But, above all, the Filipino people themselves, in my opinion, will know how to
handle any situation brought about by a political recognition of Mr. Marcos' right to return, and
his actual return, to this country. The Court, in short, should not accept respondents' general
apprehensions, concerns and perceptions at face value, in the light of a countervailing and
even irresistible, specific, clear, demandable, and enforceable right asserted by a Filipino.

Deteriorating political, social, economic or exceptional conditions, if any, are not to be used as
a pretext to justify derogation of human rights. 2

As a member of the United Nations, the Philippines has obligations under its charter. By
adopting the generally accepted principles of international law as part of the law of the land,
(Art. II, Sec. 2 of the Constitution), the Philippine government cannot just pay lip service to Art.
13, par. 2 of the Universal Declaration of Human Rights which provides that everyone has the
right to leave any country, including his own, and to return to his country. This guarantee is
reiterated in Art. XII, par. 2 of the International Covenant on Civil and Political Rights which
states that "no one shall be arbitrarily deprived of the right to enter his own country."
(Emphasis supplied) "Arbitrary" or "arbitrarily" was specifically chosen by the drafters of the
Covenant 3 hoping to protect an individual against unexpected, irresponsible or excessive
encroachment on his rights by the state based on national traditions or a particular sense of justice
which falls short of international law or standards. 4
The Solicitor General maintains that because the respondents, as alter egos of the President,
have raised the argument of "national security" and "public safety," it is the duty of this Court
to unquestioningly yield thereto, thus casting the controversy to the realm of a political
question. I do not agree. I believe that it is one case where the human and constitutional light
invoked by one party is so specific, substantial and clear that it cannot be overshadowed,
much less, nullified by simplistic generalities; worse, the Court neglects its duty under the
Constitution when it allows the theory of political question to serve as a convenient, and yet,
lame excuse for evading what, to me, is its clearly pressing and demandable duty to the
Constitution.

During the oral arguments in this case, I asked the Solicitor General how one could validly
defend the right of former Senator Benigno S. Aquino, Jr., a Filipino, to return to the
Philippines in 1983 and, at the same time,credibly deny the right of Mr. Marcos, also a Filipino,
to return to the Philippines in 1989. I still have not found a satisfactory answer to that question.
Instead, it has become clearer by the day that the drama today is the same drama in 1983
with the only difference that the actors are in opposite roles, which really makes one hope, in
the national interest, that the mistake in 1983 should not be made to persist in 1989.

To one who owes Mr. Marcos, his wife and followers absolutely nothing, personal, political or
otherwise, the following are the cogent and decisive propositions in this case

1. Mr. Marcos is a Filipino and, as such, entitled to return to die and be buried in this country;

2. respondents have not shown any "hard evidence" or convincing proof why his right as a
Filipino to return should be denied him. All we have are general conclusions of "national
security" and "public safety" in avoidance of a specific demandable and enforceable
constitutional and basic human right to return;

3. the issue of Marcos' return to the Philippines, perhaps more than any issue today, requires
of all members of the Court, in what appears to be an extended political contest, the "cold
neutrality of an impartial judge." It is only thus that we fortify the independence of this Court,
with fidelity, not to any person, party or group but to the Constitution and only to the
Constitution.

ACCORDINGLY, I vote to GRANT the petition.

SARMIENTO, J., dissenting:

I vote to grant the petition.

The only issue that saddles the Court is simply: "whether or not, in the exercise of the powers
granted by the Constitution, the President may prohibit the Marcoses from returning to the
Philippines." 1 I therefore take exception to allusions 2 anent "the capacity of the Marcoses to stir
trouble even from afar." 3 I have legitimate reason to fear that my brethren, in passing judgment on
the Marcoses (insofar as their "capacity to stir trouble" is concerned), have overstepped the
bounds of judicial restraint, or even worse, convicted them without trial.

I also find quite strained what the majority would have as the "real issues" facing the Court:
"The right to return to one's country," pitted against "the right of travel and freedom of abode",
and their supposed distinctions under international law, as if such distinctions, under
international law in truth and in fact exist. There is only one right involved here, whether under
municipal or international law: the light of travel, whether within one's own country, or to
another, and the right to return thereto. The Constitution itself makes no distinctions; let then,
no one make a distinction. Ubi lex non distinguish nec nos distinguere debemus.

As the majority would indeed have it, the issue is one of power: Does the Executive have the
power to deny a citizen his right to travel (back to the country or to another)? It is a question
that, in essence, involves the application, and no more, of the provisions of the 1987
Constitution:

Sec. 6. The liberty of abode and of changing the same within the limits prescribed by law shall
not be impaired except upon lawful order of the court. Neither shall the right to travel be
impaired except in the interest of national security, public safety, or public health, as may be
provided by law. 4

The majority says, with ample help from American precedents, that the President is
possessed of the power, thus:

On these premises, we hold the view that although the 1987 Constitution imposes limitations
on the exercise of specific powers of the President, it maintains intact what is traditionally
considered as within the scope of "executive power." Corollarily, the powers of the President
cannot be said to be limited only to the specific powers enumerated in the Constitution. In
other words, executive power is more than the sum of specific powers so enumerated. 5

So also:

Faced with the problem of whether or not the time is right to allow the Marcoses to return to
the Philippines, the President is, under the Constitution, constrained to consider these basic
principles in arriving at a decision. More than that, having sworn to defend and uphold the
Constitution, the President has the obligation under the Constitution to protect the people,
promote their welfare and advance the national interest. It must be borne in mind that the
Constitution, aside from being an allocation of power is also a social contract whereby the
people have surrendered their sovereign powers to the State for the common good. Hence,
lest the officers of the Government exercising the powers delegated by the people forget and
the servants of the people become rulers, the Constitution reminds everyone that
"sovereignty resides in the people and all government authority emanates from them." [Art. II,
Sec. 1 . ] 6

And finally:

To the President, the problem is one of balancing the general welfare and the common good
against the exercise of rights of certain individuals. The power involved is the President's
residual power to protect the general welfare of the people. It is founded on the duty of the
President, as steward of the people. To paraphrase Theodore Roosevelt, it is not only the
power of the President but also his duty to do anything not forbidden by the Constitution or the
laws that the needs of the nation demanded [See Corwin, supra, at 153]. It is a power borne
by the President's duty to preserve and defend the Constitution. It also may be viewed as a
power implicit in the President's duty to take care that the laws are faithfully executed [See
Hyman, The American President, where the author advances the view that an allowance of
discretionary power is unavoidable in any government and is best lodged in the President]. 7

I am not persuaded.
I

First: While the Chief Executive exercises powers not found expressly in the Charter, but has
them by constitutional implication* the latter must yield to the paramountcy of the Bill of Rights.
According to Fernando: "A regime of constitutionalism is thus unthinkable without an
assurance of the primacy of a big of rights. Precisely a constitution exists to assure that in the
discharge of the governmental functions, the dignity that is the birthright of every human being
is duly safeguarded. To be true to its primordial aim a constitution must lay down the
boundaries beyond which he's forbidden territory for state action" 8

My brethren have not demonstrated, to my satisfaction, how the President may override the
direct mandate of the fundamental law. It will not suffice, so I submit, to say that the
President's plenitude of powers, as provided in the Constitution, or by sheer constitutional
implication, prevail over express constitutional commands. "Clearly," so I borrow J.B.L. Reyes,
in his own right, a titan in the field of public law, "this argument ... rests ... not upon the text of
the (Constitution] ... but upon a mere inference therefrom." 9 For if it were, indeed, the intent of
the Charter to create an exception, that is, by Presidential action, to the right of travel or liberty of
abode and of changing the same other than what it explicitly says already ("limits prescribed by
law" 10 or "upon lawful order of the court" 11 the Charter could have specifically declared so. As it is,
the lone deterrents to the right in question are: (1) decree of statute, or (2) lawful judicial mandate.
Had the Constitution intended a third exception, that is, by Presidential initiative, it could have so
averred. It would also have made the Constitution, as far as limits to the said right are concerned,
come full circle: Limits by legislative, judicial, and executive processes.

Obviously, none of the twin legal bars exist. There is no law banning the Marcoses from the
country; neither is there any court decree banishing him from Philippine territory.

It is to be noted that under the 1973 Constitution, the right to travel is worded as follows:

Sec. 5. The liberty of abode and of travel shall not be impaired except upon lawful order of the
court, or when necessary in the interest of national security, public safety, or public health. 12

Under this provision, the right may be abated: (1) upon a lawful court order, or (2) "when
necessary in the interest of national security, public safety, or public health. 13 Arguably, the
provision enabled the Chief Executive (Marcos) to moderate movement of citizens, which, Bernas
says, justified such practices as "hamletting", forced relocations, or the establishment of free-fire
zones. 14

The new Constitution, however, so it clearly appears, has divested the Executive's implied
power. And, as it so appears, the right may be impaired only "within the limits provided by
law . 15 The President is out of the picture.

Admittedly, the Chief Executive is the "sole" judge of all matters affecting national
security 16 and foreign affairs; 17the Bill of Rights precisely, a form of check against excesses of
officialdom is, in this case, a formidable barrier against Presidential action. (Even on matters of
State security, this Constitution prescribes limits to Executive's powers as Commander-in-Chief.)

Second: Assuming, ex hypothesis that the President may legally act, the question that
emerges is: Has it been proved that Marcos, or his return, will, in fact, interpose a threat to the
national security , public safety, or public health?" What appears in the records are vehement
insistences that Marcos does pose a threat to the national good and yet, at the same time, we
have persistent claims, made by the military top brass during the lengthy closed-door hearing
on July 25, 1989, that "this Government will not fall" should the former first family in exile step
on Philippine soil. which is which?

At any rate, it is my opinion that we can not leave that determination solely to the Chief
Executive. The Court itself must be content that the threat is not only clear, but more so,
present. 18

That the President "has the obligation under the Constitution to protect the people ... " 19 is an
obligation open to no doubt. But the question, and so I ask again and again, is: From whom? If we
say "from Marcos," we unravel chinks in our political armor. It also flies in the face of claims, so
confidently asserted, that "this Government will not fall" even if we allowed Marcos to return.

It flies, finally, in the face of the fact that a good number of the henchmen trusted allies,
implementors of martial law, and pathetic parasites of the ex-first couple are, in fact, in the
Government, in the comfort of its offices, and or at the helm of its key agencies. Let us not,
therefore, joke ourselves of moral factors warranting the continued banishment of Marcos.
Morality is the last refuge of the self-righteous.

Third: The problem is not of balancing the general welfare against the exercise of individual
liberties. 20 As I indicated, not one shred of evidence, let alone solid evidence, other than surmises
of possibilities, has been shown to justify the 'balancing act" referred to. Worse, these conjectures
contradict contentions that as far as Philippine society is concerned, Marcos is "history".

The power of the President, so my brethren declaim, "calls for the exercise of the President's
power as protector of peace. 21

This is the self-same falsehood Marcos foisted on the Filipino people to justify the
authoritarian rule. It also means that we are no better than he has.

That "[t]he power of the President to keep the peace is not limited merely to exercising the
commander-in-chief powers in times of emergency or to leading the State against external
and internal threats to its existence" 22 is a bigger fantasy: It not only summons the martial law
decisions of pre-"EDSA" (especially with respect to the detestable Amendment No. 6), it is
inconsistent with the express provisions of the commander-in-chief clause of the 1987 Charter, a
Charter that has perceptibly reduced the Executive's powers vis-a-vis its 1973 counterpart. 23

II.

The undersigned would be lacking in candor to conceal his dislike, to say the least, for Marcos.
Because of Marcos, the writer of it's dissent lost a son His son's only "offense" was that he
openly and unabatedly criticized the dictator, his associates, and his military machinery. He
would pay dearly for it; he was arrested and detained, without judicial warrant or decision, for
seven months and seven days. He was held incommunicado a greater part of the time, in the
military stockade of Camp Crame. In his last week in detention, he was, grudgingly,
hospitalized (prison hospital) and confined for chronic asthma. The deplorable conditions of
his imprisonment exacerbated his delicate health beyond cure. He died, on November 11,
1977, a martyr on the altar of the martial law apparatus.

The undersigned also counts himself as one of the victims of Marcos' ruthless apparatchiki.
On August 14, 1979, he was, along with former President Diosdado Macapagal, and
Congressmen Rogaciano Mercado and Manuel Concordia, charged, "ASSOed"and placed
under house arrest, for "inciting to sedition" and "rumor mongering " 24in the midst of the
distribution of Ang Demokrasya Sa Pilipinas (Democracy In the Philippines), a book extremely
critical of martial rule, published by him and former Congressman Concordia, authored by
President Macapagal and translated into Tagalog by Congressman Rogaciano Mercado. In
addition, they were also all accused of libel in more than two dozens of criminal complaints filed by
the several military officers named in the "condemned" book as having violated the human rights of
dissenters, and for other crimes, in the office of the Provincial Fiscal of Rizal. It had to take the
events at "EDSA" to set them free from house arrest and these political offenses. I am for Marcos'
return not because I have a score to settle with him. Ditto's death or my arrest are scores that can
not be settled.

I feel the ex-President's death abroad (presented in the dailies as 'imminent") would leave him
'unpunished for his crimes to country and countrymen. If punishment is due, let this leadership
inflict it. But let him stand trial and accord him due process.

Modesty aside, I have staunchly and consistently advocated the human right of travel and
movement and the liberty of abode. 25 We would have betrayed our own Ideals if we denied
Marcos his rights. It is his constitutional right, a right that can not be abridged by personal
hatred, fear, founded or unfounded, and by speculations of the "man's "capacity" "to stir
trouble" Now that the shoe is on the other foot, let no more of human rights violations be
repeated against any one, friend or foe. In a democratic framework, there is no this as getting
even.

The majority started this inquiry on the question of power. I hold that the President, under the
present Constitution and existing laws, does not have it. Mandamus, I submit, lies.

Narvasa, Melencio-Herrera, Gancayco, Grio- Aquino, Medialdea and Regalado, JJ., concur.

Feliciano, J., is on leave.

Separate Opinions

FERNAN, C.J., concurring:

"The threats to national security and public order are real the mounting Communist
insurgency, a simmering separatist movement, a restive studentry, widespread labor disputes,
militant farmer groups. . . . Each of these threats is an explosive ingredient in a steaming
cauldron which could blow up if not handled properly." 1

These are not my words. They belong to my distinguished colleague in the Court, Mr. Justice
Hugo E. Gutierrez, Jr. But they express eloquently the basis of my full concurrence to the
exhaustive and well-written ponencia of Mme. Justice Irene R. Cortes.

Presidential powers and prerogatives are not fixed but fluctuate. They are not derived solely
from a particular constitutional clause or article or from an express statutory grant. Their limits
are likely to depend on the imperatives of events and contemporary imponderables rather
than on abstract theories of law. History and time-honored principles of constitutional law
have conceded to the Executive Branch certain powers in times of crisis or grave and
imperative national emergency. Many terms are applied to these powers: "residual,"
"inherent," 44 moral," "implied," "aggregate," 'emergency." whatever they may be called, the
fact is that these powers exist, as they must if the governance function of the Executive
Branch is to be carried out effectively and efficiently. It is in this context that the power of the
President to allow or disallow the Marcoses to return to the Philippines should be viewed. By
reason of its impact on national peace and order in these admittedly critical times, said
question cannot be withdrawn from the competence of the Executive Branch to decide.

And indeed, the return of the deposed President, his wife and children cannot but pose a clear
and present danger to public order and safety. One needs only to recall the series of
destabilizing actions attempted by the so-called Marcos loyalists as well as the ultra-rightist
groups during the EDSA Revolution's aftermath to realize this. The most publicized of these
offensives is the Manila Hotel incident which occurred barely five (5) months after the
People's Power Revolution. Around 10,000 Marcos supporters, backed by 300 loyalist
soldiers led by Brigadier General Jose Zumel and Lt. Col. Reynaldo Cabauatan converged at
the Manila Hotel to witness the oath-taking of Arturo Tolentino as acting president of the
Philippines. The public disorder and peril to life and limb of the citizens engendered by this
event subsided only upon the eventual surrender of the loyalist soldiers to the authorities.

Then followed the Channel 7, Sangley, Villamor, Horseshoe Drive and Camp Aguinaldo
incidents. Military rebels waged simultaneous offensives in different parts of Metro Manila and
Sangley Point in Cavite. A hundred rebel soldiers took over Channel 7 and its radio station
DZBB. About 74 soldier rebels attacked Villamor Air Base, while another group struck at
Sangley Point in Cavite and held the 15th Air Force Strike wing commander and his deputy
hostage. Troops on board several vehicles attempted to enter Gate I of Camp Aguinaldo even
as another batch of 200 soldiers encamped at Horseshoe Village.

Another destabilization plot was carried out in April, 1987 by enlisted personnel who forced
their way through Gate 1 of Fort Bonifacio. They stormed into the army stockade but having
failed to convince their incarcerated members to unite in their cause, had to give up nine (9)
hours later.

And who can forget the August 28, 1987 coup attempt which almost toppled the Aquino
Government? Launched not by Marcos loyalists, but by another ultra-rightist group in the
military led by Col. Gregorio "Gringo" Honasan who remains at large to date, this most serious
attempt to wrest control of the government resulted in the death of many civilians.

Members of the so-called Black Forest Commando were able to cart away high-powered
firearms and ammunition from the Camp Crame Armory during a raid conducted in June 1988.
Most of the group members were, however, captured in Antipolo, Rizal. The same group was
involved in an unsuccessful plot known as Oplan Balik Saya which sought the return of
Marcos to the country.

A more recent threat to public order, peace and safety was the attempt of a group named
CEDECOR to mobilize civilians from nearby provinces to act as blockading forces at different
Metro Manila areas for the projected link-up of Marcos military loyalist troops with the group of
Honasan. The pseudo "people power" movement was neutralized thru checkpoints set up by
the authorities along major road arteries where the members were arrested or forced to turn
back.

While not all of these disruptive incidents may be traced directly to the Marcoses, their
occurrence militates heavily against the wisdom of allowing the Marcoses' return. Not only will
the Marcoses' presence embolden their followers toward similar actions, but any such action
would be seized upon as an opportunity by other enemies of the State, such as the
Communist Party of the Philippines and the NPA'S, the Muslim secessionists and extreme
rightists of the RAM, to wage an offensive against the government. Certainly, the state
through its executive branch has the power, nay, the responsibility and obligation, to prevent a
grave and serious threat to its safety from arising.

Apparently lost amidst the debate on whether or not to allow the Marcoses to return to the
Philippines is one factor, which albeit, at first blush appears to be extra legal, constitutes a
valid justification for disallowing the requested return. I refer to the public pulse. It must be
remembered that the ouster of the Marcoses from the Philippines came about as an
unexpected, but certainly welcomed, result of the unprecedented peoples power" revolution.
Millions of our people braved military tanks and firepower, kept vigil, prayed, and in countless
manner and ways contributed time, effort and money to put an end to an evidently untenable
claim to power of a dictator. The removal of the Marcoses from the Philippines was a moral
victory for the Filipino people; and the installation of the present administration, a realization of
and obedience to the people's Will.

Failing in legal arguments for the allowance of the Marcoses' return, appeal is being made to
sympathy, compassion and even Filipino tradition. The political and economic gains we have
achieved during the past three years are however too valuable and precious to gamble away
on purely compassionate considerations. Neither could public peace, order and safety be
sacrificed for an individual's wish to die in his own country. Verily in the balancing of interests,
the scales tilt in favor of presidential prerogative, which we do not find to have been gravely
abused or arbitrarily exercised, to ban the Marcoses from returning to the Philippines.

GUTIERREZ, JR., J., dissenting

"The Constitution ... is a law for rulers and people, equally in war and in peace, and covers
with the shield of its protection all classes of men, at all times, and under all circumstances.
No doctrine involving more pernicious consequences was ever invented by the wit of man
than that any of its provisions can be suspended during any of the great exigencies of
government." (Ex Parte Milligan, 4 Wall. 2; 18 L. Ed. 281 [1866])

Since our days as law students, we have proclaimed the stirring words of Ex Parte Milligan as
self-evident truth. But faced with a hard and delicate case, we now hesitate to qive substance
to their meaning. The Court has permitted a basic freedom enshrined in the Bill of Rights to be
taken away by Government.

There is only one Bill of Rights with the same interpretation of liberty and the same guarantee
of freedom for both unloved and despised persons on one hand and the rest who are not so
stigmatized on the other.

I am, therefore, disturbed by the majority ruling which declares that it should not be a
precedent. We are interpreting the Constitution for only one person and constituting him into a
class by himself. The Constitution is a law for all classes of men at all times. To have a person
as one class by himself smacks of unequal protection of the laws.

With all due respect for the majority in the Court, I believe that the issue before us is one of
rights and not of power. Mr. Marcos is insensate and would not live if separated from the
machines which have taken over the functions of his kidneys and other organs. To treat him at
this point as one with full panoply of power against whom the forces of Government should be
marshalled is totally unrealistic. The Government has the power to arrest and punish him. But
does it have the power to deny him his right to come home and die among familiar
surroundings?

Hence, this dissent.

The Bill of Rights provides:

Sec. 6. The liberty of abode and of changing the same within the limits prescribed by law shall
not be impaired except upon lawful order of the court. Neither shall the right to travel be
impaired except in the interest of national security, public safety, or public health, as may be
provided by law. (Emphasis supplied, Section 6, Art. 111, Constitution)

To have the petition dismissed, the Solicitor General repeats a ritual invocation of national
security and public safety which is hauntingly familiar because it was pleaded so often by
petitioner Ferdinand E. Marcos to justify his acts under martial law. There is, however, no
showing of the existence of a law prescribing the limits of the power to impair and the
occasions for its exercise. And except for citing breaches of law and order, the more serious
of which were totally unrelated to Mr. Marcos and which the military was able to readily quell,
the respondents have not pointed to any grave exigency which permits the use of
untrammeled Governmental power in this case and the indefinite suspension of the
constitutional right to travel.

The respondents' basic argument is that the issue before us is a political question beyond our
jurisdiction to consider. They contend that the decision to ban former President Marcos, and
his family on grounds of national security and public safety is vested by the Constitution in the
President alone. The determination should not be questioned before this Court. The
President's finding of danger to the nation should be conclusive on the Court.

What is a political question?

In Vera v. Avelino (77 Phil. 192, 223 [1946], the Court stated:

xxxxxxxxx

It is a well-settled doctrine that political questions are not within the province of the judiciary,
except to the extent that power to deal with such questions has been conferred on the courts
by express constitutional or statutory provisions. It is not so easy, however, to define the
phrase political question, nor to determine what matters fall within its scope. It is frequently
used to designate all questions that he outside the scope of the judicial power. More properly,
however, it means those questions which, under the constitution, are to be decided by the
people in their sovereign capacity, or in regard to which full discretionary authority has been
delegated to the legislative or executive branch of the government.

We defined a political question in Taniada v. Cuenco (103 Phil. 1051, 1066 [1957]), as
follows:

In short, the term 'Political question' connotes, in legal parlance, what it means in ordinary
parlance, namely, a question of policy. In other words, in the language of Corpus Juris
Secundum (supra), it refers to 'those questions which, under the Constitution, are to be
decided by the people in their sovereign capacity, or in regard to which full discretionary
authority has been delegated to the Legislature or executive branch of the Government. It is
concerned with issues dependent upon the wisdom, not legality, of a particular measure.

The most often quoted definition of political question was made by Justice Wilham J. Brennan
Jr., who penned the decision of the United States Supreme Court in Baker v. Carr (369 US
186,82, S. Ct. 691, L. Ed. 2d. 663 [1962]). The ingredients of a political question as formulated
in Baker v. Carr are:

It is apparent that several formulations which vary slightly according to the settings in which
the questions arise may describe a political question, which Identifies it as essentially a
function of the separation of powers. Prominent on the surface of any case held to involve a
political question is found a textually demonstrable constitutional commitment of the issue to a
coordinate political department; or a lack of judicially discoverable and manageable standards
for resolving it; or the impossibility of deciding without an initial policy determination of a kind
clearly for non-judicial discretion; or the impossibility of a court's undertaking independent
resolution without expressing lack of the respect due coordinate branches of government; or
an unusual need for unquestioning adherence to a political decision already made; or
potentiality of embarrassment from multifarious pronouncements by various departments on
one question.

For a political question to exist, there must be in the Constitution a power vested exclusively in
the President or Congress, the exercise of which the court should not examine or prohibit. A
claim of plenary or inherent power against a civil right which claim is not found in a specific
provision is dangerous. Neither should we validate a roving commission allowing public
officials to strike where they please and to override everything which to them represents evil.
The entire Govern ment is bound by the rule of law.

The respondents have not pointed to any provision of the Constitution which commits or vests
the determination of the question raised to us solely in the President.

The authority implied in Section 6 of the Bill of Rights itself does not exist because no law has
been enacted specifying the circumstances when the right may be impaired in the interest of
national security or public safety. The power is in Congress, not the Executive.

The closest resort to a textile demonstrable constitutional commitment of power may be found
in the commander-in-chief clause which allows the President to call out the armed forces in
case of lawless violence, invasion or rebellion and to suspend the privilege of the writ of
habeas corpus or proclaim martial law in the event of invasion or rebellion, when the public
safety requires it.

There is, however, no showing, not even a claim that the followers of former President Marcos
are engaging in rebellion or that he is in a position to lead them. Neither is it claimed that there
is a need to suspend the privilege of the writ of habeas corpus or proclaim martial law
because of the arrival of Mr. Marcos and his family. To be sure, there may be disturbances
but not of a magnitude as would compel this Court to resort to a doctrine of non- justiceability
and to ignore a plea for the enforcement of an express Bill of Rights guarantee.

The respondents themselves are hard-pressed to state who or what constitutes a Marcos
"loyalist." The constant insinuations that the "loyalist" group is heavily funded by Mr. Marcos
and his cronies and that the "loyalists" engaging in rallies and demonstrations have to be paid
individual allowances to do so constitute the strongest indication that the hard core "loyalists"
who would follow Marcos right or wrong are so few in number that they could not possibly
destabilize the government, much less mount a serious attempt to overthrow it.

Not every person who would allow Mr. Marcos to come home can be tagged a "loyalist." It is
in the best of Filipino customs and traditions to allow a dying person to return to his home and
breath his last in his native surroundings. Out of the 103 Congressmen who passed the
House resolution urging permission for his return, there are those who dislike Mr. Marcos
intensely or who suffered under his regime. There are also many Filipinos who believe that in
the spirit of national unity and reconciliation Mr. Marcos and his family should be permitted to
return to the Philippines and that such a return would deprive his fanatic followers of any
further reason to engage in rallies and demonstrations.

The Court, however, should view the return of Mr. Marcos and his family solely in the light of
the constitutional guarantee of liberty of abode and the citizen's right to travel as against the
respondents' contention that national security and public safety would be endangered by a
grant of the petition.

Apart from the absence of any text in the Constitution committing the issue exclusively to the
President, there is likewise no dearth of decisional data, no unmanageable standards which
stand in the way of a judicial determination.

Section 6 of the Bill of Rights states categorically that the liberty of abode and of changing the
same within the limits prescribed by law may be impaired only upon a lawful order of a court.
Not by an executive officer. Not even by the President. Section 6 further provides that the right
to travel, and this obviously includes the right to travelout of or back into the Philippines,
cannot be impaired except in the interest of national security, public safety, or public
health, as may be provided by law.

There is no law setting the limits on a citizen's right to move from one part of the country to
another or from the Philippines to a foreign country or from a foreign country to the Philippines.
The laws cited by the Solicitor General immigration, health, quarantine, passports, motor
vehicle, destierro probation, and parole are all inapplicable insofar as the return of Mr. Marcos
and family is concerned. There is absolutely no showing how any of these statutes and
regulations could serve as a basis to bar their coming home.

There is also no disrespect for a Presidential determination if we grant the petition. We would
simply be applying the Constitution, in the preservation and defense of which all of us in
Government, the President and Congress included, are sworn to participate. Significantly, the
President herself has stated that the Court has the last word when it comes to constitutional
liberties and that she would abide by our decision.

As early as 1983, it was noted that this Court has not been very receptive to the invocation of
the political question doctrine by government lawyers. (See Morales, Jr. .v Ponce Enrile, 121
SCRA 538 [1983]).

Many of those now occupying the highest positions in the executive departments, Congress,
and the judiciary criticized this Court for using what they felt was a doctrine of convenience,
expediency, utility or subservience. Every major challenge to the acts of petitioner Ferdinand
E. Marcos under his authoritarian regime the proclamation of martial law, the ratification of a
new constitution, the arrest and detention of "enemies of the State" without charges being
filed against them, the dissolution of Congress and the exercise by the President of legislative
powers, the trial of civilians for civil offenses by military tribunals, the seizure of some of the
country's biggest corporations, the taking over or closure of newspaper offices, radio and
television stations and other forms of media, the proposals to amend the Constitution, etc.
was invariably met by an invocation that the petition involved a political question. It is indeed
poetic justice that the political question doctrine so often invoked by then President Marcos to
justify his acts is now being used against him and his family. Unfortunately, the Court should
not and is not allowed to indulge in such a persiflage. We are bound by the Constitution.

The dim view of the doctrine's use was such that when the present Constitution was drafted, a
broad definition of judicial power was added to the vesting in the Supreme Court and statutory
courts of said power.

The second paragraph of Section 1, Article VIII of the Constitution provides:

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.

This new provision was enacted to preclude this Court from using the political question
doctrine as a means to avoid having to make decisions simply because they are too
controversial, displeasing to the President or Congress, inordinately unpopular, or which may
be ignored and not enforced.

The framers of the Constitution believed that the free use of the political question doctrine
allowed the Court during the Marcos years to fall back on prudence, institutional difficulties,
complexity of issues, momentousness of consequences or a fear that it was extravagantly
extending judicial power in the cases where it refused to examine and strike down an exercise
of authoritarian power. Parenthetically, at least two of the respondents and their counsel were
among the most vigorous critics of Mr. Marcos (the main petitioner) and his use of the political
question doctrine. The Constitution was accordingly amended. We are now precluded by its
mandate from refusing to invalidate a political use of power through a convenient resort to the
question doctrine. We are compelled to decide what would have been non-justiceable under
our decisions interpreting earlier fundamental charters.

This is not to state that there can be no more political questions which we may refuse to
resolve. There are still some political questions which only the President, Congress, or a
plebiscite may decide. Definitely, the issue before us is not one of them.

The Constitution requires the Court "to determine whether or not there has been a grave
abuse of discretion amounting to lack or excess of jurisdiction."

How do we determine a grave abuse of discretion?

The tested procedure is to require the parties to present evidence. Unfortunately,


considerations of national security do not readily lend themselves to the presentation of proof
before a court of justice. The vital information essential to an objective determination is
usually highly classified and it cannot be rebutted by those who seek to overthrow the
government. As early as Barcelon v. Baker (5 Phil. 87, 93 [19051), the Court was faced with a
similar situation. It posed a rhetorical question. If after investigating conditions in the
Archipelago or any part thereof, the President finds that public safety requires the suspension
of the privilege of the writ of habeas corpus, can the judicial department investigate the same
facts and declare that no such conditions exist?
In the effort to follow the "grave abuse of discretion" formula in the second paragraph of
Section 1, Article VIII of the Constitution, the court granted the Solicitor General's offer that
the military give us a closed door factual briefing with a lawyer for the petitioners and a lawyer
for the respondents present.

The results of the briefing call to mind the concurrence of Justice Vicente Abad Santos
in Morales, Jr. v. Enrile, (121 SCRA 538, 592 [19831):

How can this Court determine the factual basis in order that it can ascertain whether or not the
president acted arbitrarily in suspending the writ when, in the truth words of Montenegro, with
its very limited machinery fit] cannot be in better position [than the Executive Branch] to
ascertain or evaluate the conditions prevailing in the Archipelago? (At p. 887). The answer is
obvious. It must rely on the Executive Branch which has the appropriate civil and military
machinery for the facts. This was the method which had to be used in Lansang. This Court
relied heavily on classified information supplied by the military. Accordingly, an incongruous
situation obtained. For this Court, relied on the very branch of the government whose act was
in question to obtain the facts. And as should be expected the Executive Branch supplied
information to support its position and this Court was in no situation to disprove them. It was a
case of the defendant judging the suit. After all is said and done, the attempt by its Court to
determine whether or not the President acted arbitrarily in suspending the writ was a useless
and futile exercise.

There is still another reason why this Court should maintain a detached attitude and refrain
from giving the seal of approval to the act of the Executive Branch. For it is possible that the
suspension of the writ lacks popular support because of one reason or another. But when this
Court declares that the suspension is not arbitrary (because it cannot do otherwise upon the
facts given to it by the Executive Branch) it in effect participates in the decision-making
process. It assumes a task which it is not equipped to handle; it lends its prestige and
credibility to an unpopular act.

The other method is to avail of judicial notice. In this particular case, judicial notice would be
the only basis for determining the clear and present danger to national security and public
safety. The majority of the Court has taken judicial notice of the Communist rebellion, the
separatist movement, the rightist conspiracies, and urban terrorism. But is it fair to blame the
present day Marcos for these incidents? All these problems are totally unrelated to the
Marcos of today and, in fact, are led by people who have always opposed him. If we use the
problems of Government as excuses for denying a person's right to come home, we will never
run out of justifying reasons. These problems or others like them will always be with us.

Significantly, we do not have to look into the factual bases of the ban Marcos policy in order to
ascertain whether or not the respondents acted with grave abuse of discretion. Nor are we
forced to fall back upon judicial notice of the implications of a Marcos return to his home to
buttress a conclusion.

In the first place, there has never been a pronouncement by the President that a clear and
present danger to national security and public safety will arise if Mr. Marcos and his family are
allowed to return to the Philippines. It was only after the present petition was filed that the
alleged danger to national security and public safety conveniently surfaced in the
respondents' pleadings. Secondly, President Aquino herself limits the reason for the ban
Marcos policy to-41) national welfare and interest and (2) the continuing need to preserve the
gains achieved in terms of recovery and stability. (See page 7, respondents' Comment at
page 73 of Rollo). Neither ground satisfies the criteria of national security and public safety.
The President has been quoted as stating that the vast majority of Filipinos support her
position. (The Journal, front page, January 24,1989) We cannot validate their stance simply
because it is a popular one. Supreme Court decisions do not have to be popular as long as
they follow the Constitution and the law. The President's original position "that it is not in the
interest of the nation that Marcos be allowed to return at this time" has not changed. (Manila
Times, front page, February 7, 1989). On February 11, 1989, the President is reported to
have stated that "considerations of the highest national good dictate that we preserve the
substantial economic and political gains of the past three years" in justifying her firm refusal to
allow the return of Mr. Marcos despite his failing health. (Daily Globe, front page, February 15,
1989). "Interest of the nation national good," and "preserving economic and political gains,"
cannot be equated with national security or public order. They are too generic and sweeping
to serve as grounds for the denial of a constitutional right. The Bill of Rights commands that
the right to travel may not be impaired except on the stated grounds of national security,
public safety, or public health and with the added requirement that such impairment must be
"as provided by law." The constitutional command cannot be negated by mere
generalizations.

There is an actual rebellion not by Marcos followers but by the New Peoples' Army. Feeding
as it does on injustice, ignorance, poverty, and other aspects at under-development, the
Communist rebellion is the clearest and most present danger to national security and
constitutional freedoms. Nobody has suggested that one way to quell it would be to catch and
exile its leaders, Mr. Marcos himself was forced to flee the country because of "peoples'
power." Yet, there is no move to arrest and exile the leaders of student groups, teachers'
organizations, pea ant and labor federations, transport workers, and government unions
whose threatened mass actions would definitely endanger national security and the stability of
government. We fail to see how Mr. Marcos could be a greater danger.

The fear that Communist rebels, Bangsa Moro secessionists, the Honasan ex-soldiers, the
hard core loyalists, and other dissatisfied elements would suddenly unite to overthrow the
Republic should a dying Marcos come home is too speculative and unsubstantial a ground for
denying a constitutional right. It is not shown how extremists from the right and the left who
loathe each other could find a rallying point in the coming of Mr. Marcos.

The "confluence theory" of the Solicitor General or what the majority calls "catalytic effect,"
which alone sustains the claim of danger to national security is fraught with perilous
implications. Any difficult problem or any troublesome person can be substituted for the
Marcos threat as the catalysing factor. The alleged confluence of NPAS, secessionists,
radical elements, renegade soldiers, etc., would still be present. Challenged by any critic or
any serious problem, the Government can state that the situation threatens a confluence of
rebel forces and proceed to ride roughshod over civil liberties in the name of national security.
Today, a passport is denied. Tomorrow, a newspaper may be closed. Public assemblies may
be prohibited. Human rights may be violated. Yesterday, the right to travel of Senators
Benigno Aquino, Jr. and Jovito Salonga was curtailed. Today, it is the right of Mr. Marcos and
family. Who will be tomorrow's pariahs I deeply regret that the Court's decision to use the
political question doctrine in a situation where it does not apply raises all kinds of disturbing
possibilities.

I must emphasize that General Renato de Villa, the Chief of Staff of the Armed Forces, has
personally assured the Court that a rebellion of the above combined groups will not succeed
and that the military is on top of the situation. Where then is the clear danger to national
security? The Court has taken judicial notice of something which even the military denies.
There would be severe strains on military capabilities according to General de Villa. There
would be set-backs in the expected eradication of the Communist threat. There would be
other serious problems but all can be successfully contained by the military. I must stress that
no reference was made to a clear and present danger to national security as would allow an
overriding of the Bill of Rights.

The Solicitor General's argument that the failure of Congress to enact a statute defining the
parameters of the right to travel and to freely choose one's abode has constrained the
President to fill in the vacuum, is too reminiscent of Amendment No. 6 of the martial law
Constitution to warrant serious consideration. Amendment No. 6 allowed Marcos to issue
decrees whenever the Batasang Pambansa failed or was unable to act adequately on any
matter for any reason that in his judgment required immediate action. When the Bill of Rights
provides that a right may not be impaired except in the interest of national security, public
safety, or public health and further requires that a law must provide when such specifically
defined interests are prejudiced or require protection, the inaction of Congress does not give
reason for the respondents to assume the grounds for its impairment.

The fact that the Marcoses have been indicted before American federal courts does not
obstruct us from ruling against an unconstitutional assertion of power by Philippine officials.
Let the United States apply its laws. We have to be true to our own.

Mr. Marcos may be too ill to withstand the rigors of a transpacific flight. The agony of traveling
while hooked up to machines which have taken over the functions of his heart, lungs, and
kidneys may hasten his death. The physical condition of Mr. Marcos does not justify our
ignoring or refusing to act on his claim to a basic right which is legally demandable and
enforceable. For his own good, it might be preferable to stay where he is. But he invokes a
constitutional right. We have no power to deny it to him.

The issuance of a passport may be discretionary but it should not be withheld if to do so would
run counter to a constitutional guarantee. Besides, the petitioners are not asking for passports
and nothing else. Any travel documents or any formal lifting of the Marcos ban as would allow
international airlines to sell them tickets would suffice.

With all due respect for the majority opinion, I disagree with its dictum on the right to travel. I
do not think we should differentiate the right to return home from the right to go abroad or to
move around in the Philippines. If at all, the right to come home must be more preferred than
any other aspect of the right to travel. It was precisely the banning by Mr. Marcos of the right
to travel by Senators Benigno Aquino, Jr., Jovito Salonga, and scores of other "undesirables"
and "threats to national security" during that unfortunate period which led the framers of our
present Constitution not only to re-enact but to strengthen the declaration of this right. Media
often asks, "what else is new?" I submit that we now have a freedom loving and humane
regime. I regret that the Court's decision in this case sets back the gains that our country has
achieved in terms of human rights, especially human rights for those whom we do not like or
those who are against us.

The respondent Secretary of Foreign Affairs, Raul S. Manglapus has disclosed a list of former
dictators who were barred by their successors from returning to their respective countries.
There is no showing that the countries involved have constitutions which guarantee the liberty
of abode and the freedom to travel and that despite such constitutional protections, the courts
have validated the "ban a return" policy. Neither is it shown that the successors of the listed
dictators are as deeply committed to democratic principles and as observant of constitutional
protections as President Aquino.
It is indeed regrettable that some followers of the former President are conducting a campaign
to sow discord and to divide the nation. Opposition to the government no matter how odious
or disgusting is, however, insufficient ground to ignore a constitutional guarantee.

During the protracted deliberations on this case, the question was asked is the Government
helpless to defend itself against a threat to national security? Does the President have to
suspend the privilege of the writ of habeas corpus or proclaim martial law? Can she not take
less drastic measures?

Of course, the Government can act. It can have Mr. Marcos arrested and tried in court. The
Government has more than ample powers under eixisting law to deal with a person who
transgresses the peace and imperils public safety. But the denial of travel papers is not one of
those powers because the Bill of Rights says so. There is no law prescribing exile in a foreign
land as the penalty for hurting the Nation.

Considering all the foregoing, I vote to GRANT the petition.

CRUZ, J., dissenting:

It is my belief that the petitioner, as a citizen of the Philippines, is entitled to return to and
live-and die-in his own country. I say this with a heavy heart but say it nonetheless. That
conviction is not diminished one whit simply because many believe Marcos to be beneath
contempt and undeserving of the very liberties he flounted when he was the absolute ruler of
this land.

The right of the United States government to detain him is not the question before us, nor can
we resolve it. The question we must answer is whether or not, assuming that Marcos is
permitted to leave Hawaii (which may depend on the action we take today), the respondents
have acted with grave abuse of discretion in barring him from his own country.

My reluctant conclusion is that they have, absent the proof they said they were prepared to
offer, but could not, that the petitioner's return would prejudice the security of the State.

I was the one who, in the open hearing held on June 27,1989, asked the Solicitor General if
the government was prepared to prove the justification for opposing the herein petition, i. that
it had not acted arbitrarily. He said it was. Accordingly, the Court, appreciating the classified
nature of the information expected, scheduled a closed-door hearing on July 25,1988. The
Solicitor General and three representatives from the military appeared for the respondents,
together with former Senator Arturo M. Tolentino, representing the petitioners.

In about two hours of briefing, the government failed dismally to show that the return of
Marcos dead or alive would pose a threat to the national security as it had alleged. The fears
expressed by its representatives were based on mere conjectures of political and economic
destabilization without any single piece of concrete evidence to back up their apprehensions.

Amazingly, however, the majority has come to the conclusion that there exist "factual bases
for the President's decision" to bar Marcos's return. That is not my recollection of the
impressions of the Court after that hearing.

In holding that the President of the Philippines has residual powers in addition to the specific
powers granted by the Constitution, the Court is taking a great leap backward and reinstating
the discredited doctrine announced in Planas v. Gil (67 Phil. 62). This does not square with
the announced policy of the Constitutional Commission, which was precisely to limit rather
than expand presidential powers, as a reaction to the excesses of the past dictatorship.

I can only repeat Justice Black's wry observation in the Steel Seizure Case (343 U.S. 579)
that if it was true that the President had been granted the totality of executive power, "it is
difficult to see why our forefathers bothered to add several specific items, including some
trifling ones, . . . I cannot accept the view that this clause is a grant in bulk of all conceivable
executive power but regard it as an allocation to the presidential office of the generic powers
thereafter stated."

I have no illusion that the stand I am taking will be met with paeans of praise, considering that
Marcos is perhaps the most detested man in the entire history of our country. But we are not
concerned here with popularity and personalities. As a judge, I am not swayed by what
Justice Cardozo called the "hooting throng" that may make us see things through the prisms
of prejudice. I bear in mind that when I sit in judgment as a member of this Court, I must cast
all personal feelings aside.

The issue before us must be resolved with total objectivity, on the basis only of the
established facts and the applicable law and not of wounds that still fester and scars that have
not healed. And not even of fear, for fear is a phantom. That phantom did not rise when the
people stood fast at EDSA against the threat of total massacre in defense at last of their
freedom.

I cannot turn back on the lessons of liberty that I taught for more than three decades as a
professor of Constitutional Law. These principles have not changed simply because I am now
on the Court or a new administration is in power and the shoe is on the other foot.

Like the martyred Ninoy Aquino who also wanted to come back to the Philippines against the
prohibitions of the government then, Marcos is entitled to the same right to travel and the
liberty of abode that his adversary invoked. These rights are guaranteed by the Constitution to
all individuals, including the patriot and the homesick and the prodigal son returning, and
tyrants and charlatans and scoundrels of every stripe.

I vote to grant the petition.

PARAS, J., dissenting:

I dissent. Already, some people refer to us as a nation without discipline. Are we ready to be
also called a society without compassion?

The issue as to whether or not former President Ferdinand E. Marcos should be allowed to
return to the Philippines may be resolved by answering two simple questions: Does he have
the right to return to his own country and should national safety and security deny him this
right?

There is no dispute that the former President is still a Filipino citizen and both under the
Universal Declaration of Human Rights and the 1987 Constitution of the Philippines, he has
the right to return to his own country exceptonly if prevented by the demands of national
safety and national security.
Our Armed Forces have failed to prove this danger. They are bereft of hard evidence, and all
they can rely on is sheer speculation. True, there is some danger but there is no showing as
to the extent.

It is incredible that one man alone together with his family, who had been ousted from this
country by popular will, can arouse an entire country to rise in morbid sympathy for the cause
he once espoused.

It is therefore clear to me, all other opinions to the contrary notwithstanding, that the former
President should be allowed to return to our country under the conditions that he and the
members of his family be under house arrest in his hometown in Ilocos Norte, and should
President Marcos or any member of his family die, the body should not be taken out of the
municipality of confinement and should be buried within ten (10) days from date.

If we do this, our country shall have maintained its regard for fundamental human rights, for
national discipline, and for human compassion.

PADILLA, J., dissenting:

I dissent. As I see it, the core issue in this case is, which right will prevail in the conflict
between the right of a Filipino, Ferdinand E. Marcos, to return to the Philippines, and the right
of the Philippine Government to bar such return in the interest of national security and public
safety. In this context, the issue is clearly justiciable involving, as it does, colliding assertions
of individual right and governmental power. Issues of this nature more than explain why the
1986 Constitutional Commission, led by the illustrious former Chief Justice Roberto
Concepcion, incorporated in the 1987 Constitution, the new provision on the power of Judicial
Review, viz:

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. Article VIII, Section 1, par. 2; (Emphasis
supplied)

Mr. Marcos invokes in his favor the specific and precise constitutional right of every Filipino to
travel which, in the language of the Constitution, shall not be impaired "except in the interest
of national security, public safety, or public health, as may be provided by law" (Art. III, Sec. 6).
That the right to travel comprises the right to travel within the country, to travel out of the
country and to return to the country (Philippines), is hardly disputable. Short of all such
components, the right to travel is meaningless. The real question arises in the interpretation of
the qualifications attached by the Constitution to such right to travel.

Petitioners contend that, in the absence of restricting legislation, the right to travel is absolute.
I do not agree. It is my view that, with or without restricting legislation, the interest of national
security, public safety or public health can justify and even require restrictions on the right to
travel, and that the clause "as may be provided by law" contained in Article III, Section 6 of the
1987 Constitution merely declares a constitutional leave or permission for Congress to enact
laws that may restrict the right to travel in the interest of national security, public safety or
public health. I do not, therefore, accept the petitioners' submission that, in the absence of
enabling legislation, the Philippine Government is powerless to restrict travel even when such
restriction is demanded by national security, public safety or public health, The power of the
State, in particular cases, to restrict travel of its citizens finds abundant support in the police
power of the state wich may be exercised to preserve and maintain government as well as
promote the general welfare of the greatest number of people.

And yet, the power of the State, acting through a government in authority at any given time, to
restrict travel, even if founded on police power, cannot be absolute and unlimited under all
circumstances, much less, can it be arbitrary and irrational.

Mr. Marcos, I repeat, comes before the Court as a Filipino, invoking a specific constitutional
right, i.e., the right to return to the country. 1 Have the respondents presented sufficient evidence
to offset or override the exercise of this right invoked by Mr. Marcos? Stated differently, have the
respondents shown to the Court sufficient factual bases and data which would justify their reliance
on national security and public safety in negating the right to return invoked by Mr. Marcos?

I have given these questions a searching examination. I have carefully weighed and assessed
the "briefing" given the Court by the highest military authorities of the land last 28 July 1989. 1
have searched, but in vain, for convincing evidence that would defeat and overcome the right
of Mr. Marcos as a Filipino to return to this country. It appears to me that the apprehensions
entertained and expressed by the respondents, including those conveyed through the military,
do not, with all due respect, escalate to proportions of national security or public safety. They
appear to be more speculative than real, obsessive rather than factual. Moreover, such
apprehensions even if translated into realities, would be "under control," as admitted to the
Court by said military authorities, given the resources and facilities at the command of
government. But, above all, the Filipino people themselves, in my opinion, will know how to
handle any situation brought about by a political recognition of Mr. Marcos' right to return, and
his actual return, to this country. The Court, in short, should not accept respondents' general
apprehensions, concerns and perceptions at face value, in the light of a countervailing and
even irresistible, specific, clear, demandable, and enforceable right asserted by a Filipino.

Deteriorating political, social, economic or exceptional conditions, if any, are not to be used as
a pretext to justify derogation of human rights. 2

As a member of the United Nations, the Philippines has obligations under its charter. By
adopting the generally accepted principles of international law as part of the law of the land,
(Art. II, Sec. 2 of the Constitution), the Philippine government cannot just pay lip service to Art.
13, par. 2 of the Universal Declaration of Human Rights which provides that everyone has the
right to leave any country, including his own, and to return to his country. This guarantee is
reiterated in Art. XII, par. 2 of the International Covenant on Civil and Political Rights which
states that "no one shall be arbitrarily deprived of the right to enter his own country."
(Emphasis supplied) "Arbitrary" or "arbitrarily" was specifically chosen by the drafters of the
Covenant 3 hoping to protect an individual against unexpected, irresponsible or excessive
encroachment on his rights by the state based on national traditions or a particular sense of justice
which falls short of international law or standards. 4

The Solicitor General maintains that because the respondents, as alter egos of the President,
have raised the argument of "national security" and "public safety," it is the duty of this Court
to unquestioningly yield thereto, thus casting the controversy to the realm of a political
question. I do not agree. I believe that it is one case where the human and constitutional light
invoked by one party is so specific, substantial and clear that it cannot be overshadowed,
much less, nullified by simplistic generalities; worse, the Court neglects its duty under the
Constitution when it allows the theory of political question to serve as a convenient, and yet,
lame excuse for evading what, to me, is its clearly pressing and demandable duty to the
Constitution.
During the oral arguments in this case, I asked the Solicitor General how one could validly
defend the right of former Senator Benigno S. Aquino, Jr., a Filipino, to return to the
Philippines in 1983 and, at the same time,credibly deny the right of Mr. Marcos, also a Filipino,
to return to the Philippines in 1989. I still have not found a satisfactory answer to that question.
Instead, it has become clearer by the day that the drama today is the same drama in 1983
with the only difference that the actors are in opposite roles, which really makes one hope, in
the national interest, that the mistake in 1983 should not be made to persist in 1989.

To one who owes Mr. Marcos, his wife and followers absolutely nothing, personal, political or
otherwise, the following are the cogent and decisive propositions in this case-

1. Mr. Marcos is a Filipino and, as such, entitled to return to die and be buried in this country;

2. respondents have not shown any "hard evidence" or con- vincing proof why his right as a
Filipinoto return should be denied him. All we have are general conclusions of "national
security" and "public safety" in avoidance of a specific demandable and enforceable
constitutional and basic human right to return;

3. the issue of Marcos' return to the Philippines, perhaps more than any issue today, requires
of all members of the Court, in what appears to be an extended political contest, the "cold
neutrality of an impartial judge." It is only thus that we fortify the independence of this Court,
with fidelity, not to any person, party or group but to the Constitution and only to the
Constitution.

ACCORDINGLY, I vote to GRANT the petition.

SARMIENTO, J., dissenting:

I vote to grant the petition.

The only issue that saddles the Court is simply: "whether or not, in the exercise of the powers
granted by the Constitution, the President may prohibit the Marcoses from returning to the
Philippines." 1 I therefore take exception to allusions 2 anent "the capacity of the Marcoses to stir
trouble even from afar." 3 I have legitimate reason to fear that my brethren, in passing judgment on
the Marcoses (insofar as their "capacity to stir trouble" is concerned), have overstepped the
bounds of judicial restraint, or even worse, convicted them without trial.

I also find quite strained what the majority would have as the "real issues" facing the Court:
"The right to return to one's country," pitted against "the right of travel and freedom of abode",
and their supposed distinctions under international law, as if such distinctions, under
international law in truth and in fact exist. There is only one right involved here, whether under
municipal or international law: the light of travel, whether within one's own country, or to
another, and the right to return thereto. The Constitution itself makes no distinctions; let then,
no one make a distinction. Ubi lex non distinguish nec nos distinguere debemus.

As the majority would indeed have it, the issue is one of power: Does the Executive have the
power to deny a citizen his right to travel (back to the country or to another)? It is a question
that, in essence, involves the application, and no more, of the provisions of the 1987
Constitution:
Sec. 6. The liberty of abode and of changing the same within the limits prescribed by law shall
not be impaired except upon lawful order of the court. Neither shall the right to travel be
impaired except in the interest of national security, public safety, or public health, as may be
provided by law. 4

The majority says, with ample help from American precedents, that the President is
possessed of the power, thus:

On these premises, we hold the view that although the 1987 Constitution imposes limitations
on the exercise of specific powers of the President, it maintains intact what is traditionally
considered as within the scope of "executive power." Corollarily, the powers of the President
cannot be said to be limited only to the specific powers enumerated in the Constitution. In
other words, executive power is more than the sum of specific powers so enumerated. 5

So also:

Faced with the problem of whether or not the time is right to allow the Marcoses to return to
the Philippines, the President is, under the Constitution, constrained to consider these basic
principles in arriving at a decision. More than that, having sworn to defend and uphold the
Constitution, the President has the obligation under the Constitution to protect the people,
promote their welfare and advance the national interest. It must be borne in mind that the
Constitution, aside from being an allocation of power is also a social contract whereby the
people have surrendered their sovereign powers to the State for the common good. Hence,
lest the officers of the Government exercising the powers delegated by the people forget and
the servants of the people become rulers, the Constitution reminds everyone that
"sovereignty resides in the people and all government authority emanates from them." [Art. II,
Sec. 1 . ] 6

And finally:

To the President, the problem is one of balancing the general welfare and the common good
against the exercise of rights of certain individuals. The power involved is the President's
residual power to protect the general welfare of the people. It is founded on the duty of the
President, as steward of the people. To paraphrase Theodore Roosevelt, it is not only the
power of the President but also his duty to do anything not forbidden by the Constitution or the
laws that the needs of the nation demanded [See Corwin, supra, at 153]. It is a power borne
by the President's duty to preserve and defend the Constitution. It also may be viewed as a
power implicit in the President's duty to take care that the laws are faithfully executed [See
Hyman, The American President, where the author advances the view that an allowance of
discretionary power is unavoidable in any government and is best lodged in the President]. 7

I am not persuaded.

First: While the Chief Executive exercises powers not found expressly in the Charter, but has
them by constitutional implication* the latter must yield to the paramountcy of the Bill of Rights.
According to Fernando: "A regime of constitutionalism is thus unthinkable without an
assurance of the primacy of a big of rights. Precisely a constitution exists to assure that in the
discharge of the governmental functions, the dignity that is the birthright of every human being
is duly safeguarded. To be true to its primordial aim a constitution must lay down the
boundaries beyond which he's forbidden territory for state action" 8
My brethren have not demonstrated, to my satisfaction, how the President may override the
direct mandate of the fundamental law. It will not suffice, so I submit, to say that the
President's plenitude of powers, as provided in the Constitution, or by sheer constitutional
implication, prevail over express constitutional commands. "Clearly," so I borrow J.B.L. Reyes,
in Ms own right, a titan in the field of public law, "this argument ... rests ... not upon the text of
the (Constitution] ... but upon a mere inference therefrom." 9 For if it were, indeed, the intent of
the Charter to create an exception, that is, by Presidential action, to the right of travel or liberty of
abode and of changing the same other than what it explicitly says already ("limits prescribed by
law" 10 or "upon lawful order of the court" 11 the Charter could have specifically declared so. As it is,
the lone deterrents to the right in question are: (1) decree of statute, or (2) lawful judicial mandate.
Had the Constitution intended a third exception, that is, by Presidential initiative, it could have so
averred. It would also have made the Constitution, as far as limits to the said right are concerned,
come full circle: Limits by legislative, judicial, and executive processes.

Obviously, none of the twin legal bars exist. There is no law banning the Marcoses from the
country; neither is there any court decree banishing him from Philippine territory.

It is to be noted that under the 1973 Constitution, the right to travel is worded as follows:

Sec. 5. The liberty of abode and of travel shall not be impaired except upon lawful order of the
court, or when necessary in the interest of national security, public safety, or public health. 12

Under this provision, the right may be abated: (1) upon a lawful court order, or (2) "when
necessary in the interest of national security, public safety, or public health. 13 Arguably, the
provision enabled the Chief Executive (Marcos) to moderate movement of citizens, which, Bernas
says, justified such practices as "hamletting", forced relocations, or the establishment of free-fire
zones. 14

The new Constitution, however, so it clearly appears, has divested the Executive's implied
power. And, as it so appears, the right may be impaired only "within the limits provided by
law . 15 The President is out of the picture.

Admittedly, the Chief Executive is the "sole" judge of all matters affecting national
security 16 and foreign affairs; 17the Bill of Rights precisely, a form of check against excesses of
officialdom is, in this case, a formidable barrier against Presidential action. (Even on matters of
State security, this Constitution prescribes limits to Executive's powers as Commander-in-Chief.)

Second: Assuming, ex hypothesis that the President may legally act, the question that
emerges is: Has it been proved that Marcos, or his return, will, in fact, interpose a threat to the
national security , public safety, or public health?" What appears in the records are vehement
insistences that Marcos does pose a threat to the national good and yet, at the same time, we
have persistent claims, made by the military top brass during the lengthy closed-door hearing
on July 25, 1989, that "this Government will not fall" should the former first family in exile step
on Philippine soil. which is which?

At any rate, it is my opinion that we can not leave that determination solely to the Chief
Executive. The Court itself must be content that the threat is not only clear, but more so,
present. 18

That the President "has the obligation under the Constitution to protect the people ... " 19 is an
obligation open to no doubt. But the question, and so I ask again and again, is: From whom? If we
say "from Marcos," we unravel chinks in our political armor. It also flies in the face of claims, so
confidently asserted, that "this Government will not fall" even if we allowed Marcos to return.

It flies, finally, in the face of the fact that a good number of the henchmen trusted allies,
implementors of martial law, and pathetic parasites of the ex-first couple are, in fact, in the
Government, in the comfort of its offices, and or at the helm of its key agencies. Let us not,
therefore, joke ourselves of moral factors warranting the continued banishment of Marcos.
Morality is the last refuge of the self-righteous.

Third: The problem is not of balancing the general welfare against the exercise of individual
liberties. 20 As I indicated, not one shred of evidence, let alone solid evidence, other than surmises
of possibilities, has been shown to justify the 'balancing act" referred to. Worse, these conjectures
contradict contentions that as far as Philippine society is concerned, Marcos is "history".

The power of the President, so my brethren declaim, "calls for the exercise of the President's
power as protector of peace. 21

This is the self-same falsehood Marcos foisted on the Filipino people to justify the
authoritarian rule. It also means that we are no better than he has.

That "[t]he power of the President to keep the peace is not limited merely to exercising the
commander-in-chief powers in times of emergency or to leading the State against external
and internal threats to its existence" 22 is a bigger fantasy: It not only summons the martial law
decisions of pre-"EDSA" (especially with respect to the detestable Amendment No. 6), it is
inconsistent with the express provisions of the commander-in-chief clause of the 1987 Charter, a
Charter that has perceptibly reduced the Executive's powers vis-a-vis its 1973 counterpart. 23

II.

The undersigned would be lacking in candor to conceal his dislike, to say the least, for Marcos.
Because of Marcos, the writer of it's dissent lost a son His son's only "offense" was that he
openly and unabatedly criticized the dictator, his associates, and his military machinery. He
would pay dearly for it; he was arrested and detained, without judicial warrant or decision, for
seven months and seven days. He was held incommunicado a greater part of the time, in the
military stockade of Camp Crame. In his last week in detention, he was, grudgingly,
hospitalized (prison hospital) and confined for chronic asthma. The deplorable conditions of
his imprisonment exacerbated his delicate health beyond cure. He died, on November 11,
1977, a martyr on the altar of the martial law apparatus.

The undersigned also counts himself as one of the victims of Marcos' ruthless apparatchiki.
On August 14, 1979, he was, along with former President Diosdado Macapagal, and
Congressmen Rogaciano Mercado and Manuel Concordia, charged, "ASSOed"and placed
under house arrest, for "inciting to sedition" and "rumor mongering " 24in the midst of the
distribution of Ang Demokrasya Sa Pilipinas (Democracy In the Philippines), a book extremely
critical of martial rule, published by him and former Congressman Concordia, authored by
President Macapagal and translated into Tagalog by Congressman Rogaciano Mercado. In
addition, they were also all accused of libel in more than two dozens of criminal complaints filed by
the several military officers named in the "condemned" book as having violated the human rights of
dissenters, and for other crimes, in the office of the Provincial Fiscal of Rizal. It had to take the
events at "EDSA" to set them free from house arrest and these political offenses. I am for Marcos'
return not because I have a score to settle with him. Ditto's death or my arrest are scores that can
not be settled.
I feel the ex-President's death abroad (presented in the dailies as 'imminent") would leave him
'unpunished for Ms crimes to country and countrymen. If punishment is due, let this
leadership inflict it. But let him stand trial and accord him due process.

Modesty aside, I have staunchly and consistently advocated the human right of travel and
movement and the liberty of abode. 25 We would have betrayed our own Ideals if we denied
Marcos his rights. It is his constitutional right, a right that can not be abridged by personal
hatred, fear, founded or unfounded, and by speculations of the "man's "capacity" "to stir
trouble" Now that the shoe is on the other foot, let no more of human rights violations be
repeated against any one, friend or foe. In a democratic framwork, there is no this as getting
even.

The majority started this inquiry on the question of power. I hold that the President, under the
present Constitution and existing laws, does not have it. Mandamus, I submit, lies.

Narvasa, Melencio-Herrera, Gancayco, Grio- Aquino, Medialdea and Regalado, JJ., concur.

Feliciano, J., is on leave.

Footnotes

** The Philippine presidency under the 1935 Constitution was patterned in large measure
after the American presidency. But at the outset, it must be pointed out that the Philippine
government established under the constitutions of 1935, 1973 and 1987 is a unitary
government with general powers unlike that of the United States which is a federal
government with limited and enumerated powers. Even so, the powers of the president of the
United States have through the years grown, developed and taken shape as students of that
presidency have demonstrated.

FERNAN, C. J.:

1 From the speech "Restrictions on Human Rights-States of Emergency, National Security,


Public Safety and Public Order" delivered at the Lawasia Seminar on Human Rights, Today
and Tomorrow: The Role of Human Rights Commissions and Other Organs, at the Manila
Hotel on August 27, 1988.

CRUZ, J.

1 In addition, he invokes the right as a basic human right recognized by the Universal
Declaration ration of Human Rights. ni

2 S.P. Marks, Principles and Norms of Human Rights Applicable in Emergency Situations:
Under development, Catastrophies and Armed Conflicts, The International Dimensions of
Human Rights, Vol. 1 Unesco, 1982, pp. 175-204.

3 P. Hassan, The Word "Arbitrary" as used in the Universal Declaration of Human Rights:
"Illegal or Unjust", 10 Harv Int. L.J., p. 225 (1969). 4 FC Newman and IC Vasak Civil and
Political Rights, The International Dimensions of Human Rights, pp. 135-166.

4 F.C. Newman and K.Vasak and Poitical Rights, The International Dimensions of Human
Rights, pp. 135-166.5as to whether the U.S. Federal Government will allow Mr. Marcos to
leave the United States, is beyond the issues in this case; similarly, as to how the Philippine
government should deal with Mr. Marcos upon his return is also outside of the issues in this
case.

5 As to whether the U.S. Federal Government will allow Mr. Marcos to leave the United States,
is beyond the issues in this case; similarly, as to how the Philippine Government should deal
with Mr. Marcos upon his return is also outside of the issues in this case.

SARMIENTO, J.:

1 Decision, 4.

2 See supra, 1-4.

3 Supra, 2.

4 CONST., art. Ill, see. 6.

5 Decision, supra, 18; emphasis in the original.

6 Supra, 20-21.

7 Supra, 21-22.

* But see Cruz, J., Dissenting.

8 FERNANDO, THE BILL OF RIGHTS, 4 (1972 ed.).

9 Republic v. Quasha, No L-30299, Aug. 17, 1972, 46 SCRA 160,169.

10 CONST., supra.

11 Supra.

12 CONST. (1973), art. IV, sec. 5.

13 Supra.

14 See BERNAS, THE CONSTITUTION OF THE REPUBLIC OF THE PHILIPPINES, 263


(1987 ED.)

15 CONST. (1987), art III, sec. 6, supra.

16 See Supra ,Aart VII, sec 18.

17 See Go Tek v. Deportation Board , No. L-23846, September 9, 1977, 79 scra 17.

18 See Lansang v. Garcia, Nos. L-33964, 33965, 33973, 33982, 34004, 34013, 34039, 34265,
and 34339, December 11, 1971, 42 SCRA 448, 480.
19 Decision, supra, 21.

20 Supra.

21 Supra.

22 Supra, 22.

23 Abraham ("Ditto") Sarmiento, Jr., then Editor-in-Chief, Philippine Collegian (1975-1976),


official student organ of the University of the philippines. He was detained in the military
stockade for commoncriminals from Jan. to Aug, 1976.

24 SPI No. 79-347 ("For: Violation of Presidential Decree No. 90 and Article 142 of the
Revised Penal Code, as amended the JG.R. No. 54180, Diosdado Macapagal, Rogaciano M.
Mercado, Manuel A. Concordia, and Abraham F. Sarmiento, Petitioners, vs- The Preliminary
Investigating Panel in SPI No. 79-347 [Hamilton B. Dimaya Brigadier General, AFP, The
Judge Advocate General, Chairman; Leon 0. Ridao Colonel, JAGS GSC Deputy Judge
Advocate General, Member; and Amor B. Felipe, Colonel, JAGS (GSC) Executive Officer,
Member], and the Minister of National Defense, Respondent Supreme Court.

25 See Santos v. The Special Commottee on Travel, et al., G.R. No. L-45748, June 28, 1977,
of which the undersigned was the counsel of the petitioner.
Republic of the Philippines
SUPREME COURT
Manila

EN BANC

G.R. No. 88211 October 27, 1989

FERDINAND E. MARCOS, IMELDA R. MARCOS, FERDINAND R. MARCOS. JR., IRENE M.


ARANETA, IMEE M. MANOTOC, TOMAS MANOTOC, GREGORIO ARANETA, PACIFICO
E. MARCOS, NICANOR YIGUEZ and PHILIPPINE CONSTITUTION ASSOCIATION
(PHILCONSA), represented by its President, CONRADO F. ESTRELLA, petitioners,
vs.
HONORABLE RAUL MANGLAPUS, CATALINO MACARAIG, SEDFREY ORDOEZ,
MIRIAM DEFENSOR SANTIAGO, FIDEL RAMOS, RENATO DE VILLA, in their capacity
as Secretary of Foreign Affairs, Executive Secretary, Secretary of Justice, Immigration
Commissioner, Secretary of National Defense and Chief of Staff,
respectively, respondents.

RESOLUTION

EN BANC:

In its decision dated September 15,1989, the Court, by a vote of eight (8) to seven (7),
dismissed the petition, after finding that the President did not act arbitrarily or with grave
abuse of discretion in determining that the return of former President Marcos and his family at
the present time and under present circumstances pose a threat to national interest and
welfare and in prohibiting their return to the Philippines. On September 28, 1989, former
President Marcos died in Honolulu, Hawaii. In a statement, President Aquino said:

In the interest of the safety of those who will take the death of Mr. Marcos in widely and
passionately conflicting ways, and for the tranquility of the state and order of society, the
remains of Ferdinand E. Marcos will not be allowed to be brought to our country until such
time as the government, be it under this administration or the succeeding one, shall otherwise
decide. [Motion for Reconsideration, p. 1; Rollo, p, 443.]

On October 2, 1989, a Motion for Reconsideration was filed by petitioners, raising the
following major arguments:

1. to bar former President Marcos and his family from returning to the Philippines is to deny
them not only the inherent right of citizens to return to their country of birth but also the
protection of the Constitution and all of the rights guaranteed to Filipinos under the
Constitution;

2. the President has no power to bar a Filipino from his own country; if she has, she had
exercised it arbitrarily; and

3. there is no basis for barring the return of the family of former President Marcos. Thus,
petitioners prayed that the Court reconsider its decision, order respondents to issue the
necessary travel documents to enable Mrs. Imelda R. Marcos, Ferdinand R. Marcos, Jr.,
Irene M. Araneta, Imee M. Manotoc, Tommy Manotoc and Gregorio Araneta to return to the
Philippines, and enjoin respondents from implementing President Aquino's decision to bar the
return of the remains of Mr. Marcos, and the other petitioners, to the Philippines.

Commenting on the motion for reconsideration, the Solicitor General argued that the motion
for reconsideration is moot and academic as to the deceased Mr. Marcos. Moreover, he
asserts that "the 'formal' rights being invoked by the Marcoses under the label 'right to return',
including the label 'return of Marcos' remains, is in reality or substance a 'right' to destabilize
the country, a 'right' to hide the Marcoses' incessant shadowy orchestrated efforts at
destabilization." [Comment, p. 29.] Thus, he prays that the Motion for Reconsideration be
denied for lack of merit.

We deny the motion for reconsideration.

1. It must be emphasized that as in all motions for reconsideration, the burden is upon the
movants, petitioner herein, to show that there are compelling reasons to reconsider the
decision of the Court.

2. After a thorough consideration of the matters raised in the motion for reconsideration, the
Court is of the view that no compelling reasons have been established by petitioners to
warrant a reconsideration of the Court's decision.

The death of Mr. Marcos, although it may be viewed as a supervening event, has not changed
the factual scenario under which the Court's decision was rendered. The threats to the
government, to which the return of the Marcoses has been viewed to provide a catalytic effect,
have not been shown to have ceased. On the contrary, instead of erasing fears as to the
destabilization that will be caused by the return of the Marcoses, Mrs. Marcos reinforced the
basis for the decision to bar their return when she called President Aquino "illegal," claiming
that it is Mr. Marcos, not Mrs. Aquino, who is the "legal" President of the Philippines, and
declared that the matter "should be brought to all the courts of the world." [Comment, p.
1; Philippine Star, October 4, 1989.]

3. Contrary to petitioners' view, it cannot be denied that the President, upon whom executive
power is vested, has unstated residual powers which are implied from the grant of executive
power and which are necessary for her to comply with her duties under the Constitution. The
powers of the President are not limited to what are expressly enumerated in the article on the
Executive Department and in scattered provisions of the Constitution. This is so,
notwithstanding the avowed intent of the members of the Constitutional Commission of 1986
to limit the powers of the President as a reaction to the abuses under the regime of Mr.
Marcos, for the result was a limitation of specific power of the President, particularly those
relating to the commander-in-chief clause, but not a diminution of the general grant of
executive power.

That the President has powers other than those expressly stated in the Constitution is nothing
new. This is recognized under the U.S. Constitution from which we have patterned the
distribution of governmental powers among three (3) separate branches.

Article II, [section] 1, provides that "The Executive Power shall be vested in a President of the
United States of America." In Alexander Hamilton's widely accepted view, this statement
cannot be read as mere shorthand for the specific executive authorizations that follow it in
[sections] 2 and 3. Hamilton stressed the difference between the sweeping language of article
II, section 1, and the conditional language of article I, [section] 1: "All legislative Powers herein
granted shall be vested in a Congress of the United States . . ." Hamilton submitted that "[t]he
[article III enumeration [in sections 2 and 31 ought therefore to be considered, as intended
merely to specify the principal articles implied in the definition of execution power; leaving the
rest to flow from the general grant of that power, interpreted in confomity with other parts of
the Constitution...

In Myers v. United States, the Supreme Court accepted Hamilton's proposition, concluding
that the federal executive, unlike the Congress, could exercise power from sources not
enumerated, so long as not forbidden by the constitutional text: the executive power was
given in general terms, strengthened by specific terms where emphasis was regarded as
appropriate, and was limited by direct expressions where limitation was needed. . ." The
language of Chief Justice Taft in Myers makes clear that the constitutional concept of inherent
power is not a synonym for power without limit; rather, the concept suggests only that not all
powers granted in the Constitution are themselves exhausted by internal enumeration, so that,
within a sphere properly regarded as one of "executive' power, authority is implied unless
there or elsewhere expressly limited. [TRIBE, AMERICAN CONSTITUTIONAL LAW 158-159
(1978).]

And neither can we subscribe to the view that a recognition of the President's implied or
residual powers is tantamount to setting the stage for another dictatorship. Despite
petitioners' strained analogy, the residual powers of the President under the Constitution
should not be confused with the power of the President under the 1973 Constitution to
legislate pursuant to Amendment No. 6 which provides:

Whenever in the judgment of the President (Prime Minister), there exists a grave emergency
or a threat or imminence thereof, or whenever the interim Batasang Pambansa or the regular
National Assembly fails or is unable to act adequately on any matter for any reason that in his
judgment requires immediate action, he may, in order to meet the exigency, issue the
necessary decrees, orders, or letters of instruction, which shall form part of the law of the
land,

There is no similarity between the residual powers of the President under the 1987
Constitution and the power of the President under the 1973 Constitution pursuant to
Amendment No. 6. First of all, Amendment No. 6 refers to an express grant of power. It is not
implied. Then, Amendment No. 6 refers to a grant to the President of thespecific power of
legislation.

4. Among the duties of the President under the Constitution, in compliance with his (or her)
oath of office, is to protect and promote the interest and welfare of the people. Her decision to
bar the return of the Marcoses and subsequently, the remains of Mr. Marcos at the present
time and under present circumstances is in compliance with this bounden duty. In the
absence of a clear showing that she had acted with arbitrariness or with grave abuse of
discretion in arriving at this decision, the Court will not enjoin the implementation of this
decision.

ACCORDINGLY, the Court resolved to DENY the Motion for Reconsideration for lack of
merit."

Separate Opinions
CRUZ, J., dissenting:

Nothing important has happened to change my vote for granting the petition. The death of
Marcos has not plunged the nation into paroxysms of grief as the so-called "loyalists" had
hoped. By and large, it has been met with only passing interest if not outright indifference from
the people. Clearly, the discredited dictator is in death no El Cid. Marcos dead is only an
unpleasant memory, not a bolt of lightning to whip the blood.

This only shows that if he was at all a threat to the national security when he was already
moribund that feeble threat has died with him. As the government stresses, he has been
reduced to a non-person (which makes me wonder why it is still afraid of him). His cadaver is
not even regarded as a symbol of this or that or whatever except by his fanatical followers. It
is only a dead body waiting to be interred in this country.

This is a tempest in a teapot. We have more important things to do than debating over a
corpse that deserves no kinder fate than dissolution and oblivion. I say let it be brought home
and buried deep and let us be done with it forever.

PARAS, J., dissenting on the Motion for Reconsideration:

I find no reason to deviate from the dissenting opinion I have already expressed.

Firstly, the former President, although already dead, is still entitled to certain rights. It is not
correct to say that a dead man, since he is no longer a human being, has ceased to have
rights. For instance, our Revised Penal Code prohibits the commission of libel against a
deceased individual. And even if we were to assume the non- existence anymore of his
human rights what about the human rights of his widow and the other members of his family?

Secondly, up to now, the alleged threats to national security have remained unproved and
consequently, unpersuasive. Our Armed Forces can easily control any possible uprising or
political and military destabilization. In fact, the converse appears to be nearer the truth, that
is, if we do not allow the remains to come, more trouble may be expected.

Thirdly, reconciliation can proceed at a much faster pace if the petition for the return is
granted. To refuse the request can mean a hardening of resistance against the
well-intentioned aim of the administration. Upon the other hand, to grant the petition may well
soften the hearts of the oppositionists; paving the way for a united citizenry.

Finally, the entire world will surely applaud our government's act of mercy. As Shakespeare
once wrote "the quality of mercy is not strained." Surely, compassion is the better part of
government. Remove mercy, and you remove the best reason against civil strife, which if not
abated can turn our country into a mainstream of fiery dissent and in the end, as one great
man has put it, the question will no longer be what is right, but what is left.

PADILLA, J., dissenting:

The death of former President Ferdinand E. Marcos, which supervened after decision in this
case had been rendered, was pre-empted and foreseen in my original dissenting opinion.
There I said that the first cogent and decisive proposition in this case is that "Mr. Marcos is
a Filipino and, as such, entitled to return to, die and be buried in this country." I have only to
add a few statements to that dissenting opinion.

Respondents have succeeded in denying Mr. Marcos the first two (2) rights, i.e. to return to
and die in this country, The remaining right of this Filipino that cries out for vindication at this
late hour is the right to be buried in this country. Will the respondents be allowed to complete
the circle of denying the constitutional and human right of Mr. Marcos to travel which, as
stated in my dissenting opinion, includes the right to return to, die and be buried in this country?
The answer should be in the negative if the Constitution is to still prevail; the answer should
be in the negative if we are to avoid the completely indefensible act of denying a Filipino the
last right to blend his mortal remains with a few square feet of earth in the treasured land of
his birth.

Those who would deny this Filipino the only constitutional and human right that can be
accorded him now say that the constitutional and human right to be buried in this country
would apply to any Filipino, except Mr. Marcos, because he was a dictator and he plundered
the country. This is the most irrelevant argument that can be raised at this time. For, our
democracy is built on the fundamental assumption (so we believe) that the Constitution and
all its guarantees apply to all Filipinos, whether dictator or pauper, learned or ignorant,
religious or agnostic as long as he is a Filipino.

It is said that to accord this Filipino the right to be buried in this country would pose a serious
threat to national security and public safety. What threat? As pointed out in my dissenting
opinion, the second cogent and decisive proposition in this case is that respondents have not
presented any "hard evidence" (factual bases) or convincing proof of such threat. "All we have
are general conclusions of national security and public safety' in avoidance of a specific,
demandable and enforceable constitutional and basic human right to return." Recent events
have, to my mind, served to confirm the validity of such dissenting statement.

If a live Marcos returning to this country did not pose a serious threat to national security, the
situation cannot be any worse with a dead Marcos returning. For, a dead Marcos will return to
be buried into mother earth, where there are no protests, "demos", or even dissents, where
the rule that reigns, in the language of Mr. Justice Jackson in Barnette is the "unanimity of the
graveyard."

It is said that, while a dead Marcos has been rendered impotent to threaten national security,
his supporters would pose that threat to national security. This argument is untenable as it is
without merit. As I see it, Marcos' supporters pose a greater threat to peace and order, with
Marcos deprived of his right to burial in this country. On the other hand, if the remains of Mr.
Marcos are brought to the country and allowed the burial to which he is constitutionally and
humanly entitled, Marcos' supporters would be deprived of an otherwise potent argumentso
conducive to mass protests and even violencethat their Idol has been cruelly denied the
right to be buried in his homeland.

It is also said that Mr. Marcos, in cadaver form, has no constitutional or human rights, to
speak of. This contention entirely begs the issue. In the first place, one cannot overlook that
the right of Mr. Marcos, as a Filipino, to be buried in this country, is asserted not for the first
time after his death. It was vigorously asserted long before his death. But, more importantly,
the right of every Filipino to be buried in his country, is part of a continuing right that starts
from birth and ends only on the day he is finally laid to rest in his country.
This dissenting opinion does not pretend to deny the Philippine government the right to lay
down conditions for the burial of Mr. Marcos in this country, but I submit that these conditions
must, as a fundamental postulate, recognize the right of the man, as a Filipino, to be buried in
this country NOW.

The majority resolution, in effect, bans Mr. Marcos' burial in this country now. Without in any
way affecting my respect and regard for my brethren and sisters in the majority, I am deeply
concerned and greatly disturbed that, with their decision banning a dead Marcos from burial in
this country, they have passed an opportunity to defuse a constitutional crisis that, in my
humble assessment, threatens to ignite an already divided nation, Regrettably, they have
ignored the constitutional dimension of the problem rooted in the ageless and finest tradition
of our people for respect and deference to the dead. What predictably follows will be a
continuing strife, among our people, of unending hatred, recriminations and retaliations. God
save this country!

My vote is for this Court to ORDER the respondents to allow the immediate return and burial
in the Republic of the Philippines of former President Ferdinand E. Marcos, subject to such
conditions as the Philippine government may impose in the interest of peace and order.

SARMIENTO, J., Dissenting:

The case has curious trappings of a deja vu, the shoe being on the other foot, yet, as I stated
before, I can not allow personal emotions to soften my "hardened impartiality" and deny, as a
consequence, the rights of the ex-President's bereaved to bury his remains in his homeland,
and for them to return from exile. As I had, then, voted to grant the petition, so do I vote to
grant reconsideration.

I have gone to lengths to locate in the four comers of the Constitution, by direct grant or by
implication, the President's supposed "residual" power to forbid citizens from entering the
motherland reiterated in the resolution of the majority. I have found none. I am not agreed,
that:

3. Contrary to petitioners view, it cannot be denied that the President, upon whom executive
power is vested, has unstated residual powers which are implied from the grant of executive
power and which are necessary for her to comply with her duties under the Constitution. The
powers of the President are not limited to what are expressly enumerated in the article on the
Executive Department and in scattered provisions of the Constitution. This, notwithstanding
the avowed intent of the members of the Constitutional Commission of 1986 to limit the
powers of the President as a reaction to the abuses under the regime of Mr. Marcos, for the
result was a limitation of specific powers of the President, particularly those relating to the
commander-in-chief clause, but not a diminution of the general grant of executive power.

It is a nice word game, but it is nothing else. For, if the Constitution has imposed limitations on
specific powers of the President, it has, a fortiori, prescribed a diminution of executive power.
The Charter says that the right may only be restricted by: (1) a court order; or (2) by fiat of law.
Had the fundamental law intended a presidential imprimatur, it would have said so. It would
have also completed the symmetry: judicial, congressional, and executive restraints on the
right. No amount of presumed residual executive power can amend the Charter.

It is well to note that the Bill of Rights stands primarily, a limitation not only against legislative
encroachments on individual liberties, but more so, against presidential intrusions. And
especially so, because the President is the caretaker of the military establishment that has,
several times over, been unkind to part of the population it has also sworn to protect.

That "[t]he threats to the government, to which the return of the Marcoses has been viewed to
provide a catalytic effect, have not been shown to have ceased" (Res., 3) is the realm of
conjecture, speculation, and imagination. The military has shown no hard evidence that "the
return of the Marcoses" would indeed interpose a threat to national security. And apparently,
the majority itself is not convinced ("has been viewed...").

That Mrs. Marcos has referred to President Corazon Aquino as an illegitimate President, does
not, so I submit, reinforce alleged fears of a massive destabilization awaiting the nation. The
military has said over and over that Marcos followers are not capable of successful
destabilization effort. And only this morning (October 27, 1989), media reported the
assurances given to foreign investors by no less than the President, of the political and
economic stability of the nation, as well as the Government's capability to quell forces that
menace the gains of EDSA.

I have no eulogies to say on the passing of Mr. Marcos. My personal impressions, however,
are beside the point. I reiterate that the President has no power to deny requests of Marcos
relatives to bury Marcos in his homeland. As for the former, let them get their just deserts here
too. And let the matter rest.

Separate Opinions

CRUZ, J., dissenting:

Nothing important has happened to change my vote for granting the petition. The death of
Marcos has not plunged the nation into paroxysms of grief as the so-called "loyalists" had
hoped. By and large, it has been met with only passing interest if not outright indifference from
the people. Clearly, the discredited dictator is in death no El Cid. Marcos dead is only an
unpleasant memory, not a bolt of lightning to whip the blood.

This only shows that if he was at all a threat to the national security when he was already
moribund that feeble threat has died with him. As the government stresses, he has been
reduced to a non-person (which makes me wonder why it is still afraid of him). His cadaver is
not even regarded as a symbol of this or that or whatever except by his fanatical followers. It
is only a dead body waiting to be interred in this country.

This is a tempest in a teapot. We have more important things to do than debating over a
corpse that deserves no kinder fate than dissolution and oblivion. I say let it be brought home
and buried deep and let us be done with it forever.

PARAS, J., dissenting on the Motion for Reconsideration:

I find no reason to deviate from the dissenting opinion I have already expressed.

Firstly, the former President, although already dead, is still entitled to certain rights. It is not
correct to say that a dead man, since he is no longer a human being, has ceased to have
rights. For instance, our Revised Penal Code prohibits the commission of libel against a
deceased individual. And even if we were to assume the non- existence anymore of his
human rights what about the human rights of his widow and the other members of his family?
Secondly, up to now, the alleged threats to national security have remained unproved and
consequently, unpersuasive. Our Armed Forces can easily control any possible uprising or
political and military destabilization. In fact, the converse appears to be nearer the truth, that
is, if we do not allow the remains to come, more trouble may be expected.

Thirdly, reconciliation can proceed at a much faster pace if the petition for the return is
granted. To refuse the request can mean a hardening of resistance against the
well-intentioned aim of the administration. Upon the other hand, to grant the petition may well
soften the hearts of the oppositionists; paving the way for a united citizenry.

Finally, the entire world will surely applaud our government's act of mercy. As Shakespeare
once wrote "the quality of mercy is not strained." Surely, compassion is the better part of
government. Remove mercy, and you remove the best reason against civil strife, which if not
abated can turn our country into a mainstream of fiery dissent and in the end, as one great
man has put it, the question will no longer be what is right, but what is left.

PADILLA, J., dissenting:

The death of former President Ferdinand E. Marcos, which supervened after decision in this
case had been rendered, was pre-empted and foreseen in my original dissenting opinion.
There I said that the first cogent and decisive proposition in this case is that "Mr. Marcos is
a Filipino and, as such, entitled to return to, die and be buried in this country." I have only to
add a few statements to that dissenting opinion.

Respondents have succeeded in denying Mr. Marcos the first two (2) rights, i.e. to return to
and die in this country, The remaining right of this Filipino that cries out for vindication at this
late hour is the right to be buried in this country. Will the respondents be allowed to complete
the circle of denying the constitutional and human right of Mr. Marcos to travel which, as
stated in my dissenting opinion, includes the right to return to, die and be buried in this country?
The answer should be in the negative if the Constitution is to still prevail; the answer should
be in the negative if we are to avoid the completely indefensible act of denying a Filipino the
last right to blend his mortal remains with a few square feet of earth in the treasured land of
his birth.

Those who would deny this Filipino the only constitutional and human right that can be
accorded him now say that the constitutional and human right to be buried in this country
would apply to any Filipino, except Mr. Marcos, because he was a dictator and he plundered
the country. This is the most irrelevant argument that can be raised at this time. For, our
democracy is built on the fundamental assumption (so we believe) that the Constitution and
all its guarantees apply to all Filipinos, whether dictator or pauper, learned or ignorant,
religious or agnostic as long as he is a Filipino.

It is said that to accord this Filipino the right to be buried in this country would pose a serious
threat to national security and public safety. What threat? As pointed out in my dissenting
opinion, the second cogent and decisive proposition in this case is that respondents have not
presented any "hard evidence" (factual bases) or convincing proof of such threat. "All we have
are general conclusions of national security and public safety' in avoidance of a specific,
demandable and enforceable constitutional and basic human right to return." Recent events
have, to my mind, served to confirm the validity of such dissenting statement.

If a live Marcos returning to this country did not pose a serious threat to national security, the
situation cannot be any worse with a dead Marcos returning. For, a dead Marcos will return to
be buried into mother earth, where there are no protests, "demos", or even dissents, where
the rule that reigns, in the language of Mr. Justice Jackson in Barnette is the "unanimity of the
graveyard."

It is said that, while a dead Marcos has been rendered impotent to threaten national security,
his supporters would pose that threat to national security. This argument is untenable as it is
without merit. As I see it, Marcos' supporters pose a greater threat to peace and order, with
Marcos deprived of his right to burial in this country. On the other hand, if the remains of Mr.
Marcos are brought to the country and allowed the burial to which he is constitutionally and
humanly entitled, Marcos' supporters would be deprived of an otherwise potent argumentso
conducive to mass protests and even violencethat their Idol has been cruelly denied the
right to be buried in his homeland.

It is also said that Mr. Marcos, in cadaver form, has no constitutional or human rights, to
speak of. This contention entirely begs the issue. In the first place, one cannot overlook that
the right of Mr. Marcos, as a Filipino, to be buried in this country, is asserted not for the first
time after his death. It was vigorously asserted long before his death. But, more importantly,
the right of every Filipino to be buried in his country, is part of a continuing right that starts
from birth and ends only on the day he is finally laid to rest in his country.

This dissenting opinion does not pretend to deny the Philippine government the right to lay
down conditions for the burial of Mr. Marcos in this country, but I submit that these conditions
must, as a fundamental postulate, recognize the right of the man, as a Filipino, to be buried in
this country NOW.

The majority resolution, in effect, bans Mr. Marcos' burial in this country now. Without in any
way affecting my respect and regard for my brethren and sisters in the majority, I am deeply
concerned and greatly disturbed that, with their decision banning a dead Marcos from burial in
this country, they have passed an opportunity to defuse a constitutional crisis that, in my
humble assessment, threatens to ignite an already divided nation, Regrettably, they have
ignored the constitutional dimension of the problem rooted in the ageless and finest tradition
of our people for respect and deference to the dead. What predictably follows will be a
continuing strife, among our people, of unending hatred, recriminations and retaliations. God
save this country!

My vote is for this Court to ORDER the respondents to allow the immediate return and burial
in the Republic of the Philippines of former President Ferdinand E. Marcos, subject to such
conditions as the Philippine government may impose in the interest of peace and order.

SARMIENTO, J., Dissenting:

The case has curious trappings of a deja vu, the shoe being on the other foot, yet, as I stated
before, I can not allow personal emotions to soften my "hardened impartiality" and deny, as a
consequence, the rights of the ex-President's bereaved to bury his remains in his homeland,
and for them to return from exile. As I had, then, voted to grant the petition, so do I vote to
grant reconsideration.

I have gone to lengths to locate in the four comers of the Constitution, by direct grant or by
implication, the President's supposed "residual" power to forbid citizens from entering the
motherland reiterated in the resolution of the majority. I have found none. I am not agreed,
that:
3. Contrary to petitioners view, it cannot be denied that the President, upon whom executive
power is vested, has unstated residual powers which are implied from the grant of executive
power and which are necessary for her to comply with her duties under the Constitution. The
powers of the President are not limited to what are expressly enumerated in the article on the
Executive Department and in scattered provisions of the Constitution. This, notwithstanding
the avowed intent of the members of the Constitutional Commission of 1986 to limit the
powers of the President as a reaction to the abuses under the regime of Mr. Marcos, for the
result was a limitation of specific powers of the President, particularly those relating to the
commander-in-chief clause, but not a diminution of the general grant of executive power.

It is a nice word game, but it is nothing else. For, if the Constitution has imposed limitations on
specific powers of the President, it has, a fortiori, prescribed a diminution of executive power.
The Charter says that the right may only be restricted by: (1) a court order; or (2) by fiat of law.
Had the fundamental law intended a presidential imprimatur, it would have said so. It would
have also completed the symmetry: judicial, congressional, and executive restraints on the
right. No amount of presumed residual executive power can amend the Charter.

It is well to note that the Bill of Rights stands primarily, a limitation not only against legislative
encroachments on individual liberties, but more so, against presidential intrusions. And
especially so, because the President is the caretaker of the military establishment that has,
several times over, been unkind to part of the population it has also sworn to protect.

That "[t]he threats to the government, to which the return of the Marcoses has been viewed to
provide a catalytic effect, have not been shown to have ceased" (Res., 3) is the realm of
conjecture, speculation, and imagination. The military has shown no hard evidence that "the
return of the Marcoses" would indeed interpose a threat to national security. And apparently,
the majority itself is not convinced ("has been viewed...").

That Mrs. Marcos has referred to President Corazon Aquino as an illegitimate President, does
not, so I submit, reinforce alleged fears of a massive destabilization awaiting the nation. The
military has said over and over that Marcos followers are not capable of successful
destabilization effort. And only this morning (October 27, 1989), media reported the
assurances given to foreign investors by no less than the President, of the political and
economic stability of the nation, as well as the Government's capability to quell forces that
menace the gains of EDSA.

I have no eulogies to say on the passing of Mr. Marcos. My personal impressions, however,
are beside the point. I reiterate that the President has no power to deny requests of Marcos
relatives to bury Marcos in his homeland. As for the former, let them get their just deserts here
too. And let the matter rest.
Republic of the Philippines
SUPREME COURT
Manila

SECOND DIVISION

G.R. No. 121234 August 23, 1995

HUBERT J. P. WEBB, petitioner,


vs.
HONORABLE RAUL E. DE LEON, the Presiding Judge of the Regional Trial Court of
Paraaque, Branch 258, HONORABLE ZOSIMO V. ESCANO, the Presiding Judge of the
Regional Trial Court of Paraaque, Branch 259, PEOPLE OF THE PHILIPPINES, ZENON
L. DE GUIA, JOVENCITO ZUO, LEONARDO GUIYAB, JR., ROBERTO LAO, PABLO
FORMARAN, and NATIONAL BUREAU OF INVESTIGATION, and HONORABLE
AMELITA G. TOLENTINO, the Presiding Judge of the Regional Trial Court of Paraaque,
Branch 274, respondents, LAURO VIZCONDE, intervenor.

G.R. No. 121245 August 23, 1995

MICHAEL A. GATCHALIAN, petitioner,


vs.
HONORABLE RAUL E. DE LEON, the Presiding Judge of the Regional Trial Court of
Paraaque, Branch 258, HONORABLE ZOSIMO V. ESCANO, the Presiding Judge of the
Regional Trial Court of Paraaque, Branch 259, PEOPLE OF THE PHILIPPINES, ZENON
L. DE GUIYAB, JR., ROBERTO LAO, PABLO FORMARAN, and NATIONAL BUREAU OF
INVESTIGATION, and HONORABLE AMELITA G. TOLENTINO, the Presiding Judge of
the Regional Trial Court of Paraaque, Branch 274, respondents.

G.R. No. 121297 August 23, 1995

ANTONIO L. LEJANO, petitioner,


vs.
HONORABLE RAUL E. DE LEON, the Presiding Judge of the Regional Trial Court of
Paraaque, Branch 258, HONORABLE ZOSIMO V. ESCANO, the Presiding Judge of the
Regional Trial Court of Paraaque, Branch 259, PEOPLE OF THE PHILIPPINES, ZENON
L. DE GUIA, JOVENCITO ZUO, LEONARDO GUIYAB, JR., ROBERTO LAO, PABLO
FORMARAN, and NATIONAL BUREAU OF INVESTIGATION, and HONORABLE
AMELITA G. TOLENTINO, the Presiding Judge of the Regional Trial Court of Paraaque,
Branch 274,respondents.

PUNO, J.:

Before the Court are petitions for the issuance of the extraordinary writs of certiorari,
prohibition and mandamuswith application for temporary restraining order and preliminary
injunction to: (1) annul and set aside the Warrants of Arrest issued against petitioners by
respondent Judges Raul E. de Leon and Amelita Tolentino in Criminal Case No. 95-404; (2)
enjoin the respondents from conducting any proceeding in the aforementioned criminal case;
and (3) dismiss said criminal case or include Jessica Alfaro as one of the accused therein. 1

From the records of the case, it appears that on June 19, 1994, the National Bureau of
Investigation (NBI) filed with the Department of Justice a letter-complaint charging petitioners
Hubert Webb, Michael Gatchalian, Antonio J. Lejano and six (6) other persons, 2 with the crime
of Rape with Homicide. Forthwith, the Department of Justice formed a panel of prosecutors
headed by Assistant Chief State Prosecutor Jovencio R. Zuo to conduct the preliminary
investigation 3 of those charged with the rape and killing on June 30, 1991 of Carmela N.
Vizconde; 4 her mother Estrellita Nicolas-Vizconde, 5 and her sister Anne Marie Jennifer 6 in their
home at Number 80 W. Vinzons, St., BF Homes, Paraaque, Metro Manila.

During the preliminary investigation, the NBI presented the following: (1) the sworn statement
dated May 22, 1995 of their principal witness, Maria Jessica M. Alfaro who allegedly saw the
commission of the crime; 7 (2) the sworn statements of two (2) of the former housemaids of the
Webb family in the persons of Nerissa E. Rosales and Mila S.Gaviola; 8 (3) the sworn-statement
of Carlos J. Cristobal who alleged that on March 9, 1991 he was a passenger of United Airlines
Flight No. 808 bound for New York and who expressed doubt on whether petitioner Webb was his
co-passenger in the trip; (4) the sworn statement of Lolita Birrer, a former live-in partner of
Gerardo Biong, who narrated the manner of how Biong investigated and tried to cover up the crime
at bar; 9 (5) the sworn statements of Belen Dometita and Teofilo Minoza, two of the Vizconde
maids, and the sworn statements of Normal White, a security guard and Manciano Gatmaitan, an
engineer. The autopsy reports of the victims were also submitted and they showed that Carmela
had nine (9) stab wounds, Estrellita twelve (12) and Jennifer nineteen (19). 10 The genital
examination of Carmela confirmed the presence of spermatozoa. 11

Before submitting his counter-affidavit, petitioner Webb filed with the DOJ Panel a Motion for
Production And Examination of Evidence and Documents for the NBI to produce the
following:

(a) Certification issued by the U.S. Federal Bureau of Investigation on the admission to and
stay of Hubert Webb in the United States from March 9, 1991 to October 22, 1992;

(b) Laboratory Report No. SN-91-17 of the Medico Legal Officer, Dr. Prospero A. Cabanayan,
M.D.;

(c) Sworn Statements of Gerardo C. Biong (other than his Sworn Statement dated October 7,
1991);

(d) Photographs of fingerprints lifted from the Vizconde residence taken during the
investigation;

(e) Investigation records of NBI on Engr. Danilo Aguas, et al.;

(f) List of names of 135 suspects/persons investigated by the NBI per Progress Report dated
September 2, 1991 submitted by Atty. Arlis Vela, Supervising Agent;

(g) Records of arrest, interview, investigation and other written statements of Jessica Alfaro
(other than the May 22, 1995 Sworn Statement) conducted by the NBI and other police
agencies;
(h) transmittal letter to the NBI, including the report of the investigation conducted by
Superintendent Rodolfo C. Sison, Regional Deputy Director, NCRC;

(i) The names of NBI officials/agents composing the Task Force Jecares, including their
respective positions and duties;

(j) Statements made by other persons in connection with the crime charged.

The motion was granted by the DOJ Panel and the NBI submitted photocopies of the
documents. It alleged it lost the original of the April 28, 1995 sworn statement of Alfaro. This
compelled petitioner Webb to file Civil Case No. 951099 in the Regional Trial Court (RTC) of
Makati, Br. 63, for the purpose, among others, of obtaining the original of said sworn
statement. He succeeded, for in the course of its proceedings, Atty. Arturo L. Mercader, Jr.,
produced a copy of said original in compliance with a subpoena duces tecum. The original
was then submitted by petitioner Webb to the DOJ Panel together with his other evidence. It
appears, however, that petitioner Webb failed to obtain from the NBI the copy of the Federal
Bureau of Investigation (FBI) Report despite his request for its production.

Petitioner Webb claimed during the preliminary investigation that he did not commit the crime
at bar as he went to the United States on March 1, 1991 and returned to the Philippines on
October 27, 1992. 12 His alibi was corroborated by Honesto Aragon, Lecinia Edrosolano, Sylvia
Climaco, Gina Roque, Sonia Rodriguez, Edgardo Venture and Pamela Francisco. 13 To further
support his defense, he submitted documentary evidence that he bought a bicycle and a 1986
Toyota car while in the United States on said dates 14 and that he was issued by the State of
California Driver's License No. A8818707 on June 14, 1991. 15 Petitioner Webb likewise submitted
the letter dated July 25, 1995 of Mr. Robert Heafner, Legal Attache of the US Embassy, citing
certain records tending to confirm, among others, his arrival at San Francisco, California on March
9, 1991 as a passenger in United Airlines Flight No. 808.

The other respondents Hospicio "Pyke" Fernandez, Michael Gatchalian, Antonio "Tony
Boy" Lejano, Peter Estrada, Miguel Rodriguez and Gerardo Biong submitted sworn
statements, responses, and a motion to dismiss denying their complicity in the rape-killing of
the Vizcondes. 16 Only the respondents Joey Filart and Artemio "Dong" Ventura failed to file their
counter-affidavits though they were served with subpoena in their last known address. 17In his
sworn statement, petitioner Gatchalian alleged that from 11 o'clock in the evening of June 29,
1991 until 3 o'clock in the morning of the following day, he was at the residence of his friends,
Carlos and Andrew Syyap, at New Alabang Village, Muntinlupa watching video tapes. He claimed
that his co-petitioner Lejano was with him.

On August 8, 1995, the DOJ Panel issued a 26-page Resolution "finding probable cause to
hold respondents for trial" and recommending that an Information for rape with homicide be
filed against petitioners and their co-respondents, 18 On the same date, it filed the corresponding
Information 19 against petitioners and their co-accused with the Regional Trial Court of Paraaque.
The case was docketed as Criminal Case No. 95-404 and raffled to Branch 258 presided by
respondent judge Zosimo V. Escano. It was, however, the respondent judge Raul de Leon, pairing
judge of Judge Escano, who issued the warrants of arrest against the petitioners. On August 11,
1995, Judge Escano voluntarily inhibited himself from the case to avoid any suspicion about his
impartiality considering his employment with the NBI before his appointment to the bench. The
case was re-raffled to Branch 274, presided by Judge Amelita Tolentino who issued new warrants
of arrest against the petitioners and their co-accused. On August 11, 1995, petitioner Webb
voluntarily surrendered to the police authorities at Camp Ricardo Papa Sr., in Bicutan, Taguig.
Petitioners Gatchalian and Lejano likewise gave themselves up to the authorities after filing their
petitions before us.
In their petitions at bar, petitioners contend: (1) respondent Judges de Leon and Tolentino
gravely abused their discretion when they failed to conduct a preliminary examination before
issuing warrants of arrest against them: (2) the DOJ Panel likewise gravely abused its
discretion in holding that there is probable cause to charge them with the crime of rape with
homicide; (3) the DOJ Panel denied them their constitutional right to due process during their
preliminary investigation; and (4) the DOJ Panel unlawfully intruded into judicial prerogative
when it failed to charge Jessica Alfaro in the Information as an accused.

We find the petitions bereft of merit.

Petitioners fault the DOJ Panel for its finding of probable cause. They insist that the May 22,
1995 sworn statement of Jessica Alfaro is inherently weak and uncorroborated. They hammer
on alleged material inconsistencies between her April 28, 1995 and May 22, 1995 sworn
statements. They assail her credibility for her misdescription of petitioner Webb's hair as
semi-blonde. They also criticize the procedure followed by the DOJ Panel when it did not
examine witnesses to clarify the alleged incredulities and inconsistencies in the sworn
statements of the witnesses for the NBI.

We start with a restatement of the purpose of a preliminary investigation. Section 1 of Rule


112 provides that a preliminary investigation should determine " . . . whether there is a
sufficient ground to engender a well-grounded belief that a crime cognizable by the Regional
Trial Court has been committed and that the respondent is probably guilty thereof, and should
be held for trial." Section 3 of the same Rule outlines the procedure in conducting a
preliminary investigation, thus:

Sec. 3. Procedure. Except as provided for in Section 7 hereof, no complaint or information


for an offense cognizable by the Regional Trial Court shall be filed without a preliminary
investigation having been first conducted in the following manner:

(a) The complaint shall state the known address of the respondent and be accompanied by
affidavits of the complainant and his witnesses as well as other supporting documents, in
such number of copies as there are respondents, plus two (2) copies for the official file. The
said affidavits shall be sworn to before any fiscal, state prosecutor or government official
authorized to administer oath, or, in their absence or unavailability, a notary public, who must
certify that he personally examined the affiants and that he is satisfied that they voluntarily
executed and understood their affidavits.

(b) Within ten (10) days after the filing of the complaint, the investigating officer shall either
dismiss the same if he finds no ground to continue with the inquiry, or issue a subpoena to the
respondent, attaching thereto a copy of the complaint, affidavits and other supporting
documents. Within ten (10) days from receipt thereof, the respondent shall submit
counter-affidavits and other supporting documents. He shall have the right to examine all
other evidence submitted by the complainant.

(c) Such counter-affidavits and other supporting evidence submitted by the respondent shall
also be sworn to and certified as prescribed in paragraph (a) hereof and copies thereof shall
be furnished by him to the complainant.
(d) If the respondent cannot be subpoenaed, or if subpoenaed, does not submit
counter-affidavits within the ten (10) day period, the investigating officer shall base his
resolution on the evidence presented by the complainant.

(e) If the investigating officer believes that there are matters to be clarified, he may set a
hearing to propound clarificatory questions to the parties or their witnesses, during which the
parties shall be afforded an opportunity to be present but without the right to examine or
cross-examine. If the parties so desire, they may submit questions to the investigating officer
which the latter may propound to the parties or witnesses concerned.

(f) Thereafter, the investigation shall be deemed concluded, and the investigating officer shall
resolve the case within ten (10) days therefrom. Upon the evidence thus adduced, the
investigating officer shall determine whether or not there is sufficient ground to hold the
respondent for trial.

Section 4 of Rule 112 then directs that "if the investigating fiscal finds cause to hold the
respondent for trial, he shall prepare the resolution and corresponding information. He shall
certify under oath that he, or as shown by the record, an authorized officer, has personally
examined the complainant and his witnesses, that there is reasonable ground to believe that a
crime has been committed and that the accused is probably guilty thereof . . ."

The need to find probable cause is dictated by the Bill of Rights which protects "the right of the
people to be secure in their persons . . . against unreasonable searches and seizures of
whatever nature . . ." 20 An arrest without a probable cause is an unreasonable seizure of a person,
and violates the privacy of persons which ought not to be intruded by the State. 21 Probable cause
to warrant arrest is not an opaque concept in our jurisdiction. Continuing accretions of case law
reiterate that they are facts and circumstances which would lead a reasonably discreet and
prudent man to believe that an offense has been committed by the person sought to be
arrested. 22 Other jurisdictions utilize the term man of reasonable caution 23 or the term ordinarily prudent
and cautious man. 24 The terms are legally synonymous and their reference is not to a person with
training in the law such as a prosecutor or a judge but to the average man on the street. 25 It ought
to be emphasized that in determining probable cause, the average man weighs facts and
circumstances without resorting to the calibrations of our technical rules of evidence of which his
knowledge is nil. Rather, he relies on the calculus of common sense of which all reasonable men
have an abundance.

Applying these basic norms, we are not prepared to rule that the DOJ Panel gravely abused
its discretion when it found probable cause against the petitioners. Petitioners belittle the
truthfulness of Alfaro on two (2) grounds: (a) she allegedly erroneously described petitioner
Webb's hair as semi-blond and (b) she committed material inconsistencies in her two (2)
sworn statement, thus: 26

xxx xxx xxx

To illustrate, the following are some examples of inconsistencies in the two sworn statements
of Alfaro:

On whether Alfaro knew Carmela before the incident in question

First Affidavit: She had NOT met Carmela before June 29, 1991.

Second Affidavit: "I met her in a party sometime in February, 1991."


On whether Alfaro saw the dead bodies

First Affidavit: She did not see the three dead persons on that night. She just said "on the
following day I read in the newspaper that there were three persons who were killed . . ."

Second Affidavit: "I peeped through the first door on the left. I saw two bodies on top of the
bed, bloodied, and in the floor, I saw Hubert on top of Carmela."

On the alleged rape of Carmela Vizconde

First Affidavit: She did not see the act of rape.

Second Affidavit: She saw Hubert Webb "with bare buttocks, on top of Carmela and pumping,
her mouth gagged and she was moaning and I saw tears on her eyes."

On how Webb, Lejano, and Ventura entered the Vizconde house

First Affidavit: "by jumping over the fence, which was only a little more than a meter high."

Second Affidavit: They "entered the gate which was already open."

On whether Alfaro entered the Vizconde house

First Affidavit: She never entered the house.

Second Affidavit: "I proceeded to the iron grill gate leading to the dirty kitchen."

In its Resolution, the DOJ Panel ruled that these alleged misdescription and inconsistencies
did not erode the credibility of Alfaro. We quote the pertinent ruling, viz.: 27

xxx xxx xxx

As regards the admissibility of Alfaro's statements, granting for purposes of argument merely
that she is a co-conspirator, it is well to note that confessions of a co-conspirator may be
taken as evidence to show the probability of the co-conspirator's participation in the
commission of the crime (see People vs. Lumahang, 94 Phil. 1084).

Furthermore, it is a well-established doctrine that conspiracy need not be proved by direct


evidence of prior agreement to commit the crime. Indeed, "only rarely would such a prior
agreement be demonstrable since, in the nature of things, criminal undertakings are only
rarely documented by agreements in writing. Thus, conspiracy may be inferred from the
conduct of the accused before, during and after the commission of the crime, showing that the
several accused had acted in concert or in unison with each other, evincing a common
purpose or design." (Angelo vs. Court of Appeals, 210 SCRA 402 [1992], citations omitted;
People vs. Molleda, 86 SCRA 699).

Neither can we discredit Alfaro merely because of the inconsistencies in her two sworn
statements. InAngelo, the Court refused to discredit the testimony of a witness accusing
therein petitioner for the slaying of one Gaviano Samaniego even though said witness failed
to name Angelo in his affidavit which was executed five (5) months earlier. Granting, the Court
continued, that a part of the witness' testimony is untrue, such circumstance is not sufficient to
discredit the entire testimony of the witness.

On August 7, 1995, another counsel for respondent Webb submitted his memorandum
suggesting that the instant complaint "should not be decided within the month to give time to
the NBI to coordinate with the FBI on the latter's inquiry into the whereabouts of Hubert
Webb . . . and to check on our U.S.-based witnesses."

In said memorandum, counsel for respondent Webb calls for the application of the
maxim falsus in uno, falsus in omnibus arising from the inconsistencies of Alfaro's statements,
among others. This is untenable. As held in Angelo:

There is no rule of law which prohibits a court from crediting part of the testimony of a witness
as worthy of belief and from simultaneously rejecting other parts which the court may find
incredible or dubious. The maxim falsus in uno, falsus in omnibus is not a rule of law, let alone
a general rule of law which is universally applicable. It is not a legal presumption either. It is
merely a latinism describing the conclusion reached by a court in a particular case after
ascribing to the evidence such weight or lack of weight that the court deemed proper.

In the case before us, complainant reasoned out that Alfaro was then having reservations
when she first executed the first statement and held back vital information due to her natural
reaction of mistrust. This being so, the panel believes that the inconsistencies in Alfaro's two
sworn statements have been sufficiently explained especially specially so where there is no
showing that the inconsistencies were deliberately made to distort the truth. Consequently,
the probative value of Alfaro's testimony deserves full faith and credit. As it has been often
noted, ex parte statements are generally incomplete because they are usually executed when
the affiant's state of mind does not give her sufficient and fair opportunity to comprehend the
import of her statement and to narrate in full the incidents which transpired (People vs.
Sarellana, 233 SCRA 31 [1994]; Angelo vs. Court of Appeals, supra). In the case at bar, there
is no dispute that a crime has been committed and what is clear before us is that the totality of
the evidence submitted by the complainant indicate a prima faciecase that respondents
conspired in the perpetration of the imputed offense.

We note that the May 22, 1995 sworn statement of Alfaro was given with the assistance of
counsel 28 and consists of six (6) pages, in single space reciting in rich details how the crime was
planned and then executed by the petitioners. In addition, the DOJ Panel evaluated the supporting
sworn statements of Nerissa Rosales and Mila Gaviola, former housemaids of the Webbs, Carlos
J. Cristobal, a passenger in United Airlines Flight No. 808 and Lolita Birrer, a paramour of Gerardo
Biong. The Panel assayed their statements as follows: 29

xxx xxx xxx

According to Nerissa E. Rosales, a former housemaid of the Webb family, on June 29, 1991,
between 7:00 o'clock and 8:00 o'clock in the evening, Hubert was at home inside his room
with two male visitors. She knew it because she and her co-housemaid, Loany, were
instructed by Hubert to bring them three glasses of juice. It was the last time she saw Hubert
and was later told by then Congressman Webb that Hubert was in the United States.

While Mila S. Gaviola, another former housemaid of the Webb family and who served as a
laundry woman, claims, aside from corroborating the statement of Nerissa Rosales, that on
June 30, 1991, she woke up at around 4:00 in the morning and as what she used to do, she
entered the rooms of the Webbs to get their clothes to be washed. As a matter of fact, in that
early morning, she entered Hubert's room and saw Hubert, who was only wearing his pants,
already awake and smoking while he was sitting on his bed. She picked up Hubert's scattered
clothes and brought them together with the clothes of the other members of the family to the
laundry area. After taking her breakfast, she began washing the clothes of the Webbs. As she
was washing the clothes of Hubert Webb, she noticed fresh bloodstains in his shirt. After she
finished the laundry, she went to the servant's quarters. But feeling uneasy, she decided to go
up to the stockroom near Hubert's room to see what he was doing. In the said stockroom,
there is a small door going to Hubert's room and in that door there is a small opening where
she used to see Hubert and his friends sniffing on something. She observed Hubert was quite
irritated, uneasy, and walked to and from inside his room.

On that day, she noticed Hubert left the house at around 1:00 in the afternoon and came back
at around 4:00 in the same afternoon and went inside his room using the secret door of the
house. It was the last time that she saw Hubert until she left the Webb family.

On the other hand, Carlos J. Cristobal alleged that on March 9, 1991, at about 10:00 in the
morning, he was at the Ninoy Aquino International Airport as he was then scheduled to take
the United Airlines Flight No. 808 at 2:00 in the afternoon for New York. At the airport's lobby,
he saw then Congressman Freddie Webb with a male companion. He greeted him and Webb
answered: "Mabuti naman, at ito, ihahatid ko ang anak ko papuntang Florida." He knew
Freddie Webb because he often watched him then in a television show "Chicks to Chicks." He
observed that the man whom Freddie Webb referred to as his son, was of the same height as
Freddie. The son referred to has fair complexion with no distinguishing marks on his face. He
(son of Webb) was then wearing a striped white jacket. When he and his children were
already inside the plane, he did not see Freddie anymore, but he noticed his son was seated
at the front portion of the economy class. He never noticed Freddie Webb's son upon their
arrival in San Francisco. He claims that, while watching the television program "DONG PUNO
LIVE" lately, he saw the wife of Freddie Webb with her lawyer being interviewed, and when
she described Hubert as "moreno" and small built, with a height of five feet and seven inches
tall, and who was the one who left for United States on March 9, 1991, he nurtured doubts
because such description does not fit the physical traits of the son of Freddie, who left with
him for United States on the same flight and date.

Lolita Birrer, alleged that she know Gerardo Biong because she had an affair with him for
almost three (3) years and in fact, she had a child with him who is now four (4) years old. Their
relationship started in February, 1991 until she broke up with him in September 1993. She
recalls that on June 29, 1991, at around 6:00 p.m., Biong invited her to play mahjong at the
canteen of a certain Aling Glo located at the back of the Paraaque Municipal Hall.

At about 2:30, in the early morning of January 30, 1991, the radio operator of the Paraaque
police told Biong that he has a phone call. Before Biong went to the radio room, she was
instructed to take him over and after somebody won the game, she followed Biong at the radio
room where she overheard him uttering, "Ano?, Saan? Mahirap yan, Paano, o sige, aantayin
kita, O ano?, dilaw na taxi, o sige." When he put the phone down, Biong told her, "Mayroon
lang akong rerespondehan, ikaw muna ang maupo" and then, he went outside the canteen
apparently waiting for somebody. Twenty minutes later, a taxi, colored yellow, arrived with a
male passenger sitting at the backseat and parked near the canteen. After it made some
signals by blinking its headlight, Biong rode thereat at the front seat beside the driver and then,
they left. She was not able to recognize the male passenger because the window of the taxi
was tinted. Biong came back at around 7:00 of the same morning and when he arrived, he
immediately washed his hands and face, and took his handkerchief from his pocket which he
threw at the trash can. She asked him why he threw his handkerchief and he answered,
"Hmp . . . amoy tae." She inquired what happened in BF Homes and he replied, "Putang
inang mga batang iyon, pinahirapan nila ako."

Biong later invited her for breakfast, but they first went to his office where she observed him
doing something in his steel cabinet while he appeared to be uneasy. Moments later, Galvan,
another policeman of Paraaque, arrived and said, "Oy Biong, may tatlong patay sa BF,
imbestigahan mo" to which Biong answered, "Oo susunod na ako." Biong went to the office of
Capt. Don Bartolome who offered to accompany him and with whom she asked permission to
go with them. Before they proceeded to the place where the killings happened, she asked
Biong if he knew the exact address and the latter immediately responded, "Alam ko na yon."
She was surprised because Galvan never told him the place of the incident.

As soon as they arrived at the Vizconde's residence, Biong instructed the housemaids to
contact the victim's relatives, while the security guard fetched the barangay chairman and the
president of the Homeowners Association. When all these persons were already in the house,
Biong started recording the wounds of the victim. Inside the master's bedroom, she saw Biong
took a watch from the jewelry box. Because she could not tolerate the foul odor, she and Capt.
Bartolome went out of the room and proceeded to the dining area. On top of the dining table,
she saw the scattered contents of a shoulder bag. Moments later, Biong came out from the
room and proceeded to the front door to remove the chain lock; asked the keys from the
housemaid and it was only then that the main door was opened. Biong noticed a stone in front
of the broken glass of the door and requested Capt. Bartolome to go inside the servant's
quarters as he doubted the housemaids' claim that they heard nothing unusual. Using the
handle of his gun, Biong broke the remaining glass of the door panel. Bartolome then came
out of the room and told Biong that he can hear the sound of the glass being broken. At the
garage, Biong also noticed same marks on the hood of the car.

On the following day, at around 12:00 noon, Biong arrived in her house together with the
Vizconde housemaids. When Biong was preparing to take a bath, she saw him remove from
his pocket the things she also saw from Vizconde's residence, to wit: calling cards, driver's
license, ATM card, a crossed check worth P80,000.00, earrings, a ring, bracelet, necklace,
and the watch he took from the jewelry box inside the room of the Vizcondes. These jewelry
items were later pawned by Biong for P20,000.00 at a pawnshop in front of Chow-Chow
restaurant in Santos Avenue, Paraaque. The next day, she saw Biong took from his locker at
the Paraaque Police Station an imported brown leather jacket, which the latter claimed to
have been given to him by the person who called him up in the early morning of June 30,
1991.

Since then, Biong has been wearing said jacket until they broke up sometime in 1993. She
observed that Biong seemed not interested in pursuing the investigation of the Vizconde case.
In fact, when Biong and this group picked up Mike Gatchalian and brought him to the
Paraaque Police Station, she was surprised that Biong halted the investigation when
Gatchalian was profusely sweating while being interrogated. After the father of Gatchalian
talked to Colonel Pureza, the latter called up and instructed Biong to bring Gatchalian to him
(Colonel Pureza) and that was the last thing she remembered regarding this case.

The DOJ Panel then weighed these inculpatory evidence against the exculpatory evidence of
petitioners. It ruled:30

xxx xxx xxx


The voluminous number of exhibits submitted by respondent Webb to support his defense of
denial and alibi notwithstanding, the panel, after a careful and thorough evaluation of the
records, believes that they cannot outweigh the evidence submitted by the complainant. Alibi
cannot prevail over the positive identification made by a prosecution witness. Verily, alibi
deserves scant consideration in the face of positive identification especially so where the
claim of alibi is supported mainly by friends and relatives (People vs. Apolonia, 235 SCRA
124 [1994]; People vs. Lucas, 181 SCRA 316 and a long line of cases).

Similarly, denial is a self-serving negative which cannot be given greater evidentiary weight
than the declaration of a credible witness who testified on affirmative matters (People vs.
Carizo, 233 SCRA 687 [1994]). Indeed, denial, like alibi, is weak and becomes even more
weaker when arrayed against the positive identification by the witness for the prosecution
(People vs. Onpaid, 233 SCRA 62 [1994]).

Surprisingly, Gatchalian's defense of alibi was not corroborated by Lejano, whom he claimed
was with him watching video tapes at the Syyap residence. Other than claiming that he "was
not and could not have been at or near the area of the Vizconde residence at the time of the
alleged commission of the crime," respondent Lejano proffered no evidence to substantiate
his claim of alibi.

xxx xxx xxx

On the other hand, respondent Webb seeks to enhance the acceptability of his alibi in the
form of documents tending to show that he was thousands of miles away when the incident
occurred. We have carefully deliberated and argued on the evidence submitted by respondent
Webb in support of his absence from the country since March 9, 1991 to October 26, 1992
and found the same wanting to exonerate him of the offense charged. The material dates in
this case are June 29 and 30, 1991. While respondent Webb may have submitted proof
tending to show that he was issued a California driver's license on June 14, 1991, there is no
showing that he could not have been in the country on the dates above mentioned. Neither do
we find merit in the allegation that respondent Webb personally bought a bicycle on June 30,
1991 in California in view of his positive identification by Alfaro and the two (2) househelps of
the Webb family who testified that he was here in the country on said dates. Additionally, the
issuance of receipt evidencing the purchase of a bicycle in California is no conclusive proof
that the name appearing thereon was the actual buyer of the merchandise.

Given these conflicting pieces of evidence of the NBI and the petitioners, we hold that the
DOJ Panel did not gravely abuse its discretion when it found probable cause against the
petitioners. A finding of probable cause needs only to rest on evidence showing that more
likely than not a crime has been committed and was committed by the suspects. Probable
cause need not be based on clear and convincing evidence of guilt, neither on evidence
establishing guilt beyond reasonable doubt and definitely, not on evidence establishing
absolute certainty of guilt. As well put in Brinegar v. United States, 31 while probable cause
demands more than "bare suspicion," it requires "less than evidence which would justify . . .
conviction." A finding of probable cause merely binds over the suspect to stand trial. It is not a
pronouncement of guilt.

Considering the low quantum and quality of evidence needed to support a finding of probable
cause, we also hold that the DOJ Panel did not, gravely abuse its discretion in refusing to call
the NBI witnesses for clarificatory questions. The decision to call witnesses for clarificatory
questions is addressed to the sound discretion of the investigator and the investigator alone. If
the evidence on hand already yields a probable cause, the investigator need not hold a
clarificatory hearing. To repeat, probable cause merely implies probability of guilt and should
be determined in a summary manner. Preliminary investigation is not a part of trial and it is
only in a trial where an accused can demand the full exercise of his rights, such as the right to
confront and cross-examine his accusers to establish his innocence. In the case at bar, the
DOJ Panel correctly adjudged that enough evidence had been adduced to establish probable
cause and clarificatory hearing was unnecessary.

II

We now come to the charge of petitioners that respondent Judge Raul de Leon and, later,
respondent Judge Amelita Tolentino issued warrants of arrest against them without
conducting the required preliminary examination. Petitioners support their stance by
highlighting the following facts: (1) the issuance of warrants of arrest in a matter of few hours;
(2) the failure of said judges to issue orders of arrest; (3) the records submitted to the trial
court were incomplete and insufficient from which to base a finding of probable cause; and (4)
that even Gerardo Biong who was included in the Information as a mere accessory had a "NO
BAIL" recommendation by the DOJ Panel. Petitioners postulate that it was impossible to
conduct a "searching examination of witnesses and evaluation of the documents" on the part
of said judges.

The issuance of a warrant of arrest interferes with individual liberty and is regulated by no less
than the fundamental law of the land. Section 2 of Article III of the Constitution provides:

Sec. 2. The right of the people to be secure in their persons, houses, papers, and effects
against unreasonable searches and seizures of whatever nature and for any purpose 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.

The aforequoted provision deals with the requirements of probable cause both with respect to
issuance of warrants of arrest or search warrants. The similarities and differences of their
requirements ought to be educational. Some of them are pointed out by Professors LaFave
and Israel, thus: 32 "It is generally assumed that the same quantum of evidence is required
whether one is concerned with probable cause to arrest or probable cause to search. But each
requires a showing of probabilities as to somewhat different facts and circumstances, and thus one
can exist without the other. In search cases, two conclusions must be supported by substantial
evidence: that the items sought are in fact seizable by virtue of being connected with criminal
activity, and that the items will be found in the place to be searched. It is not also necessary that a
particular person be implicated. By comparison, in arrest cases there must be probable cause that
a crime has been committed and that the person to be arrested committed it, which of course can
exist without any showing that evidence of the crime will be found at premises under that person's
control." Worthy to note, our Rules of Court do not provide for a similar procedure to be followed in
the issuance of warrants of arrest and search warrants. With respect to warrants of arrest, section
6 of Rule 112 simply provides that "upon filing of an information, the Regional Trial Court may
issue a warrant for the arrest of the accused." In contrast, the procedure to be followed in issuing
search warrants is more defined. Thus, Sections 3, 4 and 5 of Rule 126 provide:

xxx xxx xxx

Sec. 3. Requisites for issuing search warrant. A search warrant shall not issue but upon
probable cause in connection with one specific offense 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 things to be
seized.

Sec. 4. Examination of complainant; record. The judge must, before issuing the warrant,
personally examine in the form of searching questions and answers, in writing and under oath
the complainant and any witnesses he may produce on facts personally known to them and
attach to the record their sworn statements together with any affidavits submitted.

Sec. 5. Issuance and form of search warrant. If the judge is thereupon satisfied of the facts
upon which the application is based, or that there is probable cause to believe that they exist,
he must issue the warrant, which must be substantially in the form prescribed by these Rules.

We discussed the difference in the Procedure of issuing warrants of arrest and search
warrants in Soliven vs. Makasiar, 33 thus:

xxx xxx xxx

The second issue, raised by Beltran, calls for an interpretation of the constitutional provision
on the issuance of warrants of arrest. The pertinent provision reads:

Art. III, Sec. 2. The right of the people to be secure in their persons, houses, papers and
effects against unreasonable searches and seizures of whatever nature and for any purpose
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.

The addition of the word "personally" after the word "determined" and the deletion of the grant
of authority by the 1973 Constitution to issue warrants to "other responsible officers as may
be authorized by law," has apparently convinced petitioner Beltran that the Constitution now
requires the judge to personally examine the complainant and his witnesses in his
determination of probable cause for the issuance of warrants of arrest. This is not an accurate
interpretation.

What the Constitution underscores is the exclusive and personal responsibility of the issuing
judge to satisfy himself of the existence of probable cause. In satisfying himself of the
existence of probable cause for the issuance of a warrant of arrest, the judge is not required
to personally examine the complainant and his witnesses. Following established doctrine and
procedure, he shall: (1) personally evaluate the report and the documents submitted by the
fiscal regarding the existence of probable cause and, on the basis thereof, issue a warrant; or
(2) if on the basis thereof he finds no probable cause, he may disregard the fiscal's report and
require the submission of supporting affidavits of witnesses to aid him in arriving at a
conclusions as to the existence of probable cause.

Sound policy dictates this procedure, otherwise judges would be unduly laden with the
preliminary examination and investigation of criminal complaints instead of concentrating on
hearing and deciding cases filed before their courts.

Clearly then, the Constitution, the Rules of Court, and our case law 34 repudiate the submission
of petitioners that respondent judges should have conducted "searching examination of witnesses"
before issuing warrants of arrest against them. They also reject petitioners' contention that a judge
must first issue an order of arrest before issuing a warrant of arrest. There is no law or rule
requiring the issuance of an Order of Arrest prior to a warrant of arrest.

In the case at bar, the DOJ Panel submitted to the trial court its 26-page report, the two (2)
sworn statements of Alfaro and the sworn statements of Carlos Cristobal and Lolita Birrer 35 as
well as the counter-affidavits of the petitioners. Apparently, the painstaking recital and analysis of
the parties' evidence made in the DOJ Panel Report satisfied both judges that there is probable
cause to issue warrants of arrest against petitioners. Again, we stress that before issuing warrants
of arrest, judges merely determine personally the probability, not the certaintyof guilt of an
accused. In doing so, judges do not conduct a de novo hearing to determine the existence of
probable cause. They just personally review the initial determination of the prosecutor finding a
probable cause to see if it is supported by substantial evidence. The sufficiency of the review
process cannot be measured by merely counting minutes and hours. The fact that it took the
respondent judges a few hours to review and affirm the probable cause determination of the DOJ
Panel does not mean they made no personal evaluation of the evidence attached to the records of
the case. 36

Petitioners' reliance on the case of Allado vs. Diokno 37 is misplaced. Our Allado ruling is
predicated on the utter failure of the evidence to show the existence of probable cause. Not even
the corpus delicti of the crime was established by the evidence of the prosecution in that case.
Given the clear insufficiency of the evidence on record, we stressed the necessity for the trial
judge to make a further personal examination of the complainant and his witnesses to reach a
correct assessment of the existence or non-existence of probable cause before issuing warrants of
arrest against the accused. The case at bar, however, rests on a different factual setting. As priorly
discussed, the various types of evidence extant in the records of the case provide substantial
basis for a finding of probable cause against the petitioner. The corpus delicti of the crime is a
given fact. There is an eyewitness account of the imputed crime given by Alfaro. The alibi defense
of petitioner Webb is also disputed by sworn statements of their former maids. It was therefore
unnecessary for the respondent judges to take the further step of examining ex parte the
complainant and their witnesses with searching questions.

III

Petitioners also complain about the denial of their constitutional right to due process and
violation of their right to an impartial investigation. They decry their alleged hasty and
malicious prosecution by the NBI and the DOJ Panel. They also assail the prejudicial publicity
that attended their preliminary investigation.

We reject these contentions. The records will show that the DOJ Panel did not conduct the
preliminary investigation with indecent haste. Petitioners were given fair opportunity to prove
lack of probable cause against them. The fairness of this opportunity is well stressed in the
Consolidated Comment of the Solicitor General, viz.:

Again, there is no merit in this contention. Petitioners were afforded all the opportunities to be
heard. Petitioner Webb actively participated in the preliminary investigation by appearing in
the initial hearing held on June 30, 1995 and in the second hearing on July 14, 1995; and by
filing a "Motion for Production and Examination of Evidence and Documents" on June 27,
1995 (p. 4, Petition), a "Reply to the compliance and Comment/Manifestation to the Motion for
Production and Examination of Evidence" on July 5, 1995 (p. 6, Petition), a "Comment and
Manifestation" on July 7, 1995 (p. 6, Petition), his "Counter-Affidavit" on July 14, 1995 (pp. 6-7,
Petition) and a "Motion to Resolve" on August 1, 1995. Numerous letter-requests were also
sent by the petitioner Webb's counsel to the DOJ Panel requesting the latter to furnish him a
copy of the reports prepared by the FBI concerning the petitioner's whereabouts during the
material period (Annexes "L", "L-1" and "L-2" of the Supplemental Petition dated August 14,
1995). In fact, not satisfied with the decision of the DOJ Panel not to issue subpoena duces
tecum to Atty. Arturo L. Mercader, Jr., petitioner Webb filed a "Petition for Injunction, Certiorari,
Prohibition and Mandamus" with the Regional Trial Court, Branch 63 of Makati in order to
compel said Atty. Mercader, Jr. to produce the first sworn statement of Alfaro for submission
to the DOJ Panel. (p. 4, Petition) The said court dismissed the petition after Mercader
produced and submitted to the DOJ Panel the first sworn statement of Alfaro, without ruling
on the admissibility and credence of the two (2) conflicting and inconsistent sworn statements
of the principal witness, Alfaro. (Attached hereto is a copy of the order of Judge Ruben A.
Mendiola, RTC-Makati, Branch 63 dated July 28, 1995) marked as Annex "F."

It must also be pointed out that despite the declaration by the DOJ Panel that the preliminary
investigation was to be terminated after the hearing held on July 14, 1995, the panel
continued to conduct further proceedings, e.g. comparison of the photo-copies of the
submitted documents with the originals on July 17, 1995. (p. 7, Petition) The panel even
entertained the "Response" submitted by accused Miguel Rodriguez on July 18, 1995. (p. 17
Resolution) In addition to these, the panel even announced that any party may submit
additional evidence before the resolution of the case. (p. 8, Petition) From the time the panel
declared the termination of the preliminary investigation on July 14, 1995, twenty-seven (27)
days elapsed before the resolution was promulgated, and the information eventually filed in
the Regional Trial Court of Paraaque on August 10, 1995. This notwithstanding the directive
of Section 3(f) Rule 112 of the Revised Rules of Court that the investigating officer shall
resolve the case within ten (10) days from the termination of the preliminary investigation. The
DOJ Panel precisely allowed the parties to adduce more evidence in their behalf and for the
panel to study the evidence submitted more fully. This directly disputes the allegation of the
petitioners that the resolution was done with indecent haste in violation of the rights of the
petitioners. During the period of twenty-seven (27) days, the petitioners were free to adduce
and present additional evidence before the DOJ Panel.

Verily, petitioners cannot now assert that they were denied due process during the conduct of
the preliminary investigation simply because the DOJ Panel promulgated the adverse
resolution and filed the Information in court against them.

Petitioners cannot also assail as premature the filing of the Information in court against them
for rape with homicide on the ground that they still have the right to appeal the adverse
resolution of the DOJ Panel to the Secretary of Justice. The filing of said Information is in
accord with Department of Justice Order No. 223, series of 1993, dated June 25, 1993. We
quote its pertinent sections, viz.:

Sec. 4. Non-Appealable Cases; Exceptions. No appeal may be taken from a resolution of


the Chief State Prosecutor/Regional State Prosecutor/Provincial or City Prosecutor finding
probable causeexcept upon showing of manifest error or grave abuse of
discretion. Notwithstanding the showing of manifest error or grave abuse of discretion, no
appeal shall be entertained where the appellant had already been arraigned. If the appellant
is arraigned during the pendency of the appeal, said appeal shall be dismissed motu
propio by the Secretary of Justice.

An appeal/motion for reinvestigation from a resolution finding probable cause, however, shall
not hold the filing of the information in court.

Sec. 2. When to appeal. The appeal must be filed within a period of fifteen (15) days from
receipt of the questioned resolution by the party or his counsel. The period shall be
interrupted only by the filing of a motion for reconsideration within ten (10) days from receipt of
the resolution and shall continue to run from the time the resolution denying the motion shall
have been received by the movant or his counsel. (Emphasis supplied)

Without doubt then, the said DOJ Order No. 223 allows the filing of an Information in court
after the consummation of the preliminary investigation even if the accused can still exercise
the right to seek a review of the prosecutor's recommendation with the Secretary of Justice.

Next, petitioners fault the DOJ Panel for not including Alfaro in the Information considering her
alleged conspiratorial participation in the crime of rape with homicide. The non-inclusion of
Alfaro is anchored on Republic Act
No. 6981, entitled "An Act Providing For A Witness Protection, Security And Benefit Program
And For Other Purposes" enacted on April 24, 1991. Alfaro qualified under its Section 10,
which provides:

xxx xxx xxx

Sec. 10. State Witness. Any person who has participated in the commission of a crime and
desires to a witness for the State, can apply and, if qualified as determined in this Act and by
the Department, shall be admitted into the Program whenever the following circumstances are
present:

(a) the offense in which his testimony will be used is a grave felony as defined under the
R.P.C. or its equivalent under special laws;

(b) there is absolute necessity for his testimony;

(c) there is no other direct evidence available for the proper prosecution of the offense
committed;

(d) his testimony can be substantially corroborated on its material points;

(e) he does not appear to be most guilty; and

(f) he has not at anytime been convicted of any crime involving moral turpitude.

An accused discharged from an information or criminal complaint by the court in order that he
may be a State Witness pursuant to Sections 9 and 10 of Rule 119 of the Revised Rules of
Court may upon his petition be admitted to the Program if he complies with the other
requirements of this Act. Nothing in this Act shall prevent the discharge of an accused so that
he can be used as a Witness under Rule 119 of the Revised Rules of Court.

Upon qualification of Alfaro to the program, Section 12 of the said law mandates her
non-inclusion in the criminal Complaint or Information, thus:

xxx xxx xxx

Sec. 12. Effect of Admission of a State Witness into the Program. The certification of
admission into the Program by the Department shall be given full faith and credit by the
provincial or city prosecutor who is required NOT TO INCLUDE THE WITNESS IN THE
CRIMINAL COMPLAINT OR INFORMATION and if included therein, to petition the court for
his discharge in order that he can be utilized as a State Witness. The court shall order the
discharge and exclusion of the said accused from the information.

Admission into the Program shall entitle such State Witness to immunity from criminal
prosecution for the offense or offenses in which his testimony will be given or used and all the
rights and benefits provided under Section 8 hereof.

The validity of these provisions is challenged by petitioner Webb. It is urged that they
constitute ". . . an intrusion into judicial prerogative for it is only the court which has the power
under the Rules on Criminal Procedure to discharge an accused as a state witness." The
argument is based on Section 9, Rule 119 38which gives the court the prerogative to approve the
discharge of an accused to be a state witness. Petitioner's argument lacks appeal for it lies on the
faulty assumption that the decision whom to prosecute is a judicial function, the sole prerogative of
courts and beyond executive and legislative interference. In truth, the prosecution of crimes
appertains to the executive department of government whose principal power and responsibility is
to see that our laws are faithfully executed. A necessary component of this power to execute our
laws is the right to prosecute their violators. The right to prosecute vests the prosecutor with a wide
range of discretion the discretion of whether, what and whom to charge, the exercise of which
depends on a smorgasbord of factors which are best appreciated by prosecutors. We thus hold
that it is not constitutionally impermissible for Congress to enact R.A. No. 6981 vesting in the
Department of Justice the power to determine who can qualify as a witness in the program and
who shall be granted immunity from prosecution. 39 Section 9 of Rule 119 does not support the
proposition that the power to choose who shall be a state witness is an inherent judicial
prerogative. Under this provision, the court, is given the power to discharge a state witness only
because it has already acquired jurisdiction over the crime and the accused. The discharge of an
accused is part of the exercise of jurisdiction but is not a recognition of an inherent judicial function.
Moreover, the Rules of Court have never been interpreted to be beyond change by legislation
designed to improve the administration of our justice system. R.A. No. 6981 is one of the much
sought penal reform laws to help government in its uphill fight against crime, one certain cause of
which is the reticence of witnesses to testify. The rationale for the law is well put by the
Department of Justice, viz.: "Witnesses, for fear of reprisal and economic dislocation, usually
refuse to appear and testify in the investigation/prosecution of criminal complaints/cases. Because
of such refusal, criminal complaints/cases have been dismissed for insufficiency and/or lack of
evidence. For a more effective administration of criminal justice, there was a necessity to pass a
law protecting witnesses and granting them certain rights and benefits to ensure their appearance
in investigative bodies/courts." 40 Petitioner Webb's challenge to the validity of R.A. No. 6981
cannot therefore succeed.

Further, petitioners charge the NBI with violating their right to discovery proceedings during
their preliminary investigation by suppressing the April 28, 1995 original copy of the sworn
statement of Alfaro and the FBI Report. The argument is novel in this jurisdiction and as it
urges an expansive reading of the rights of persons under preliminary investigation it
deserves serious consideration. To start with, our Rules on Criminal Procedure do not
expressly provide for discovery proceedings during the preliminary investigation stage of a
criminal proceeding. 41 Sections 10 and 11 of Rule 117 do provide an accused the right to move
for a bill of particulars and for production or inspection of material evidence in possession of the
prosecution.42 But these provisions apply after the filing of the Complaint or Information in court
and the rights are accorded to the accused to assist them to make an intelligent plea at
arraignment and to prepare for trial. 43

This failure to provide discovery procedure during preliminary investigation does not, however,
negate its use by a person under investigation when indispensable to protect his
constitutional right to life, liberty and property. Preliminary investigation is not too early a stage
to guard against any significant erosion of the constitutional right to due process of a potential
accused. As aforediscussed, the object of a preliminary investigation is to determine the
probability that the suspect committed a crime. We hold that the finding of a probable cause
by itself subjects the suspect's life, liberty and property to real risk of loss or diminution. In the
case at bar, the risk to the liberty of petitioners cannot be understated for they are charged
with the crime of rape with homicide, a non-bailable offense when the evidence of guilt is
strong.

Attuned to the times, our Rules have discarded the pure inquisitorial system of preliminary
investigation. Instead, Rule 112 installed a quasi-judicial type of preliminary investigation
conducted by one whose high duty is to be fair and impartial. 44 As this Court emphasized
in Rolito Go vs. Court of Appeals, 45 "the right to have a preliminary investigation conducted before
being bound over for trial for a criminal offense, and hence formally at risk of incarceration or some
other penalty, is not a mere formal or technical right; it is a substantive right." A preliminary
investigation should therefore be scrupulously conducted so that the constitutional right to liberty
of a potential accused can be protected from any material damage. We uphold the legal basis of
the right of petitioners to demand from their prosecutor, the NBI, the original copy of the April 28,
1995 sworn statement of Alfaro and the FBI Report during their preliminary investigation
considering their exculpatory character, and hence, unquestionable materiality to the issue of their
probable guilt. The right is rooted on the constitutional protection of due process which we rule to
be operational even during the preliminary investigation of a potential accused. It is also implicit in
section (3) (a) of Rule 112 which requires during the preliminary investigation the filing of a sworn
complaint, which shall ". . . state the known address of the respondent and be accompanied by
affidavits of the complainant and his witnesses as well as other supporting documents . . ."

In laying down this rule, the Court is not without enlightened precedents from other
jurisdictions. In the 1963 watershed case of Brady v. Maryland 46 the United States Supreme Court held
that "suppression of evidence favorable to an accused upon request violates due process where the evidence is material to guilt or
punishment, irrespective of the good faith or bad faith of the prosecution." Its progeny is the 1935 case of Mooney
v. Holohan 47 which laid down the proposition that a prosecutor's intentional use of perjured testimony to procure conviction
violates due process. Thus, evolved jurisprudence firming up the prosecutor's duty to disclose to the defense exculpatory evidence
in its possession. 48 The rationale is well put by Justice Brennan in Brady 49 "society wins not only
when the guilty are convicted but when criminal trials are fair." Indeed, prosecutors should not treat
litigation like a game of poker where surprises can be sprung and where gain by guile is not
punished.

But given the right of petitioners to compel the NBI to disclose exculpatory evidence in their
favor, we are not prepared to rule that the initial non-production of the original sworn
statement of Alfaro dated April 28, 1995 could have resulted in the reasonable likelihood that
the DOJ Panel would not have found probable cause. To be sure, the NBI, on July 4, 1995,
upon request of petitioners, submitted a photocopy of Alfaro's April 28, 1995 sworn statement.
It explained it cannot produce the original as it had been lost. Fortunately, petitioners, on July
28, 1995, were able to obtain a copy of the original from Atty. Arturo Mercader in the course of
the proceedings in Civil Case No. 951099. 50 As petitioners admit, the DOJ Panel accepted the
original of Alfaro's April 28, 1995 sworn statement as a part of their evidence. 51 Petitioners thus
had the fair chance to explain to the DOJ Panel then still conducting their preliminary investigation
the exculpatory aspects of this sworn statement. Unfortunately for petitioners, the DOJ Panel still
found probable cause to charge them despite the alleged material discrepancies between the first
and second sworn statements of Alfaro. For reasons we have expounded, this finding of probable
cause cannot be struck down as done with grave abuse of discretion. 52 On the other hand, the FBI
Report while corroborative of the alibi of petitioner Webb cannot by itself reverse the probable
cause finding of the DOJ Panel in light of the totality of evidence presented by the NBI.

Finally, we come to the argument of petitioner that the DOJ Panel lost its impartiality due to
the prejudicial publicity waged in the press and broadcast media by the NBI.
Again, petitioners raise the effect of prejudicial publicity on their right to due process while
undergoing preliminary investigation. We find no procedural impediment to its early invocation
considering the substantial risk to their liberty while undergoing a preliminary investigation.

In floating this issue, petitioners touch on some of the most problematic areas in constitutional
law where the conflicting demands of freedom of speech and of the press, the public's right to
information, and an accused's right to a fair and impartial trial collide and compete for
prioritization. The process of pinpointing where the balance should be struck has divided men
of learning as the balance keeps moving either on the side of liberty or on the side of order as
the tumult of the time and the welfare of the people dictate. The dance of balance is a difficult
act to follow.

In democratic settings, media coverage of trials of sensational cases cannot be avoided and
oftentimes, its excessiveness has been aggravated by kinetic developments in the
telecommunications industry. For sure, few cases can match the high volume and high
velocity of publicity that attended the preliminary investigation of the case at bar. Our daily diet
of facts and fiction about the case continues unabated even today. Commentators still
bombard the public with views not too many of which are sober and sublime. Indeed, even the
principal actors in the case the NBI, the respondents, their lawyers and their sympathizers
have participated in this media blitz. The possibility of media abuses and their threat to a
fair trial notwithstanding, criminal trials cannot be completely closed to the press and the
public. In the seminal case of Richmond Newspapers, Inc. v. Virginia, 53 it was wisely held:

xxx xxx xxx

(a) The historical evidence of the evolution of the criminal trial in Anglo-American justice
demonstrates conclusively that at the time this Nation's organic laws were adopted, criminal
trials both here and in England had long been presumptively open, thus giving assurance that
the proceedings were conducted fairly to all concerned and discouraging perjury, the
misconduct of participants, or decisions based on secret bias or partiality. In addition, the
significant community therapeutic value of public trials was recognized: when a shocking
crime occurs, a community reaction of outrage and public protest often follows, and thereafter
the open processes of justice serve an important prophylactic purpose, providing an outlet for
community concern, hostility, and emotion. To work effectively, it is important that society's
criminal process "satisfy the appearance of justice," Offutt v. United States, 348 US 11, 14, 99
L Ed 11, 75 S Ct 11, which can best be provided by allowing people to observe such process.
From this unbroken, uncontradicted history, supported by reasons as valid today as in
centuries past, it must be concluded that a presumption of openness inheres in the very
nature of a criminal trial under this Nation's system of justice, Cf., e.g., Levine v. United States,
362 US 610, 4 L Ed 2d 989, 80 S Ct 1038.

(b) The freedoms of speech, press, and assembly, expressly guaranteed by the First
Amendment, share a common core purpose of assuring freedom of communication on
matters relating to the functioning of government. In guaranteeing freedoms such as those of
speech and press, the First Amendment can be read as protecting the right of everyone to
attend trials so as to give meaning to those explicit guarantees; the First Amendment right to
receive information and ideas means, in the context of trials, that the guarantees of speech
and press, standing alone, prohibit government from summarily closing courtroom doors
which had long been open to the public at the time the First Amendment was adopted.
Moreover, the right of assembly is also relevant, having been regarded not only as an
independent right but also as a catalyst to augment the free exercise of the other First
Amendment rights with which it was deliberately linked by
the draftsmen. A trial courtroom is a public place where the people generally and
representatives of the media have a right to be present, and where their presence
historically has been thought to enhance the integrity and quality of what takes place.

(c) Even though the Constitution contains no provision which by its terms guarantees to the
public the right to attend criminal trials, various fundamental rights, not expressly guaranteed,
have been recognized as indispensable to the enjoyment of enumerated rights. The right to
attend criminal trials is implicit in the guarantees of the First Amendment; without the freedom
to attend such trials, which people have exercised for centuries, important aspects of freedom
of speech and of the press could be eviscerated.

Be that as it may, we recognize that pervasive and prejudicial publicity under certain
circumstances can deprive an accused of his due process right to fair trial. Thus, in Martelino,
et al. vs. Alejandro, et al., 54 we held that to warrant a finding of prejudicial publicity there must
be allegation and proof that the judges have been unduly influenced, not simply that they might be,
by the barrage of publicity. In the case at bar, we find nothing in the records that will prove that the
tone and content, of the publicity that attended the investigation of petitioners fatally infected the
fairness and impartiality of the DOJ Panel. Petitioners cannot just rely on the subliminal effects of
publicity on the sense of fairness of the DOJ Panel, for these are basically unbeknown and beyond
knowing. To be sure, the DOJ Panel is composed of an Assistant Chief State Prosecutor and
Senior State Prosecutors. Their long experience in criminal investigation is a factor to consider in
determining whether they can easily be blinded by the klieg lights of publicity. Indeed, their
26-page Resolution carries no indubitable indicia of bias for it does not appear that they
considered any extra-record evidence except evidence properly adduced by the parties. The
length of time the investigation was conducted despite its summary nature and the generosity with
which they accommodated the discovery motions of petitioners speak well of their fairness. At no
instance, we note, did petitioners seek the disqualification of any member of the DOJ Panel on the
ground of bias resulting from their bombardment of prejudicial publicity.

It all remains to state that the Vizconde case will move to a more critical stage as petitioners
will now have to undergo trial on the merits. We stress that probable cause is not synonymous
with guilt and while the light of publicity may be a good disinfectant of unfairness, too much of
its heat can bring to flame an accused's right to fair trial. Without imposing on the trial judge
the difficult task of supervising every specie of speech relating to the case at bar, it behooves
her to be reminded of the duty of a trial judge in high profile criminal cases to control publicity
prejudicial to the fair administration of justice. 55 The Court reminds judges that our ability to
dispense impartial justice is an issue in every trial and in every criminal prosecution, the judiciary
always stands as a silent accused. More than convicting the guilty and acquitting the innocent, the
business of the judiciary is to assure fulfillment of the promise that justice shall be done and is
done and that is the only way for the judiciary to get an acquittal from the bar of public opinion.

IN VIEW WHEREOF, the petitions are dismissed for lack of showing of grave abuse of
discretion on the part of the respondents. Costs against petitioners.

SO ORDERED.

Regalado, J., concurs.

Mendoza, J., concurs in the result.

Narvasa, C.J., is on leave.


Separate Opinion

FRANCISCO, J., concurring:

The thrust of petitioners' arguments involve the validity and exercise of the prosecutory
powers of the State. Maintaining their innocence, petitioners assert that the filing of an
information and the issuance of warrants of arrest against them were without probable cause.
Petitioners, in my considered view, failed to make a case to warrant the Court's interference.

Preliminary investigation, unlike trial, is summary in nature, the purpose of which is merely to
determine whether a crime has been committed and whether there is probable cause to
believe that the accused is guilty thereof (Paderanga v. Drilon, 196 SCRA 86, 92 [1991]). It is
not intended to find guilt beyond reasonable doubt. Courts should give deference, in the
absence of a clear showing of arbitrariness, as in this case, to the finding and determination of
probable cause by prosecutors in preliminary investigations. If not, the functions of the courts
will be unduly hampered by innumerable petitions compelling the review of the exercise of
discretion on the part of fiscals or prosecuting attorneys if each time they decide to file an
information in court their finding can be immediately brushed aside at the instance of those
charged (Ocampo IV v. Ombudsman, 225 SCRA 725, 730 [1993]). The Court, therefore, must
look askance at unmeritorious moves that could give a dent in the efficient and effective
administration of justice.

Petitioners characterize the evidence against them to be inherently weak and


uncorroborated vis-a-vis their defenses. The weight or sufficiency of evidence, to my mind, is
best assayed in the trial proper. In the search for truth, a trial has distinct merits over a
preliminary investigation. We have had occasion to stress that trial is to be preferred to ferret
out the truth (Abugotal v. Tiro, 66 SCRA 196, 201 [1975]). The validity and merits of a party's
defense or accusation as well as the admissibility or inadmissibility of testimonies and
evidence are better ventilated during the trial stage than in the preliminary investigation level.
The ineluctable media attention notwithstanding, truth as to their innocence or guilt is still best
determined at the trial.

With respect to petitioners' contention that public respondent judge failed to personally
examine and determine the existence of probable cause for the issuance of a warrant, suffice
it to say that the judge does not have to personally examine the complainant and his
witnesses in order to issue a warrant of arrest as he can rely on the certification of the
prosecutor/s (Circular No. 12 Guidelines on Issuance of Warrants of Arrests [June 30,
1987]; Soliven v. Makasiar, 167 SCRA 393, 398 [1988]). There is ample evidence and
sufficient basis on record that support the trial court's issuance of the warrant as petitioners
themselves do not contend that the prosecutors' certification was unaccompanied by the
records of the preliminary investigation to take their case outside the ambit of the rule.
Moreover, contrary to what the petitioners imply, the Court may not determine how cursory or
exhaustive the judge's examination of the certification, report and findings of the preliminary
investigation and its annexes should be as this depends not only upon the sound exercise of
the judge's discretion in personally determining the existence of probable cause, but also from
the circumstances of each case (Lim, Sr. v. Felix, 194 SCRA 292, 306 [1991]). Besides,
respondent judge, being a public officer, enjoys the presumption of regularity in the
performance of his duties (Rule 131, Sec. 3 [m], Rules of Court). The issuance of the warrants
of arrest against petitioners thus can not be said to be whimsical or arbitrary.

Lastly, the law in this jurisdiction is lopsided in favor of the accused. The 1987 Constitution
and the Rules of Court enumerate an array of rights upon which an accused can seek
protection and solace. To mention a few: he has the right to be presumed innocent until the
contrary is proved, the right against self-incrimination, the right to remain silent, to confront
and cross-examine the witnesses against him, to have a speedy, impartial and public trial, to
be heard by himself and counsel, to have competent and independent counsel preferably of
his own choice. These rights are afforded to the accused and not to the complainant.
Therefore, petitioners need not be distressed if they henceforth go to trial.

I vote to dismiss the petitions.

Mendoza, J., concurs.

Separate Opinion

FRANCISCO, J., concurring:

The thrust of petitioners' arguments involve the validity and exercise of the prosecutory
powers of the State. Maintaining their innocence, petitioners assert that the filing of an
information and the issuance of warrants of arrest against them were without probable cause.
Petitioners, in my considered view, failed to make a case to warrant the Court's interference.

Preliminary investigation, unlike trial, is summary in nature, the purpose of which is merely to
determine whether a crime has been committed and whether there is probable cause to
believe that the accused is guilty thereof (Paderanga v. Drilon, 196 SCRA 86, 92 [1991]). It is
not intended to find guilt beyond reasonable doubt. Courts should give deference, in the
absence of a clear showing of arbitrariness, as in this case, to the finding and determination of
probable cause by prosecutors in preliminary investigations. If not, the functions of the courts
will be unduly hampered by innumerable petitions compelling the review of the exercise of
discretion on the part of fiscals or prosecuting attorneys if each time they decide to file an
information in court their finding can be immediately brushed aside at the instance of those
charged (Ocampo IV v. Ombudsman, 225 SCRA 725, 730 [1993]). The Court, therefore, must
look askance at unmeritorious moves that could give a dent in the efficient and effective
administration of justice.

Petitioners characterize the evidence against them to be inherently weak and


uncorroborated vis-a-vis their defenses. The weight or sufficiency of evidence, to my mind, is
best assayed in the trial proper. In the search for truth, a trial has distinct merits over a
preliminary investigation. We have had occasion to stress that trial is to be preferred to ferret
out the truth (Abugotal v. Tiro, 66 SCRA 196, 201 [1975]). The validity and merits of a party's
defense or accusation as well as the admissibility or inadmissibility of testimonies and
evidence are better ventilated during the trial stage than in the preliminary investigation level.
The ineluctable media attention notwithstanding, truth as to their innocence or guilt is still best
determined at the trial.

With respect to petitioners' contention that public respondent judge failed to personally
examine and determine the existence of probable cause for the issuance of a warrant, suffice
it to say that the judge does not have to personally examine the complainant and his
witnesses in order to issue a warrant of arrest as he can rely on the certification of the
prosecutor/s (Circular No. 12 Guidelines on Issuance of Warrants of Arrests [June 30,
1987]; Soliven v. Makasiar, 167 SCRA 393, 398 [1988]). There is ample evidence and
sufficient basis on record that support the trial court's issuance of the warrant as petitioners
themselves do not contend that the prosecutors' certification was unaccompanied by the
records of the preliminary investigation to take their case outside the ambit of the rule.
Moreover, contrary to what the petitioners imply, the Court may not determine how cursory or
exhaustive the judge's examination of the certification, report and findings of the preliminary
investigation and its annexes should be as this depends not only upon the sound exercise of
the judge's discretion in personally determining the existence of probable cause, but also from
the circumstances of each case (Lim, Sr. v. Felix, 194 SCRA 292, 306 [1991]). Besides,
respondent judge, being a public officer, enjoys the presumption of regularity in the
performance of his duties (Rule 131, Sec. 3 [m], Rules of Court). The issuance of the warrants
of arrest against petitioners thus can not be said to be whimsical or arbitrary.

Lastly, the law in this jurisdiction is lopsided in favor of the accused. The 1987 Constitution
and the Rules of Court enumerate an array of rights upon which an accused can seek
protection and solace. To mention a few: he has the right to be presumed innocent until the
contrary is proved, the right against self-incrimination, the right to remain silent, to confront
and cross-examine the witnesses against him, to have a speedy, impartial and public trial, to
be heard by himself and counsel, to have competent and independent counsel preferably of
his own choice. These rights are afforded to the accused and not to the complainant.
Therefore, petitioners need not be distressed if they henceforth go to trial.

I vote to dismiss the petitions.

Mendoza, J., concurs.

Footnotes

1 Petitioner Webb filed his petition on August 11, 1995; petitioner Gatchalian on August 14,
1995 and petitioner Lejano on August 16, 1995. Mr. Lauro Vizconde intervened on August 17,
1995.

2 The (6) others were Miguel "Ging" Rodriguez , Joey Filart, Hospicio "Pyke" Fernandez,
Artemio "Dong" Ventura, Peter Estrada and Gerardo Biong.

3 The other members of the Panel were Senior State Prosecutor Leonardo C. Guiab, Jr.,
State Prosecutor Roberto A. Lao and State Prosecutor Pablo C. Formaran, III.

4 Then 19 years of age.

5 Then 51 years of age.


6 Then 7 years of age.

7 Resolution of the Zuo Panel, Annex "A" Petition, pp. 2-7.

8 Ibid, pp. 7-8.

9 Ibid, pp. 8-12.

10 Ibid, p. 13.

11 Ibid.

12 Ibid, pp. 13-14.

13 Ibid, pp. 13-14.

14 Ibid, pp. 14-16.

15 Ibid, p. 15.

16 Ibid, pp. 16-18.

17 Ibid, p. 18.

18 Except Gerardo Biong who was recommended to be charged as an accessory.

19 Annex "B", Petition.

20 Section 2, Article III of the 1987 Constitution.

21 Yee Sue Koy v. Almeda, 70 Phil. 141 [1940].

22 Bernas, The Constitution of the Republic of the Philippines, a Commentary, Vol. I, 1987
ed., pp. 86-87.

23 Brinegar v. US, 338 US 160 [1949].

24 Del Carmen, Criminal Procedure, Law and Practice, 3rd ed., p. 86.

25 Ibid.

26 Petition, pp. 18-19.

27 Annex "A," Petition, pp. 25-27.

28 Atty. Florante Dizon, a counsel of choice.

29 Annex "A," Petition, pp. 11-17.


30 Annex "A," Petition, pp. 23-24.

31 338 US 160 [1949].

32 LaFave and Israel, Criminal Procedure, Hornbook Series, 1985 ed., pp. 109-110.

33 167 SCRA 397-398.

34 See also Cruz, Jr. v. People, 233 SCRA 439 [1994].

35 See Annex "A," Consolidated Comment of the Solicitor General.

36 See Enrile vs. Salazar, 186 SCRA 217 [1990].

37 232 SCRA 192 [1994].

38 Sec. 9. Discharge of accused to be state witness. When two or more persons are jointly
charged with the commission of any offense, upon motion of the prosecution before resting its
case, the court may direct one or more of the accused to be discharged with their consent so
that they may be witnesses for the state when after requiring the prosecution to present
evidence and the sworn statement of each proposed state witness at a hearing in support of
the discharge, the court is satisfied that:

(a) There is absolute necessity for the testimony of the accused whose discharge is
requested.

(b) There is no other direct evidence available for the proper prosecution of the offense
committed, except the testimony of said accused;

(c) The testimony of said accused can be substantially corroborated in its material points;

(d) Said accused does not appear to be the most guilty;

(e) Said accused has not at any time been convicted of any offense involving moral turpitude.

Evidence adduced in support of the discharge shall automatically form part of the trial. If the
court denies the motion for discharge of the accused as state witness, his sworn statement
shall be inadmissible in evidence.

39 See Primer on the Witness Protection Security and Benefit Act, (R.A. No. 6981)
Department of Justice, p. 1.

40 Op cit.

41 In contrast, our Rules provide pre-trial discovery proceedings in civil actions. See Rule 24
on Depositions and Discovery; Rule 25 on Interrogatories to Parties; Rule 26 on Admission by
Adverse Party; Rule 27 on Production or Inspection of Documents or Things; Rule 28 on
Physical and Mental Examination of Persons and Rule 29 on Refusal to Make Discovery.
42 Sec. 10. Bill of particulars. Accused may, at or before arraignment move for a bill of
particulars to enable him properly to plead and to prepare for trial. The motion shall specify
the alleged defects and the details desired. (6a, R-116).

Sec. 11. Production or inspection of material evidence in possession of prosecution. On


motion of the accused showing good cause and with notice to all parties, the court, in order to
prevent surprise, suppression, or alteration, may order the prosecution to produce and permit
the inspection and copying or photographing, of any written statements given by the
complainant and other witnesses in any investigation of the offense conducted by the
prosecution or any other investigating officers, as well as of any designated documents,
papers, books, accounts, letters, photographs, objects or tangible things, not otherwise
privileged, which constitute or contain evidence material to any matter involved in the case,
and which are in the possession or under the control of the prosecution, the police, or any
other law investigating agencies. (8a, R-118).

43 Note that Rule 116 is entitled Arraignment and Plea..

44 Cruz, Jr. v. People, 233 SCRA 439.

45 206 SCRA 138 [1992].

46 373 US 83, 83 S. Ct. 1194, 10 L. Ed. 2d, 216 [1983].

47 294 US 103, 55 S. Ct. 340, 79 L. Ed. 791 [1935].

48 See US v. Augurs, 427 US 97, 96 S. Ct. 2392, 49 L. Ed. 2d 342 [1976]; US v. Bagley, 473
US 667, 105 S. Ct. 3375, 87 L. Ed. 2d 481 [1985]; Pennsylvania v. Ritchie, 480 US 39, 107 S.
Ct. 989, 94 L. Ed. ed 40 [1987].

49 Op cit.

50 Filed in Br. 63, RTC, Makati entitled Hubert Webb vs. Mercader, et al.

51 See Petition, page 7, par. 3.16.

52 We note that petitioner Webb does not complain that the xerox copy submitted by the NBI
is different from the original produced by Atty. Mercader.

53 445 US 555, 100 S. Ct. 2814, 65 L. Ed. 2d 973 [1980].

54 L-30894, March 25, 1970, 32 SCRA 106.

55 Sheppard v. Maxwell, 394 US 333, 86 S. Ct. 1507 16 L. Ed. 600 [1966].


Republic of the Philippines
SUPREME COURT
Manila

EN BANC

G.R. No. 99358 January 30, 1995

DJUMANTAN, petitioner,
vs.
HON. ANDREA D. DOMINGO, COMMISSIONER OF THE BOARD OF IMMIGRATION, HON.
REGINO R. SANTIAGO and HON. JORGE V. SARMIENTO, COMMISSIONERS BUREAU
OF IMMIGRATION AND DEPORTATION, respondents.

QUIASON, J.:

This is a petition for certiorari under Rule 65 of the Revised Rules of Court with preliminary
injunction, to reverse and set aside the Decision dated September 27, 1990 of the
Commission on Immigration and Deportation (CID), ordering the deportation of petitioner and
its Resolution dated January 29, 1991, denying the motion for reconsideration.

Bernard Banez, the husband of Marina Cabael, went to Indonesia as a contract worker.

On April 3, 1974, he embraced and was converted to Islam. On May 17, 1974, he married
petitioner in accordance with Islamic rites. He returned to the Philippines in January 1979.

On January 13, 1979, petitioner and her two children with Banez, (two-year old Marina and
nine-month old Nikulas) arrived in Manila as the "guests" of Banez. The latter made it appear
that he was just a friend of the family of petitioner and was merely repaying the hospitability
extended to him during his stay in Indonesia.

When petitioner and her two children arrived at the Ninoy Aquino International Airport on
January 13, 1979, Banez, together with Marina Cabael, met them.

Banez executed an "Affidavit of Guaranty and Support," for his "guests," stating inter alia,
that:

That I am the guarantor for the entry into the Philippines of Mrs. Djumantan, 42 years old, and
her two minor children, MARINA, 2 years old, and NIKULAS, 9 months old, all Indonesian
citizens, who are coming as temporary visitors.

That I am willing to guaranty them out of gratitude to their family for the hospitality they have
accorded me during the few years that I have stayed in Indonesia in connection with my
employment thereat.
That I guaranty they are law abiding citizens and I guaranty their behavior while they are in
the Philippines; I also guaranty their support and that they will not become a public charge.

That I guaranty their voluntary departure upon the termination of the authorized stay granted
them by the Government (Rollo, p. 41).

As "guests," petitioner and her two children lived in the house of Banez.

Petitioner and her children were admitted to the Philippines as temporary visitors under
Section 9(a) of the Immigration Act of 1940.

In 1981, Marina Cabael discovered the true relationship of her husband and petitioner. She
filed a complaint for "concubinage" with the Municipal Trial Court of Urdaneta, Pangasinan
against the two. This case was, however, dismissed for lack of merit.

On March 25, 1982, the immigration status of petitioner was changed from temporary visitor
to that of permanent resident under Section 13(a) of the same law. On April 14, 1982,
petitioner was issued an alien certificate of registration.

Not accepting the set-back, Banez' eldest son, Leonardo, filed a letter complaint with the
Ombudsman, who subsequently referred the letter to the CID. On the basis of the said letter,
petitioner was detained at the CID detention cell. She later released pending the deportation
proceedings (DEP Case No. 90-400) after posting a cash bond (Rollo, pp. 15-16). Thereafter,
she manifested to the CID that she be allowed to depart voluntarily from the Philippines and
asked for time to purchase her airline ticket (Rollo, p. 10). However, she a change of heart
and moved for the dismissal of the deportation case on the ground that she was validly
married to a Filipino citizen (Rollo, pp. 11-12).

In the Decision dated September 27, 1990, the CID, through public respondents, disposed as
follows:

WHEREFORE, IN VIEW OF THE FOREGOING, the Board of Commissioners finds the


second marriage of Bernardo Banes to respondent Djumantan irregular and not in
accordance with the laws of the Philippines. We revoke the Section 13(a) visa previously
granted to her (Rollo, p. 23).

Public respondents denied petitioner's motion for reconsideration in their Resolution dated
January 29, 1991 (Rollo, pp. 31-33).

Hence, this petition.

We issued a temporary restraining order, directing public respondents to cease and desist
from executing or implementing the Decision dated September 27, 1990 and the Resolution
dated January 29, 1991 (Rollo, pp. 34-36).

On September 20, 1994, Leonardo C. Banez manifested that his father died on August 14,
1994 and that he and his mother were withdrawing their objection to the granting of a
permanent resident visa to petitioner (Rollo, pp. 173-175).

II
Petitioner claims that her marriage to Banez was valid under Article 27 of P.D. No. 1085, the
Muslim Code, which recognizes the practice of polyandry by Muslim males. From that
premise, she argues that under Articles 109 of the Civil Code of the Philippines, Article 68 of
the Family Code and Article 34 of the Muslim Code, the husband and wife are obliged to live
together and under Article 110 of the Civil Code of the Philippines, the husband is given the
right to fix the conjugal residence. She claims that public respondents have no right to order
the couple to live separately (Rollo, pp. 5-7).

When asked to comment on the petition, the Solicitor General took the position that the CID
could not order petitioner's deportation because its power to do so had prescribed under
Section 37 (b) of the Immigration Act of 1940 (Rollo, pp. 57-74).

III

We need not resolve the validity of petitioner's marriage to Banez, if under the law the CID
can validly deport petitioner as an "undesirable alien" regardless of her marriage to a Filipino
citizen. Therefore, to be first resolved is the question on petitioner's immigration status,
particularly the legality of her admission into the country and the change of her status from
temporary visitor to permanent resident. Upon a finding that she was not lawfully admitted into
the country and she did not lawfully acquire permanent residency, the next question is
whether the power to deport her has prescribed.

There was a blatant abuse of our immigration laws in effecting petitioner's entry into the
country and the change of her immigration status from temporary visitor to permanent
resident. All such privileges were obtained through misinterpretation.

Never was the marriage of petitioner to Banez disclosed to the immigration authorities in her
applications for temporary visitor's visa and for permanent residency.

The civil status of an alien applicant for admission as a temporary visitor is a matter that could
influence the exercise of discretion on the part of the immigration authorities. The immigration
authorities would be less inclined to allow the entry of a woman who claims to have entered
into a marriage with a Filipino citizen, who is married to another woman (Cf. Shiu Shin Man v.
Galang, 3 SCRA 871 [1961]).

Generally, the right of the President to expel or deport aliens whose presence is deemed
inimical to the public interest is as absolute and unqualified as the right to prohibit and prevent
their entry into the country (Annotations, 8 ALR 1286). this right is based on the fact that since
the aliens are not part of the nation, their admission into the territory is a matter of pure
permission and simple tolerance which creates no obligation on the part of the government to
permit them to stay (3 Am. Jur. 2d. 72).

The interest, which an alien has in being admitted into or allowed to continue to reside in the
country, is protected only so far as Congress may choose to protect it (United States ex rel.
Kaloudis v. Shauhnessy 180 F. 2d. 489).

There is no law guaranteeing aliens married to Filipino citizens the right to be admitted, much
less to be given permanent residency, in the Philippines.

The fact of marriage by an alien to a citizen does not withdraw her from the operation of the
immigration laws governing the admission and exclusion of aliens (United States ex rel.
Knauff v. Shauhnessy, 338 US 537 94 L. Ed. 317, 70 S. Ct. 309 [1950]; Low Wah Suey v.
Backus, 225 US 460 56 L. Ed. 1165, 32 S. Ct. 734 [1912]; Annotations, 71 ALR 1213).
Marriage of an alien woman to a Filipino husband does not ipso facto make her a Filipino
citizen and does not excuse her from her failure to depart from the country upon the expiration
of her extended stay here as an alien (Joaquin v. Galang, 33 SCRA 362 [1970]).

Under Section 9 of the Immigration Act of 1940, it is not mandatory for the CID to admit any
alien who applies for a visitor's visa. Once admitted into the country, the alien has no right to
an indefinite stay. Under Section 13 of the law, an alien allowed to stay temporarily may apply
for a change of status and "may be admitted" as a permanent resident. Among those
considered qualified to apply for permanent residency if the wife or husband of a Philippine
citizen (Immigration Act of 1940, Sec. 13[a]). The entry of aliens into the country and their
admission as immigrants is not a matter of right, even if they are legally married to Filipino
citizens.

IV

We now address the issue raised by the Solicitor General that the right of public respondents
to deport petitioner has prescribed, citing Section 37(b) of the Immigration Act of 1940.

Said Section 37(b) provides:

Deportation may be effected under clauses 2, 7, 8, 11 and 12 of paragraph (a) of this section
at any time after entry, but shall not be effected under any clause unless the arrest in the
deportation proceedings is made within five years after the cause for deportation arises.
Deportation under clauses 3 and 4 shall not be effected if the court, or judge thereof, when
sentencing the alien, shall recommend to the Commissioner of Immigration that the alien be
not deported (As amended by Rep. Act No. 503).

Section 37(a) of the said law mentioned in Section 37(b) thereof provides:

The following aliens shall be arrested upon the warrant of the Commissioner of Immigration or
of any other officer designated by him for the purpose and deported upon the warrant of the
Commissioner of Immigration after a determination by the Board of Commissioners of the
existence of the ground for deportation as charged against the alien:

1) Any alien who enters the Philippines after the effective date of this Act by means of false
and misleading statements or without inspection and admission by the immigration authorities
at a designating port of entry or at any place other than at a designated port of entry.

2) Any alien who enters the Philippines after the effective date of this Act, who was not
lawfully admissible at the time of entry;

3) Any alien who, after the effective date of this Act, is convicted in the Philippines and
sentenced for a term of one year or more for a crime involving moral turpitude committed
within five years after his entry, is so convicted and sentenced more than once;

4) Any alien who is convicted and sentenced for a violation of the law governing prohibited
drugs;
5) Any alien who practices prostitution or is an inmate of a house of prostitution or is
connected with the management of a house of prostitution, or is a procurer;

6) Any alien who becomes a public charge within five years after entry from causes not
affirmatively shown to have arisen subsequent to entry;

7) Any alien who remains in the Philippines in violation of any limitation or condition under
which he was admitted a non-immigrant;

8) Any alien who believes in, advises, advocates or teaches the overthrow by force and
violence of the Government of the Philippines, or of constituted law and authority, or who
disbelieves in or is opposed to organized government, or who advises, advocates, or teaches
the assault or assassination of public officials because of their office, or who advises,
advocates, or teaches the unlawful destruction of property, or who is a member of or affiliated
with any organization entertaining, advocating or teaching such doctrines, or who on any
manner whatsoever lends assistance, financial or otherwise, to the dissemination of such
doctrines;

9) Any alien who commits any of the acts described in Sections forty-five and forty-six of this
Act, independent of criminal action which may be brought against him: Provided, That in the
case of an alien who, for any reason, is convicted and sentenced to suffer both imprisonment
and deportation, said alien shall first serve the entire period of his imprisonment before he is
actually deported:Provided, however, That the imprisonment may be waived by the
Commissioner of Immigration with the consent of the Department Head, and upon payment
by the alien concerned of such amount as the Commissioner may fix and approved by the
Department Head, and upon payment by the alien concerned of such amount as the
Commissioner may fix and approved by the Department Head (as amended by R.A. No. 144);

10) Any alien who, at any time within five years after entry, shall have been convicted of
violating the provisions of the Philippine Commonwealth Act Numbered Six hundred and
fifty-three, otherwise known as the Philippine Alien Registration Act of 1941 (now Republic
Act No. 562), or who, at any time after entry, shall have been convicted more than once of
violating the provisions of the same Act;

11) Any alien who engages in profiteering, hoarding, or black-marketing, independent of any
criminal action which may be brought against him;

12) Any alien who is convicted of any offense penalized under Commonwealth Act Numbered
Four hundred and seventy-three, otherwise known as the Revised Naturalization Laws of the
Philippines, or any law relating to acquisition of Philippine citizenship;

13) Any alien who defrauds his creditor by absconding or alienating properties, to prevent
them from being attached or executed.

Under clause 1 of Section 37(a), an "alien who enters the Philippines after the effective date
of this Act by means of false and misleading statements or without inspection and admission
by the immigration authorities at a designated port of entry or at any place other than at a
designated port of entry" is subject to deportation.
The deportation of an alien under said clause of Section 37(a) has a prescriptive period and
"shall not be effected ... unless the arrest in the deportation proceedings is made within five
years after the cause for deportation arises" (Immigration Act of 1940, Sec. 37[b]).

Congress may impose a limitation of time for the deportation of alien from the country
(Costanzo v. Tillinghast, 287 US 341 77 L. Ed. 350, 53 S. Ct. 152 [1932]; Guiney v. Bonham
[CA 9] 261 F. 582, 8 ALR 1282).

In Board of Commissioners (CID) v. Dela Rosa, 197 SCRA 853 (1991), we held that under
Section 37(b) of the Immigration Act of 1940, the deportation of an alien may be barred after
the lapse of five years after the cause of deportation arises. Justice Feliciano, in his dissenting
opinion, qualified the broad statement of the law as follows:

Examination of the above quoted Section 37 (b) shows that the five (5) year limitation is
applicable only where deportation is sought to be effected under clauses of Section 37 (a)
other than clauses 2, 7, 8, 11 and 12; that where deportation or exclusion is sought to be
effected under clauses of Section 37(a), no period of limitation is applicable; and that to the
contrary, deportation or exclusion may be effected "at any time after entry."

Justice Davide, in his dissenting opinion, clarified:

Note that the five-year period applies only to clauses other than 2, 7, 8, 11 and 12 of
paragraph (a) of the Section. In respect to clauses 2, 7, 8, 11, and 12, the limitation does not
apply.

In Lam Shee v. Bengzon, 93 Phil. 1065 (1953), the alien admitted that she had gained
entrance into the Philippines fraudulently by making use of the name of a Chinese
resident-merchant other than that of her lawful husband. The Court, however, held that she
could no longer be deported "for the simple reason that more than 5 years had elapsed from
the date of her admission."

The right of public respondents to deport petitioner has prescribed.

Petitioner was admitted and allowed entry into the Philippines on January 13, 1979 on the
basis of false and misleading statements in her application and in the other supporting
documents submitted to the immigration authorities. Leonardo C. Banez first complained with
the CID on November 19, 1980 about the manner petitioner was admitted into the country and
asked for her deportation (Rollo, pp. 77-78). After the EDSA Revolution, he sent a follow-up
letter to the CID requesting action on his 1980 letter-complaint (Rollo, p. 78).

Tolling the prescriptive period from November 19, 1980, when Leonardo C. Banez informed
the CID of the illegal entry of petitioner into the country, more than five years had elapsed
before the issuance of the order of her deportation on September 27, 1990.

In their Comment, public respondents urged that what is barred under Section 37(b) is the
deportation of an alien and claimed that what they ordered was not the deportation of
petitioner but merely the revocation of Section 13(a) which refers to the visa previously
granted her (Rollo, p. 102).

The "arrest" contemplated by Section 37(b) refers to the arrest for the purpose of carrying out
an order for deportation and not the arrest prior to proceedings to determine the right of the
alien to stay in the country. When public respondents revoked the permanent residence visa
issued to petitioner, they, in effect, ordered her arrest and deportation as an overstaying alien.

WHEREFORE, the petition is GRANTED and the temporary restraining order issued on June
4, 1991 is MADE PERMANENT.

The Decision of the Board of Commissioners dated September 27, 1990 revoking the
issuance of the permanent resident visa to petitioner and the Resolution dated January 29,
1991 are REVERSED.

SO ORDERED.

Narvasa, C.J., Padilla, Bidin, Regalado, Davide, Jr., Romero, Bellosillo, Melo, Puno, Vitug,
Kapunan and Mendoza, JJ., concur.

Feliciano and Francisco, JJ., took no part.


Supreme Court
Manila
FIRST DIVISION

EMMANUEL T. PONTEJOS, G.R. Nos. 158613-14


Petitioner,
Present:
Panganiban, CJ,
Chairman,
- versus - Ynares-Santiago,
Austria-Martinez,
Callejo, Sr., and
Chico-Nazario, JJ

OFFICE OF THE OMBUDSMAN Promulgated:


February 22,2006
and RESTITUTO AQUINO,
Respondents.

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

DECISION

PANGANIBAN, CJ:

T he Constitution and the Ombudsman Act of 1989 have

endowed the Office of the Ombudsman (OMB) with a wide

latitude of investigatory and prosecutorial powers -- virtually

free from legislative, executive or judicial intervention -- in order to


insulate it from outside pressure and improper influence. Unless tainted

with grave abuse of discretion, the judgments and orders of the OMB

shall not be reversed, modified or otherwise interfered with by this

Court.
The Case

Before us is a Petition for Certiorari[1] under Rule 65 of the


Rules of Court, assailing the February 19, 1999 Joint
Resolution,[2] May 21, 2002 Review and
Recommendation[3] and March 14, 2003 Order[4] of the Evaluation
and Preliminary Investigation Bureau of the OMB. The challenged
Resolution disposed as follows:
WHEREFORE, premises considered, the following are
respectfully recommended, thus:

1. That an Information for Estafa (one count) be filed


against respondent EMMANUEL T. PONTEJOS
before the Regional Trial Court of Quezon City;

2. That an Information for Direct Bribery be filed


against respondent Atty. EMMANUEL T. PONTEJOS
before the Regional Trial Court of Quezon City;

3. That an Information for Unauthorized Practice of


Profession in violation of R.A. 6713 be filed against
Atty. EMMANUEL T. PONTEJOS before the
Metropolitan Trial Court of Quezon City; and

4. That the complaint


against Director WILFREDO I. IMPERIAL and
RODERICK NGO be dismissed for insufficiency of
evidence; and
5. That respondent CARMENCITA ATOS Y. RUIZ be
extended immunity from criminal prosecution in
accordance with Section 17 of R.A. 6770 and be
utilized as a state witness.[5]

The Review and Recommendation disapproved Assistant City


Prosecutor De Guzmans recommendation to amend the Information
for estafa by includingAtos as a co-accused; while the Order denied
reconsideration.

The Facts

Sometime in 1998, Restituto P. Aquino filed an


Affidavit/Complaint before the Ombudsman against Emmanuel
T. Pontejos (arbiter), Wilfredo I. Imperial (regional director)
and Carmencita R. Atos (legal staff), all of them officials of the
Housing and Land Use Regulatory Board (HLURB), and Roderick
Ngo, a private individual.[6]

Aquino accused Pontejos and Atos of conspiring to exact


money in exchange for a favorable decision of a case against
Roderick Ngo then pending in the HLURB. He further averred
that Pontejos acted as his counsel during the time when the latter was
the hearing officer of the case.[7] Moreover, Atos allegedly
received P10,000 in check, which was part of the consideration for a
favorable decision. Imperial was implicated as an alleged
accomplice.[8]

During preliminary investigation, the following documents were


adduced:
a. Affidavit-complaint of Restituto P. Aquino, dated 14
August 1998 whereby the complainant narrated at length the
charges against respondents;

b. Affidavit of Ruth Adel in corroboration of


Mr. Aquinos affidavit;

c. Another affidavit of Mr. Restituto P. Aquino wherein


he revealed the months and dates where he had meetings with
Atty. Pontejos and Carmen Atos at Alps Restaurant, Racks
Restaurant, Little Quiapo (Q.C.) and Chowking Restaurant;

d. Another affidavit of Ruth Adel, wherein the affiant


revealed that Ms. Carmen Atos received P10,000.00 in check
and had it encashed;

e. Affidavit of Rowena Alcovindas corroborating Adels


affidavit;

f. A copy of the encashed check showing


Ms. Atos signature at the back of the check;
g. Copies of several drafts of decision and petitions
either prepared in handwriting of Atty. Pontejos or in
typewritten form with corrections from Atty.Pontejos in his
handwriting;

h. NBI Examination Report revealing that the samples


and questioned documents were authored by one person
(Atty. Pontejos) x x x.

i. Another affidavit dated 15 February 1999, of


[C]omplainant Aquino, wherein he mentioned the places and
dates of supposed meetings with Pontejos andAtos as well as
the amounts received by them in exchange of legal services
and/or favor promised.[9]

The respondents filed separate Counter-Affidavits to refute the


charges.[10] They claimed that the meetings mentioned by Aquino did
not take place.Neither did they receive any money from him.[11]

Pontejos added that there were three cases


involving Aquino. The first one, REM-8652 was filed in 1995
against Aquino by buyers of lots in a subdivision which he allegedly
failed to develop. The second one, REM-9526 was filed
by Aquino against Hammercon Inc. (allegedly owned by Roderick
Ngo) for revocation of registration and license. The third case,
REM-9817 was filed by Aquino against Hammercon for specific
performance or rescission of contract.[12]
Pontejos decided the first and third cases against Aquino. The second
case, handled by Imperial, was also decided against Aquino. It was
allegedly implausible to side with Aquino, who lost all of the cases.[13]

Imperial denied all links to the extortion allegedly perpetrated


by Pontejos and Atos. Moreover, he could not have shared with the
alleged pay-off money given in January 1998, because he decided the
case as far back as September 1997.[14]
Atos justified receipt of the P10,000 from Aquino, claiming that
it was payment for hams and cold cuts ordered in December 1996
and January 1997 by Ruth Adel, one of the affiants.[15] In support of
this defense, she submitted Joint-Affidavits of her officemates and
neighbors confirming her business activities.[16]

Subsequently, Atos issued two Affidavits where she retracted


her original defense.[17] She encashed the check allegedly to
accommodate Pontejos, who was her boss. She also recounted
attending at least four meetings with Pontejos, Aquino and Adel
during which Pontejos offered legal services to Aquino and
discussed Aquinos pending cases.[18]

Ruling of the Overall Deputy Ombudsman

The Overall Deputy Ombudsman found probable cause


against Pontejos for the crimes of estafa, direct bribery and illegal
practice of profession in violation of RA 6713.

There was estafa because Pontejos allegedly made false


pretenses to Aquino in order to receive P25,000.[19] He supposedly
assured the cancellation ofHammercons license to sell and
registration certificate, notwithstanding the contrary decision issued
by Imperial.[20]
Pontejos was guilty of direct bribery for demanding and
receiving P100,000 from Aquino in exchange for a favorable
decision.[21] Further, Pontejosshould be charged with unauthorized
practice of law for providing legal services to Aquino and receiving
litigation expenses.[22] He purportedly prepared the pleadings
that Aquino submitted; these pleadings where confirmed by the NBI
to have been authored by him.[23]

The Overall Deputy Ombudsman ruled that Atos should be


extended immunity from criminal prosecution and discharged as state
witness.[24] According to him, Atos was merely a subordinate who
could have acted only upon the prodding of Pontejos. Also, her
testimony was necessary to build a case againstPontejos.[25]

On June 21, 1999, then


Ombudsman Aniano A. Desierto issued a Resolution extending
immunity to Atos on the condition that she would appear and testify
against Pontejos in accordance with the Affidavits she submitted
during the preliminary investigation.[26] The Resolution noted
that Atos testimony was extremely necessary to prove the offenses
charged against Pontejos and that the available evidence showed that,
being a mere clerk, she did not appear to be the most guilty.[27]
The criminal cases for estafa and direct bribery
against Pontejos were filed before the Regional Trial Court
of Quezon City.[28] On May 13, 1999, Pontejosfiled a Motion for
Reinvestigation[29] to be conducted by the City Prosecutor without
remanding the case to the Ombudsman. The prosecution had no
objection. Thus, hearing of the case was held in abeyance pending the
outcome of the reinvestigation.[30]

Assistant City Prosecutor Ma. Teresa E. De Guzman conducted the


reinvestigation and thereafter recommended to amend the
Information for estafa to includeAtos as co-accused. According to
her, the power to grant immunity pertains solely to the courts, not to
the prosecution which can only recommend.[31] The Overall Deputy
Ombudsman disapproved De Guzmans report in the May 21,
2002 Review and Recommendation.

The March 14, 2003 Order denied


reconsideration. Thereafter, Pontejos filed this Petition.[32]

The Issues

Petitioner raises the following issues:

1. Whether or not the Ombudsman erred in not declaring that


petitioner was denied due process when to this date he
was never officially furnished a copy of the Affidavit
dated 18 February 1999 of Ms. Atos amounting to lack of
or excess of jurisdiction;
2. Whether or not proceedings before the Ombudsman was
tainted with ill motives amounting to lack of or excess of
jurisdiction;

3. Whether or not the Ombudsman committed grave abuse of


discretion amounting to lack of or excess of jurisdiction
when it granted an immunity to Ms. Atos to become a
state witness on almost the same date the Affidavit was
executed and submitted;

4. Whether or not the Ombudsman erred in singling out


petitioner for criminal prosecution amounting to lack of or
excess of jurisdiction;

5. Whether or not the Ombudsman erred in giving weight to the


Affidavit dated 18 February 1999 of Ms. Atos despite an
earlier affidavit which totally contradicts her averments
therein.[33]

The Courts Ruling

The Petition is unmeritorious.

First Issue:
Finding of Probable Cause

Probable cause is defined as such facts and circumstances that


would engender a well-founded belief that a crime has been
committed and that the respondent is probably guilty thereof and
should be held for trial.[34] Its determination during a preliminary
investigation is a function left to the government prosecutor, which
in this case is the OMB.[35] As a rule, the courts do not interfere with
the OMBs exercise of discretion in determining probable cause unless
there are compelling reasons.[36] This policy is based on constitutional,
statutory and practical considerations. The Constitution and RA 6770
(the Ombudsman Act of 1989) grants the OMB with a wide latitude
of investigatory and prosecutorial powers that is virtually free from
executive, legislative or judicial intervention, in order to insulate it
from outside pressure and improper influence.[37]

However, there are certain instances when this Court may


intervene in the prosecution of cases. Brocka v. Enrile[38] cited some of
these exceptions, as follows: (1) when necessary to afford adequate
protection to the constitutional rights of the accused; (2) when
necessary for the orderly administration of justice or to avoid
oppression or multiplicity of actions; (3) when there is a prejudicial
question which is sub judice; (4) when the acts of the officer are
without or in excess of authority; (5) where the prosecution is under
an invalid law, ordinance or regulation; (6) when double jeopardy is
clearly apparent; (7) where the court has no jurisdiction over the
offense; (8) where it is a case of persecution rather than prosecution;
(9) where the charges are manifestly false and motivated by the lust
for vengeance; and (10) when there is clearly no prima facie case
against the accused and a motion to quash on that ground has been
denied.[39]

The remedy to challenge the OMBs orders or resolutions in criminal

cases is through a petition for certiorari under Rule 65 to this Court.[40]

Grave Abuse of Discretion

A petition for certiorari is the remedy when a government officer has


acted with grave abuse of discretion amounting to lack or excess of
jurisdiction, and there is no other plain, speedy, and adequate remedy
in the ordinary course of law.[41]

Grave abuse of discretion implies a capricious and whimsical


exercise of judgment tantamount to lack of jurisdiction.[42] The
exercise of power must have been done in an arbitrary or despotic
manner by reason of passion or personal hostility. It must be so
patent and gross as to amount to an evasion of positive duty or a
virtual refusal to perform the duty enjoined or to act at all in
contemplation of law.[43]

Petitioner theorizes that the OMB resolved the Complaint against


him for reasons other than the merits of the case. He specifically
charges HLURB Commissioner Teresita Desierto, the spouse of
Ombudsman Desierto, as the unseen hand behind the filing of the
criminal cases.[44] Commissioner Desiertoallegedly harbored
resentment against him for signing a Manifesto[45] issued by some
lawyers in the HLURB.[46] He also recalls Commissioner
Desierto threatening him if he did not resign from the HLURB. Thus,
he concludes that the proceedings before the OMB were tainted with
ill motives.[47]

We cannot accept petitioners arguments. The Court observes that his


arguments are merely conjectures bereft of any proof. He presented
absolutely no evidence of any irregularity in the proceedings before
the OMB. There was no showing that
Commissioner Desierto interfered in any manner in the proceedings
before the OMB. Other than petitioners bare assertions, there was
also no proof that Commissioner Desierto bore a grudge
against Pontejos.

Petitioner failed to substantiate his allegation of grave abuse of


discretion. On the other hand, there was sufficient evidence to
support the finding of probable cause. Evidence presented during the
preliminary investigation engender a well-founded belief that crimes
have been committed and that Pontejos is probably guilty thereof for
which he should be held for trial. The Court is therefore precluded
from interfering in the OMBs discretion to file the criminal cases
against petitioner. To be sure, great respect must be accorded to the
OMBs exercise of its constitutionally mandated functions. Unless
clearly shown to have been issued with grave abuse of discretion,
these judgments are not interfered with.

Second Issue:
Immunity from Prosecution

The decision on whether to prosecute and whom to indict is


executive in character.[48] It is the prosecution that could essentially
determine the strength of pursuing a case against an accused. The
prosecutorial powers include the discretion of granting immunity to
an accused in exchange for testimony against
another. Thus, Mapa v. Sandiganbayan[49] explained:
The decision to grant immunity from prosecution forms a
constituent part of the prosecution process. It is essentially a
tactical decision to forego prosecution of a person for
government to achieve a higher objective. It is a deliberate
renunciation of the right of the State to prosecute all who
appear to be guilty of having committed a crime. Its
justification lies in the particular need of the State to obtain the
conviction of the more guilty criminals who, otherwise, will
probably elude the long arm of the law. Whether or not the
delicate power should be exercised, who should be extended
the privilege, the timing of its grant, are questions addressed
solely to the sound judgment of the prosecution. The power to
prosecute includes the right to determine who shall be
prosecuted and the corollary right to decide whom not to
prosecute.[50]
It is constitutionally permissible for Congress to vest the
prosecutor with the power to determine who can qualify as a witness
and be granted immunity from prosecution.[51] Noteworthy, there are
many laws that allow government investigators and prosecutors to
grant immunity.[52] In relation to this, the Court has previously upheld
the discretion of the Department of Justice (DOJ),[53] Commission on
Elections (Comelec),[54] and the Presidential Commission on Good
Government (PCGG)[55] to grant immunity from prosecution on the
basis of the respective laws that vested them with such power.

The OMB was also vested with the power to grant immunity
from prosecution, thus:
SEC. 17. x x x.

Under such terms and conditions as it may


determine, taking into account the pertinent provisions of the
Rules of Court, the Ombudsman may grant immunity from
criminal prosecution to any person whose testimony or whose
possession and production of documents or other evidence
may be necessary to determine the truth in any hearing, inquiry
or proceeding being conducted by the Ombudsman or under
its authority, in the performance or in the furtherance of its
constitutional functions and statutory objectives. x x x.[56]

According to Pontejos, the OMBs authority to grant immunity


is subject to the pertinent provisions of the Rules of Court. He claims
that the procedural rules allow the discharge of an accused as state
witness only upon conformity of the trial court.[57] An information
against the accused must first be filed in court prior to the
discharge. Moreover, the prosecution could only recommend and
propose, but not grant immunity.[58]

The pertinent provision of the Rules of Court reads:


Sec. 17. Discharge of accused to be state
witness. When two or more persons are jointly charged with
the commission of any offense, upon motion of the prosecution
before resting its case, the court may direct one or more of the
accused to be discharged with their consent so that they may
be witnesses for the state when after requiring the prosecution
to present evidence and the sworn statement of each proposed
state witness at a hearing in support of the discharge, the court
is satisfied that:

(a) There is absolute necessity for the


testimony of the accused whose discharge is
requested;

(b) There is no other direct evidence available


for the proper prosecution of the offense committed,
except the testimony of said accused;

(c) The testimony of said accused can be


substantially corroborated in its material points;

(d) Said accused does not appear to be the


most guilty; and

(e) Said accused has not at any time been


convicted of any offense involving moral turpitude.

Evidence adduced in support of the discharge


shall automatically form part of the trial. If the court
denies the motion for discharge of the accused as
state witness, his sworn statement shall be
inadmissible in evidence.[59]
The Court has already held that this provision is applicable only
to cases already filed in court.[60] The trial court is given the power to
discharge an accused as a state witness only because it has already
acquired jurisdiction over the crime and the accused.[61]

As stated earlier, the power to choose who to discharge as state


witness is an executive function. Essentially, it is not a judicial
prerogative.[62] The fact that an individual had not been previously
charged or included in an information does not prevent the
prosecution from utilizing said person as a witness.[63]

Section 17 of the Ombudsman Act requires conformity with


the Rules of Court. Accordingly, this should be read as requiring the
following circumstances prior to the discharge: (1) absolute necessity
for the testimony of the accused sought to be discharged; (2) no
direct evidence available for the proper prosecution of the offense
committed except the testimony of the said accused; (3) the
testimony of the said accused can be substantially corroborated in its
material points; (4) said accused does not appear to be most guilty;
and (5) said accused has not any time been convicted of any offense
involving moral turpitude.
Indeed, there must be a standard to follow in the exercise of the
prosecutors discretion. The decision to grant immunity cannot be
made capriciously.Should there be unjust favoritism, the Court may
exercise its certiorari power.

In the present case, certiorari is not proper. Pontejos allegations


do not show, much less allege, grave abuse of discretion in the
granting of immunity toAtos.[64] The OMB considered Atos position,
record and involvement in the case prior to the discharge.[65]

Pontejos also claims that he was not furnished a copy


of Atos Affidavit that connected him to the crimes.[66] Since he was
not afforded the opportunity to challenge the assertions in said
Affidavit, his right to due process had allegedly been violated.

The alleged denial of due process is controverted by the facts. It


appears from the records that Pontejos eventually received a copy of
the aforementioned Affidavit.[67] More importantly, he had challenged
the Affidavit in his Motion for Reinvestigation[68] and request for
reconsideration of the Review and Recommendation of the Overall
Deputy Ombudsman.[69] Pontejos contention must necessarily fail
because -- as shown -- he had the opportunity to be heard and in fact,
availed of it.
As a final note, Pontejos has made it appear that the criminal cases
filed against him were based on ill motives. His arguments challenge
the evidence gathered. It is readily apparent that these arguments
should be raised as defenses during the trial, not in the present
Petition.

WHEREFORE, the Petition is DENIED. Costs against


petitioner.

SO ORDERED.

ARTEMIO V. PANGANIBAN
Chief Justice
Chairman, First Division

W E C O N C U R:

CONSUELO YNARES-SANTIAGO MA. ALICIA AUSTRIA-MARTINEZ


Associate Justice Associate Justice

ROMEO J. CALLEJO, SR. MINITA V. CHICO-NAZARIO


Associate Justice Associate Justice

CERTIFICATION
Pursuant to Section 13, Article VIII of the Constitution, I certify that
the conclusions in the above Decision were reached in consultation
before the case was assigned to the writer of the opinion of the
Courts Division.

ARTEMIO V. PANGANIBAN
Chief Justice

[1] Rollo, pp. 3-29.


[2] Id., pp. 33-49. Prepared by Graft Investigation Officer II Rogelio A. Ringpis,
recommended by Director Angel C. Mayoralgo Jr., reviewed by Assistant
Ombudsman Abelardo L. Aportadera Jr. and approved by Overall Deputy
Ombudsman Francisco A. Villa.
[3] Id., pp. 58-64. Prepared by Graft Investigation Officer 1 Francisca

A. Maullon-Serfino, reviewed by Director Pelagio S. Apostol, recommended


by Deputy Special Prosecutor Robert E. Kallos and approved by Overall
Deputy Ombudsman Margarito P. Gervacio Jr.
[4] Id., pp. 69-73. Prepared by Graft Investigation Officer 1 Myrna A. Corral, reviewed

by Director Jose T. de Jesus Jr., recommended by Assistant


Ombudsman Pelagio S. Apostol and approved by Overall Deputy
Ombudsman Margarito P. Gervacio Jr.
[5] Id., pp. 48-49.
[6] Assailed Joint Resolution dated February 19, 1999, pp. 1-2; rollo, pp. 33-34;

Assailed Review and Recommendation, pp. 1-2; rollo, pp. 58-59. See
also Affidavit/Complaint; rollo, pp. 75-79.
[7] Ibid.
[8] Ibid.
[9] Assailed Joint Resolution, pp. 3-4; rollo, pp. 35-36.
[10] Id., p. 4; id., p. 36.
[11] Id., pp. 4-5; id., pp. 36-37.
[12] Ibid. See also Petitioners Memorandum, p. 3; rollo, p. 174.
[13] Assailed Joint Resolution, p. 4; rollo, p. 36.
[14] Id., p. 5; rollo, p. 37.
[15] Ibid.
[16] Ibid.
[17] Id., pp. 5-7; id., pp. 37-39.
[18] Ibid.
[19] Id., pp. 11-12; id., pp. 43-44.
[20] Ibid.
[21] Id., p. 14; id., p. 47.
[22] Id., pp. 11 & 14; id., pp. 43 & 46.
[23] Ibid.
[24] Id., p. 16; id., p. 49.
[25] Id., p. 14; id., p. 47.
[26] Resolution No. 99-001; rollo, p. 94.
[27] Ibid.
[28] Docketed as Criminal Case Nos. Q-99-83123-24 and raffled to Branch 224.
[29] Rollo, pp. 51-56.
[30] Order dated June 7, 1999; rollo, p. 57.
[31] Assailed Review and Recommendation, p. 4; rollo, p. 61.
[32] The case was deemed submitted for resolution on October 10, 2005, upon this

Courts receipt of respondent Aquinos Memorandum, signed by him. In


our November 23, 2005 Resolution, this Court accepted Aquinos explanation
why his memorandum was belatedly filed.
The Memorandum of the Ombudsman, signed by Assistant Solicitor
General Karl B. Miranda and Solicitor Ma. Ana C. Rivera, was received by this
Court on May 26, 2005. Petitioners Memorandum, signed by him, was
received by this Court on May 5, 2005.
[33] Petitioners Memorandum, p. 10; rollo, p. 181; original in upper case.
[34] 1 of Rule 112 of the Rules of Court, which defines the purpose of a preliminary

investigation. Villanueva v. Ople, GR No. 165125, November 18,


2005; Mendoza-Arce v. Office of the Ombudsman, 380 SCRA 325, April 5, 2002.
[35] Paredes v. Sandiganbayan, 252 SCRA 641, January 31, 1996.
[36] Peralta v. Desierto, GR No. 153152, October 19, 2005.
[37] Perez v. Office of the Ombudsman, 429 SCRA 357, 363, May 27, 2004. See also Alba

v. Nitorreda, 254 SCRA 753, March 13, 1996.


[38] 192 SCRA 183, December 10, 1990.
[39] Id., pp. 188-189 citing Regalado, Remedial Law Compendium, p. 188 (1988 ed.). Also

cited in Villanueva v. Ople, supra at note 34; Mendoza-Arce v. Office of the


Ombudsman, supra at note 34.
[40] Villanueva v. Ople, supra; Kuizon v. Desierto 354 SCRA 158, March 9, 2001. See

also Tirol v. Commission on Audit, 391 Phil. 897, August 3, 2000.


[41] 1 of Rule 65 of the Rules of Court.
[42] Soria v. Desierto, GR Nos. 153524-25, January 31, 2005; Perez v. Office of the

Ombudsman, supra at note 37.


[43] Ibid.
[44] Petitioners Memorandum, pp. 12, 15-19 & 25; rollo, pp. 183, 186-190 & 196.
[45] The Manifesto reads:
On 28 September 1998, after the flag raising ceremony, the
Honorable Commissioner Teresita A. Desierto made unfounded
accusations and sweeping statements branding the lawyers and staff of
the Appeals and Review Group, the Expanded National Capital Region,
the Legal Services Group, and Regional Field Office 4 as corrupt. She
alleged that lawyers, legal assistants and para-legal assistants receive
bribes and ask party litigants to treat them to lunch.
The Honorable Commissioner may not have foreseen the
possible repercus[s]ions of her words. She may not have known that the
accusations made by her tend to bring not only the legal staff into
disrepute but the whole Board.
The statements of the Honorable Commissioner tend to destroy
public confidence in the Board. Hence, they degrade not only the lawyers,
legal assistants and para-legal assistants but all employees of the Board.
The Honorable Commissioner may not have realized it, but once
public confidence in the Board is destroyed, the Board loses its
usefulness.
It is regrettable that such irresponsible act was committed by a
high ranking official of the Board, a person who should be the first to
protect the Board and its dignity.
We have been subjected to snide remarks and slanderous
statements before, but we took them in stride, because they are
unsubstantiated and utterly false. However, when the same unproven
accusations are made by a responsible superior, who is also a lawyer, we
believe that we have to react. We have suffered in silence for too long.
It appears that our continued silence is being interpreted as an
admission of guilt. To correct such misinterpretation, we now speak out
and ask that instead of humiliating all lawyers in public, cases against
erring officials and employees be instituted before the proper forum.
We fervently hope that there will be no repetition of the sorry
incident. We hope that the architects, the engineers, the planners and the
rest of the technical staff will not suffer the same fate. We pray that the
rest of the employees wont have to endure the same indignity. (Rollo, p.
32)
[46] Petitioners Memorandum, p. 1; rollo, p. 172.
[47] Id., pp. 17-19; id., pp. 188-190.
[48] Guingona v. Court of Appeals, 354 Phil. 415, July 10, 1998.
[49] 231 SCRA 783, 785, April 26, 1994.
[50] Id., p. 802, per Puno, J.
[51] See Webb v. De Leon, 317 Phil. 758, 800, August 23, 1995.
[52] Some of the laws can be found in Section 8 of Republic Act 9287 or the Act

Increasing the Penalties for Illegal Numbers Games Amending Certain


Provisions of Presidential Decree No. 1602, and for Other Purposes,
approved April 2, 2004; Section 33 of Republic Act 9165 or the
Comprehensive Dangerous Drugs Act of 2002, approved June 7, 2002;
Section 12 of Republic Act 6981 or the Witness Protection, Security and
Benefit Act, approved April 24, 1991; Section 26 of Republic Act 6646 or the
Electoral Reforms Law of 1987, approved January 5, 1988; Section 5 of
Executive Order No. 14 (which empowered the PCGG to file and prosecute
cases investigated by it), dated May 7, 1986; and Sections 3 and 4 of
Presidential Decree 1732 or Providing Immunity from Criminal Prosecution
to Government Witnesses and for Other Purposes, approved October 8,
1980.
[53] People v. Peralta, 435 Phil. 743, 765, August 8, 2002; Webb v. De Leon, supra.
[54] Comelec v. Espaol, 417 SCRA 554, December 10, 2003.
[55] See Mapa v. Sandiganbayan, supra at note 49.
[56] Republic Act 6770 or the Ombudsman Act, approved on November 17,

1989. (Emphasis supplied).


[57] Petitioners Memorandum, p. 20; rollo, p. 191.
[58] Ibid.
[59] 17 of Rule 119 of the Rules of Court.
[60] Guingona v. Court of Appeals, supra at note 48. See also People v. Peralta, supra at note

53.
[61] Webb v. De Leon, supra at note 51.
[62] People v. Peralta, supra; Guingona v. Court of Appeals, supra; Webb v. De Leon, supra.
[63] People v. Binsol, 100 Phil. 713, 726, January 22, 1957.
[64] See Petitioners Memorandum, pp. 21-22; rollo, pp. 192-193.
[65] See Assailed Joint Resolution, pp. 14-15; rollo, pp. 47-48; Resolution No. 99-001,

supra at note 26.


[66] Petitioners Memorandum, p. 12; rollo, p. 183.
[67] The affidavit was attached as Annex J of the Petition; rollo, pp. 85-86.
[68] Motion for Reinvestigation dated May 13, 1999, p. 2; rollo, p. 52.
[69] Letter addressed to Overall Deputy Ombudsman Margarito O. Gervacio Jr.; rollo,

pp. 66-68.
Republic of the Philippines

Supreme Court
Baguio City

EN BANC

ATTY. SYLVIA BANDA, G.R. No. 166620


CONSORICIA O. PENSON,
RADITO V. PADRIGANO, JEAN
R. DE MESA, LEAH P. DELA
CRUZ, ANDY V. MACASAQUIT,
SENEN B. CORDOBA, ALBERT
BRILLANTES, GLORIA BISDA,
JOVITA V. CONCEPCION,
TERESITA G. CARVAJAL,
ROSANNA T. MALIWANAG,
RICHARD ODERON, CECILIA
ESTERNON, BENEDICTO
CABRAL, MA. VICTORIA E.
LAROCO, CESAR ANDRA,
FELICISIMO GALACIO, ELSA R.
CALMA, FILOMENA A.
GALANG, JEAN PAUL
MELEGRITO, CLARO G.
SANTIAGO, JR., EDUARDO
FRIAS, REYNALDO O. ANDAL,
NEPHTALIE IMPERIO, RUEL
BALAGTAS, VICTOR R. ORTIZ,
FRANCISCO P. REYES, JR.,
ELISEO M. BALAGOT, JR., JOSE
C. MONSALVE, JR., ARTURO
ADSUARA, F.C. LADRERO, JR.,
NELSON PADUA, MARCELA C.
SAYAO, ANGELITO MALAKAS,
GLORIA RAMENTO, JULIANA
SUPLEO, MANUEL
MENDRIQUE, E. TAYLAN,
CARMELA BOBIS, DANILO
VARGAS, ROY-LEO C. PABLO,
ALLAN VILLANUEVA, VICENTE
R. VELASCO, JR., IMELDA Present:
ERENO, FLORIZA M. CATIIS,
RANIEL R. BASCO, E. JALIJALI,
MARIO C. CARAAN, DOLORES PUNO, C.J.,
M. AVIADO, MICHAEL P. CARPIO,
LAPLANA, GUILLERMO G. CORONA,
SORIANO, ALICE E. SOJO, CARPIO MORALES,
ARTHUR G. NARNE, LETICIA VELASCO, JR.,
SORIANO, FEDERICO RAMOS, NACHURA,
JR., PETERSON CAAMPUED, LEONARDO-DE CASTRO,
RODELIO L. GOMEZ, ANTONIO BRION,
D. GARCIA, JR., ANTONIO PERALTA,
GALO, A. SANCHEZ, SOL E. BERSAMIN,
TAMAYO, JOSEPHINE A.M. DEL CASTILLO,
COCJIN, DAMIAN QUINTO, JR., ABAD,*
EDLYN MARIANO, M.A. VILLARAMA, JR.,
MALANUM, ALFREDO S. PEREZ, and
ESTRELLA, and JESUS MEL MENDOZA, JJ.
SAYO,
Petitioners,

- versus -

EDUARDO R. ERMITA, in his


capacity as Executive
Secretary,THE DIRECTOR Promulgated:
GENERAL OF THE PHILIPPINE
INFORMATION
AGENCY and THE NATIONAL
TREASURER, April 20, 2010
Respondents.

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

DECISION

LEONARDO-DE CASTRO, J.:

The present controversy arose from a Petition for Certiorari and prohibition
challenging the constitutionality of Executive Order No. 378 dated October
25, 2004, issued by President Gloria Macapagal Arroyo (President
Arroyo). Petitioners characterize their action as a class suit filed on their
own behalf and on behalf of all their co-employees at the National Printing
Office (NPO).

The NPO was formed on July 25, 1987, during the term of former
President Corazon C. Aquino (President Aquino), by virtue of Executive
Order No. 285[1] which provided, among others, the creation of the NPO
from the merger of the Government Printing Office and the relevant printing
units of the Philippine Information Agency (PIA).Section 6 of Executive
Order No. 285 reads:
SECTION 6. Creation of the National Printing Office. There is
hereby created a National Printing Office out of the merger of the
Government Printing Office and the relevant printing units of the
Philippine Information Agency. The Office shall have exclusive printing
jurisdiction over the following:

a. Printing, binding and distribution of all standard and


accountable forms of national, provincial, city and municipal
governments, including government corporations;

b. Printing of officials ballots;

c. Printing of public documents such as the Official Gazette,


General Appropriations Act, Philippine Reports, and development
information materials of the Philippine Information Agency.

The Office may also accept other government printing jobs,


including government publications, aside from those enumerated above,
but not in an exclusive basis.

The details of the organization, powers, functions, authorities, and


related management aspects of the Office shall be provided in the
implementing details which shall be prepared and promulgated in
accordance with Section II of this Executive Order.

The Office shall be attached to the Philippine Information Agency.

On October 25, 2004, President Arroyo issued the herein assailed


Executive Order No. 378, amending Section 6 of Executive Order No. 285
by, inter alia, removing the exclusive jurisdiction of the NPO over the
printing services requirements of government agencies and
instrumentalities. The pertinent portions of Executive Order No. 378, in
turn, provide:

SECTION 1. The NPO shall continue to provide printing


services to government agencies and instrumentalities as mandated
by law. However, it shall no longer enjoy exclusive jurisdiction over
the printing services requirements of the government over standard
and accountable forms. It shall have to compete with the private
sector, except in the printing of election paraphernalia which could be
shared with the Bangko Sentral ng Pilipinas, upon the discretion of the
Commission on Elections consistent with the provisions of the Election
Code of 1987.

SECTION 2. Government agencies/instrumentalities may source


printing services outside NPO provided that:

2.1 The printing services to be provided by the private sector is


superior in quality and at a lower cost than what is offered by the NPO;
and

2.2 The private printing provider is flexible in terms of meeting


the target completion time of the government agency.

SECTION 3. In the exercise of its functions, the amount to be


appropriated for the programs, projects and activities of the NPO in
the General Appropriations Act (GAA) shall be limited to its income
without additional financial support from the government. (Emphases
and underscoring supplied.)

Pursuant to Executive Order No. 378, government agencies and


instrumentalities are allowed to source their printing services from the
private sector through competitive bidding, subject to the condition that the
services offered by the private supplier be of superior quality and lower in
cost compared to what was offered by the NPO. Executive Order No.
378 also limited NPOs appropriation in the General Appropriations Act to
its income.

Perceiving Executive Order No. 378 as a threat to their security of


tenure as employees of the NPO, petitioners now challenge its
constitutionality, contending that: (1) it is beyond the executive powers of
President Arroyo to amend or repeal Executive Order No. 285 issued by
former President Aquino when the latter still exercised legislative powers;
and (2) Executive Order No. 378 violates petitioners security of tenure,
because it paves the way for the gradual abolition of the NPO.

We dismiss the petition.

Before proceeding to resolve the substantive issues, the Court must


first delve into a procedural matter. Since petitioners instituted this case as a
class suit, the Court, thus, must first determine if the petition indeed
qualifies as one. In Board of Optometry v. Colet,[2] we held that [c]ourts
must exercise utmost caution before allowing a class suit, which is the
exception to the requirement of joinder of all indispensable parties. For
while no difficulty may arise if the decision secured is favorable to the
plaintiffs, a quandary would result if the decision were otherwise as those
who were deemed impleaded by their self-appointed representatives would
certainly claim denial of due process.

Section 12, Rule 3 of the Rules of Court defines a class suit, as


follows:

Sec. 12. Class suit. When the subject matter of the controversy is
one of common or general interest to many persons so numerous that it is
impracticable to join all as parties, a number of them which the court
finds to be sufficiently numerous and representative as to fully protect the
interests of all concerned may sue or defend for the benefit of all. Any
party in interest shall have the right to intervene to protect his individual
interest.

From the foregoing definition, the requisites of a class suit are: 1) the
subject matter of controversy is one of common or general interest to many
persons; 2) the parties affected are so numerous that it is impracticable to
bring them all to court; and 3) the parties bringing the class suit are
sufficiently numerous or representative of the class and can fully protect the
interests of all concerned.

In Mathay v. The Consolidated Bank and Trust Company,[3] the Court


held that:

An action does not become a class suit merely because it is designated as


such in the pleadings. Whether the suit is or is not a class suit depends
upon the attending facts, and the complaint, or other pleading initiating
the class action should allege the existence of the necessary facts, to wit,
the existence of a subject matter of common interest, and the existence of a
class and the number of persons in the alleged class, in order that the
court might be enabled to determine whether the members of the class
are so numerous as to make it impracticable to bring them all before
the court, to contrast the number appearing on the record with the
number in the class and to determine whether claimants on record
adequately represent the class and the subject matter of general or
common interest. (Emphases ours.)

Here, the petition failed to state the number of NPO employees who
would be affected by the assailed Executive Order and who were allegedly
represented by petitioners.It was the Solicitor General, as counsel for
respondents, who pointed out that there were about 549 employees in the
NPO.[4] The 67 petitioners undeniably comprised a small fraction of the
NPO employees whom they claimed to represent. Subsequently, 32 of the
original petitioners executed an Affidavit of Desistance, while one signed a
letter denying ever signing the petition,[5] ostensibly reducing the number of
petitioners to 34. We note that counsel for the petitioners challenged the
validity of the desistance or withdrawal of some of the petitioners and
insinuated that such desistance was due to pressure from people close to the
seat of power.[6] Still, even if we were to disregard the affidavit of desistance
filed by some of the petitioners, it is highly doubtful that a sufficient,
representative number of NPO employees have instituted this purported
class suit. A perusal of the petition itself would show that of the 67
petitioners who signed the Verification/Certification of Non-Forum
Shopping, only 20 petitioners were in fact mentioned in the jurat as having
duly subscribed the petition before the notary public. In other words, only
20 petitioners effectively instituted the present case.
Indeed, in MVRS Publications, Inc. v. Islamic Dawah Council of the
Philippines, Inc.,[7] we observed that an element of a class suit or
representative suit is the adequacy of representation. In determining the
question of fair and adequate representation of members of a class, the court
must consider (a) whether the interest of the named party is coextensive
with the interest of the other members of the class; (b) the proportion of
those made a party, as it so bears, to the total membership of the class; and
(c) any other factor bearing on the ability of the named party to speak for the
rest of the class.
Previously, we held in Ibaes v. Roman Catholic Church[8] that where
the interests of the plaintiffs and the other members of the class they seek to
represent are diametrically opposed, the class suit will not prosper.

It is worth mentioning that a Manifestation of Desistance,[9] to which


the previously mentioned Affidavit of Desistance[10] was attached, was filed
by the President of the National Printing Office Workers Association
(NAPOWA). The said manifestation expressed NAPOWAs opposition to
the filing of the instant petition in any court. Even if we take into account
the contention of petitioners counsel that the NAPOWA President had no
legal standing to file such manifestation, the said pleading is a clear
indication that there is a divergence of opinions and views among the
members of the class sought to be represented, and not all are in favor of
filing the present suit. There is here an apparent conflict between petitioners
interests and those of the persons whom they claim to represent. Since it
cannot be said that petitioners sufficiently represent the interests of the
entire class, the instant case cannot be properly treated as a class suit.

As to the merits of the case, the petition raises two main grounds to
assail the constitutionality of Executive Order No. 378:

First, it is contended that President Arroyo cannot amend or repeal


Executive Order No. 285 by the mere issuance of another executive order
(Executive Order No. 378).Petitioners maintain that former President
Aquinos Executive Order No. 285 is a legislative enactment, as the same
was issued while President Aquino still had legislative powers under the
Freedom Constitution;[11] thus, only Congress through legislation can validly
amend Executive Order No. 285.

Second, petitioners maintain that the issuance of Executive Order No.


378 would lead to the eventual abolition of the NPO and would violate the
security of tenure of NPO employees.

Anent the first ground raised in the petition, we find the same patently
without merit.
It is a well-settled principle in jurisprudence that the President has the
power to reorganize the offices and agencies in the executive department in
line with the Presidents constitutionally granted power of control over
executive offices and by virtue of previous delegation of the legislative
power to reorganize executive offices under existing statutes.

In Buklod ng Kawaning EIIB v. Zamora,[12] the Court pointed out that


Executive Order No. 292 or the Administrative Code of 1987 gives the
President continuing authority to reorganize and redefine the functions of
the Office of the President. Section 31, Chapter 10, Title III, Book III of the
said Code, is explicit:

Sec. 31. Continuing Authority of the President to Reorganize his


Office. The President, subject to the policy in the Executive Office and
in order to achieve simplicity, economy and efficiency, shall have
continuing authority to reorganize the administrative structure of the
Office of the President. For this purpose, he may take any of the
following actions:

(1) Restructure the internal organization of the


Office of the President Proper, including the immediate
Offices, the President Special Assistants/Advisers System
and the Common Staff Support System, by abolishing,
consolidating or merging units thereof or transferring
functions from one unit to another;

(2) Transfer any function under the Office of


the President to any other Department or Agency as
well as transfer functions to the Office of the
President from other Departments and Agencies; and

(3) Transfer any agency under the Office of the


President to any other department or agency as well
as transfer agencies to the Office of the President from
other Departments or agencies. (Emphases ours.)

Interpreting the foregoing provision, we held in Buklod ng Kawaning


EIIB, thus:
But of course, the list of legal basis authorizing the President to
reorganize any department or agency in the executive branch does not
have to end here. We must not lose sight of the very source of the power
that which constitutes an express grant of power. Under Section 31, Book
III of Executive Order No. 292 (otherwise known as the Administrative
Code of 1987), the President, subject to the policy in the Executive Office
and in order to achieve simplicity, economy and efficiency, shall have the
continuing authority to reorganize the administrative structure of the
Office of the President. For this purpose, he may transfer the functions of
other Departments or Agencies to the Office of the
President. In Canonizado v. Aguirre [323 SCRA 312 (2000)], we ruled
that reorganization involves the reduction of personnel, consolidation
of offices, or abolition thereof by reason of economy or redundancy of
functions. It takes place when there is an alteration of the existing
structure of government offices or units therein, including the lines of
control, authority and responsibility between them. The EIIB is a
bureau attached to the Department of Finance. It falls under the Office of
the President. Hence, it is subject to the Presidents continuing authority to
reorganize.[13] (Emphasis ours.)

It is undisputed that the NPO, as an agency that is part of the Office of


the Press Secretary (which in various times has been an agency directly
attached to the Office of the Press Secretary or as an agency under the
Philippine Information Agency), is part of the Office of the President.[14]

Pertinent to the case at bar, Section 31 of the Administrative Code of


1987 quoted above authorizes the President (a) to restructure the internal
organization of the Office of the President Proper, including the immediate
Offices, the President Special Assistants/Advisers System and the Common
Staff Support System, by abolishing, consolidating or merging units thereof
or transferring functions from one unit to another, and (b) to transfer
functions or offices from the Office of the President to any other Department
or Agency in the Executive Branch, and vice versa.

Concomitant to such power to abolish, merge or consolidate offices in


the Office of the President Proper and to transfer functions/offices not only
among the offices in the Office of President Proper but also the rest of the
Office of the President and the Executive Branch, the President implicitly
has the power to effect less radical or less substantive changes to the
functional and internal structure of the Office of the President, including the
modification of functions of such executive agencies as the exigencies of the
service may require.

In the case at bar, there was neither an abolition of the NPO nor a
removal of any of its functions to be transferred to another agency. Under
the assailed Executive Order No. 378, the NPO remains the main printing
arm of the government for all kinds of government forms and publications
but in the interest of greater economy and encouraging efficiency and
profitability, it must now compete with the private sector for certain
government printing jobs, with the exception of election paraphernalia which
remains the exclusive responsibility of the NPO, together with the Bangko
Sentral ng Pilipinas, as the Commission on Elections may determine. At
most, there was a mere alteration of the main function of the NPO by
limiting the exclusivity of its printing responsibility to election forms.[15]

There is a view that the reorganization actions that the President may
take with respect to agencies in the Office of the President are strictly
limited to transfer of functions and offices as seemingly provided in Section
31 of the Administrative Code of 1987.

However, Section 20, Chapter 7, Title I, Book III of the same Code
significantly provides:

Sec. 20. Residual Powers. Unless Congress provides otherwise, the


President shall exercise such other powers and functions vested in the
President which are provided for under the laws and which are not
specifically enumerated above, or which are not delegated by the President
in accordance with law. (Emphasis ours.)

Pursuant to Section 20, the power of the President to reorganize the


Executive Branch under Section 31 includes such powers and functions that
may be provided for under other laws. To be sure, an inclusive and broad
interpretation of the Presidents power to reorganize executive offices has
been consistently supported by specific provisions ingeneral
appropriations laws.
In the oft-cited Larin v. Executive Secretary,[16] the Court likewise
adverted to certain provisions of Republic Act No. 7645, the general
appropriations law for 1993, as among the statutory bases for the Presidents
power to reorganize executive agencies, to wit:

Section 48 of R.A. 7645 provides that:


Sec. 48. Scaling Down and Phase Out of Activities
of Agencies Within the Executive Branch. The heads of
departments, bureaus and offices and agencies are hereby
directed to identify their respective activities which are no
longer essential in the delivery of public services and which
may be scaled down, phased out or abolished, subject to
civil [service] rules and regulations. x x x. Actual scaling
down, phasing out or abolition of the activities shall be
effected pursuant to Circulars or Orders issued for the
purpose by the Office of the President.
Said provision clearly mentions the acts of "scaling down, phasing out
and abolition" of offices only and does not cover the creation of offices
or transfer of functions. Nevertheless, the act of creating and
decentralizing is included in the subsequent provision of Section 62,
which provides that:
Sec. 62. Unauthorized organizational changes.
Unless otherwise created by law or directed by the
President of the Philippines, no organizational unit or
changes in key positions in any department or agency shall
be authorized in their respective organization structures and
be funded from appropriations by this Act.
The foregoing provision evidently shows that the President is
authorized to effect organizational changes including the creation of
offices in the department or agency concerned.
The contention of petitioner that the two provisions are riders deserves
scant consideration. Well settled is the rule that every law has in its favor
the presumption of constitutionality. Unless and until a specific provision
of the law is declared invalid and unconstitutional, the same is valid and
binding for all intents and purposes.[17] (Emphases ours)

Buklod ng Kawaning EIIB v. Zamora,[18] where the Court upheld as


valid then President Joseph Estradas Executive Order No. 191 deactivating
the Economic Intelligence and Investigation Bureau (EIIB) of the
Department of Finance, hewed closely to the reasoning in Larin. The Court,
among others, also traced from the General Appropriations Act[19] the
Presidents authority to effect organizational changes in the department or
agency under the executive structure, thus:

We adhere to the precedent or ruling in Larin that this provision recognizes


the authority of the President to effect organizational changes in the
department or agency under the executive structure. Such a ruling further
finds support in Section 78 of Republic Act No. 8760. Under this law, the
heads of departments, bureaus, offices and agencies and other entities in the
Executive Branch are directed (a) to conduct a comprehensive review of
their respective mandates, missions, objectives, functions, programs,
projects, activities and systems and procedures; (b) identify activities which
are no longer essential in the delivery of public services and which may be
scaled down, phased-out or abolished; and (c) adopt measures that will
result in the streamlined organization and improved overall
performance of their respective agencies. Section 78 ends up with the
mandate that the actual streamlining and productivity improvement in
agency organization and operation shall be effected pursuant to Circulars or
Orders issued for the purpose by the Office of the President. x x
x.[20] (Emphasis ours)

Notably, in the present case, the 2003 General Appropriations Act,


which was reenacted in 2004 (the year of the issuance of Executive Order
No. 378), likewise gave the President the authority to effect a wide variety
of organizational changes in any department or agency in the Executive
Branch. Sections 77 and 78 of said Act provides:

Section 77. Organized Changes. Unless otherwise provided by


law or directed by the President of the Philippines, no changes in key
positions or organizational units in any department or agency shall be
authorized in their respective organizational structures and funded from
appropriations provided by this Act.

Section 78. Institutional Strengthening and Productivity


Improvement in Agency Organization and Operations and
Implementation of Organization/Reorganization Mandated by Law.The
Government shall adopt institutional strengthening and productivity
improvement measures to improve service delivery and enhance
productivity in the government, as directed by the President of
the Philippines. The heads of departments, bureaus, offices, agencies, and
other entities of the Executive Branch shall accordingly conduct a
comprehensive review of their respective mandates, missions, objectives,
functions, programs, projects, activities and systems and procedures;
identify areas where improvements are necessary; and implement
corresponding structural, functional and operational adjustments
that will result in streamlined organization and operations and
improved performance and productivity: PROVIDED, That actual
streamlining and productivity improvements in agency organization and
operations, as authorized by the President of the Philippines for the
purpose, including the utilization of savings generated from such
activities, shall be in accordance with the rules and regulations to be
issued by the DBM, upon consultation with the Presidential Committee
on Effective Governance: PROVIDED, FURTHER, That in the
implementation of organizations/reorganizations, or specific changes
in agency structure, functions and operations as a result of
institutional strengthening or as mandated by law, the appropriation,
including the functions, projects, purposes and activities of agencies
concerned may be realigned as may be necessary: PROVIDED,
FINALLY, That any unexpended balances or savings in appropriations
may be made available for payment of retirement gratuities and separation
benefits to affected personnel, as authorized under existing laws.
(Emphases and underscoring ours.)

Implicitly, the aforequoted provisions in the appropriations law


recognize the power of the President to reorganize even executive offices
already funded by the said appropriations act, including the power to
implement structural, functional, and operational adjustments in the
executive bureaucracy and, in so doing, modify or realign appropriations of
funds as may be necessary under such reorganization. Thus, insofar as
petitioners protest the limitation of the NPOs appropriations to its own
income under Executive Order No. 378, the same is statutorily authorized by
the above provisions.

In the 2003 case of Bagaoisan v. National Tobacco


Administration,[21] we upheld the streamlining of the National Tobacco
Administration through a reduction of its personnel and deemed the same as
included in the power of the President to reorganize executive offices
granted under the laws, notwithstanding that such streamlining neither
involved an abolition nor a transfer of functions of an office. To quote the
relevant portion of that decision:
In the recent case of Rosa Ligaya C. Domingo, et al. vs. Hon. Ronaldo D.
Zamora, in his capacity as the Executive Secretary, et al., this Court has
had occasion to also delve on the Presidents power to reorganize the
Office of the President under Section 31(2) and (3) of Executive Order No.
292 and the power to reorganize the Office of the President Proper. x x x
xxxx
The first sentence of the law is an express grant to the President of
a continuing authority to reorganize the administrative structure of the
Office of the President. The succeeding numbered paragraphs are not
in the nature of provisos that unduly limit the aim and scope of the
grant to the President of the power to reorganize but are to be viewed
in consonance therewith. Section 31(1) of Executive Order No. 292
specifically refers to the Presidents power to restructure the internal
organization of the Office of the President Proper, by abolishing,
consolidating or merging units hereof or transferring functions from one
unit to another, while Section 31(2) and (3) concern executive offices
outside the Office of the President Properallowing the President to transfer
any function under the Office of the President to any other Department or
Agency and vice-versa, and the transfer of any agency under the Office of
the President to any other department or agency and vice-versa.
In the present instance, involving neither an abolition nor
transfer of offices, the assailed action is a mere reorganization under
the general provisions of the law consisting mainly of streamlining the
NTA in the interest of simplicity, economy and efficiency. It is an act
well within the authority of the President motivated and carried out,
according to the findings of the appellate court, in good faith, a factual
assessment that this Court could only but accept.[22] (Emphases and
underscoring supplied.)

In the more recent case of Tondo Medical Center Employees


Association v. Court of Appeals,[23] which involved a structural and
functional reorganization of the Department of Health under an
executive order, we reiterated the principle that the power of the President
to reorganize agencies under the executive department by executive or
administrative order is constitutionally and statutorily recognized. We held
in that case:

This Court has already ruled in a number of cases that the


President may, by executive or administrative order, direct the
reorganization of government entities under the Executive
Department. This is also sanctioned under the Constitution, as well as
other statutes.

Section 17, Article VII of the 1987 Constitution, clearly


states: [T]he president shall have control of all executive departments,
bureaus and offices. Section 31, Book III, Chapter 10 of Executive
Order No. 292, also known as the Administrative Code of 1987 reads:

SEC. 31. Continuing Authority of the President


to Reorganize his Office - The President, subject to the
policy in the Executive Office and in order to achieve
simplicity, economy and efficiency, shall have continuing
authority to reorganize the administrative structure of the
Office of the President. For this purpose, he may take any
of the following actions:

xxxx

In Domingo v. Zamora [445 Phil. 7 (2003)], this Court explained


the rationale behind the Presidents continuing authority under the
Administrative Code to reorganize the administrative structure of the
Office of the President. The law grants the President the power to
reorganize the Office of the President in recognition of the recurring
need of every President to reorganize his or her office to achieve
simplicity, economy and efficiency. To remain effective and efficient, it
must be capable of being shaped and reshaped by the President in the
manner the Chief Executive deems fit to carry out presidential directives
and policies.

The Administrative Code provides that the Office of the President


consists of the Office of the President Proper and the agencies under
it. The agencies under the Office of the President are identified in
Section 23, Chapter 8, Title II of the Administrative Code:

Sec. 23. The Agencies under the Office of the


President.The agencies under the Office of the President
refer to those offices placed under the chairmanship of the
President, those under the supervision and control of the
President, those under the administrative supervision of the
Office of the President, those attached to it for policy and
program coordination, and those that are not placed by law
or order creating them under any specific department.

xxxx

The power of the President to reorganize the executive department


is likewise recognized in general appropriations laws. x x x.

xxxx
Clearly, Executive Order No. 102 is well within the constitutional power
of the President to issue. The President did not usurp any legislative
prerogative in issuing Executive Order No. 102. It is an exercise of the
Presidents constitutional power of control over the executive
department, supported by the provisions of the Administrative Code,
recognized by other statutes, and consistently affirmed by this
Court.[24] (Emphases supplied.)

Subsequently, we ruled in Anak Mindanao Party-List Group v. Executive


Secretary[25] that:

The Constitutions express grant of the power of control in the President


justifies an executive action to carry out reorganization measures under a
broad authority of law.

In enacting a statute, the legislature is presumed to have


deliberated with full knowledge of all existing laws and jurisprudence on
the subject. It is thus reasonable to conclude that in passing a statute
which places an agency under the Office of the President, it was in
accordance with existing laws and jurisprudence on the Presidents power
to reorganize.

In establishing an executive department, bureau or office, the


legislature necessarily ordains an executive agencys position in the scheme
of administrative structure. Such determination is primary, but subject to
the Presidents continuing authority to reorganize the administrative
structure. As far as bureaus, agencies or offices in the executive
department are concerned, the power of control may justify the President
to deactivate the functions of a particular office. Or a law may expressly
grant the President the broad authority to carry out reorganization
measures. The Administrative Code of 1987 is one such law.[26]

The issuance of Executive Order No. 378 by President Arroyo is an


exercise of a delegated legislative power granted by the aforementioned
Section 31, Chapter 10, Title III, Book III of the Administrative Code of
1987, which provides for the continuing authority of the President to
reorganize the Office of the President, in order to achieve simplicity,
economy and efficiency. This is a matter already well-entrenched in
jurisprudence. The reorganization of such an office through executive or
administrative order is also recognized in the Administrative Code of
1987. Sections 2 and 3, Chapter 2, Title I, Book III of the said Code provide:

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 aspects of governmental operations in pursuance of his duties
as administrative head shall be promulgated inadministrative orders.
(Emphases supplied.)

To reiterate, we find nothing objectionable in the provision in


Executive Order No. 378 limiting the appropriation of the NPO to its own
income. Beginning with Larin and in subsequent cases, the Court has noted
certain provisions in the general appropriations laws as likewise reflecting
the power of the President to reorganize executive offices or agencies even
to the extent of modifying and realigning appropriations for that purpose.

Petitioners contention that the issuance of Executive Order No. 378 is


an invalid exercise of legislative power on the part of the President has no
legal leg to stand on.

In all, Executive Order No. 378, which purports to institute necessary


reforms in government in order to improve and upgrade efficiency in the
delivery of public services by redefining the functions of the NPO and
limiting its funding to its own income and to transform it into a self-reliant
agency able to compete with the private sector, is well within the
prerogative of President Arroyo under her continuing delegated legislative
power to reorganize her own office. As pointed out in the separate
concurring opinion of our learned colleague, Associate Justice Antonio T.
Carpio, the objective behind Executive Order No. 378 is wholly consistent
with the state policy contained in Republic Act No. 9184 or the Government
Procurement Reform Act to encourage competitiveness by extending equal
opportunity to private contracting parties who are eligible and qualified.[27]
To be very clear, this delegated legislative power to reorganize
pertains only to the Office of the President and the departments, offices and
agencies of the executive branch and does not include the Judiciary, the
Legislature or the constitutionally-created or mandated bodies. Moreover, it
must be stressed that the exercise by the President of the power to
reorganize the executive department must be in accordance with the
Constitution, relevant laws and prevailing jurisprudence.

In this regard, we are mindful of the previous pronouncement of this


Court in Dario v. Mison[28] that:
Reorganizations in this jurisdiction have been regarded as
valid provided they are pursued in good faith. As a general rule, a
reorganization is carried out in good faith if it is for the purpose of
economy or to make bureaucracy more efficient. In that event, no
dismissal (in case of a dismissal) or separation actually occurs because the
position itself ceases to exist. And in that case, security of tenure would
not be a Chinese wall. Be that as it may, if the abolition, which is nothing
else but a separation or removal, is done for political reasons or purposely
to defeat security of tenure, or otherwise not in good faith, no valid
abolition takes place and whatever abolition is done, is void ab initio.
There is an invalid abolition as where there is merely a change of
nomenclature of positions, or where claims of economy are belied by the
existence of ample funds. (Emphasis ours.)

Stated alternatively, the presidential power to reorganize agencies and


offices in the executive branch of government is subject to the condition that
such reorganization is carried out in good faith.

If the reorganization is done in good faith, the abolition of positions,


which results in loss of security of tenure of affected government employees,
would be valid. InBuklod ng Kawaning EIIB v. Zamora,[29] we even
observed that there was no such thing as an absolute right to hold
office. Except those who hold constitutional offices, which provide for
special immunity as regards salary and tenure, no one can be said to have
any vested right to an office or salary.[30]

This brings us to the second ground raised in the petition that


Executive Order No. 378, in allowing government agencies to secure their
printing requirements from the private sector and in limiting the budget of
the NPO to its income, will purportedly lead to the gradual abolition of the
NPO and the loss of security of tenure of its present employees. In other
words, petitioners avow that the reorganization of the NPO under Executive
Order No. 378 is tainted with bad faith. The basic evidentiary rule is that he
who asserts a fact or the affirmative of an issue has the burden of proving
it.[31]

A careful review of the records will show that petitioners utterly


failed to substantiate their claim. They failed to allege, much less prove,
sufficient facts to show that the limitation of the NPOs budget to its own
income would indeed lead to the abolition of the position, or removal from
office, of any employee. Neither did petitioners present any shred of proof
of their assertion that the changes in the functions of the NPO were for
political considerations that had nothing to do with improving the efficiency
of, or encouraging operational economy in, the said agency.

In sum, the Court finds that the petition failed to show any
constitutional infirmity or grave abuse of discretion amounting to lack or
excess of jurisdiction in President Arroyos issuance of Executive Order No.
378.

WHEREFORE, the petition is hereby DISMISSED and the prayer


for a Temporary Restraining Order and/or a Writ of Preliminary Injunction
is hereby DENIED. No costs.

SO ORDERED.

TERESITA J. LEONARDO-DE CASTRO


Associate Justice
WE CONCUR:

REYNATO S. PUNO
Chief Justice

ANTONIO T. CARPIO RENATO C. CORONA


Associate Justice Associate Justice

CONCHITA CARPIO MORALES PRESBITERO J. VELASCO, JR.


Associate Justice Associate Justice

ANTONIO EDUARDO B. NACHURA ARTURO D. BRION


Associate Justice Associate Justice

DIOSDADO M. PERALTA
Associate Justice LUCAS P. BERSAMIN
Associate Justice
On official leave
MARIANO C. DEL CASTILLO ROBERTO A. ABAD
Associate Justice Associate Justice

MARTIN S. VILLARAMA, JR. JOSE P. PEREZ


Associate Justice Associate Justice

JOSE C. MENDOZA
Associate Justice

CERTIFICATION

Pursuant to Section 13, Article VIII of the Constitution, I certify that the
conclusions in the above Decision had been reached in consultation before
the case was assigned to the writer of the opinion of the Court.

REYNATO S. PUNO
Chief Justice

*
On official leave.
[1]
ABOLISHING THE GENERAL SERVICES ADMINISTRATION AND TRANSFERRING ITS
FUNCTIONS TO APPROPRIATE GOVERNMENT AGENCIES.
[2]
328 Phil. 1187, 1204 (1996).
[3] 157 Phil. 551, 563-564 (1974).
[4]
Respondents Comment on the Manifestation of Desistance, rollo, p. 86.
[5]
Id. at 30-32.
[6]
Id. at 44.
[7]
444 Phil. 230, 257 (2003); citing 59 Am Jur 2d, 456 (1977).
[8]
12 Phil. 227, 241 (1908).
[9]
Rollo, p. 29.
[10]
Id. at 30-32.
[11]
DECLARING NATIONAL POLICY TO IMPLEMENT THE REFORMS MANDATED BY THE
PEOPLE, PROTECTING THEIR BASIC RIGHTS, ADOPTING A PROVISIONAL
CONSTITUTION, AND PROVIDING FOR AN ORDERLY TRANSITION TO A
GOVERNMENT UNDER A NEW CONSTITUTION.
[12]
413 Phil. 281 (2001).
[13]
Id. at 294-295.
[14]
Section 23, Chapter 8, Title II, Book III of the Administrative Code of 1987 provides:
Section 23. The Agencies under the Office of the President. - The agencies under the Office of the President
refer to those offices placed under the chairmanship of the President, those under the supervision
and control of the President, those under the administrative supervision of the Office of the
President, those attached to it for policy and program coordination, and those that are not placed
by law or order creating them under any specific department.
[15]
Subsequently, in order to harmonize Executive Order No. 378 with other executive issuances and laws
relating to the printing of government forms, President Arroyo, through the Executive Secretary,
issued Memorandum Circular No. 180 (dated August 13, 2009) to clarify the printing
responsibility of the NPO. The said issuance provided that the NPO had exclusive printing
jurisdiction over standard and accountable forms with money value and specialized accountable
forms, which may be contracted out to the NPOs accredited private security printers under the
guidelines therein provided. It also affirmed the NPOs exclusive jurisdiction over the printing of
election forms and public documents, such as the Official Gazette, General Appropriations Act,
Philippine Reports and development information materials of the Philippine Information Agency.
It is only with respect to other standard accountable forms and other government printing jobs that
private providers may be engaged in accordance with prescribed guidelines and upon written
waiver issued by the NPO.
[16]
G.R. No. 112745, October 16, 1997, 280 SCRA 713.
[17]
Id. at 729-730.
[18]
Supra note 12.
[19]
Republic Act 8760, signed into law on February 16, 2000.
[20]
Buklod ng Kawaning EIIB v. Zamora, supra note 12 at 293-294.
[21]
455 Phil. 761 (2003).
[22]
Id. at 775-772.
[23]
G.R. No. 167324, July 17, 2007, 527 SCRA 746.
[24]
Id. at 766-770.
[25]
G.R. No. 166052, August 29, 2007, 531 SCRA 583.
[26]
Id. at 596.
[27]
It is, however, highly debatable whether Executive Order No. 378 is a mere implementation of the
Government Procurement Reform Act, as Justice Carpio proposes, since there is nothing in the
said statute that authorizes modification of the functions or appropriations of an executive office
or agency.
[28]
G.R. Nos. 81954, 81967, 82023, 83737, 85310, 85335 and 86241, August 8, 1989, 176 SCRA 84, 127.
[29]
Supra note 12.
[30]
Id.
[31]
Eureka Personnel & Management Services, Inc. v. Valencia, G.R. No. 159358, July 15, 2009,
citing Republic v. Orbecido III, G.R. No. 154380, October 5, 2005, 472 SCRA 114; Noceda v.
Court of Appeals, 372 Phil. 383 (1999); Luxuria Homes, Inc. v. Court of Appeals, 361 Phil. 989
(1999).
Republic of the Philippines
SUPREME COURT
Manila

EN BANC

G.R. No. 92013 July 25, 1990

SALVADOR H. LAUREL, petitioner,


vs.
RAMON GARCIA, as head of the Asset Privatization Trust, RAUL MANGLAPUS, as
Secretary of Foreign Affairs, and CATALINO MACARAIG, as Executive
Secretary, respondents.

G.R. No. 92047 July 25, 1990

DIONISIO S. OJEDA, petitioner,


vs.
EXECUTIVE SECRETARY MACARAIG, JR., ASSETS PRIVATIZATION TRUST
CHAIRMAN RAMON T. GARCIA, AMBASSADOR RAMON DEL ROSARIO, et al., as
members of the PRINCIPAL AND BIDDING COMMITTEES ON THE
UTILIZATION/DISPOSITION PETITION OF PHILIPPINE GOVERNMENT PROPERTIES IN
JAPAN,respondents.

Arturo M. Tolentino for petitioner in 92013.

GUTIERREZ, JR., J.:

These are two petitions for prohibition seeking to enjoin respondents, their
representatives and agents from proceeding with the bidding for the sale of the 3,179
square meters of land at 306 Roppongi, 5-Chome Minato-ku Tokyo, Japan scheduled
on February 21, 1990. We granted the prayer for a temporary restraining order effective
February 20, 1990. One of the petitioners (in G.R. No. 92047) likewise prayes for a writ
of mandamus to compel the respondents to fully disclose to the public the basis of
their decision to push through with the sale of the Roppongi property inspire of strong
public opposition and to explain the proceedings which effectively prevent the
participation of Filipino citizens and entities in the bidding process.

The oral arguments in G.R. No. 92013, Laurel v. Garcia, et al. were heard by the Court
on March 13, 1990. After G.R. No. 92047, Ojeda v. Secretary Macaraig, et al. was filed,
the respondents were required to file a comment by the Court's resolution dated
February 22, 1990. The two petitions were consolidated on March 27, 1990 when the
memoranda of the parties in the Laurel case were deliberated upon.

The Court could not act on these cases immediately because the respondents filed a
motion for an extension of thirty (30) days to file comment in G.R. No. 92047, followed
by a second motion for an extension of another thirty (30) days which we granted on
May 8, 1990, a third motion for extension of time granted on May 24, 1990 and a fourth
motion for extension of time which we granted on June 5, 1990 but calling the attention
of the respondents to the length of time the petitions have been pending. After the
comment was filed, the petitioner in G.R. No. 92047 asked for thirty (30) days to file a
reply. We noted his motion and resolved to decide the two (2) cases.

The subject property in this case is one of the four (4) properties in Japan acquired by
the Philippine government under the Reparations Agreement entered into with Japan
on May 9, 1956, the other lots being:

(1) The Nampeidai Property at 11-24 Nampeidai-machi, Shibuya-ku, Tokyo which has
an area of approximately 2,489.96 square meters, and is at present the site of the
Philippine Embassy Chancery;

(2) The Kobe Commercial Property at 63 Naniwa-cho, Kobe, with an area of around
764.72 square meters and categorized as a commercial lot now being used as a
warehouse and parking lot for the consulate staff; and

(3) The Kobe Residential Property at 1-980-2 Obanoyama-cho, Shinohara, Nada-ku,


Kobe, a residential lot which is now vacant.

The properties and the capital goods and services procured from the Japanese
government for national development projects are part of the indemnification to the
Filipino people for their losses in life and property and their suffering during World War
II.

The Reparations Agreement provides that reparations valued at $550 million would be
payable in twenty (20) years in accordance with annual schedules of procurements to
be fixed by the Philippine and Japanese governments (Article 2, Reparations
Agreement). Rep. Act No. 1789, the Reparations Law, prescribes the national policy on
procurement and utilization of reparations and development loans. The procurements
are divided into those for use by the government sector and those for private parties in
projects as the then National Economic Council shall determine. Those intended for
the private sector shall be made available by sale to Filipino citizens or to one hundred
(100%) percent Filipino-owned entities in national development projects.

The Roppongi property was acquired from the Japanese government under the Second
Year Schedule and listed under the heading "Government Sector", through
Reparations Contract No. 300 dated June 27, 1958. The Roppongi property consists of
the land and building "for the Chancery of the Philippine Embassy" (Annex M-D to
Memorandum for Petitioner, p. 503). As intended, it became the site of the Philippine
Embassy until the latter was transferred to Nampeidai on July 22, 1976 when the
Roppongi building needed major repairs. Due to the failure of our government to
provide necessary funds, the Roppongi property has remained undeveloped since that
time.

A proposal was presented to President Corazon C. Aquino by former Philippine


Ambassador to Japan, Carlos J. Valdez, to make the property the subject of a lease
agreement with a Japanese firm - Kajima Corporation which shall construct two (2)
buildings in Roppongi and one (1) building in Nampeidai and renovate the present
Philippine Chancery in Nampeidai. The consideration of the construction would be the
lease to the foreign corporation of one (1) of the buildings to be constructed in
Roppongi and the two (2) buildings in Nampeidai. The other building in Roppongi shall
then be used as the Philippine Embassy Chancery. At the end of the lease period, all
the three leased buildings shall be occupied and used by the Philippine government.
No change of ownership or title shall occur. (See Annex "B" to Reply to Comment) The
Philippine government retains the title all throughout the lease period and thereafter.
However, the government has not acted favorably on this proposal which is pending
approval and ratification between the parties. Instead, on August 11, 1986, President
Aquino created a committee to study the disposition/utilization of Philippine
government properties in Tokyo and Kobe, Japan through Administrative Order No. 3,
followed by Administrative Orders Numbered 3-A, B, C and D.

On July 25, 1987, the President issued Executive Order No. 296 entitling non-Filipino
citizens or entities to avail of separations' capital goods and services in the event of
sale, lease or disposition. The four properties in Japan including the Roppongi were
specifically mentioned in the first "Whereas" clause.

Amidst opposition by various sectors, the Executive branch of the government has
been pushing, with great vigor, its decision to sell the reparations properties starting
with the Roppongi lot. The property has twice been set for bidding at a minimum floor
price of $225 million. The first bidding was a failure since only one bidder qualified. The
second one, after postponements, has not yet materialized. The last scheduled bidding
on February 21, 1990 was restrained by his Court. Later, the rules on bidding were
changed such that the $225 million floor price became merely a suggested floor price.

The Court finds that each of the herein petitions raises distinct issues. The petitioner in
G.R. No. 92013 objects to the alienation of the Roppongi property to anyone while the
petitioner in G.R. No. 92047 adds as a principal objection the alleged unjustified bias of
the Philippine government in favor of selling the property to non-Filipino citizens and
entities. These petitions have been consolidated and are resolved at the same time for
the objective is the same - to stop the sale of the Roppongi property.

The petitioner in G.R. No. 92013 raises the following issues:

(1) Can the Roppongi property and others of its kind be alienated by the Philippine
Government?; and

(2) Does the Chief Executive, her officers and agents, have the authority and
jurisdiction, to sell the Roppongi property?

Petitioner Dionisio Ojeda in G.R. No. 92047, apart from questioning the authority of the
government to alienate the Roppongi property assails the constitutionality of
Executive Order No. 296 in making the property available for sale to non-Filipino
citizens and entities. He also questions the bidding procedures of the Committee on
the Utilization or Disposition of Philippine Government Properties in Japan for being
discriminatory against Filipino citizens and Filipino-owned entities by denying them
the right to be informed about the bidding requirements.

II

In G.R. No. 92013, petitioner Laurel asserts that the Roppongi property and the related
lots were acquired as part of the reparations from the Japanese government for
diplomatic and consular use by the Philippine government. Vice-President Laurel
states that the Roppongi property is classified as one of public dominion, and not of
private ownership under Article 420 of the Civil Code (See infra).

The petitioner submits that the Roppongi property comes under "property intended for
public service" in paragraph 2 of the above provision. He states that being one of
public dominion, no ownership by any one can attach to it, not even by the State. The
Roppongi and related properties were acquired for "sites for chancery, diplomatic, and
consular quarters, buildings and other improvements" (Second Year Reparations
Schedule). The petitioner states that they continue to be intended for a necessary
service. They are held by the State in anticipation of an opportune use. (Citing 3
Manresa 65-66). Hence, it cannot be appropriated, is outside the commerce of man, or
to put it in more simple terms, it cannot be alienated nor be the subject matter of
contracts (Citing Municipality of Cavite v. Rojas, 30 Phil. 20 [1915]). Noting the non-use
of the Roppongi property at the moment, the petitioner avers that the same remains
property of public dominion so long as the government has not used it for other
purposes nor adopted any measure constituting a removal of its original purpose or
use.

The respondents, for their part, refute the petitioner's contention by saying that the
subject property is not governed by our Civil Code but by the laws of Japan where the
property is located. They rely upon the rule of lex situs which is used in determining
the applicable law regarding the acquisition, transfer and devolution of the title to a
property. They also invoke Opinion No. 21, Series of 1988, dated January 27, 1988 of
the Secretary of Justice which used the lex situs in explaining the inapplicability of
Philippine law regarding a property situated in Japan.

The respondents add that even assuming for the sake of argument that the Civil Code
is applicable, the Roppongi property has ceased to become property of public
dominion. It has become patrimonial property because it has not been used for public
service or for diplomatic purposes for over thirteen (13) years now (Citing Article 422,
Civil Code) and because the intention by the Executive Department and the
Congress to convert it to private use has been manifested by overt acts, such as,
among others: (1) the transfer of the Philippine Embassy to Nampeidai (2) the issuance
of administrative orders for the possibility of alienating the four government properties
in Japan; (3) the issuance of Executive Order No. 296; (4) the enactment by the
Congress of Rep. Act No. 6657 [the Comprehensive Agrarian Reform Law] on June 10,
1988 which contains a provision stating that funds may be taken from the sale of
Philippine properties in foreign countries; (5) the holding of the public bidding of the
Roppongi property but which failed; (6) the deferment by the Senate in Resolution No.
55 of the bidding to a future date; thus an acknowledgment by the Senate of the
government's intention to remove the Roppongi property from the public service
purpose; and (7) the resolution of this Court dismissing the petition in Ojeda v. Bidding
Committee, et al., G.R. No. 87478 which sought to enjoin the second bidding of the
Roppongi property scheduled on March 30, 1989.

III

In G.R. No. 94047, petitioner Ojeda once more asks this Court to rule on the
constitutionality of Executive Order No. 296. He had earlier filed a petition in G.R. No.
87478 which the Court dismissed on August 1, 1989. He now avers that the executive
order contravenes the constitutional mandate to conserve and develop the national
patrimony stated in the Preamble of the 1987 Constitution. It also allegedly violates:
(1) The reservation of the ownership and acquisition of alienable lands of the public
domain to Filipino citizens. (Sections 2 and 3, Article XII, Constitution; Sections 22 and
23 of Commonwealth Act 141). i t c-a sl

(2) The preference for Filipino citizens in the grant of rights, privileges and
concessions covering the national economy and patrimony (Section 10, Article VI,
Constitution);

(3) The protection given to Filipino enterprises against unfair competition and trade
practices;

(4) The guarantee of the right of the people to information on all matters of public
concern (Section 7, Article III, Constitution);

(5) The prohibition against the sale to non-Filipino citizens or entities not wholly owned
by Filipino citizens of capital goods received by the Philippines under the Reparations
Act (Sections 2 and 12 of Rep. Act No. 1789); and

(6) The declaration of the state policy of full public disclosure of all transactions
involving public interest (Section 28, Article III, Constitution).

Petitioner Ojeda warns that the use of public funds in the execution of an
unconstitutional executive order is a misapplication of public funds He states that
since the details of the bidding for the Roppongi property were never publicly
disclosed until February 15, 1990 (or a few days before the scheduled bidding), the
bidding guidelines are available only in Tokyo, and the accomplishment of
requirements and the selection of qualified bidders should be done in Tokyo,
interested Filipino citizens or entities owned by them did not have the chance to
comply with Purchase Offer Requirements on the Roppongi. Worse, the Roppongi
shall be sold for a minimum price of $225 million from which price capital gains tax
under Japanese law of about 50 to 70% of the floor price would still be deducted.

IV

The petitioners and respondents in both cases do not dispute the fact that the
Roppongi site and the three related properties were through reparations agreements,
that these were assigned to the government sector and that the Roppongi property
itself was specifically designated under the Reparations Agreement to house the
Philippine Embassy.

The nature of the Roppongi lot as property for public service is expressly spelled out. It
is dictated by the terms of the Reparations Agreement and the corresponding contract
of procurement which bind both the Philippine government and the Japanese
government.

There can be no doubt that it is of public dominion unless it is convincingly shown that
the property has become patrimonial. This, the respondents have failed to do.

As property of public dominion, the Roppongi lot is outside the commerce of man. It
cannot be alienated. Its ownership is a special collective ownership for general use
and enjoyment, an application to the satisfaction of collective needs, and resides in the
social group. The purpose is not to serve the State as a juridical person, but the
citizens; it is intended for the common and public welfare and cannot be the object of
appropration. (Taken from 3 Manresa, 66-69; cited in Tolentino, Commentaries on the
Civil Code of the Philippines, 1963 Edition, Vol. II, p. 26).

The applicable provisions of the Civil Code are:

ART. 419. Property is either of public dominion or of private ownership.

ART. 420. The following things are property of public dominion

(1) Those intended for public use, such as roads, canals, rivers, torrents, ports and
bridges constructed by the State, banks shores roadsteads, and others of similar
character;

(2) Those which belong to the State, without being for public use, and are intended for
some public service or for the development of the national wealth.

ART. 421. All other property of the State, which is not of the character stated in the
preceding article, is patrimonial property.

The Roppongi property is correctly classified under paragraph 2 of Article 420 of the
Civil Code as property belonging to the State and intended for some public service.

Has the intention of the government regarding the use of the property been changed
because the lot has been Idle for some years? Has it become patrimonial?

The fact that the Roppongi site has not been used for a long time for actual Embassy
service does not automatically convert it to patrimonial property. Any such conversion
happens only if the property is withdrawn from public use (Cebu Oxygen and
Acetylene Co. v. Bercilles, 66 SCRA 481 [1975]). A property continues to be part of the
public domain, not available for private appropriation or ownership until there is a
formal declaration on the part of the government to withdraw it from being such
(Ignacio v. Director of Lands, 108 Phil. 335 [1960]).

The respondents enumerate various pronouncements by concerned public officials


insinuating a change of intention. We emphasize, however, that an abandonment of the
intention to use the Roppongi property for public service and to make it patrimonial
property under Article 422 of the Civil Code must be definite Abandonment cannot be
inferred from the non-use alone specially if the non-use was attributable not to the
government's own deliberate and indubitable will but to a lack of financial support to
repair and improve the property (See Heirs of Felino Santiago v. Lazaro, 166 SCRA 368
[1988]). Abandonment must be a certain and positive act based on correct legal
premises.

A mere transfer of the Philippine Embassy to Nampeidai in 1976 is not relinquishment


of the Roppongi property's original purpose. Even the failure by the government to
repair the building in Roppongi is not abandonment since as earlier stated, there
simply was a shortage of government funds. The recent Administrative Orders
authorizing a study of the status and conditions of government properties in Japan
were merely directives for investigation but did not in any way signify a clear intention
to dispose of the properties.

Executive Order No. 296, though its title declares an "authority to sell", does not have a
provision in its text expressly authorizing the sale of the four properties procured from
Japan for the government sector. The executive order does not declare that the
properties lost their public character. It merely intends to make the
properties available to foreigners and not to Filipinos alone in case of a sale, lease or
other disposition. It merely eliminates the restriction under Rep. Act No. 1789 that
reparations goods may be sold only to Filipino citizens and one hundred (100%)
percent Filipino-owned entities. The text of Executive Order No. 296 provides:

Section 1. The provisions of Republic Act No. 1789, as amended, and of other laws to
the contrary notwithstanding, the above-mentioned properties can be made available
for sale, lease or any other manner of disposition to non-Filipino citizens or to entities
owned by non-Filipino citizens.

Executive Order No. 296 is based on the wrong premise or assumption that the
Roppongi and the three other properties were earlier converted into alienable real
properties. As earlier stated, Rep. Act No. 1789 differentiates the procurements for the
government sector and the private sector (Sections 2 and 12, Rep. Act No. 1789). Only
the private sector properties can be sold to end-users who must be Filipinos or entities
owned by Filipinos. It is this nationality provision which was amended by Executive
Order No. 296.

Section 63 (c) of Rep. Act No. 6657 (the CARP Law) which provides as one of the
sources of funds for its implementation, the proceeds of the disposition of the
properties of the Government in foreign countries, did not withdraw the Roppongi
property from being classified as one of public dominion when it mentions Philippine
properties abroad. Section 63 (c) refers to properties which are alienable and not to
those reserved for public use or service. Rep Act No. 6657, therefore, does not
authorize the Executive Department to sell the Roppongi property. It merely
enumerates possible sources of future funding to augment (as and when needed) the
Agrarian Reform Fund created under Executive Order No. 299. Obviously any property
outside of the commerce of man cannot be tapped as a source of funds.

The respondents try to get around the public dominion character of the Roppongi
property by insisting that Japanese law and not our Civil Code should apply.

It is exceedingly strange why our top government officials, of all people, should be the
ones to insist that in the sale of extremely valuable government property, Japanese law
and not Philippine law should prevail. The Japanese law - its coverage and effects,
when enacted, and exceptions to its provision is not presented to the Court It is
simply asserted that the lex loci rei sitae or Japanese law should apply without stating
what that law provides. It is a ed on faith that Japanese law would allow the sale.

We see no reason why a conflict of law rule should apply when no conflict of law
situation exists. A conflict of law situation arises only when: (1) There is a dispute over
the title or ownership of an immovable, such that the capacity to take and transfer
immovables, the formalities of conveyance, the essential validity and effect of the
transfer, or the interpretation and effect of a conveyance, are to be determined (See
Salonga, Private International Law, 1981 ed., pp. 377-383); and (2) A foreign law on land
ownership and its conveyance is asserted to conflict with a domestic law on the same
matters. Hence, the need to determine which law should apply.

In the instant case, none of the above elements exists.

The issues are not concerned with validity of ownership or title. There is no question
that the property belongs to the Philippines. The issue is the authority of the
respondent officials to validly dispose of property belonging to the State. And the
validity of the procedures adopted to effect its sale. This is governed by Philippine Law.
The rule of lex situs does not apply.

The assertion that the opinion of the Secretary of Justice sheds light on the relevance
of the lex situsrule is misplaced. The opinion does not tackle the alienability of the real
properties procured through reparations nor the existence in what body of the
authority to sell them. In discussing who are capableof acquiring the lots, the
Secretary merely explains that it is the foreign law which should determine who can
acquire the properties so that the constitutional limitation on acquisition of lands of
the public domain to Filipino citizens and entities wholly owned by Filipinos is
inapplicable. We see no point in belaboring whether or not this opinion is correct. Why
should we discuss who can acquire the Roppongi lot when there is no showing that it
can be sold?

The subsequent approval on October 4, 1988 by President Aquino of the


recommendation by the investigating committee to sell the Roppongi property was
premature or, at the very least, conditioned on a valid change in the public character of
the Roppongi property. Moreover, the approval does not have the force and effect of
law since the President already lost her legislative powers. The Congress had already
convened for more than a year.

Assuming for the sake of argument, however, that the Roppongi property is no longer
of public dominion, there is another obstacle to its sale by the respondents.

There is no law authorizing its conveyance.

Section 79 (f) of the Revised Administrative Code of 1917 provides

Section 79 (f ) Conveyances and contracts to which the Government is a party. In


cases in which the Government of the Republic of the Philippines is a party to any deed
or other instrument conveying the title to real estate or to any other property the value
of which is in excess of one hundred thousand pesos, the respective Department
Secretary shall prepare the necessary papers which, together with the proper
recommendations, shall be submitted to the Congress of the Philippines for approval
by the same. Such deed, instrument, or contract shall be executed and signed by the
President of the Philippines on behalf of the Government of the Philippines unless the
Government of the Philippines unless the authority therefor be expressly vested by law
in another officer. (Emphasis supplied)

The requirement has been retained in Section 48, Book I of the Administrative Code of
1987 (Executive Order No. 292).
SEC. 48. Official Authorized to Convey Real Property. Whenever real property of the
Government is authorized by law to be conveyed, the deed of conveyance shall be
executed in behalf of the government by the following:

(1) For property belonging to and titled in the name of the Republic of the Philippines,
by the President, unless the authority therefor is expressly vested by law in another
officer.

(2) For property belonging to the Republic of the Philippines but titled in the name of
any political subdivision or of any corporate agency or instrumentality, by the
executive head of the agency or instrumentality. (Emphasis supplied)

It is not for the President to convey valuable real property of the government on his or
her own sole will. Any such conveyance must be authorized and approved by a law
enacted by the Congress. It requires executive and legislative concurrence.

Resolution No. 55 of the Senate dated June 8, 1989, asking for the deferment of the sale
of the Roppongi property does not withdraw the property from public domain much
less authorize its sale. It is a mere resolution; it is not a formal declaration abandoning
the public character of the Roppongi property. In fact, the Senate Committee on
Foreign Relations is conducting hearings on Senate Resolution No. 734 which raises
serious policy considerations and calls for a fact-finding investigation of the
circumstances behind the decision to sell the Philippine government properties in
Japan.

The resolution of this Court in Ojeda v. Bidding Committee, et al., supra, did not pass
upon the constitutionality of Executive Order No. 296. Contrary to respondents'
assertion, we did not uphold the authority of the President to sell the Roppongi
property. The Court stated that the constitutionality of the executive order was not the
real issue and that resolving the constitutional question was "neither necessary nor
finally determinative of the case." The Court noted that "[W]hat petitioner ultimately
questions is the use of the proceeds of the disposition of the Roppongi property." In
emphasizing that "the decision of the Executive to dispose of the Roppongi property to
finance the CARP ... cannot be questioned" in view of Section 63 (c) of Rep. Act No.
6657, the Court did not acknowledge the fact that the property became alienable nor
did it indicate that the President was authorized to dispose of the Roppongi property.
The resolution should be read to mean that in case the Roppongi property is
re-classified to be patrimonial and alienable by authority of law, the proceeds of a sale
may be used for national economic development projects including the CARP.

Moreover, the sale in 1989 did not materialize. The petitions before us question the
proposed 1990 sale of the Roppongi property. We are resolving the issues raised in
these petitions, not the issues raised in 1989.

Having declared a need for a law or formal declaration to withdraw the Roppongi
property from public domain to make it alienable and a need for legislative authority to
allow the sale of the property, we see no compelling reason to tackle the constitutional
issues raised by petitioner Ojeda.

The Court does not ordinarily pass upon constitutional questions unless these
questions are properly raised in appropriate cases and their resolution is necessary for
the determination of the case (People v. Vera, 65 Phil. 56 [1937]). The Court will not
pass upon a constitutional question although properly presented by the record if the
case can be disposed of on some other ground such as the application of a statute or
general law (Siler v. Louisville and Nashville R. Co., 213 U.S. 175, [1909], Railroad
Commission v. Pullman Co., 312 U.S. 496 [1941]).

The petitioner in G.R. No. 92013 states why the Roppongi property should not be sold:

The Roppongi property is not just like any piece of property. It was given to the Filipino
people in reparation for the lives and blood of Filipinos who died and suffered during
the Japanese military occupation, for the suffering of widows and orphans who lost
their loved ones and kindred, for the homes and other properties lost by countless
Filipinos during the war. The Tokyo properties are a monument to the bravery and
sacrifice of the Filipino people in the face of an invader; like the monuments of Rizal,
Quezon, and other Filipino heroes, we do not expect economic or financial benefits
from them. But who would think of selling these monuments? Filipino honor and
national dignity dictate that we keep our properties in Japan as memorials to the
countless Filipinos who died and suffered. Even if we should become paupers we
should not think of selling them. For it would be as if we sold the lives and blood and
tears of our countrymen. (Rollo- G.R. No. 92013, p.147)

The petitioner in G.R. No. 92047 also states:

Roppongi is no ordinary property. It is one ceded by the Japanese government in


atonement for its past belligerence for the valiant sacrifice of life and limb and for
deaths, physical dislocation and economic devastation the whole Filipino people
endured in World War II.

It is for what it stands for, and for what it could never bring back to life, that its
significance today remains undimmed, inspire of the lapse of 45 years since the war
ended, inspire of the passage of 32 years since the property passed on to the
Philippine government.

Roppongi is a reminder that cannot should not be dissipated ... (Rollo-92047, p. 9)

It is indeed true that the Roppongi property is valuable not so much because of the
inflated prices fetched by real property in Tokyo but more so because of its symbolic
value to all Filipinos veterans and civilians alike. Whether or not the Roppongi and
related properties will eventually be sold is a policy determination where both the
President and Congress must concur. Considering the properties' importance and
value, the laws on conversion and disposition of property of public dominion must be
faithfully followed.

WHEREFORE, IN VIEW OF THE FOREGOING, the petitions are GRANTED. A writ of


prohibition is issued enjoining the respondents from proceeding with the sale of the
Roppongi property in Tokyo, Japan. The February 20, 1990 Temporary Restraining
Order is made PERMANENT.

SO ORDERED.

Melencio-Herrera, Paras, Bidin, Grio-Aquino and Regalado, JJ., concur.


Separate Opinions

CRUZ, J., concurring:

I concur completely with the excellent ponencia of Mr. Justice Gutierrez and will add
the following observations only for emphasis.

It is clear that the respondents have failed to show the President's legal authority to
sell the Roppongi property. When asked to do so at the hearing on these petitions, the
Solicitor General was at best ambiguous, although I must add in fairness that this was
not his fault. The fact is that there is -no such authority. Legal expertise alone cannot
conjure that statutory permission out of thin air.

Exec. Order No. 296, which reads like so much legislative, double talk, does not
contain such authority. Neither does Rep. Act No. 6657, which simply allows the
proceeds of the sale of our properties abroad to be used for the comprehensive
agrarian reform program. Senate Res. No. 55 was a mere request for the deferment of
the scheduled sale of tile Roppongi property, possibly to stop the transaction
altogether; and ill any case it is not a law. The sale of the said property may be
authorized only by Congress through a duly enacted statute, and there is no such law.

Once again, we have affirmed the principle that ours is a government of laws and not of
men, where every public official, from the lowest to the highest, can act only by virtue
of a valid authorization. I am happy to note that in the several cases where this Court
has ruled against her, the President of the Philippines has submitted to this principle
with becoming grace.

PADILLA, J., concurring:

I concur in the decision penned by Mr. Justice Gutierrez, Jr., I only wish to make a few
observations which could help in further clarifying the issues.

Under our tripartite system of government ordained by the Constitution, it is Congress


that lays down or determines policies. The President executes such policies. The
policies determined by Congress are embodied in legislative enactments that have to
be approved by the President to become law. The President, of course, recommends to
Congress the approval of policies but, in the final analysis, it is Congress that is the
policy - determining branch of government.

The judiciary interprets the laws and, in appropriate cases, determines whether the
laws enacted by Congress and approved by the President, and presidential acts
implementing such laws, are in accordance with the Constitution.
The Roppongi property was acquired by the Philippine government pursuant to the
reparations agreement between the Philippine and Japanese governments. Under such
agreement, this property was acquired by the Philippine government for a specific
purpose, namely, to serve as the site of the Philippine Embassy in Tokyo, Japan.
Consequently, Roppongi is a property of public dominion and intended for public
service, squarely falling within that class of property under Art. 420 of the Civil Code,
which provides:

Art. 420. The following things are property of public dominion :

(1) ...

(2) Those which belong to the State, without being for public use, and are intended for
some public service or for the development of the national wealth. (339a)

Public dominion property intended for public service cannot be alienated unless the
property is first transformed into private property of the state otherwise known as
patrimonial property of the state. 1 The transformation of public dominion property to
state patrimonial property involves, to my mind, a policy decision. It is a policy decision
because the treatment of the property varies according to its classification. Consequently,
it is Congress which can decide and declare the conversion of Roppongi from a public
dominion property to a state patrimonial property. Congress has made no such decision or
declaration.

Moreover, the sale of public property (once converted from public dominion to state
patrimonial property) must be approved by Congress, for this again is a matter of
policy (i.e. to keep or dispose of the property). Sec. 48, Book 1 of the Administrative
Code of 1987 provides:

SEC. 48. Official Authorized to Convey Real Property. Whenever real property of the
Government is authorized by law to be conveyed, the deed of conveyance shall be
executed in behalf of the government by the following:

(1) For property belonging to and titled in the name of the Republic of the Philippines,
by the President, unless the authority therefor is expressly vested by law in another
officer.

(2) For property belonging to the Republic of the Philippines but titled in the name of
any political subdivision or of any corporate agency or instrumentality, by the
executive head of the agency or instrumentality. (Emphasis supplied)

But the record is bare of any congressional decision or approval to sell Roppongi. The
record is likewise bare of any congressional authority extended to the President to sell
Roppongi thru public bidding or otherwise.

It is therefore, clear that the President cannot sell or order the sale of Roppongi thru
public bidding or otherwise without a prior congressional approval, first, converting
Roppongi from a public dominion property to a state patrimonial property, and, second,
authorizing the President to sell the same.

ACCORDINGLY, my vote is to GRANT the petition and to make PERMANENT the


temporary restraining order earlier issued by this Court.
SARMIENTO, J., concurring:

The central question, as I see it, is whether or not the so-called "Roppongi property'
has lost its nature as property of public dominion, and hence, has become patrimonial
property of the State. I understand that the parties are agreed that it was property
intended for "public service" within the contemplation of paragraph (2), of Article 430,
of the Civil Code, and accordingly, land of State dominion, and beyond human
commerce. The lone issue is, in the light of supervening developments, that is
non-user thereof by the National Government (for diplomatic purposes) for the last
thirteen years; the issuance of Executive Order No. 296 making it available for sale to
any interested buyer; the promulgation of Republic Act No. 6657, the Comprehensive
Agrarian Reform Law, making available for the program's financing, State assets sold;
the approval by the President of the recommendation of the investigating committee
formed to study the property's utilization; and the issuance of Resolution No. 55 of the
Philippine Senate requesting for the deferment of its disposition it, "Roppongi", is still
property of the public dominion, and if it is not, how it lost that character.

When land of the public dominion ceases to be one, or when the change takes place, is
a question our courts have debated early. In a 1906 decision, 1 it was held that property
of the public dominion, a public plaza in this instance, becomes patrimonial upon use
thereof for purposes other than a plaza. In a later case, 2 this ruling was reiterated. Likewise,
it has been held that land, originally private property, has become of public dominion upon
its donation to the town and its conversion and use as a public plaza. 3 It is notable that
under these three cases, the character of the property, and any change occurring therein,
depends on the actual use to which it is dedicated. 4

Much later, however, the Court held that "until a formal declaration on the part of the
Government, through the executive department or the Legislative, to the effect that the
land . . . is no longer needed for [public] service- for public use or for special industries,
[it] continue[s] to be part of the public [dominion], not available for private
expropriation or ownership." 5 So also, it was ruled that a political subdivision (the City of
Cebu in this case) alone may declare (under its charter) a city road abandoned and
thereafter, to dispose of it. 6

In holding that there is "a need for a law or formal declaration to withdraw the
Roppongi property from public domain to make it alienable and a land for legislative
authority to allow the sale of the property" 7the majority lays stress to the fact that: (1) An
affirmative act executive or legislative is necessary to reclassify property of the public
dominion, and (2) a legislative decree is required to make it alienable. It also clears the
uncertainties brought about by earlier interpretations that the nature of property-whether
public or patrimonial is predicated on the manner it is actually used, or not used, and in the
same breath, repudiates the Government's position that the continuous non-use of
"Roppongi", among other arguments, for "diplomatic purposes", has turned it into State
patrimonial property.

I feel that this view corresponds to existing pronouncements of this Court, among
other things, that: (1) Property is presumed to be State property in the absence of any
showing to the contrary; 8 (2) With respect to forest lands, the same continue to be lands
of the public dominion unless and until reclassified by the Executive Branch of the
Government; 9 and (3) All natural resources, under the Constitution, and subject to
exceptional cases, belong to the State. 10
I am elated that the Court has banished previous uncertainties.

FELICIANO, J., dissenting

With regret, I find myself unable to share the conclusions reached by Mr. Justice Hugo
E. Gutierrez, Jr.

For purposes of this separate opinion, I assume that the piece of land located in 306
Roppongi, 5-Chome, Minato-ku Tokyo, Japan (hereinafter referred to as the "Roppongi
property") may be characterized as property of public dominion, within the meaning of
Article 420 (2) of the Civil Code:

[Property] which belong[s] to the State, without being for public use, and are intended
for some public service -.

It might not be amiss however, to note that the appropriateness of trying to bring within
the confines of the simple threefold classification found in Article 420 of the Civil Code
("property for public use property "intended for some public service" and property
intended "for the development of the national wealth") all property owned by the
Republic of the Philippines whether found within the territorial boundaries of the
Republic or located within the territory of another sovereign State, is not self-evident.
The first item of the classification property intended for public use can scarcely be
properly applied to property belonging to the Republic but found within the territory of
another State. The third item of the classification property intended for the
development of the national wealth is illustrated, in Article 339 of the Spanish Civil
Code of 1889, by mines or mineral properties. Again, mineral lands owned by a
sovereign State are rarely, if ever, found within the territorial base of another sovereign
State. The task of examining in detail the applicability of the classification set out in
Article 420 of our Civil Code to property that the Philippines happens to own outside its
own boundaries must, however, be left to academicians.

For present purposes, too, I agree that there is no question of conflict of laws that is, at
the present time, before this Court. The issues before us relate essentially to authority
to sell the Roppongi property so far as Philippine law is concerned.

The majority opinion raises two (2) issues: (a) whether or not the Roppongi property
has been converted into patrimonial property or property of the private domain of the
State; and (b) assuming an affirmative answer to (a), whether or not there is legal
authority to dispose of the Roppongi property.

Addressing the first issue of conversion of property of public dominion intended for
some public service, into property of the private domain of the Republic, it should be
noted that the Civil Code does not address the question of who has authority to effect
such conversion. Neither does the Civil Code set out or refer to any procedure for such
conversion.
Our case law, however, contains some fairly explicit pronouncements on this point, as
Justice Sarmiento has pointed out in his concurring opinion. In Ignacio v. Director of
Lands (108 Phils. 335 [1960]), petitioner Ignacio argued that if the land in question
formed part of the public domain, the trial court should have declared the same no
longer necessary for public use or public purposes and which would, therefore, have
become disposable and available for private ownership. Mr. Justice Montemayor,
speaking for the Court, said:

Article 4 of the Law of Waters of 1866 provides that when a portion of the shore is no
longer washed by the waters of the sea and is not necessary for purposes of public
utility, or for the establishment of special industries, or for coast-guard service, the
government shall declare it to be the property of the owners of the estates adjacent
thereto and as an increment thereof. We believe that only the executive and possibly
the legislative departments have the authority and the power to make the
declaration that any land so gained by the sea, is not necessary for purposes of public
utility, or for the establishment of special industries, or for coast-guard service. If no
such declaration has been made by said departments, the lot in question forms part of
the public domain. (Natividad v. Director of Lands, supra.)

The reason for this pronouncement, according to this Tribunal in the case of Vicente
Joven y Monteverde v. Director of Lands, 93 Phil., 134 (cited in Velayo's Digest, Vol. 1,
p. 52).

... is undoubtedly that the courts are neither primarily called upon, nor indeed in a
position to determine whether any public land are to be used for the purposes
specified in Article 4 of the Law of Waters. Consequently, until a formal declaration on
the part of the Government, through the executive department or the Legislature, to the
effect that the land in question is no longer needed for coast-guard service, for public
use or for special industries, they continue to be part of the public domain not available
for private appropriation or ownership.(108 Phil. at 338-339; emphasis supplied)

Thus, under Ignacio, either the Executive Department or the Legislative


Department may convert property of the State of public dominion into patrimonial
property of the State. No particular formula or procedure of conversion is specified
either in statute law or in case law. Article 422 of the Civil Code simply states that:
"Property of public dominion, when no longer intended for public use or for public
service, shall form part of the patrimonial property of the State". I respectfully submit,
therefore, that the only requirement which is legitimately imposable is that the intent to
convert must be reasonably clear from a consideration of the acts or acts of the
Executive Department or of the Legislative Department which are said to have effected
such conversion.

The same legal situation exists in respect of conversion of property of public dominion
belonging to municipal corporations, i.e., local governmental units, into patrimonial
property of such entities. In CebuOxygen Acetylene v. Bercilles (66 SCRA 481 [1975]),
the City Council of Cebu by resolution declared a certain portion of an existing street
as an abandoned road, "the same not being included in the city development plan".
Subsequently, by another resolution, the City Council of Cebu authorized the acting
City Mayor to sell the land through public bidding. Although there was no formal and
explicit declaration of conversion of property for public use into patrimonial
property, the Supreme Court said:
xxx xxx xxx

(2) Since that portion of the city street subject of petitioner's application for
registration of title was withdrawn from public use, it follows that such withdrawn
portion becomes patrimonial property which can be the object of an ordinary contract.

Article 422 of the Civil Code expressly provides that "Property of public dominion,
when no longer intended for public use of for public service, shall form part of the
patrimonial property of the State."

Besides, the Revised Charter of the City of Cebu heretofore quoted, in very clear and
unequivocal terms, states that "Property thus withdrawn from public servitude may be
used or conveyed for any purpose for which other real property belonging to the City
may be lawfully used or conveyed."

Accordingly, the withdrawal of the property in question from public use and its
subsequent sale to the petitioner is valid. Hence, the petitioner has a registrable title
over the lot in question. (66 SCRA at 484-; emphasis supplied)

Thus, again as pointed out by Sarmiento J., in his separate opinion, in the case of
property owned by municipal corporations simple non-use or the actual dedication of
public property to some use other than "public use" or some "public service", was
sufficient legally to convert such property into patrimonial property (Municipality of
Oas v. Roa, 7 Phil. 20 [1906]- Municipality of Hinunganan v. Director of Lands 24 Phil.
124 [1913]; Province of Zamboanga del Norte v. City of Zamboanga, 22 SCRA 1334
(1968).

I would also add that such was the case not only in respect of' property of municipal
corporations but also in respect of property of the State itself. Manresa in commenting
on Article 341 of the 1889 Spanish Civil Code which has been carried
over verbatim into our Civil Code by Article 422 thereof, wrote:

La dificultad mayor en todo esto estriba, naturalmente, en fijar el momento en que los
bienes de dominio publico dejan de serlo. Si la Administracion o la autoridad
competente legislative realizan qun acto en virtud del cual cesa el destino o uso
publico de los bienes de que se trata naturalmente la dificultad queda desde el primer
momento resuelta. Hay un punto de partida cierto para iniciar las relaciones juridicas a
que pudiera haber lugar Pero puede ocurrir que no haya taldeclaracion expresa,
legislativa or administrativa, y, sin embargo, cesar de hecho el destino publico de los
bienes; ahora bien, en este caso, y para los efectos juridicos que resultan de entrar la
cosa en el comercio de los hombres,' se entedera que se ha verificado la conversion
de los bienes patrimoniales?

El citado tratadista Ricci opina, respecto del antiguo Codigo italiano, por la afirmativa,
y por nuestra parte creemos que tal debe ser la soluciion. El destino de las cosas no
depende tanto de una declaracion expresa como del uso publico de las mismas, y
cuanda el uso publico cese con respecto de determinados bienes, cesa tambien su
situacion en el dominio publico. Si una fortaleza en ruina se abandona y no se repara,
si un trozo de la via publica se abandona tambien por constituir otro nuevo an mejores
condiciones....ambos bienes cesan de estar Codigo, y leyes especiales mas o memos
administrativas. (3 Manresa, Comentarios al Codigo Civil Espanol, p. 128 [7a ed.; 1952)
(Emphasis supplied)
The majority opinion says that none of the executive acts pointed to by the
Government purported, expressly or definitely, to convert the Roppongi property into
patrimonial property of the Republic. Assuming that to be the case, it is respectfully
submitted that cumulative effect of the executive acts here involved was to convert
property originally intended for and devoted to public service into patrimonial property
of the State, that is, property susceptible of disposition to and appropration by private
persons. These executive acts, in their totality if not each individual act, make crystal
clear the intent of the Executive Department to effect such conversion. These
executive acts include:

(a) Administrative Order No. 3 dated 11 August 1985, which created a Committee to
study the disposition/utilization of the Government's property in Japan, The Committee
was composed of officials of the Executive Department: the Executive Secretary; the
Philippine Ambassador to Japan; and representatives of the Department of Foreign
Affairs and the Asset Privatization Trust. On 19 September 1988, the Committee
recommended to the President the sale of one of the lots (the lot specifically in
Roppongi) through public bidding. On 4 October 1988, the President approved the
recommendation of the Committee.

On 14 December 1988, the Philippine Government by diplomatic note informed the


Japanese Ministry of Foreign Affairs of the Republic's intention to dispose of the
property in Roppongi. The Japanese Government through its Ministry of Foreign
Affairs replied that it interposed no objection to such disposition by the Republic.
Subsequently, the President and the Committee informed the leaders of the House of
Representatives and of the Senate of the Philippines of the proposed disposition of the
Roppongi property.

(b) Executive Order No. 296, which was issued by the President on 25 July 1987.
Assuming that the majority opinion is right in saying that Executive Order No. 296 is
insufficient to authorize the sale of the Roppongi property, it is here submitted with
respect that Executive Order No. 296 is more than sufficient to indicate an intention to
convert the property previously devoted to public service into patrimonial property
that is capable of being sold or otherwise disposed of

(c) Non-use of the Roppongi lot for fourteen (14) years for diplomatic or for any other
public purposes. Assuming (but only arguendo) that non-use does not, by itself,
automatically convert the property into patrimonial property. I respectfully urge that
prolonged non-use, conjoined with the other factors here listed, was legally effective to
convert the lot in Roppongi into patrimonial property of the State. Actually, as already
pointed out, case law involving property of municipal corporations is to the effect that
simple non-use or the actual dedication of public property to some use other than
public use or public service, was sufficient to convert such property into patrimonial
property of the local governmental entity concerned. Also as pointed out above,
Manresa reached the same conclusion in respect of conversion of property of the
public domain of the State into property of the private domain of the State.

The majority opinion states that "abandonment cannot be inferred from the non-use
alone especially if the non-use was attributable not to the Government's own deliberate
and indubitable will but to lack of financial support to repair and improve the property"
(Majority Opinion, p. 13). With respect, it may be stressed that there is no abandonment
involved here, certainly no abandonment of property or of property rights. What is
involved is the charge of the classification of the property from property of the public
domain into property of the private domain of the State. Moreover, if for fourteen (14)
years, the Government did not see fit to appropriate whatever funds were necessary to
maintain the property in Roppongi in a condition suitable for diplomatic representation
purposes, such circumstance may, with equal logic, be construed as a manifestation of
the crystalizing intent to change the character of the property.

(d) On 30 March 1989, a public bidding was in fact held by the Executive Department for
the sale of the lot in Roppongi. The circumstance that this bidding was not successful
certainly does not argue against an intent to convert the property involved into
property that is disposable by bidding.

The above set of events and circumstances makes no sense at all if it does not, as a
whole, show at least the intent on the part of the Executive Department (with the
knowledge of the Legislative Department) to convert the property involved into
patrimonial property that is susceptible of being sold.

II

Having reached an affirmative answer in respect of the first issue, it is necessary to


address the second issue of whether or not there exists legal authority for the sale or
disposition of the Roppongi property.

The majority opinion refers to Section 79(f) of the Revised Administrative Code of 1917
which reads as follows:

SEC. 79 (f). Conveyances and contracts to which the Government is a party. In cases
in which the Government of the Republic of the Philippines is a party to any deed or
other instrument conveying the title to real estate or to any other property the value of
which is in excess of one hundred thousand pesos, the respective Department
Secretary shall prepare the necessary papers which, together with the proper
recommendations, shall be submitted to the Congress of the Philippines for approval
by the same. Such deed, instrument, or contract shall be executed and signed by the
President of the Philippines on behalf of the Government of the Philippines unless the
authority therefor be expressly vested by law in another officer. (Emphasis supplied)

The majority opinion then goes on to state that: "[T]he requirement has been
retained in Section 4, Book I of the Administrative Code of 1987 (Executive Order No.
292)" which reads:

SEC. 48. Official Authorized to Convey Real Property. Whenever real property of the
Government is authorized by law to be conveyed, the deed of conveyance shall be
executed in behalf of the government by the following:

(1) For property belonging to and titled in the name of the Republic of the Philippines,
by the President, unless the authority therefor is expressly vested by law in another
officer.

(2) For property belonging to the Republic of the Philippines but titled in the name of
any political subdivision or of any corporate agency or instrumentality, by the
executive head of the agency or instrumentality. (Emphasis supplied)
Two points need to be made in this connection. Firstly, the requirement of obtaining
specific approval of Congress when the price of the real property being disposed of is
in excess of One Hundred Thousand Pesos (P100,000.00) under the Revised
Administrative Code of 1917, has been deleted from Section 48 of the 1987
Administrative Code. What Section 48 of the present Administrative Code refers to
isauthorization by law for the conveyance. Section 48 does not purport to be itself a
source of legal authority for conveyance of real property of the Government. For
Section 48 merely specifies the official authorized to execute and sign on behalf of the
Government the deed of conveyance in case of such a conveyance.

Secondly, examination of our statute books shows that authorization by law for
disposition of real property of the private domain of the Government, has been granted
by Congress both in the form of (a) a general, standing authorization for disposition of
patrimonial property of the Government; and (b) specific legislation authorizing the
disposition of particular pieces of the Government's patrimonial property.

Standing legislative authority for the disposition of land of the private domain of the
Philippines is provided by Act No. 3038, entitled "An Act Authorizing the Secretary of
Agriculture and Natural Resources to Sell or Lease Land of the Private Domain of the
Government of the Philippine Islands (now Republic of the Philippines)", enacted on 9
March 1922. The full text of this statute is as follows:

Be it enacted by the Senate and House of Representatives of the Philippines in


Legislature assembled and by the authority of the same:

SECTION 1. The Secretary of Agriculture and Natural Resources (now Secretary of the
Environment and Natural Resources) is hereby authorized to sell or lease land of the
private domain of the Government of the Philippine Islands, or any part thereof, to such
persons, corporations or associations as are, under the provisions of Act Numbered
Twenty-eight hundred and seventy-four, (now Commonwealth Act No. 141, as amended)
known as the Public Land Act, entitled to apply for the purchase or lease or agricultural
public land.

SECTION 2. The sale of the land referred to in the preceding section shall, if such land
is agricultural, be made in the manner and subject to the limitations prescribed in
chapters five and six, respectively, of said Public Land Act, and if it be classified
differently, in conformity with the provisions of chapter nine of said Act: Provided,
however, That the land necessary for the public service shall be exempt from the
provisions of this Act.

SECTION 3. This Act shall take effect on its approval.

Approved, March 9, 1922. (Emphasis supplied)

Lest it be assumed that Act No. 3038 refers only to agricultural lands of the private
domain of the State, it must be noted that Chapter 9 of the old Public Land Act (Act No.
2874) is now Chapter 9 of the present Public Land Act (Commonwealth Act No. 141, as
amended) and that both statutes refer to: "any tract of land of the public domain which
being neither timber nor mineral land, is intended to be used forresidential purposes or
for commercial or industrial purposes other than agricultural" (Emphasis supplied). In
it c-a sl

other words, the statute covers the sale or lease or residential, commercial or
industrial land of the private domain of the State.
Implementing regulations have been issued for the carrying out of the provisions of
Act No. 3038. On 21 December 1954, the then Secretary of Agriculture and Natural
Resources promulgated Lands Administrative Orders Nos. 7-6 and 7-7 which were
entitled, respectively: "Supplementary Regulations Governing the Sale of the Lands of
the Private Domain of the Republic of the Philippines"; and "Supplementary
Regulations Governing the Lease of Lands of Private Domain of the Republic of the
Philippines" (text in 51 O.G. 28-29 [1955]).

It is perhaps well to add that Act No. 3038, although now sixty-eight (68) years old, is
still in effect and has not been repealed. 1

Specific legislative authorization for disposition of particular patrimonial properties of


the State is illustrated by certain earlier statutes. The first of these was Act No. 1120,
enacted on 26 April 1904, which provided for the disposition of the friar lands,
purchased by the Government from the Roman Catholic Church, to bona fide settlers
and occupants thereof or to other persons. In Jacinto v. Director of Lands(49 Phil. 853
[1926]), these friar lands were held to be private and patrimonial properties of the State.
Act No. 2360, enacted on -28 February 1914, authorized the sale of the San Lazaro
Estate located in the City of Manila, which had also been purchased by the Government
from the Roman Catholic Church. In January 1916, Act No. 2555 amended Act No. 2360
by including therein all lands and buildings owned by the Hospital and the Foundation
of San Lazaro theretofor leased by private persons, and which were also acquired by
the Philippine Government.

After the enactment in 1922 of Act No. 3038, there appears, to my knowledge, to be only
one statute authorizing the President to dispose of a specific piece of property. This
statute is Republic Act No. 905, enacted on 20 June 1953, which authorized the

President to sell an Identified parcel of land of the private domain of the National
Government to the National Press Club of the Philippines, and to other recognized
national associations of professionals with academic standing, for the nominal price of
P1.00. It appears relevant to note that Republic Act No. 905 was not an outright
disposition in perpetuity of the property involved- it provided for reversion of the
property to the National Government in case the National Press Club stopped using it
for its headquarters. What Republic Act No. 905 authorized was really a donation, and
not a sale.

The basic submission here made is that Act No. 3038 provides standing legislative
authorization for disposition of the Roppongi property which, in my view, has been
converted into patrimonial property of the Republic. 2

To some, the submission that Act No. 3038 applies not only to lands of the private
domain of the State located in the Philippines but also to patrimonial property found
outside the Philippines, may appear strange or unusual. I respectfully submit that such
position is not any more unusual or strange than the assumption that Article 420 of the
Civil Code applies not only to property of the Republic located within Philippine
territory but also to property found outside the boundaries of the Republic.

It remains to note that under the well-settled doctrine that heads of Executive
Departments are alter egosof the President (Villena v. Secretary of the Interior, 67 Phil.
451 [1939]), and in view of the constitutional power of control exercised by the
President over department heads (Article VII, Section 17,1987 Constitution), the
President herself may carry out the function or duty that is specifically lodged in the
Secretary of the Department of Environment and Natural Resources (Araneta v.
Gatmaitan 101 Phil. 328 [1957]). At the very least, the President retains the power to
approve or disapprove the exercise of that function or duty when done by the
Secretary of Environment and Natural Resources.

It is hardly necessary to add that the foregoing analyses and submissions relate only
to the austere question of existence of legal power or authority. They have nothing to
do with much debated questions of wisdom or propriety or relative desirability either of
the proposed disposition itself or of the proposed utilization of the anticipated
proceeds of the property involved. These latter types of considerations He within the
sphere of responsibility of the political departments of government the Executive and
the Legislative authorities.

For all the foregoing, I vote to dismiss the Petitions for Prohibition in both G.R. Nos.
92013 and 92047.

Fernan, C.J., Narvasa, Gancayco, Cortes and Medialdea, JJ., concurring.

Separate Opinions

CRUZ, J., concurring:

I concur completely with the excellent ponencia of Mr. Justice Gutierrez and will add
the following observations only for emphasis.

It is clear that the respondents have failed to show the President's legal authority to
sell the Roppongi property. When asked to do so at the hearing on these petitions, the
Solicitor General was at best ambiguous, although I must add in fairness that this was
not his fault. The fact is that there is -no such authority. Legal expertise alone cannot
conjure that statutory permission out of thin air.

Exec. Order No. 296, which reads like so much legislative, double talk, does not
contain such authority. Neither does Rep. Act No. 6657, which simply allows the
proceeds of the sale of our properties abroad to be used for the comprehensive
agrarian reform program. Senate Res. No. 55 was a mere request for the deferment of
the scheduled sale of tile Roppongi property, possibly to stop the transaction
altogether; and ill any case it is not a law. The sale of the said property may be
authorized only by Congress through a duly enacted statute, and there is no such law.

Once again, we have affirmed the principle that ours is a government of laws and not of
men, where every public official, from the lowest to the highest, can act only by virtue
of a valid authorization. I am happy to note that in the several cases where this Court
has ruled against her, the President of the Philippines has submitted to this principle
with becoming grace.
PADILLA, J., concurring:

I concur in the decision penned by Mr. Justice Gutierrez, Jr., I only wish to make a few
observations which could help in further clarifying the issues.

Under our tripartite system of government ordained by the Constitution, it is Congress


that lays down or determines policies. The President executes such policies. The
policies determined by Congress are embodied in legislative enactments that have to
be approved by the President to become law. The President, of course, recommends to
Congress the approval of policies but, in the final analysis, it is Congress that is the
policy - determining branch of government.

The judiciary interprets the laws and, in appropriate cases, determines whether the
laws enacted by Congress and approved by the President, and presidential acts
implementing such laws, are in accordance with the Constitution.

The Roppongi property was acquired by the Philippine government pursuant to the
reparations agreement between the Philippine and Japanese governments. Under such
agreement, this property was acquired by the Philippine government for a specific
purpose, namely, to serve as the site of the Philippine Embassy in Tokyo, Japan.
Consequently, Roppongi is a property of public dominion and intended for public
service, squarely falling within that class of property under Art. 420 of the Civil Code,
which provides:

Art. 420. The following things are property of public dominion :

(1) ...

(2) Those which belong to the State, without being for public use, and are intended for
some public service or for the development of the national wealth. (339a)

Public dominion property intended for public service cannot be alienated unless the
property is first transformed into private property of the state otherwise known as
patrimonial property of the state. 1 The transformation of public dominion property to
state patrimonial property involves, to my mind, a policy decision. It is a policy decision
because the treatment of the property varies according to its classification. Consequently,
it is Congress which can decide and declare the conversion of Roppongi from a public
dominion property to a state patrimonial property. Congress has made no such decision or
declaration.

Moreover, the sale of public property (once converted from public dominion to state
patrimonial property) must be approved by Congress, for this again is a matter of
policy (i.e. to keep or dispose of the property). Sec. 48, Book 1 of the Administrative
Code of 1987 provides:

SEC. 48. Official Authorized to Convey Real Property. Whenever real property of the
Government is authorized by law to be conveyed, the deed of conveyance shall be
executed in behalf of the government by the following:

(1) For property belonging to and titled in the name of the Republic of the Philippines,
by the President, unless the authority therefor is expressly vested by law in another
officer.
(2) For property belonging to the Republic of the Philippines but titled in the name of
any political subdivision or of any corporate agency or instrumentality, by the
executive head of the agency or instrumentality. (Emphasis supplied)

But the record is bare of any congressional decision or approval to sell Roppongi. The
record is likewise bare of any congressional authority extended to the President to sell
Roppongi thru public bidding or otherwise.

It is therefore, clear that the President cannot sell or order the sale of Roppongi thru
public bidding or otherwise without a prior congressional approval, first, converting
Roppongi from a public dominion property to a state patrimonial property, and, second,
authorizing the President to sell the same.

ACCORDINGLY, my vote is to GRANT the petition and to make PERMANENT the


temporary restraining order earlier issued by this Court.

SARMIENTO, J., concurring:

The central question, as I see it, is whether or not the so-called "Roppongi property'
has lost its nature as property of public dominion, and hence, has become patrimonial
property of the State. I understand that the parties are agreed that it was property
intended for "public service" within the contemplation of paragraph (2), of Article 430,
of the Civil Code, and accordingly, land of State dominion, and beyond human
commerce. The lone issue is, in the light of supervening developments, that is
non-user thereof by the National Government (for diplomatic purposes) for the last
thirteen years; the issuance of Executive Order No. 296 making it available for sale to
any interested buyer; the promulgation of Republic Act No. 6657, the Comprehensive
Agrarian Reform Law, making available for the program's financing, State assets sold;
the approval by the President of the recommendation of the investigating committee
formed to study the property's utilization; and the issuance of Resolution No. 55 of the
Philippine Senate requesting for the deferment of its disposition it, "Roppongi", is still
property of the public dominion, and if it is not, how it lost that character.

When land of the public dominion ceases to be one, or when the change takes place, is
a question our courts have debated early. In a 1906 decision, 1 it was held that property
of the public dominion, a public plaza in this instance, becomes patrimonial upon use
thereof for purposes other than a plaza. In a later case, 2 this ruling was reiterated. Likewise,
it has been held that land, originally private property, has become of public dominion upon
its donation to the town and its conversion and use as a public plaza. 3 It is notable that
under these three cases, the character of the property, and any change occurring therein,
depends on the actual use to which it is dedicated. 4

Much later, however, the Court held that "until a formal declaration on the part of the
Government, through the executive department or the Legislative, to the effect that the
land . . . is no longer needed for [public] service- for public use or for special industries,
[it] continue[s] to be part of the public [dominion], not available for private
expropriation or ownership." 5 So also, it was ruled that a political subdivision (the City of
Cebu in this case) alone may declare (under its charter) a city road abandoned and
thereafter, to dispose of it. 6
In holding that there is "a need for a law or formal declaration to withdraw the
Roppongi property from public domain to make it alienable and a land for legislative
authority to allow the sale of the property" 7the majority lays stress to the fact that: (1) An
affirmative act executive or legislative is necessary to reclassify property of the public
dominion, and (2) a legislative decree is required to make it alienable. It also clears the
uncertainties brought about by earlier interpretations that the nature of property-whether
public or patrimonial is predicated on the manner it is actually used, or not used, and in the
same breath, repudiates the Government's position that the continuous non-use of
"Roppongi", among other arguments, for "diplomatic purposes", has turned it into State
patrimonial property.

I feel that this view corresponds to existing pronouncements of this Court, among
other things, that: (1) Property is presumed to be State property in the absence of any
showing to the contrary; 8 (2) With respect to forest lands, the same continue to be lands
of the public dominion unless and until reclassified by the Executive Branch of the
Government; 9 and (3) All natural resources, under the Constitution, and subject to
exceptional cases, belong to the State. 10

I am elated that the Court has banished previous uncertainties.

FELICIANO, J., dissenting

With regret, I find myself unable to share the conclusions reached by Mr. Justice Hugo
E. Gutierrez, Jr.

For purposes of this separate opinion, I assume that the piece of land located in 306
Roppongi, 5-Chome, Minato-ku Tokyo, Japan (hereinafter referred to as the "Roppongi
property") may be characterized as property of public dominion, within the meaning of
Article 420 (2) of the Civil Code:

[Property] which belong[s] to the State, without being for public use, and are intended
for some public service -.

It might not be amiss however, to note that the appropriateness of trying to bring within
the confines of the simple threefold classification found in Article 420 of the Civil Code
("property for public use property "intended for some public service" and property
intended "for the development of the national wealth") all property owned by the
Republic of the Philippines whether found within the territorial boundaries of the
Republic or located within the territory of another sovereign State, is not self-evident.
The first item of the classification property intended for public use can scarcely be
properly applied to property belonging to the Republic but found within the territory of
another State. The third item of the classification property intended for the
development of the national wealth is illustrated, in Article 339 of the Spanish Civil
Code of 1889, by mines or mineral properties. Again, mineral lands owned by a
sovereign State are rarely, if ever, found within the territorial base of another sovereign
State. The task of examining in detail the applicability of the classification set out in
Article 420 of our Civil Code to property that the Philippines happens to own outside its
own boundaries must, however, be left to academicians.
For present purposes, too, I agree that there is no question of conflict of laws that is, at
the present time, before this Court. The issues before us relate essentially to authority
to sell the Roppongi property so far as Philippine law is concerned.

The majority opinion raises two (2) issues: (a) whether or not the Roppongi property
has been converted into patrimonial property or property of the private domain of the
State; and (b) assuming an affirmative answer to (a), whether or not there is legal
authority to dispose of the Roppongi property.

Addressing the first issue of conversion of property of public dominion intended for
some public service, into property of the private domain of the Republic, it should be
noted that the Civil Code does not address the question of who has authority to effect
such conversion. Neither does the Civil Code set out or refer to any procedure for such
conversion.

Our case law, however, contains some fairly explicit pronouncements on this point, as
Justice Sarmiento has pointed out in his concurring opinion. In Ignacio v. Director of
Lands (108 Phils. 335 [1960]), petitioner Ignacio argued that if the land in question
formed part of the public domain, the trial court should have declared the same no
longer necessary for public use or public purposes and which would, therefore, have
become disposable and available for private ownership. Mr. Justice Montemayor,
speaking for the Court, said:

Article 4 of the Law of Waters of 1866 provides that when a portion of the shore is no
longer washed by the waters of the sea and is not necessary for purposes of public
utility, or for the establishment of special industries, or for coast-guard service, the
government shall declare it to be the property of the owners of the estates adjacent
thereto and as an increment thereof. We believe that only the executive and possibly
the legislative departments have the authority and the power to make the
declaration that any land so gained by the sea, is not necessary for purposes of public
utility, or for the establishment of special industries, or for coast-guard service. If no
such declaration has been made by said departments, the lot in question forms part of
the public domain. (Natividad v. Director of Lands, supra.)

The reason for this pronouncement, according to this Tribunal in the case of Vicente
Joven y Monteverde v. Director of Lands, 93 Phil., 134 (cited in Velayo's Digest, Vol. 1,
p. 52).

... is undoubtedly that the courts are neither primarily called upon, nor indeed in a
position to determine whether any public land are to be used for the purposes
specified in Article 4 of the Law of Waters. Consequently, until a formal declaration on
the part of the Government, through the executive department or the Legislature, to the
effect that the land in question is no longer needed for coast-guard service, for public
use or for special industries, they continue to be part of the public domain not available
for private appropriation or ownership.(108 Phil. at 338-339; emphasis supplied)

Thus, under Ignacio, either the Executive Department or the Legislative


Department may convert property of the State of public dominion into patrimonial
property of the State. No particular formula or procedure of conversion is specified
either in statute law or in case law. Article 422 of the Civil Code simply states that:
"Property of public dominion, when no longer intended for public use or for public
service, shall form part of the patrimonial property of the State". I respectfully submit,
therefore, that the only requirement which is legitimately imposable is that the intent to
convert must be reasonably clear from a consideration of the acts or acts of the
Executive Department or of the Legislative Department which are said to have effected
such conversion.

The same legal situation exists in respect of conversion of property of public dominion
belonging to municipal corporations, i.e., local governmental units, into patrimonial
property of such entities. In CebuOxygen Acetylene v. Bercilles (66 SCRA 481 [1975]),
the City Council of Cebu by resolution declared a certain portion of an existing street
as an abandoned road, "the same not being included in the city development plan".
Subsequently, by another resolution, the City Council of Cebu authorized the acting
City Mayor to sell the land through public bidding. Although there was no formal and
explicit declaration of conversion of property for public use into patrimonial
property, the Supreme Court said:

xxx xxx xxx

(2) Since that portion of the city street subject of petitioner's application for
registration of title was withdrawn from public use, it follows that such withdrawn
portion becomes patrimonial property which can be the object of an ordinary contract.

Article 422 of the Civil Code expressly provides that "Property of public dominion,
when no longer intended for public use of for public service, shall form part of the
patrimonial property of the State."

Besides, the Revised Charter of the City of Cebu heretofore quoted, in very clear and
unequivocal terms, states that "Property thus withdrawn from public servitude may be
used or conveyed for any purpose for which other real property belonging to the City
may be lawfully used or conveyed."

Accordingly, the withdrawal of the property in question from public use and its
subsequent sale to the petitioner is valid. Hence, the petitioner has a registrable title
over the lot in question. (66 SCRA at 484-; emphasis supplied)

Thus, again as pointed out by Sarmiento J., in his separate opinion, in the case of
property owned by municipal corporations simple non-use or the actual dedication of
public property to some use other than "public use" or some "public service", was
sufficient legally to convert such property into patrimonial property (Municipality of
Oas v. Roa, 7 Phil. 20 [1906]- Municipality of Hinunganan v. Director of Lands 24 Phil.
124 [1913]; Province of Zamboanga del Norte v. City of Zamboanga, 22 SCRA 1334
(1968).

I would also add that such was the case not only in respect of' property of municipal
corporations but also in respect of property of the State itself. Manresa in commenting
on Article 341 of the 1889 Spanish Civil Code which has been carried
over verbatim into our Civil Code by Article 422 thereof, wrote:

La dificultad mayor en todo esto estriba, naturalmente, en fijar el momento en que los
bienes de dominio publico dejan de serlo. Si la Administracion o la autoridad
competente legislative realizan qun acto en virtud del cual cesa el destino o uso
publico de los bienes de que se trata naturalmente la dificultad queda desde el primer
momento resuelta. Hay un punto de partida cierto para iniciar las relaciones juridicas a
que pudiera haber lugar Pero puede ocurrir que no haya taldeclaracion expresa,
legislativa or administrativa, y, sin embargo, cesar de hecho el destino publico de los
bienes; ahora bien, en este caso, y para los efectos juridicos que resultan de entrar la
cosa en el comercio de los hombres,' se entedera que se ha verificado la conversion
de los bienes patrimoniales?

El citado tratadista Ricci opina, respecto del antiguo Codigo italiano, por la afirmativa,
y por nuestra parte creemos que tal debe ser la soluciion. El destino de las cosas no
depende tanto de una declaracion expresa como del uso publico de las mismas, y
cuanda el uso publico cese con respecto de determinados bienes, cesa tambien su
situacion en el dominio publico. Si una fortaleza en ruina se abandona y no se repara,
si un trozo de la via publica se abandona tambien por constituir otro nuevo an mejores
condiciones....ambos bienes cesan de estar Codigo, y leyes especiales mas o memos
administrativas. (3 Manresa, Comentarios al Codigo Civil Espanol, p. 128 [7a ed.; 1952)
(Emphasis supplied)

The majority opinion says that none of the executive acts pointed to by the
Government purported, expressly or definitely, to convert the Roppongi property into
patrimonial property of the Republic. Assuming that to be the case, it is respectfully
submitted that cumulative effect of the executive acts here involved was to convert
property originally intended for and devoted to public service into patrimonial property
of the State, that is, property susceptible of disposition to and appropration by private
persons. These executive acts, in their totality if not each individual act, make crystal
clear the intent of the Executive Department to effect such conversion. These
executive acts include:

(a) Administrative Order No. 3 dated 11 August 1985, which created a Committee to
study the disposition/utilization of the Government's property in Japan, The Committee
was composed of officials of the Executive Department: the Executive Secretary; the
Philippine Ambassador to Japan; and representatives of the Department of Foreign
Affairs and the Asset Privatization Trust. On 19 September 1988, the Committee
recommended to the President the sale of one of the lots (the lot specifically in
Roppongi) through public bidding. On 4 October 1988, the President approved the
recommendation of the Committee.

On 14 December 1988, the Philippine Government by diplomatic note informed the


Japanese Ministry of Foreign Affairs of the Republic's intention to dispose of the
property in Roppongi. The Japanese Government through its Ministry of Foreign
Affairs replied that it interposed no objection to such disposition by the Republic.
Subsequently, the President and the Committee informed the leaders of the House of
Representatives and of the Senate of the Philippines of the proposed disposition of the
Roppongi property.

(b) Executive Order No. 296, which was issued by the President on 25 July 1987.
Assuming that the majority opinion is right in saying that Executive Order No. 296 is
insufficient to authorize the sale of the Roppongi property, it is here submitted with
respect that Executive Order No. 296 is more than sufficient to indicate an intention to
convert the property previously devoted to public service into patrimonial property
that is capable of being sold or otherwise disposed of
(c) Non-use of the Roppongi lot for fourteen (14) years for diplomatic or for any other
public purposes. Assuming (but only arguendo) that non-use does not, by itself,
automatically convert the property into patrimonial property. I respectfully urge that
prolonged non-use, conjoined with the other factors here listed, was legally effective to
convert the lot in Roppongi into patrimonial property of the State. Actually, as already
pointed out, case law involving property of municipal corporations is to the effect that
simple non-use or the actual dedication of public property to some use other than
public use or public service, was sufficient to convert such property into patrimonial
property of the local governmental entity concerned. Also as pointed out above,
Manresa reached the same conclusion in respect of conversion of property of the
public domain of the State into property of the private domain of the State.

The majority opinion states that "abandonment cannot be inferred from the non-use
alone especially if the non-use was attributable not to the Government's own deliberate
and indubitable will but to lack of financial support to repair and improve the property"
(Majority Opinion, p. 13). With respect, it may be stressed that there is no abandonment
involved here, certainly no abandonment of property or of property rights. What is
involved is the charge of the classification of the property from property of the public
domain into property of the private domain of the State. Moreover, if for fourteen (14)
years, the Government did not see fit to appropriate whatever funds were necessary to
maintain the property in Roppongi in a condition suitable for diplomatic representation
purposes, such circumstance may, with equal logic, be construed as a manifestation of
the crystalizing intent to change the character of the property.

(d) On 30 March 1989, a public bidding was in fact held by the Executive Department for
the sale of the lot in Roppongi. The circumstance that this bidding was not successful
certainly does not argue against an intent to convert the property involved into
property that is disposable by bidding.

The above set of events and circumstances makes no sense at all if it does not, as a
whole, show at least the intent on the part of the Executive Department (with the
knowledge of the Legislative Department) to convert the property involved into
patrimonial property that is susceptible of being sold.

II

Having reached an affirmative answer in respect of the first issue, it is necessary to


address the second issue of whether or not there exists legal authority for the sale or
disposition of the Roppongi property.

The majority opinion refers to Section 79(f) of the Revised Administrative Code of 1917
which reads as follows:

SEC. 79 (f). Conveyances and contracts to which the Government is a party. In cases
in which the Government of the Republic of the Philippines is a party to any deed or
other instrument conveying the title to real estate or to any other property the value of
which is in excess of one hundred thousand pesos, the respective Department
Secretary shall prepare the necessary papers which, together with the proper
recommendations, shall be submitted to the Congress of the Philippines for approval
by the same. Such deed, instrument, or contract shall be executed and signed by the
President of the Philippines on behalf of the Government of the Philippines unless the
authority therefor be expressly vested by law in another officer. (Emphasis supplied)
The majority opinion then goes on to state that: "[T]he requirement has been
retained in Section 4, Book I of the Administrative Code of 1987 (Executive Order No.
292)" which reads:

SEC. 48. Official Authorized to Convey Real Property. Whenever real property of the
Government is authorized by law to be conveyed, the deed of conveyance shall be
executed in behalf of the government by the following:

(1) For property belonging to and titled in the name of the Republic of the Philippines,
by the President, unless the authority therefor is expressly vested by law in another
officer.

(2) For property belonging to the Republic of the Philippines but titled in the name of
any political subdivision or of any corporate agency or instrumentality, by the
executive head of the agency or instrumentality. (Emphasis supplied)

Two points need to be made in this connection. Firstly, the requirement of obtaining
specific approval of Congress when the price of the real property being disposed of is
in excess of One Hundred Thousand Pesos (P100,000.00) under the Revised
Administrative Code of 1917, has been deleted from Section 48 of the 1987
Administrative Code. What Section 48 of the present Administrative Code refers to
isauthorization by law for the conveyance. Section 48 does not purport to be itself a
source of legal authority for conveyance of real property of the Government. For
Section 48 merely specifies the official authorized to execute and sign on behalf of the
Government the deed of conveyance in case of such a conveyance.

Secondly, examination of our statute books shows that authorization by law for
disposition of real property of the private domain of the Government, has been granted
by Congress both in the form of (a) a general, standing authorization for disposition of
patrimonial property of the Government; and (b) specific legislation authorizing the
disposition of particular pieces of the Government's patrimonial property.

Standing legislative authority for the disposition of land of the private domain of the
Philippines is provided by Act No. 3038, entitled "An Act Authorizing the Secretary of
Agriculture and Natural Resources to Sell or Lease Land of the Private Domain of the
Government of the Philippine Islands (now Republic of the Philippines)", enacted on 9
March 1922. The full text of this statute is as follows:

Be it enacted by the Senate and House of Representatives of the Philippines in


Legislature assembled and by the authority of the same:

SECTION 1. The Secretary of Agriculture and Natural Resources (now Secretary of the
Environment and Natural Resources) is hereby authorized to sell or lease land of the
private domain of the Government of the Philippine Islands, or any part thereof, to such
persons, corporations or associations as are, under the provisions of Act Numbered
Twenty-eight hundred and seventy-four, (now Commonwealth Act No. 141, as amended)
known as the Public Land Act, entitled to apply for the purchase or lease or agricultural
public land.

SECTION 2. The sale of the land referred to in the preceding section shall, if such land
is agricultural, be made in the manner and subject to the limitations prescribed in
chapters five and six, respectively, of said Public Land Act, and if it be classified
differently, in conformity with the provisions of chapter nine of said Act: Provided,
however, That the land necessary for the public service shall be exempt from the
provisions of this Act.

SECTION 3. This Act shall take effect on its approval.

Approved, March 9, 1922. (Emphasis supplied)

Lest it be assumed that Act No. 3038 refers only to agricultural lands of the private
domain of the State, it must be noted that Chapter 9 of the old Public Land Act (Act No.
2874) is now Chapter 9 of the present Public Land Act (Commonwealth Act No. 141, as
amended) and that both statutes refer to: "any tract of land of the public domain which
being neither timber nor mineral land, is intended to be used forresidential purposes or
for commercial or industrial purposes other than agricultural" (Emphasis supplied). In
other words, the statute covers the sale or lease or residential, commercial or
industrial land of the private domain of the State.

Implementing regulations have been issued for the carrying out of the provisions of
Act No. 3038. On 21 December 1954, the then Secretary of Agriculture and Natural
Resources promulgated Lands Administrative Orders Nos. 7-6 and 7-7 which were
entitled, respectively: "Supplementary Regulations Governing the Sale of the Lands of
the Private Domain of the Republic of the Philippines"; and "Supplementary
Regulations Governing the Lease of Lands of Private Domain of the Republic of the
Philippines" (text in 51 O.G. 28-29 [1955]).

It is perhaps well to add that Act No. 3038, although now sixty-eight (68) years old, is
still in effect and has not been repealed. 1

Specific legislative authorization for disposition of particular patrimonial properties of


the State is illustrated by certain earlier statutes. The first of these was Act No. 1120,
enacted on 26 April 1904, which provided for the disposition of the friar lands,
purchased by the Government from the Roman Catholic Church, to bona fide settlers
and occupants thereof or to other persons. In Jacinto v. Director of Lands(49 Phil. 853
[1926]), these friar lands were held to be private and patrimonial properties of the State.
Act No. 2360, enacted on -28 February 1914, authorized the sale of the San Lazaro
Estate located in the City of Manila, which had also been purchased by the Government
from the Roman Catholic Church. In January 1916, Act No. 2555 amended Act No. 2360
by including therein all lands and buildings owned by the Hospital and the Foundation
of San Lazaro theretofor leased by private persons, and which were also acquired by
the Philippine Government.

After the enactment in 1922 of Act No. 3038, there appears, to my knowledge, to be only
one statute authorizing the President to dispose of a specific piece of property. This
statute is Republic Act No. 905, enacted on 20 June 1953, which authorized the

President to sell an Identified parcel of land of the private domain of the National
Government to the National Press Club of the Philippines, and to other recognized
national associations of professionals with academic standing, for the nominal price of
P1.00. It appears relevant to note that Republic Act No. 905 was not an outright
disposition in perpetuity of the property involved- it provided for reversion of the
property to the National Government in case the National Press Club stopped using it
for its headquarters. What Republic Act No. 905 authorized was really a donation, and
not a sale.

The basic submission here made is that Act No. 3038 provides standing legislative
authorization for disposition of the Roppongi property which, in my view, has been
converted into patrimonial property of the Republic. 2

To some, the submission that Act No. 3038 applies not only to lands of the private
domain of the State located in the Philippines but also to patrimonial property found
outside the Philippines, may appear strange or unusual. I respectfully submit that such
position is not any more unusual or strange than the assumption that Article 420 of the
Civil Code applies not only to property of the Republic located within Philippine
territory but also to property found outside the boundaries of the Republic.

It remains to note that under the well-settled doctrine that heads of Executive
Departments are alter egosof the President (Villena v. Secretary of the Interior, 67 Phil.
451 [1939]), and in view of the constitutional power of control exercised by the
President over department heads (Article VII, Section 17,1987 Constitution), the
President herself may carry out the function or duty that is specifically lodged in the
Secretary of the Department of Environment and Natural Resources (Araneta v.
Gatmaitan 101 Phil. 328 [1957]). At the very least, the President retains the power to
approve or disapprove the exercise of that function or duty when done by the
Secretary of Environment and Natural Resources.

It is hardly necessary to add that the foregoing analyses and submissions relate only
to the austere question of existence of legal power or authority. They have nothing to
do with much debated questions of wisdom or propriety or relative desirability either of
the proposed disposition itself or of the proposed utilization of the anticipated
proceeds of the property involved. These latter types of considerations He within the
sphere of responsibility of the political departments of government the Executive and
the Legislative authorities.

For all the foregoing, I vote to dismiss the Petitions for Prohibition in both G.R. Nos.
92013 and 92047.

Fernan, C.J., Narvasa, Gancayco, Cortes and Medialdea, JJ., concurring.

Footnotes

Padilla, J.

1 Art. 422 of the Civil Code provides:

"Property of public dominion, when no longer intended for public use or public service,
shall form part of the patrimonial property of the State. (341a)

Sarmiento, J.

1 Municipality of Oas v. Roa, 7 Phil. 20 (1906).


2 Municipality of Hinunangan v. Director of Lands, 24 Phil. 124 (11913). The property
involved here was a fortress.

3 Harty v. Municipality of Victoria, 13 Phil. 152 (1909).

4 See also II TOLENTINO, CIVIL CODE OF THE PHILIPPINES 39 (1972 ed.), citing 3
Manresa III. See also Province of Zamboanga del Norte v. City of Zamboanga, No.
L-24440, March 28, 1968, 22 SCRA 1334.

5 Ignacio v. Director of Lands, 108 Phil. 335, 339 (1960).

6 Cebu Oxygen & Acetylene Co., Inc. vs. Bercilles, No. L-40474, August 29, 1975, 66
SCRA 481.

7 G.R. Nos. 92013 & 92047, 21.

8 Salas v. Jarencio, No. L-29788, August 30, 1972, 46 SCRA 734; Rabuco v. Villegas,
No.
L-24916, February 28, 1974, 55 SCRA 658.

9 See Lianga Bay Logging Co., Inc. v. Lopez Enage, No. L-30637, July 16, 1987, 152
SCRA 80.

10 CONST., art. XII, sec. 2.

Feliciano, J.

1 We are orally advised by the Office of the Director of Lands that Act No. 3038 is very
much in effect and that the Bureau of Lands continues to date to act under it. See also,
in this connection, Sections 2 and 4 of Republic Act No. 477, enacted 9 June 1950 and
as last amended by B.P. Blg 233. This statute government the disposition of lands of
the public domain and of the private domain of the State, including lands previously
vested in the United States Alien Property Custodian and transferred to the Republic of
the Philippines.

2 Since Act No. 3038 established certain qualifications for applicants for purchase or
lease of land of private domain of the government, it is relevant to note that Executive
Order No. 296, promulgated at a time when the President was still exercising legislative
authority, provides as follows:

"Sec. 1. The provisions of Republic Act No. 1789, as amended, and of other laws, to the
contrary notwithstanding, the above mentioned properties can be made available for
sale, lease or any other manner of disposition to non-Filipino citizens." (Emphasis
supplied)
SUPREME COURT
Manila
EN BANC

G.R. No. 180046


REVIEW CENTER ASSOCIATION
Present:
OF THE PHILIPPINES,
Petitioner, PUNO, C.J.,
QUISUMBING,
YNARES-SANTIAGO,
- versus - CARPIO,
AUSTRIA-MARTINEZ,
EXECUTIVE SECRETARY CORONA,
EDUARDO ERMITA and CARPIO MORALES,
COMMISSION ON HIGHER TINGA,
EDUCATION represented by its CHICO-NAZARIO,
Chairman ROMULO L. NERI, VELASCO, JR.,
Respondents. NACHURA,
LEONARDO-DE CASTRO,
BRION, and
CPA REVIEW SCHOOL OF THE PERALTA, JJ.
PHILIPPINES, INC. (CPAR),
PROFESSIONAL REVIEW AND
TRAINING CENTER, INC. (PRTC),
ReSA REVIEW SCHOOL, INC.
(ReSA), CRC-ACE REVIEW
SCHOOL, INC. (CRC-ACE),
Petitioners-Intervenors. Promulgated:
April 2, 2009
PIMSAT COLLEGES,
Respondent-Intervenor.
x--------------------------------------------------x
DECISION

CARPIO, J.:
The Case

Before the Court is a petition for prohibition and mandamus assailing


Executive Order No. 566 (EO 566)[1] and Commission on Higher Education
(CHED) Memorandum Order No. 30, series of 2007 (RIRR).[2]

The Antecedent Facts

On 11 and 12 June 2006, the Professional Regulation Commission (PRC)


conducted the Nursing Board Examinations nationwide. In June 2006,
licensure applicants wrote the PRC to report that handwritten copies of two
sets of examinations were circulated during the examination period among
the examinees reviewing at the R.A. Gapuz Review Center and Inress
Review Center. George Cordero, Inress Review Centers President, was then
the incumbent President of the Philippine Nurses Association. The
examinees were provided with a list of 500 questions and answers in two of
the examinations five subjects, particularly Tests III (Psychiatric Nursing)
and V (Medical-Surgical Nursing). The PRC later admitted the leakage and
traced it to two Board of Nursing members.[3] On 19 June 2006, the PRC
released the results of the Nursing Board Examinations. On 18 August 2006,
the Court of Appeals restrained the PRC from proceeding with the
oath-taking of the successful examinees set on 22 August 2006.

Consequently, President Gloria Macapagal-Arroyo (President Arroyo)


replaced all the members of the PRCs Board of Nursing. President Arroyo
also ordered the examinees to re-take the Nursing Board Examinations.

On 8 September 2006, President Arroyo issued EO 566 which authorized the


CHED to supervise the establishment and operation of all review centers and
similar entities in the Philippines.
On 3 November 2006, the CHED, through its then Chairman Carlito S. Puno
(Chairman Puno), approved CHED Memorandum Order No. 49, series of
2006 (IRR).[4]

In a letter dated 24 November 2006,[5] the Review Center Association of the


Philippines (petitioner), an organization of independent review centers,
asked the CHED to amend, if not withdraw the IRR arguing, among other
things, that giving permits to operate a review center to Higher Education
Institutions (HEIs) or consortia of HEIs and professional organizations will
effectively abolish independent review centers.

In a letter dated 3 January 2007,[6] Chairman Puno wrote petitioner, through


its President Jose Antonio Fudolig (Fudolig), that to suspend the
implementation of the IRR would be inconsistent with the mandate of EO
566. Chairman Puno wrote that the IRR was presented to the stakeholders
during a consultation process prior to its finalization and publication on 13
November 2006. Chairman Puno also wrote that petitioners comments and
suggestions would be considered in the event of revisions to the IRR.

In view of petitioners continuing request to suspend and re-evaluate the IRR,


Chairman Puno, in a letter dated 9 February 2007,[7] invited petitioners
representatives to a dialogue on 14 March 2007. In accordance with what
was agreed upon during the dialogue, petitioner submitted to the CHED its
position paper on the IRR. Petitioner also requested the CHED to confirm in
writing Chairman Punos statements during the dialogue, particularly on
lowering of the registration fee from P400,000 to P20,000 and the
requirement for reviewers to have five years teaching experience instead of
five years administrative experience. Petitioner likewise requested for a
categorical answer to their request for the suspension of the IRR. The CHED
did not reply to the letter.

On 7 May 2007, the CHED approved the RIRR. On 22 August 2007,


petitioner filed before the CHED a Petition to Clarify/Amend Revised
Implementing Rules and Regulations[8] praying for a ruling:
1. Amending the RIRR by excluding independent review
centers from the coverage of the CHED;

2. Clarifying the meaning of the requirement for existing review


centers to tie-up or be integrated with HEIs, consortium or HEIs
and PRC-recognized professional associations with recognized
programs, or in the alternative, to convert into schools; and

3. Revising the rules to make it conform with Republic Act No.


7722 (RA 7722)[9] limiting the CHEDs coverage to public and
private institutions of higher education as well as
degree-granting programs in post-secondary educational
institutions.

On 8 October 2007, the CHED issued Resolution No. 718-2007[10] referring


petitioners request to exclude independent review centers from CHEDs
supervision and regulation to the Office of the President as the matter
requires the amendment of EO 566. In a letter dated 17 October
2007,[11] then CHED Chairman Romulo L. Neri (Chairman Neri) wrote
petitioner regarding its petition to be excluded from the coverage of the
CHED in the RIRR. Chairman Neri stated:

While it may be true that regulation of review centers is not one of the
mandates of CHED under Republic Act 7722, however, on September 8,
2006, Her Excellency, President Gloria Macapagal-Arroyo, issued
Executive Order No. 566 directing the Commission on Higher Education
to regulate the establishment and operation of review centers and similar
entities in the entire country.

With the issuance of the aforesaid Executive Order, the CHED now is the
agency that is mandated to regulate the establishment and operation of all
review centers as provided for under Section 4 of the Executive Order
which provides that No review center or similar entities shall be
established and/or operate review classes without the favorable expressed
indorsement of the CHED and without the issuance of the necessary
permits or authorizations to conduct review classes. x x x

To exclude the operation of independent review centers from the


coverage of CHED would clearly contradict the intention of the said
Executive Order No. 566.
Considering that the requests requires the amendment of Executive Order
No. 566, the Commission, during its 305th Commission Meeting, resolved
that the said request be directly referred to the Office of the President for
appropriate action.

As to the request to clarify what is meant by tie-up/be integrated with an


HEI, as required under the Revised Implementing Rules and Regulations,
tie-up/be integrated simply means, to be in partner with an
HEI.[12] (Boldfacing and underscoring in the original)

On 26 October 2007, petitioner filed a petition for Prohibition and


Mandamus before this Court praying for the annulment of the RIRR,
the declaration of EO 566 as invalid and unconstitutional, and the
prohibition against CHED from implementing the RIRR.

Dr. Freddie T. Bernal, Director III, Officer-In-Charge, Office of the Director


IV of CHED, sent a letter[13] to the President of Northcap Review Center,
Inc., a member of petitioner, that it had until 27 November 2007 to comply
with the RIRR.

On 15 February 2008,[14] PIMSAT Colleges (respondent-intervenor) filed a


Motion For Leave to Intervene and To Admit Comment-in-Intervention and
a Comment-in-Intervention praying for the dismissal of the
petition. Respondent-intervenor alleges that the Office of the President and
the CHED did not commit any act of grave abuse of discretion in issuing EO
566 and the RIRR. Respondent-intervenor alleges that the requirements of
the RIRR are reasonable, doable, and are not designed to deprive existing
review centers of their review business. The Court granted the Motion for
Leave to Intervene and to Admit Comment-in-Intervention in its 11 March
2008 Resolution.[15]

On 23 April 2008, a Motion for Leave of Court for Intervention In Support


of the Petition and a Petition In Intervention were filed by CPA Review
School of the Philippines, Inc. (CPAR), Professional Review and Training
Center, Inc. (PRTC), ReSA Review School, Inc. (ReSA), CRC-ACE Review
School, Inc. (CRC-ACE), all independent CPA review centers operating in
Manila (collectively, petitioners-intervenors). Petitioners-intervenors pray
for the declaration of EO 566 and the RIRR as invalid on the ground that
both constitute an unconstitutional exercise of legislative power. The Court
granted the intervention in its 29 April 2008 Resolution.[16]

On 21 May 2008, the CHED issued CHED Memorandum Order No. 21,
Series of 2008 (CMO 21, s. 2008)[17] extending the deadline for six months
from 27 May 2008 for all existing independent review centers to tie-up or be
integrated with HEIs in accordance with the RIRR.

In its 25 November 2008 Resolution, this Court resolved to require the


parties to observe the status quo prevailing before the issuance of EO 566,
the RIRR, and CMO 21, s. 2008.

The Assailed Executive Order and the RIRR

Executive Order No. 566 states in full:

EXECUTIVE ORDER NO. 566

DIRECTING THE COMMISSION ON HIGHER EDUCATION TO


REGULATE THE ESTABLISHMENT AND OPERATION OF REVIEW
CENTERS AND SIMILAR ENTITIES

WHEREAS, the State is mandated to protect the right of all citizens to


quality education at all levels and shall take appropriate steps to make
education accessible to all, pursuant to Section 1, Article XIV of the 1987
Constitution;

WHEREAS, the State has the obligation to ensure and promote quality
education through the proper supervision and regulation of the licensure
examinations given through the various Boards of Examiners under the
Professional Regulation Commission;

WHEREAS, the lack of regulatory framework for the establishment and


operation of review centers and similar entities, as shown in recent events,
have adverse consequences and affect public interest and welfare;

WHEREAS, the overriding necessity to protect the public against


substandard review centers and unethical practices committed by some
review centers demand that a regulatory framework for the establishment
and operation of review centers and similar entities be immediately
instituted;

WHEREAS, Republic Act No. 7722, otherwise known as the Higher


Education Act of 1994, created the Commission on Higher Education,
which is best equipped to carry out the provisions pertaining to the
regulation of the establishment and operation of review centers and similar
entities.

NOW, THEREFORE, I, GLORIA MACAPAGAL-ARROYO, the


President of the Republic of the Philippines, by virtue of the powers vested
in me by law, do hereby order:

SECTION 1. Establishment of a System of Regulation for Review Centers


and Similar Entities. The Commission on Higher Education (CHED), in
consultation with other concerned government agencies, is hereby directed
to formulate a framework for the regulation of review centers and similar
entities, including but not limited to the development and
institutionalization of policies, standards, guidelines for the establishment,
operation and accreditation of review centers and similar entities;
maintenance of a mechanism to monitor the adequacy, transparency and
propriety of their operations; and reporting mechanisms to review
performance and ethical practice.

SEC. 2. Coordination and Support. The Professional Regulation


Commission (PRC), Technical Skills Development Authority (TESDA),
Securities and Exchange Commission (SEC), the various Boards of
Examiners under the PRC, as well as other concerned non-government
organizations life professional societies, and various government agencies,
such as the Department of Justice (DOJ), National Bureau of Investigation
(NBI), Office of the Solicitor General (OSG), and others that may be
tapped later, shall provide the necessary assistance and technical support to
the CHED in the successful operationalization of the System of Regulation
envisioned by this Executive Order.

SEC. 3. Permanent Office and Staff. To ensure the effective


implementation of the System of Regulation, the CHED shall organize a
permanent office under its supervision to be headed by an official with the
rank of Director and to be composed of highly competent individuals with
expertise in educational assessment, evaluation and testing; policies and
standards development, monitoring, legal and enforcement; and statistics
as well as curriculum and instructional materials development. The CHED
shall submit the staffing pattern and budgetary requirements to the
Department of Budget and Management (DBM) for approval.
SEC. 4. Indorsement Requirement. No review center or similar entities
shall be established and/or operate review classes without the favorable
expressed indorsement of the CHED and without the issuance of the
necessary permits or authorizations to conduct review classes. After due
consultation with the stakeholders, the concerned review centers and
similar entities shall be given a reasonable period, at the discretion of the
CHED, to comply with the policies and standards, within a period not
exceeding three (3) years, after due publication of this Executive
Order. The CHED shall see to it that the System of Regulation including
the implementing mechanisms, policies, guidelines and other necessary
procedures and documentation for the effective implementation of the
System, are completed within sixty days (60) upon effectivity of this
Executive Order.

SEC. 5. Funding. The initial amount necessary for the development and
implementation of the System of Regulation shall be sourced from the
CHED Higher Education Development Fund (HEDF), subject to the usual
government accounting and auditing practices, or from any applicable
funding source identified by the DBM. For the succeeding fiscal year, such
amounts as may be necessary for the budgetary requirement of
implementing the System of Regulation and the provisions of this
Executive Order shall be provided for in the annual General
Appropriations Act in the budget of the CHED. Whenever necessary, the
CHED may tap its Development Funds as supplemental source of funding
for the effective implementation of the regulatory system. In this
connection, the CHED is hereby authorized to create special accounts in
the HEDF exclusively for the purpose of implementing the provisions of
this Executive Order.

SEC. 6. Review and Reporting. The CHED shall provide for the periodic
review performance of review centers and similar entities and shall make a
report to the Office of the President of the results of such review,
evaluation and monitoring.

SEC. 7. Separability. Any portion or provision of this Executive Order that


may be declared unconstitutional shall not have the effect of nullifying
other provisions hereof, as long as such remaining provisions can still
subsist and be given effect in their entirely.

SEC. 8. Repeal. All rules and regulations, other issuances or parts thereof,
which are inconsistent with this Executive Order, are hereby repealed or
modified accordingly.

SEC. 9. Effectivity. This Executive Order shall take effect immediately


upon its publication in a national newspaper of general circulation.
DONE in the City of Manila, this 8th day of September, in the year of Our
Lord, Two Thousand and Six.

(Sgd.) Gloria Macapagal-Arroyo

By the President:

(Sgd.) Eduardo R. Ermita


Executive Secretary

The pertinent provisions of the RIRR affecting independent review centers


are as follows:

Rule VII
IMPLEMENTING GUIDELINES AND PROCEDURES

Section 1. Authority to Establish and Operate Only CHED recognized,


accredited and reputable HEIs may be authorized to establish and operate
review center/course by the CHED upon full compliance with the
conditions and requirements provided herein and in other pertinent laws,
rules and regulations. In addition, a consortium or consortia of qualified
schools and/or entities may establish and operate review centers or conduct
review classes upon compliance with the provisions of these Rules.

Rule XIV
TRANSITORY PROVISIONS

Section 1. Review centers that are existing upon the approval of Executive
Order No. 566 shall be given a grace period of up to one (1) year, to
tie-up/be integrated with existing HEIs[,] consortium of HEIs and PRC
recognized Professional Associations with recognized programs under the
conditions set forth in this Order and upon mutually acceptable covenants
by the contracting parties. In the alternative, they may convert as a school
and apply for the course covered by the review subject to rules and
regulations of the CHED and the SEC with respect to the establishment of
schools. In the meantime, no permit shall be issued if there is
non-compliance with these conditions or non-compliance with the
requirements set forth in these rules.

Section 2. Only after full compliance with the requirements shall a Permit
be given by the CHED to review centers contemplated under this Rule.
Section 3. Failure of existing review centers to fully comply with the above
shall bar them from existing as review centers and they shall be deemed as
operating illegally as such. In addition, appropriate administrative and legal
proceedings shall be commence[d] against the erring entities that continue
to operate and appropriate sanctions shall be imposed after due process.

The Issues

The issues raised in this case are the following:

1. Whether EO 566 is an unconstitutional exercise by the


Executive of legislative power as it expands the CHEDs
jurisdiction; and

2. Whether the RIRR is an invalid exercise of the Executives


rule-making power.

The Ruling of this Court

The petition has merit.


Violation of Judicial Hierarchy

The Office of the Solicitor General (OSG) prays for the dismissal of the
petition. Among other grounds, the OSG alleges that petitioner violated the
rule on judicial hierarchy in filing the petition directly with this Court.

This Courts original jurisdiction to issue a writ of certiorari, prohibition,


mandamus, quo warranto, habeas corpus, and injunction is not exclusive but
is concurrent with the Regional Trial Courts and the Court of Appeals in
certain cases.[18] The Court has explained:

This concurrence of jurisdiction is not, however, to be taken as according


to parties seeking any of the writs an absolute, unrestrained freedom of
choice of the court to which application therefor will be directed. There is
after all a hierarchy of courts. That hierarchy is determinative of the venue
of appeals, and also serves as a general determinant of the appropriate
forum for petitions for the extraordinary writs. A becoming regard of that
judicial hierarchy most certainly indicates that petitions for the issuance of
extraordinary writs against first level (inferior) courts should be filed with
the Regional Trial Court, and those against the latter, with the Court of
Appeals. A direct invocation of the Supreme Courts original jurisdiction to
issue these writs should be allowed only when there are special and
important reasons therefor, clearly and specifically set out in the
petition. This is [an] established policy. It is a policy necessary to prevent
inordinate demands upon the Courts time and attention which are better
devoted to those matters within its exclusive jurisdiction, and to prevent
further over-crowding of the Courts docket.[19]

The Court has further explained:

The propensity of litigants and lawyers to disregard the hierarchy of courts


in our judicial system by seeking relief directly from this Court must be
put to a halt for two reasons: (1) it would be an imposition upon the
precious time of this Court; and (2) it would cause an inevitable and
resultant delay, intended or otherwise, in the adjudication of cases, which
in some instances had to be remanded or referred to the lower court as the
proper forum under the rules of procedure, or as better equipped to resolve
the issues because this Court is not a trier of facts.[20]

The rule, however, is not absolute, as when exceptional and compelling


circumstances justify the exercise of this Court of its primary jurisdiction. In
this case, petitioner alleges that EO 566 expands the coverage of RA 7722
and in doing so, the Executive Department usurps the legislative powers of
Congress. The issue in this case is not only the validity of the
RIRR. Otherwise, the proper remedy of petitioner and
petitioners-intervenors would have been an ordinary action for the
nullification of the RIRR before the Regional Trial Court.[21] The alleged
violation of the Constitution by the Executive Department when it issued EO
566 justifies the exercise by the Court of its primary jurisdiction over the
case. The Court is not precluded from brushing aside technicalities and
taking cognizance of an action due to its importance to the public and in
keeping with its duty to determine whether the other branches of the
Government have kept themselves within the limits of the Constitution.[22]

OSGs Technical Objections


The OSG alleges that the petition should be dismissed because the
verification and certification of non-forum shopping were signed only by
Fudolig without the express authority of any board resolution or power of
attorney. However, the records show that Fudolig was authorized under
Board Resolution No. 3, series of 2007[23] to file a petition before this Court
on behalf of petitioner and to execute any and all documents necessary to
implement the resolution.

The OSG also alleges that the petition should be dismissed for violation of
the 2004 Rules on Notarial Practice because Fudolig only presented his
community tax certificate as competent proof of identity before the notary
public. The Court would have required Fudolig to comply with the 2004
Rules on Notarial Practice except that Fudolig already presented his
Philippine passport before the notary public when petitioner submitted its
reply to the OSGs comment.

EO 566 Expands the Coverage of RA 7722

The OSG alleges that Section 3 of RA 7722 should be read in conjunction


with Section 8, enumerating the CHEDs powers and functions. In particular,
the OSG alleges that the CHED has the power under paragraphs (e) and (n)
of Section 8 to:

(e) monitor and evaluate the performance of programs and institutions of


higher learning for appropriate incentives as well as the imposition of
sanctions such as, but not limited to, diminution or withdrawal of subsidy,
recommendation on the downgrading or withdrawal of accreditation,
program termination or school closure;

(n) promulgate such rules and regulations and exercise such other powers
and functions as may be necessary to carry out effectively the purpose and
objectives of this Act[.]

The OSG justifies its stand by claiming that the term programs x x x of
higher learning is broad enough to include programs offered by review
centers.
We do not agree.

Section 3 of RA 7722 provides:

Sec. 3. Creation of Commission on Higher Education. - In pursuance of


the abovementioned policies, the Commission on Higher Education is
hereby created, hereinafter referred to as the Commission.

The Commission shall be independent and separate from the Department


of Education, Culture and Sports (DECS), and attached to the Office of
the President for administrative purposes only.Its coverage shall be both
public and private institutions of higher education as well as
degree-granting programs in all post-secondary educational
institutions, public and private. (Emphasis supplied)

Neither RA 7722 nor CHED Order No. 3, series of 1994 (Implementing


Rules of RA 7722)[24] defines an institution of higher learning or a program
of higher learning.

Higher education, however, is defined as education beyond the secondary


level[25] or education provided by a college or university.[26] Under the plain
meaning or verba legisrule in statutory construction, if the statute is clear,
plain, and free from ambiguity, it must be given its literal meaning and
applied without interpretation.[27] The legislature is presumed to know the
meaning of the words, to have used words advisedly, and to have expressed
its intent by use of such words as are found in the statute.[28] Hence, the term
higher education should be taken in its ordinary sense and should be read
and interpreted together with the phrase degree-granting programs in all
post-secondary educational institutions, public and private. Higher education
should be taken to mean tertiary education or that which grants a degree
after its completion.
Further, Articles 6 and 7 of the Implementing Rules provide:

Article 6. Scope of Application. - The coverage of the Commission shall


be both public and private institutions of higher education as well
as degree granting programs in all post-secondary educational
institutions, public and private.

These Rules shall apply to all public and private educational institutions
offering tertiary degree programs.

The establishment, conversion, or elevation of degree-granting


institutions shall be within the responsibility of the Commission.

Article 7. Jurisdiction. - Jurisdiction over institutions of higher learning


primarily offering tertiary degree programs shall belong to the
Commission. (Emphasis supplied)

Clearly, HEIs refer to degree-granting institutions, or those offering tertiary


degree or post-secondary programs. In fact, Republic Act No. 8292 or the
Higher Education Modernization Act of 1997 covers chartered state
universities and colleges. State universities and colleges primarily offer
degree courses and programs.

Sections 1 and 8, Rule IV of the RIRR define a review center and similar
entities as follows:

Section 1. REVIEW CENTER. - refers to a center operated and owned by


a duly authorized entity pursuant to these Rules intending to offer to the
public and/or to specialized groups whether for a fee or for free a program
or course of study that is intended to refresh and enhance the knowledge
and competencies and skills of reviewees obtained in the formal school
setting in preparation for the licensure examinations given by the
Professional Regulations Commission (PRC). The term review center as
understood in these rules shall also embrace the operation or conduct of
review classes or courses provided by individuals whether for a fee or not
in preparation for the licensure examinations given by the Professional
Regulations Commission.

xxx
Section 8. SIMILAR ENTITIES the term refer to other review centers
providing review or tutorial services in areas not covered by licensure
examinations given by the Professional Regulations Commission
including but not limited to college entrance examinations, Civil Service
examinations, tutorial services in specific fields like English, Mathematics
and the like.

The same Rule defines a review course as follows:

Section 3. REVIEW COURSE refers to the set of non-degree instructional


program of study and/or instructional materials/module, offered by a
school with a recognized course/program requiring licensure examination,
that are intended merely to refresh and enhance the knowledge or
competencies and skills of reviewees.

The scopes of EO 566 and the RIRR clearly expand the CHEDs coverage
under RA 7722. The CHEDs coverage under RA 7722 is limited to public
and private institutions of higher education and degree-granting
programs in all public and private post-secondary educational
institutions. EO 566 directed the CHED to formulate a framework for the
regulation of review centers and similar entities.

The definition of a review center under EO 566 shows that it refers to one
which offers a program or course of study that is intended to refresh and
enhance the knowledge or competencies and skills of reviewees obtained
in the formal school setting in preparation for the licensure
examinations given by the PRC. It also covers the operation or conduct of
review classes or courses provided by individuals whether for a fee or not in
preparation for the licensure examinations given by the PRC.

A review center is not an institution of higher learning as contemplated by


RA 7722. It does not offer a degree-granting program that would put it under
the jurisdiction of the CHED. A review course is only intended to refresh
and enhance the knowledge or competencies and skills of reviewees. A
reviewee is not even required to enroll in a review center or to take a review
course prior to taking an examination given by the PRC. Even if a reviewee
enrolls in a review center, attendance in a review course is not
mandatory.The reviewee is not required to attend each review class. He is
not required to take or pass an examination, and neither is he given a
grade. He is also not required to submit any thesis or dissertation. Thus,
programs given by review centers could not be considered programs x x x of
higher learning that would put them under the jurisdiction of the CHED.

Further, the similar entities in EO 566 cover centers providing review or


tutorial services in areas not covered by licensure examinations given by the
PRC, which include, although not limited to, college entrance examinations,
Civil Services examinations, and tutorial services. These review and tutorial
services hardly qualify as programs of higher learning.

Usurpation of Legislative Power

The OSG argues that President Arroyo was merely exercising her executive
power to ensure that the laws are faithfully executed. The OSG further
argues that President Arroyo was exercising her residual powers under
Executive Order No. 292 (EO 292),[29] particularly Section 20, Title I of
Book III, thus:

Section 20. Residual Powers. - Unless Congress provides otherwise, the


President shall exercise such other powers and functions vested in the
President which are provided for under the laws and which are not
specifically enumerated above, or which are not delegated by the President
in accordance with law. (Emphasis supplied)

Section 20, Title I of Book III of EO 292 speaks of other powers vested in
the President under the law.[30] The exercise of the Presidents residual
powers under this provision requires legislation,[31] as the provision clearly
states that the exercise of the Presidents other powers and functions has to
be provided for under the law. There is no law granting the President the
power to amend the functions of the CHED. The President may not amend
RA 7722 through an Executive Order without a prior legislation granting her
such power.
The President has no inherent or delegated legislative power to amend the
functions of the CHED under RA 7722. Legislative power is the authority to
make laws and to alter or repeal them,[32] and this power is vested with the
Congress under Section 1, Article VI of the 1987 Constitution which 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.

In Ople v. Torres,[33] the Court declared void, as a usurpation of legislative


power, Administrative Order No. 308 (AO 308) issued by the President to
create a national identification system. AO 308 mandates the adoption of a
national identification system even in the absence of an enabling
legislation. The Court distinguished between Legislative and Executive
powers, as follows:

The line that delineates Legislative and Executive power is not


indistinct. Legislative power is the authority, under the Constitution, to
make laws, and to alter and repeal them. The Constitution, as the will of
the people in their original, sovereign and unlimited capacity, has vested
this power in the Congress of the Philippines. The grant of legislative
power to Congress is broad, general and comprehensive. The legislative
body possesses plenary power for all purposes of civil government. Any
power, deemed to be legislative by usage and tradition, is necessarily
possessed by Congress, unless the Constitution has lodged it elsewhere. In
fine, except as limited by the Constitution, either expressly or impliedly,
legislative power embraces all subjects and extends to matters of general
concern or common interest.

While Congress is vested with the power to enact laws, the President
executes the laws. The executive power is vested in the President. It is
generally defined as the power to enforce and administer laws. It is the
power of carrying the laws into practical operation and enforcing their due
observance.

As head of the Executive Department, the President is the Chief


Executive. He represents the government as a whole and sees to it that all
laws are enforced by the officials and employees of his department. He has
control over the executive department, bureaus and offices. This means
that he has the authority to assume directly the functions of the executive
department, bureau and office, or interfere with the discretion of its
officials. Corollary to the power of control, the President also has the duty
of supervising the enforcement of laws for the maintenance of general
peace and public order. Thus, he is granted administrative power over
bureaus and offices under his control to enable him to discharge his duties
effectively.

Administrative power is concerned with the work of applying policies and


enforcing orders as determined by proper governmental organs. It enables
the President to fix a uniform standard of administrative efficiency and
check the official conduct of his agents. To this end, he can issue
administrative orders, rules and regulations.

x x x. An administrative order is:

Sec. 3. Administrative Orders. - Acts of the President which relate


to particular aspects of governmental operation in pursuance of his
duties as administrative head shall be promulgated in
administrative orders.

An administrative order is an ordinance issued by the President which


relates to specific aspects in the administrative operation of government. It
must be in harmony with the law and should be for the sole purpose of
implementing the law and carrying out the legislative policy. x x x.[34]

Just like AO 308 in Ople v. Torres, EO 566 in this case is not supported by
any enabling law. The Court further stated in Ople:
x x x. As well stated by Fisher: x x x Many regulations however, bear
directly on the public. It is here that administrative legislation must be
restricted in its scope and application. Regulations are not supposed to be
a substitute for the general policy-making that Congress enacts in the form
of a public law. Although administrative regulations are entitled to respect,
the authority to prescribe rules and regulations is not an independent
source of power to make laws.[35]

Since EO 566 is an invalid exercise of legislative power, the RIRR is also an


invalid exercise of the CHEDs quasi-legislative power.

Administrative agencies exercise their quasi-legislative or rule-making


power through the promulgation of rules and regulations.[36] The CHED may
only exercise its rule-making power within the confines of its jurisdiction
under RA 7722. The RIRR covers review centers and similar entities which
are neither institutions of higher education nor institutions offering
degree-granting programs.

Exercise of Police Power

Police power to prescribe regulations to promote the health, morals,


education, good order or safety, and the general welfare of the people flows
from the recognition that salus populi est suprema lex the welfare of the
people is the supreme law.[37] Police power primarily rests with the
legislature although it may be exercised by the President and administrative
boards by virtue of a valid delegation.[38] Here, no delegation of police power
exists under RA 7722 authorizing the President to regulate the operations of
non-degree granting review centers.

Republic Act No. 8981 is Not the Appropriate Law

It is argued that the President of the Philippines has adequate powers under
the law to regulate review centers and this could have been done under an
existing validly delegated authority, and that the appropriate law is Republic
Act No. 8981[39] (RA 8981). Under Section 5 of RA 8981, the PRC is
mandated to establish and maintain a high standard of admission to the
practice of all professions and at all times ensure and safeguard the integrity
of all licensure examinations. Section 7 of RA 8981 further states that the
PRC shall adopt measures to preserve the integrity and inviolability of
licensure examinations.

There is no doubt that a principal mandate of the PRC is to preserve the


integrity of licensure examinations. The PRC has the power to adopt
measures to preserve the integrity and inviolability of licensure
examinations. However, this power should properly be interpreted to refer to
the conduct of the examinations. The enumeration of PRCs powers under
Section 7(e) includes among others, the fixing of dates and places of the
examinations and the appointment of supervisors and watchers. The power
to preserve the integrity and inviolability of licensure examinations should
be read together with these functions. These powers of the PRC have
nothing to do at all with the regulation of review centers.

The PRC has the power to investigate any of the members of the
Professional Regulatory Boards (PRB) for commission of any irregularities
in the licensure examinations which taint or impugn the integrity and
authenticity of the results of the said examinations.[40] This is an
administrative power which the PRC exercises over members of the
PRB.However, this power has nothing to do with the regulation of review
centers. The PRC has the power to bar PRB members from conducting
review classes in review centers.However, to interpret this power to
extend to the power to regulate review centers is clearly an unwarranted
interpretation of RA 8981. The PRC may prohibit the members of the PRB
from conducting review classes at review centers because the PRC has
administrative supervision over the members of the PRB. However, such
power does not extend to the regulation of review centers.

Section 7(y) of RA 8981 giving the PRC the power to perform such other
functions and duties as may be necessary to carry out the provisions of RA
8981 does not extend to the regulation of review centers. There is
absolutely nothing in RA 8981 that mentions regulation by the PRC of
review centers.

The Court cannot likewise interpret the fact that RA 8981 penalizes any
person who manipulates or rigs licensure examination results, secretly
informs or makes known licensure examination questions prior to the
conduct of the examination or tampers with the grades in the professional
licensure examinations[41] as a grant of power to regulate review centers. The
provision simply provides for the penalties for manipulation and other
corrupt practices in the conduct of the professional examinations.

The assailed EO 566 seeks to regulate not only review centers but also
similar entities. The questioned CHED RIRR defines similar entities as
referring to other review centers providing review or tutorial services in
areas not covered by licensure examinations given by the PRC including but
not limited to college entrance examinations, Civil Service examinations,
tutorial services in specific fields like English, Mathematics and the
like.[42] The PRC has no mandate to supervise review centers that give
courses or lectures intended to prepare examinees for licensure examinations
given by the PRC. It is like the Court regulating bar review centers just
because the Court conducts the bar examinations. Similarly, the PRC has
no mandate to regulate similar entities whose reviewees will not even
take any licensure examination given by the PRC.

WHEREFORE, we GRANT the petition and the


petition-in-intervention. We DECLARE Executive Order No. 566 and
Commission on Higher Education Memorandum Order No. 30, series of
2007 VOID for being unconstitutional.

SO ORDERED.

ANTONIO T. CARPIO
Associate Justice

WE CONCUR:

REYNATO S. PUNO
Chief Justice

LEONARDO A. QUISUMBING CONSUELO


Associate Justice YNARES-SANTIAGO
Associate Justice

MA. ALICIA AUSTRIA-MARTINEZ RENATO C. CORONA


Associate Justice Associate Justice

CONCHITA CARPIO MORALES DANTE O. TINGA


Associate Justice Associate Justice

MINITA V. CHICO-NAZARIO PRESBITERO J. VELASCO, JR.


Associate Justice Associate Justice

ANTONIO EDUARDO B. NACHURA TERESITA J. LEONARDO-DE


Associate Justice CASTRO
Associate Justice

ARTURO D. BRION
Associate Justice DIOSDADO M. PERALTA
Associate Justice

CERTIFICATION

Pursuant to Section 13, Article VIII of the Constitution, I certify that the
conclusions in the above Decision had been reached in consultation before
the case was assigned to the writer of the opinion of the Court.

REYNATO S. PUNO
Chief Justice

[1]
Rollo, pp. 35-37. Directing the Commission on Higher Education to Regulate the
Establishment and Operation of Review Centers and Similar Entities. Signed on 8 September 2006.
[2]
Id. at 38-55. Revised Implementing Rules and Regulations Governing The Establishment and Operation
of Review Centers And Similar Entities In The Philippines Pursuant To Executive Order No.
566. Approved on 7 May 2007.
[3] Virginia Madeja and Anesia Dionisio were eventually charged with violation of Republic Act No. 8981
(An Act Modernizing the Professional Regulation Commission) and Republic Act No. 3019 (The
Anti-Graft and Corrupt Practices Act).
[4]
Rollo, pp. 105-121. CMO 49, s. 2006 is otherwise known as the Implementing Rules and Regulations
Governing the Establishment and Operation of Review Centers and Similar Entities in the Philippines.
[5]
Id. at 75-77.
[6]
Id. at 79.
[7]
Id. at 80.
[8]
Id. at 58-69.
[9]
An Act Creating the Commission on Higher Education, Appropriating Funds Therefor and For Other
Purposes.
[10]
Rollo, p. 180.
[11]
Id. at 181-182.
[12]
Id. at 181-182.
[13]
Id. at 92.
[14]
Not 14 February 2008 as stated in the 11 March 2008 Resolution.
[15]
Rollo, p. 184.
[16]
Id. at 230.
[17]
Id. at 257.
[18]
LPBS Commercial, Inc. v. Amila, G.R. No. 147443, 11 February 2008, 544 SCRA 199.
[19]
Liga ng mga Barangay National v. City Mayor of Manila, 465 Phil. 529, 542-543 (2004), citing People
v. Cuaresma, G.R. No. 67787, 18 April 1989, 172 SCRA 415.
[20]
LPBS Commercial, Inc. v. Amila, supra note 18 at 205, citing Santiago v. Vasquez, G.R. Nos. 99289-90,
27 January 1993, 217 SCRA 633.
[21]
Holy Spirit Homeowners Association, Inc. v. Defensor, G.R. No. 163980, 3 August 2006, 497 SCRA
581.
[22]
Executive Secretary v. Southwing Heavy Industries, Inc., G.R. No. 164171, 20 February 2006,
482 SCRA 673.
[23]
Rollo, p. 104.
[24]
Rules and Regulations Implementing RA 7722, as amended.
[25]
WEBSTERS THIRD NEW INTERNATIONAL DICTIONARY, 1986 ed., p. 1068.
[26]
Id.
[27]
Republic v. Lacap, G.R. No. 158253, 2 March 2007, 517 SCRA 255.
[28]
Id.
[29]
The Administrative Code of 1987.
[30]
See Larin v. Executive Secretary, 345 Phil. 962 (1997).
[31]
See Kilusang Mayo Uno v. Director-General, National Economic Development Authority, G.R. No.
167798, 19 April 2006, 487 SCRA 623.
[32]
Id.
[33]
354 Phil. 948 (1998).
[34]
Id. at 966-968.
[35]
Id. at 970.
[36]
Metropolitan Bank and Trust Company, Inc. v. National Wages and Productivity Commission, G.R. No.
144322, 6 February 2007, 514 SCRA 346.
[37]
Metropolitan Manila Development Authority v. Viron Transportation Co., Inc., G.R. No. 170656, 15
August 2007, 530 SCRA 341.
[38]
Id.
[39]
Otherwise known as the Philippine Regulation Commission Modernization Act of 2000.
[40]
Section 7(s).
[41]
Section 15.
[42]
Section 8, RIRR.
Supreme Court
Manila
EN BANC

LOUIS BAROK C. BIRAOGO, G.R. No. 192935


Petitioner,

- versus -

THE PHILIPPINE TRUTH


COMMISSION OF 2010,
Respondent.
x-----------------------x
REP. EDCEL C. LAGMAN, G.R. No. 193036
REP. RODOLFO B. ALBANO, JR.,
REP. SIMEON A. Present:
DATUMANONG, and REP.
ORLANDO B. FUA, SR., CORONA, C.J.,
Petitioners, CARPIO,
CARPIO MORALES,
VELASCO, JR.,
NACHURA,
- versus - LEONARDO-DE CASTRO,
BRION,
PERALTA,
BERSAMIN,
DEL CASTILLO,
ABAD,
VILLARAMA, JR.,
PEREZ,
MENDOZA, and
EXECUTIVE SECRETARY SERENO, JJ.
PAQUITO N. OCHOA, JR. and
DEPARTMENT OF BUDGET AND Promulgated:
MANAGEMENT SECRETARY
FLORENCIO B. ABAD, December 7, 2010
Respondents.
x -------------------------------------------------------------------------------------- x

DECISION
MENDOZA, J.:
When the judiciary mediates to allocate constitutional
boundaries, it does not assert any superiority over the other
departments; it does not in reality nullify or invalidate an act of
the legislature, but only asserts the solemn and sacred
obligation assigned to it by the Constitution to determine
conflicting claims of authority under the Constitution and to
establish for the parties in an actual controversy the rights
which that instrument secures and guarantees to them.

--- Justice Jose P. Laurel[1]


The role of the Constitution cannot be overlooked. It is through the
Constitution that the fundamental powers of government are established,
limited and defined, and by which these powers are distributed among the
several departments.[2] The Constitution is the basic and paramount law to
which all other laws must conform and to which all persons, including the
highest officials of the land, must defer.[3] Constitutional doctrines must
remain steadfast no matter what may be the tides of time. It cannot be simply
made to sway and accommodate the call of situations and much more tailor
itself to the whims and caprices of government and the people who run it.[4]

For consideration before the Court are two consolidated cases[5] both of
which essentially assail the validity and constitutionality of Executive Order
No. 1, dated July 30, 2010, entitled Creating the Philippine Truth
Commission of 2010.

The first case is G.R. No. 192935, a special civil action for prohibition
instituted by petitioner Louis Biraogo (Biraogo) in his capacity as a citizen
and taxpayer. Biraogo assails Executive Order No. 1 for being violative of
the legislative power of Congress under Section 1, Article VI of the
Constitution[6] as it usurps the constitutional authority of the legislature to
create a public office and to appropriate funds therefor.[7]

The second case, G.R. No. 193036, is a special civil action for certiorari and
prohibition filed by petitioners Edcel C. Lagman, Rodolfo B. Albano Jr.,
Simeon A. Datumanong, and Orlando B. Fua, Sr. (petitioners-legislators) as
incumbent members of the House of Representatives.

The genesis of the foregoing cases can be traced to the events prior to the
historic May 2010 elections, when then Senator Benigno Simeon Aquino III
declared his staunch condemnation of graft and corruption with his
slogan, Kung walang corrupt, walang mahirap. The Filipino people,
convinced of his sincerity and of his ability to carry out this noble objective,
catapulted the good senator to the presidency.

To transform his campaign slogan into reality, President Aquino found


a need for a special body to investigate reported cases of graft and corruption
allegedly committed during the previous administration.

Thus, at the dawn of his administration, the President on July 30, 2010,
signed Executive Order No. 1 establishing the Philippine Truth Commission
of 2010 (Truth Commission). Pertinent provisions of said executive order
read:
EXECUTIVE ORDER NO. 1

CREATING THE PHILIPPINE TRUTH COMMISSION OF 2010

WHEREAS, Article XI, Section 1 of the 1987 Constitution of the


Philippines solemnly enshrines the principle that a public office is a public
trust and mandates that public officers and employees, who are servants
of the people, must at all times be accountable to the latter, serve them
with utmost responsibility, integrity, loyalty and efficiency, act with
patriotism and justice, and lead modest lives;

WHEREAS, corruption is among the most despicable acts of defiance of


this principle and notorious violation of this mandate;

WHEREAS, corruption is an evil and scourge which seriously affects the


political, economic, and social life of a nation; in a very special way it
inflicts untold misfortune and misery on the poor, the marginalized and
underprivileged sector of society;

WHEREAS, corruption in the Philippines has reached very alarming levels,


and undermined the peoples trust and confidence in the Government and
its institutions;

WHEREAS, there is an urgent call for the determination of the truth


regarding certain reports of large scale graft and corruption in the
government and to put a closure to them by the filing of the appropriate
cases against those involved, if warranted, and to deter others from
committing the evil, restore the peoples faith and confidence in the
Government and in their public servants;

WHEREAS, the Presidents battlecry during his campaign for the


Presidency in the last elections kung walang corrupt, walang
mahirap expresses a solemn pledge that if elected, he would end
corruption and the evil it breeds;

WHEREAS, there is a need for a separate body dedicated solely to


investigating and finding out the truth concerning the reported cases of
graft and corruption during the previous administration, and which will
recommend the prosecution of the offenders and secure justice for all;
WHEREAS, Book III, Chapter 10, Section 31 of Executive Order No. 292,
otherwise known as the Revised Administrative Code of the Philippines,
gives the President the continuing authority to reorganize the Office of the
President.

NOW, THEREFORE, I, BENIGNO SIMEON AQUINO III, President of the


Republic of the Philippines, by virtue of the powers vested in me by law,
do hereby order:

SECTION 1. Creation of a Commission. There is hereby created


the PHILIPPINE TRUTH COMMISSION, hereinafter referred to as
the COMMISSION, which shall primarily seek and find the truth on, and
toward this end, investigate reports of graft and corruption of such scale
and magnitude that shock and offend the moral and ethical sensibilities of
the people, committed by public officers and employees, their
co-principals, accomplices and accessories from the private sector, if any,
during the previous administration; and thereafter recommend the
appropriate action or measure to be taken thereon to ensure that the full
measure of justice shall be served without fear or favor.
The Commission shall be composed of a Chairman and four (4) members
who will act as an independent collegial body.

SECTION 2. Powers and Functions. The Commission, which shall have all
the powers of an investigative body under Section 37, Chapter 9, Book I of
the Administrative Code of 1987, is primarily tasked to conduct a
thorough fact-finding investigation of reported cases of graft and
corruption referred to in Section 1, involving third level public officers and
higher, their co-principals, accomplices and accessories from the private
sector, if any, during the previous administration and thereafter submit its
finding and recommendations to the President, Congress and the
Ombudsman.
In particular, it shall:

a) Identify and determine the reported cases of such graft and


corruption which it will investigate;

b) Collect, receive, review and evaluate evidence related to or regarding


the cases of large scale corruption which it has chosen to investigate, and
to this end require any agency, official or employee of the Executive
Branch, including government-owned or controlled corporations, to
produce documents, books, records and other papers;

c) Upon proper request or representation, obtain information and


documents from the Senate and the House of Representatives records of
investigations conducted by committees thereof relating to matters or
subjects being investigated by the Commission;

d) Upon proper request and representation, obtain information from


the courts, including the Sandiganbayan and the Office of the Court
Administrator, information or documents in respect to corruption cases
filed with the Sandiganbayan or the regular courts, as the case may be;

e) Invite or subpoena witnesses and take their testimonies and for that
purpose, administer oaths or affirmations as the case may be;

f) Recommend, in cases where there is a need to utilize any person as a


state witness to ensure that the ends of justice be fully served, that such
person who qualifies as a state witness under the Revised Rules of Court of
the Philippines be admitted for that purpose;

g) Turn over from time to time, for expeditious prosecution, to the


appropriate prosecutorial authorities, by means of a special
or interim report and recommendation, all evidence on corruption of
public officers and employees and their private sector co-principals,
accomplices or accessories, if any, when in the course of its investigation
the Commission finds that there is reasonable ground to believe that they
are liable for graft and corruption under pertinent applicable laws;

h) Call upon any government investigative or prosecutorial agency


such as the Department of Justice or any of the agencies under it, and the
Presidential Anti-Graft Commission, for such assistance and cooperation
as it may require in the discharge of its functions and duties;

i) Engage or contract the services of resource persons, professionals


and other personnel determined by it as necessary to carry out its
mandate;

j) Promulgate its rules and regulations or rules of procedure it deems


necessary to effectively and efficiently carry out the objectives of this
Executive Order and to ensure the orderly conduct of its investigations,
proceedings and hearings, including the presentation of evidence;

k) Exercise such other acts incident to or are appropriate and


necessary in connection with the objectives and purposes of this Order.
SECTION 3. Staffing Requirements. x x x.

SECTION 4. Detail of Employees. x x x.


SECTION 5. Engagement of Experts. x x x

SECTION 6. Conduct of Proceedings. x x x.


SECTION 7. Right to Counsel of Witnesses/Resource Persons. x x x.
SECTION 8. Protection of Witnesses/Resource Persons. x x x.
SECTION 9. Refusal to Obey Subpoena, Take Oath or Give
Testimony. Any government official or personnel who, without lawful
excuse, fails to appear upon subpoena issued by the Commission or who,
appearing before the Commission refuses to take oath or affirmation, give
testimony or produce documents for inspection, when required, shall be
subject to administrative disciplinary action. Any private person who does
the same may be dealt with in accordance with law.
SECTION 10. Duty to Extend Assistance to the Commission. x x x.
SECTION 11. Budget for the Commission. The Office of the President shall
provide the necessary funds for the Commission to ensure that it can
exercise its powers, execute its functions, and perform its duties and
responsibilities as effectively, efficiently, and expeditiously as possible.
SECTION 12. Office. x x x.

SECTION 13. Furniture/Equipment. x x x.

SECTION 14. Term of the Commission. The Commission shall accomplish


its mission on or before December 31, 2012.

SECTION 15. Publication of Final Report. x x x.

SECTION 16. Transfer of Records and Facilities of the Commission. x x x.

SECTION 17. Special Provision Concerning Mandate. If and when in the


judgment of the President there is a need to expand the mandate of the
Commission as defined in Section 1 hereof to include the investigation of
cases and instances of graft and corruption during the prior
administrations, such mandate may be so extended accordingly by way of
a supplemental Executive Order.

SECTION 18. Separability Clause. If any provision of this Order is


declared unconstitutional, the same shall not affect the validity and
effectivity of the other provisions hereof.
SECTION 19. Effectivity. This Executive Order shall take effect
immediately.

DONE in the City of Manila, Philippines, this 30th day of July 2010.

(SGD.) BENIGNO S. AQUINO III

By the President:

(SGD.) PAQUITO N. OCHOA, JR.


Executive Secretary

Nature of the Truth Commission

As can be gleaned from the above-quoted provisions, the Philippine


Truth Commission (PTC) is a mere ad hoc body formed under the Office of
the President with theprimary task to investigate reports of graft and
corruption committed by third-level public officers and employees, their
co-principals, accomplices and accessories during the previous
administration, and thereafter to submit its finding and recommendations to
the President, Congress and the Ombudsman. Though it has been described
as an independent collegial body, it is essentially an entity within the Office
of the President Proper and subject to his control. Doubtless, it constitutes a
public office, as an ad hoc body is one.[8]

To accomplish its task, the PTC shall have all the powers of an
investigative body under Section 37, Chapter 9, Book I of the Administrative
Code of 1987. It is not, however, a quasi-judicial body as it cannot
adjudicate, arbitrate, resolve, settle, or render awards in disputes between
contending parties. All it can do is gather, collect and assess evidence of
graft and corruption and make recommendations. It may have subpoena
powers but it has no power to cite people in contempt, much less order their
arrest. Although it is a fact-finding body, it cannot determine from such facts
if probable cause exists as to warrant the filing of an information in our
courts of law. Needless to state, it cannot impose criminal, civil or
administrative penalties or sanctions.
The PTC is different from the truth commissions in other countries
which have been created as official, transitory and non-judicial fact-finding
bodies to establish the facts and context of serious violations of human rights
or of international humanitarian law in a countrys past.[9] They are usually
established by states emerging from periods of internal unrest, civil strife or
authoritarianism to serve as mechanisms for transitional justice.

Truth commissions have been described as bodies that share the


following characteristics: (1) they examine only past events; (2) they
investigate patterns of abuse committed over a period of time, as opposed to
a particular event; (3) they are temporary bodies that finish their work with
the submission of a report containing conclusions and recommendations; and
(4) they are officially sanctioned, authorized or empowered by the
State.[10] Commissions members are usually empowered to conduct research,
support victims, and propose policy recommendations to prevent recurrence
of crimes. Through their investigations, the commissions may aim to
discover and learn more about past abuses, or formally acknowledge them.
They may aim to prepare the way for prosecutions and recommend
institutional reforms.[11]

Thus, their main goals range from retribution to reconciliation. The


Nuremburg and Tokyo war crime tribunals are examples of a retributory or
vindicatory body set up to try and punish those responsible for crimes
against humanity. A form of a reconciliatory tribunal is the Truth and
Reconciliation Commission of South Africa, the principal function of which
was to heal the wounds of past violence and to prevent future conflict by
providing a cathartic experience for victims.

The PTC is a far cry from South Africas model. The latter placed
more emphasis on reconciliation than on judicial retribution, while
the marching order of the PTC is the identification and punishment of
perpetrators. As one writer[12] puts it:

The order ruled out reconciliation. It translated the


Draconian code spelled out by Aquino in his inaugural speech: To
those who talk about reconciliation, if they mean that they would
like us to simply forget about the wrongs that they have committed
in the past, we have this to say: There can be no reconciliation
without justice. When we allow crimes to go unpunished, we give
consent to their occurring over and over again.
The Thrusts of the Petitions

Barely a month after the issuance of Executive Order No. 1, the


petitioners asked the Court to declare it unconstitutional and to enjoin the
PTC from performing its functions. A perusal of the arguments of the
petitioners in both cases shows that they are essentially the same. The
petitioners-legislators summarized them in the following manner:

(a) E.O. No. 1 violates the separation of powers as it


arrogates the power of the Congress to create a public office and
appropriate funds for its operation.

(b) The provision of Book III, Chapter 10, Section 31 of


the Administrative Code of 1987 cannot legitimize E.O. No. 1
because the delegated authority of the President to structurally
reorganize the Office of the President to achieve economy,
simplicity and efficiency does not include the power to create
an entirely new public office which was hitherto inexistent like
the Truth Commission.

(c) E.O. No. 1 illegally amended the Constitution and


pertinent statutes when it vested the Truth Commission with
quasi-judicial powers duplicating, if not superseding, those of
the Office of the Ombudsman created under the 1987
Constitution and the Department of Justice created under the
Administrative Code of 1987.

(d) E.O. No. 1 violates the equal protection clause as it


selectively targets for investigation and prosecution officials
and personnel of the previous administration as if corruption is
their peculiar species even as it excludes those of the other
administrations, past and present, who may be indictable.

(e) The creation of the Philippine Truth Commission of


2010 violates the consistent and general international practice of
four decades wherein States constitute truth commissions to
exclusively investigate human rights violations, which
customary practice forms part of the generally accepted
principles of international law which the Philippines is
mandated to adhere to pursuant to the Declaration of Principles
enshrined in the Constitution.

(f) The creation of the Truth Commission is an exercise


in futility, an adventure in partisan hostility, a launching pad for
trial/conviction by publicity and a mere populist propaganda to
mistakenly impress the people that widespread poverty will
altogether vanish if corruption is eliminated without even
addressing the other major causes of poverty.

(g) The mere fact that previous commissions were not


constitutionally challenged is of no moment because neither
laches nor estoppel can bar an eventual question on the
constitutionality and validity of an executive issuance or even a
statute.[13]

In their Consolidated Comment,[14] the respondents, through the Office


of the Solicitor General (OSG), essentially questioned the legal standing of
petitioners and defended the assailed executive order with the following
arguments:

1] E.O. No. 1 does not arrogate the powers of Congress to


create a public office because the Presidents executive power
and power of control necessarily include the inherent power to
conduct investigations to ensure that laws are faithfully
executed and that, in any event, the Constitution, Revised
Administrative Code of 1987 (E.O. No. 292), [15] Presidential
Decree (P.D.) No. 1416[16] (as amended by P.D. No. 1772), R.A.
No. 9970,[17] and settled jurisprudence that authorize the
President to create or form such bodies.

2] E.O. No. 1 does not usurp the power of Congress to


appropriate funds because there is no appropriation but a mere
allocation of funds already appropriated by Congress.
3] The Truth Commission does not duplicate or supersede
the functions of the Office of the
Ombudsman (Ombudsman) and the Department of
Justice (DOJ),because it is a fact-finding body and not a
quasi-judicial body and its functions do not duplicate, supplant
or erode the latters jurisdiction.

4] The Truth Commission does not violate the equal


protection clause because it was validly created for laudable
purposes.

The OSG then points to the continued existence and validity of other
executive orders and presidential issuances creating similar bodies to justify
the creation of the PTC such as Presidential Complaint and Action
Commission (PCAC) by President Ramon B. Magsaysay, Presidential
Committee on Administrative Performance Efficiency (PCAPE)by President
Carlos P. Garcia and Presidential Agency on Reform and Government
Operations (PARGO) by President Ferdinand E. Marcos.[18]
From the petitions, pleadings, transcripts, and memoranda, the
following are the principal issues to be resolved:

1. Whether or not the petitioners have the legal


standing to file their respective petitions and question Executive
Order No. 1;

2. Whether or not Executive Order No. 1 violates


the principle of separation of powers by usurping the powers of
Congress to create and to appropriate funds for public offices,
agencies and commissions;
3. Whether or not Executive Order No. 1 supplants the
powers of the Ombudsman and the DOJ;

4. Whether or not Executive Order No. 1 violates the


equal protection clause; and
5. Whether or not petitioners are entitled to injunctive
relief.

Essential requisites for judicial review

Before proceeding to resolve the issue of the constitutionality of Executive


Order No. 1, the Court needs to ascertain whether the requisites for a valid
exercise of its power of judicial review are present.

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 the standing to question 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.[19]

Among all these limitations, only the legal standing of the petitioners has
been put at issue.

Legal Standing of the Petitioners

The OSG attacks the legal personality of the petitioners-legislators to


file their petition for failure to demonstrate their personal stake in the
outcome of the case. It argues that the petitioners have not shown that they
have sustained or are in danger of sustaining any personal injury attributable
to the creation of the PTC. Not claiming to be the subject of the
commissions investigations, petitioners will not sustain injury in its creation
or as a result of its proceedings.[20]

The Court disagrees with the OSG in questioning the legal standing of
the petitioners-legislators to assail Executive Order No. 1. Evidently, their
petition primarily invokes usurpation of the power of the Congress as a body
to which they belong as members. This certainly justifies their resolve to
take the cudgels for Congress as an institution and present the complaints on
the usurpation of their power and rights as members of the legislature before
the Court. As held in Philippine Constitution Association v. Enriquez,[21]

To the extent the powers of Congress are impaired, so is the


power of each member thereof, since his office confers a right to
participate in the exercise of the powers of that institution.
An act of the Executive which injures the institution of
Congress causes a derivative but nonetheless substantial injury,
which can be questioned by a member of Congress. In such a case,
any member of Congress can have a resort to the courts.

Indeed, legislators have a legal standing to see to it that the


prerogative, powers and privileges vested by the Constitution in their office
remain inviolate. Thus, they are allowed to question the validity of any
official action which, to their mind, infringes on their prerogatives as
legislators.[22]

With regard to Biraogo, the OSG argues that, as a taxpayer, he has no


standing to question the creation of the PTC and the budget for its
operations.[23] It emphasizes that the funds to be used for the creation and
operation of the commission are to be taken from those funds already
appropriated by Congress. Thus, the allocation and disbursement of funds
for the commission will not entail congressional action but will simply be an
exercise of the Presidents power over contingent funds.

As correctly pointed out by the OSG, Biraogo has not shown that he
sustained, or is in danger of sustaining, any personal and direct injury
attributable to the implementation of Executive Order No. 1. Nowhere in his
petition is an assertion of a clear right that may justify his clamor for the
Court to exercise judicial power and to wield the axe over presidential
issuances in defense of the Constitution. The case of David v.
Arroyo[24] explained the deep-seated rules on locus standi. Thus:

Locus standi is defined as a right of appearance in a court of


justice on a given question. 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.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, 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: 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 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,
later reaffirmed in Tileston v. Ullman. 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, 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, Manila Race Horse
Trainers Association v. De la Fuente, Pascual v. Secretary of Public
Works and Anti-Chinese League of the Philippines v.
Felix. [Emphases included. Citations omitted]

Notwithstanding, the Court leans on the doctrine that the rule on


standing is a matter of procedure, hence, can be relaxed for nontraditional
plaintiffs like ordinary citizens, taxpayers, and legislators when the public
interest so requires, such as when the matter is of transcendental
importance, of overreaching significance to society, or of paramount public
interest.[25]

Thus, in Coconut Oil Refiners Association, Inc. v. Torres,[26] the Court


held that in cases of paramount importance where serious constitutional
questions are involved, the standing requirements may be relaxed and a suit
may be allowed to prosper even where there is no direct injury to the party
claiming the right of judicial review. In the firstEmergency Powers
Cases,[27] ordinary citizens and taxpayers were allowed to question the
constitutionality of several executive orders although they had only an
indirect and general interest shared in common with the public.

The OSG claims that the determinants of transcendental


importance[28] laid down in CREBA v. ERC and Meralco[29] are non-existent
in this case. The Court, however, finds reason in Biraogos assertion that the
petition covers matters of transcendental importance to justify the exercise of
jurisdiction by the Court. There are constitutional issues in the petition
which deserve the attention of this Court in view of their seriousness,
novelty and weight as precedents. Where the issues are of transcendental and
paramount importance not only to the public but also to the Bench and the
Bar, they should be resolved for the guidance of all.[30] Undoubtedly, the
Filipino people are more than interested to know the status of the Presidents
first effort to bring about a promised change to the country. The Court takes
cognizance of the petition not due to overwhelming political undertones that
clothe the issue in the eyes of the public, but because the Court stands firm
in its oath to perform its constitutional duty to settle legal controversies with
overreaching significance to society.

Power of the President to Create the Truth Commission

In his memorandum in G.R. No. 192935, Biraogo asserts that the


Truth Commission is a public office and not merely an adjunct body of the
Office of the President.[31]Thus, in order that the President may create a
public office he must be empowered by the Constitution, a statute or an
authorization vested in him by law. According to petitioner, such power
cannot be presumed[32] since there is no provision in the Constitution or any
specific law that authorizes the President to create a truth commission.[33] He
adds that Section 31 of the Administrative Code of 1987, granting the
President the continuing authority to reorganize his office, cannot serve as
basis for the creation of a truth commission considering the aforesaid
provision merely uses verbs such as reorganize, transfer, consolidate, merge,
and abolish.[34] Insofar as it vests in the President the plenary power to
reorganize the Office of the President to the extent of creating a public office,
Section 31 is inconsistent with the principle of separation of powers
enshrined in the Constitution and must be deemed repealed upon the
effectivity thereof.[35]

Similarly, in G.R. No. 193036, petitioners-legislators argue that the


creation of a public office lies within the province of Congress and not with
the executive branch of government. They maintain that the delegated
authority of the President to reorganize under Section 31 of the Revised
Administrative Code: 1) does not permit the President to create a public
office, much less a truth commission; 2) is limited to the reorganization of
the administrative structure of the Office of the President; 3) is limited to the
restructuring of the internal organs of the Office of the President Proper,
transfer of functions and transfer of agencies; and 4) only to achieve
simplicity, economy and efficiency.[36] Such continuing authority of the
President to reorganize his office is limited, and by issuing Executive Order
No. 1, the President overstepped the limits of this delegated authority.
The OSG counters that there is nothing exclusively legislative about
the creation by the President of a fact-finding body such as a truth
commission. Pointing to numerous offices created by past presidents, it
argues that the authority of the President to create public offices within the
Office of the President Proper has long been recognized.[37]According to the
OSG, the Executive, just like the other two branches of government,
possesses the inherent authority to create fact-finding committees to assist it
in the performance of its constitutionally mandated functions and in the
exercise of its administrative functions.[38] This power, as the OSG explains
it, is but an adjunct of the plenary powers wielded by the President under
Section 1 and his power of control under Section 17, both of Article VII of
the Constitution.[39]

It contends that the President is necessarily vested with the power to


conduct fact-finding investigations, pursuant to his duty to ensure that all
laws are enforced by public officials and employees of his department and in
the exercise of his authority to assume directly the functions of the executive
department, bureau and office, or interfere with the discretion of his
officials.[40] The power of the President to investigate is not limited to the
exercise of his power of control over his subordinates in the executive
branch, but extends further in the exercise of his other powers, such as his
power to discipline subordinates,[41] his power for rule making, adjudication
and licensing purposes[42] and in order to be informed on matters which he is
entitled to know.[43]

The OSG also cites the recent case of Banda v. Ermita,[44] where it
was held that the President has the power to reorganize the offices and
agencies in the executive department in line with his constitutionally granted
power of control and by virtue of a valid delegation of the legislative power
to reorganize executive offices under existing statutes.

Thus, the OSG concludes that the power of control necessarily


includes the power to create offices. For the OSG, the President may create
the PTC in order to, among others, put a closure to the reported large scale
graft and corruption in the government.[45]

The question, therefore, before the Court is this: Does the creation of
the PTC fall within the ambit of the power to reorganize as expressed in
Section 31 of the Revised Administrative Code? Section 31 contemplates
reorganization as limited by the following functional and structural lines: (1)
restructuring the internal organization of the Office of the President Proper
by abolishing, consolidating or merging units thereof or transferring
functions from one unit to another; (2) transferring any function under the
Office of the President to any other Department/Agency or vice versa; or (3)
transferring any agency under the Office of the President to any other
Department/Agency or vice versa.Clearly, the provision refers to reduction
of personnel, consolidation of offices, or abolition thereof by reason of
economy or redundancy of functions. These point to situations where a body
or an office is already existent but a modification or alteration thereof has to
be effected. The creation of an office is nowhere mentioned, much less
envisioned in said provision. Accordingly, the answer to the question is in
the negative.

To say that the PTC is borne out of a restructuring of the Office of the
President under Section 31 is a misplaced supposition, even in the plainest
meaning attributable to the term restructure an alteration of an existing
structure. Evidently, the PTC was not part of the structure of the Office of
the President prior to the enactment of Executive Order No. 1. As held
in Buklod ng Kawaning EIIB v. Hon. Executive Secretary,[46]

But of course, the list of legal basis authorizing the President


to reorganize any department or agency in the executive branch
does not have to end here. We must not lose sight of the very source
of the power that which constitutes an express grant of power.
Under Section 31, Book III of Executive Order No. 292 (otherwise
known as the Administrative Code of 1987), "the President, subject
to the policy in the Executive Office and in order to achieve
simplicity, economy and efficiency, shall have the continuing
authority to reorganize the administrative structure of the Office of
the President." For this purpose, he may transfer the functions of
other Departments or Agencies to the Office of the President. In
Canonizado v. Aguirre [323 SCRA 312 (2000)], we ruled that
reorganization "involves the reduction of personnel, consolidation
of offices, or abolition thereof by reason of economy or redundancy
of functions." It takes place when there is an alteration of the existing
structure of government offices or units therein, including the lines of
control, authority and responsibility between them. The EIIB is a
bureau attached to the Department of Finance. It falls under the
Office of the President. Hence, it is subject to the Presidents
continuing authority to reorganize. [Emphasis Supplied]

In the same vein, the creation of the PTC is not justified by the
Presidents power of control. Control is essentially the power to alter or
modify or nullify or set aside what a subordinate officer had done in the
performance of his duties and to substitute the judgment of the former with
that of the latter.[47] Clearly, the power of control is entirely different from
the power to create public offices. The former is inherent in the Executive,
while the latter finds basis from either a valid delegation from Congress, or
his inherent duty to faithfully execute the laws.

The question is this, is there a valid delegation of power from


Congress, empowering the President to create a public office?

According to the OSG, the power to create a truth commission


pursuant to the above provision finds statutory basis under P.D. 1416, as
amended by P.D. No. 1772.[48] The said law granted the President the
continuing authority to reorganize the national government, including the
power to group, consolidate bureaus and agencies, to abolish offices, to
transfer functions, to create and classify functions, services and activities,
transfer appropriations, and to standardize salaries and materials. This decree,
in relation to Section 20, Title I, Book III of E.O. 292 has been invoked in
several cases such as Larin v. Executive Secretary.[49]

The Court, however, declines to recognize P.D. No. 1416 as a


justification for the President to create a public office. Said decree is already
stale, anachronistic and inoperable. P.D. No. 1416 was a delegation to then
President Marcos of the authority to reorganize the administrative structure
of the national government including the power to create offices and transfer
appropriations pursuant to one of the purposes of the decree, embodied in its
last Whereas clause:

WHEREAS, the transition towards the parliamentary form of


government will necessitate flexibility in the organization of the
national government.

Clearly, as it was only for the purpose of providing manageability and


resiliency during the interim, P.D. No. 1416, as amended by P.D. No.
1772, became functus oficioupon the convening of the First Congress, as
expressly provided in Section 6, Article XVIII of the 1987 Constitution. In
fact, even the Solicitor General agrees with this view. Thus:

ASSOCIATE JUSTICE CARPIO: Because P.D. 1416 was enacted was


the last whereas clause of P.D.
1416 says it was enacted to
prepare the transition from
presidential to parliamentary.
Now, in a parliamentary form of
government, the legislative and
executive powers are fused,
correct?

SOLICITOR GENERAL CADIZ: Yes, Your Honor.

ASSOCIATE JUSTICE CARPIO: That is why, that P.D. 1416 was


issued. Now would you agree
with me that P.D. 1416 should
not be considered effective
anymore upon the promulgation,
adoption, ratification of the
1987 Constitution.

SOLICITOR GENERAL CADIZ: Not the whole of P.D. [No.] 1416,


Your Honor.

ASSOCIATE JUSTICE CARPIO: The power of the President to


reorganize the entire National
Government is deemed repealed,
at least, upon the adoption of
the 1987 Constitution, correct.
SOLICITOR GENERAL CADIZ: Yes, Your Honor.[50]

While the power to create a truth commission cannot pass muster on the
basis of P.D. No. 1416 as amended by P.D. No. 1772, the creation of the
PTC finds justification under Section 17, Article VII of the Constitution,
imposing upon the President the duty to ensure that the laws are faithfully
executed. Section 17 reads:

Section 17. The President shall have control of all the


executive departments, bureaus, and offices. He shall ensure that the
laws be faithfully executed. (Emphasis supplied).

As correctly pointed out by the respondents, the allocation of power in


the three principal branches of government is a grant of all powers inherent
in them. The Presidents power to conduct investigations to aid him in
ensuring the faithful execution of laws in this case, fundamental laws on
public accountability and transparency is inherent in the Presidents powers
as the Chief Executive. That the authority of the President to conduct
investigations and to create bodies to execute this power is not explicitly
mentioned in the Constitution or in statutes does not mean that he is bereft of
such authority.[51] As explained in the landmark case of Marcos v.
Manglapus:[52]
x x x. The 1987 Constitution, however, brought back the
presidential system of government and restored the separation of
legislative, executive and judicial powers by their actual distribution
among three distinct branches of government with provision for
checks and balances.

It would not be accurate, however, to state that "executive


power" is the power to enforce the laws, for the President is head of
state as well as head of government and whatever powers inhere in
such positions pertain to the office unless the Constitution itself
withholds it. Furthermore, the Constitution itself provides that the
execution of the laws is only one of the powers of the President. It
also grants the President other powers that do not involve the
execution of any provision of law, e.g., his power over the country's
foreign relations.
On these premises, we hold the view that although the 1987
Constitution imposes limitations on the exercise of specific powers
of the President, it maintains intact what is traditionally considered
as within the scope of "executive power." Corollarily, the powers of
the President cannot be said to be limited only to the specific
powers enumerated in the Constitution. In other words, executive
power is more than the sum of specific powers so enumerated.

It has been advanced that whatever power inherent in the


government that is neither legislative nor judicial has to be
executive. x x x.

Indeed, the Executive is given much leeway in ensuring that our laws are
faithfully executed. As stated above, the powers of the President are not
limited to those specific powers under the Constitution.[53] One of the
recognized powers of the President granted pursuant to this
constitutionally-mandated duty is the power to create ad hoc committees.
This flows from the obvious need to ascertain facts and determine if laws
have been faithfully executed. Thus, in Department of Health v.
Camposano,[54] the authority of the President to issue Administrative Order
No. 298, creating an investigative committee to look into the administrative
charges filed against the employees of the Department of Health for the
anomalous purchase of medicines was upheld. In said case, it was ruled:

The Chief Executives power to create the Ad hoc Investigating


Committee cannot be doubted. Having been constitutionally granted
full control of the Executive Department, to which respondents
belong, the President has the obligation to ensure that all executive
officials and employees faithfully comply with the law. With AO 298
as mandate, the legality of the investigation is sustained. Such
validity is not affected by the fact that the investigating team and
the PCAGC had the same composition, or that the former used the
offices and facilities of the latter in conducting the inquiry.
[Emphasis supplied]

It should be stressed that the purpose of allowing ad hoc investigating


bodies to exist is to allow an inquiry into matters which the President is
entitled to know so that he can be properly advised and guided in the
performance of his duties relative to the execution and enforcement of the
laws of the land. And if history is to be revisited, this was also the objective
of the investigative bodies created in the past like the PCAC, PCAPE,
PARGO, the Feliciano Commission, the Melo Commission and the Zenarosa
Commission. There being no changes in the government structure, the Court
is not inclined to declare such executive power as non-existent just because
the direction of the political winds have changed.

On the charge that Executive Order No. 1 transgresses the power of


Congress to appropriate funds for the operation of a public office, suffice it
to say that there will be no appropriation but only an allotment or allocations
of existing funds already appropriated. Accordingly, there is no usurpation
on the part of the Executive of the power of Congress to appropriate funds.
Further, there is no need to specify the amount to be earmarked for the
operation of the commission because, in the words of the Solicitor General,
whatever funds the Congress has provided for the Office of the President
will be the very source of the funds for the commission.[55] Moreover, since
the amount that would be allocated to the PTC shall be subject to existing
auditing rules and regulations, there is no impropriety in the funding.

Power of the Truth Commission to Investigate

The Presidents power to conduct investigations to ensure that laws are


faithfully executed is well recognized. It flows from the faithful-execution
clause of the Constitution under Article VII, Section 17 thereof.[56] As the
Chief Executive, the president represents the government as a whole and
sees to it that all laws are enforced by the officials and employees of his
department. He has the authority to directly assume the functions of the
executive department.[57]

Invoking this authority, the President constituted the PTC to primarily


investigate reports of graft and corruption and to recommend the appropriate
action. As previously stated, no quasi-judicial powers have been vested in
the said body as it cannot adjudicate rights of persons who come before it. It
has been said that Quasi-judicial powers involve the power to hear and
determine questions of fact to which the legislative policy is to apply and to
decide in accordance with the standards laid down by law itself in enforcing
and administering the same law.[58] In simpler terms, judicial discretion is
involved in the exercise of these quasi-judicial power, such that it is
exclusively vested in the judiciary and must be clearly authorized by the
legislature in the case of administrative agencies.

The distinction between the power to investigate and the power to


adjudicate was delineated by the Court in Cario v. Commission on Human
Rights.[59] Thus:

"Investigate," commonly understood, means to examine,


explore, inquire or delve or probe into, research on, study. The
dictionary definition of "investigate" is "to observe or study closely:
inquire into systematically: "to search or inquire into: x x to subject
to an official probe x x: to conduct an official inquiry." The purpose
of investigation, of course, is to discover, to find out, to learn, obtain
information. Nowhere included or intimated is the notion of settling,
deciding or resolving a controversy involved in the facts inquired
into by application of the law to the facts established by the inquiry.
The legal meaning of "investigate" is essentially the same:
"(t)o follow up step by step by patient inquiry or observation. To
trace or track; to search into; to examine and inquire into with care
and accuracy; to find out by careful inquisition; examination; the
taking of evidence; a legal inquiry;" "to inquire; to make an
investigation," "investigation" being in turn described as "(a)n
administrative function, the exercise of which ordinarily does not
require a hearing. 2 Am J2d Adm L Sec. 257; x x an inquiry, judicial
or otherwise, for the discovery and collection of facts concerning a
certain matter or matters."
"Adjudicate," commonly or popularly understood, means to
adjudge, arbitrate, judge, decide, determine, resolve, rule on, settle.
The dictionary defines the term as "to settle finally (the rights and
duties of the parties to a court case) on the merits of issues raised: x
x to pass judgment on: settle judicially: x x act as judge." And
"adjudge" means "to decide or rule upon as a judge or with judicial
or quasi-judicial powers: x x to award or grant judicially in a case of
controversy x x."
In the legal sense, "adjudicate" means: "To settle in the
exercise of judicial authority. To determine finally. Synonymous
with adjudge in its strictest sense;" and "adjudge" means: "To pass
on judicially, to decide, settle or decree, or to sentence or condemn.
x x. Implies a judicial determination of a fact, and the entry of a
judgment."[Italics included. Citations Omitted]
Fact-finding is not adjudication and it cannot be likened to the judicial
function of a court of justice, or even a quasi-judicial agency or office. The
function of receiving evidence and ascertaining therefrom the facts of a
controversy is not a judicial function. To be considered as such, the act of
receiving evidence and arriving at factual conclusions in a controversy must
be accompanied by the authority of applying the law to the factual
conclusions to the end that the controversy may be decided or resolved
authoritatively, finally and definitively, subject to appeals or modes of
review as may be provided by law.[60] Even respondents themselves admit
that the commission is bereft of any quasi-judicial power.[61]

Contrary to petitioners apprehension, the PTC will not supplant the


Ombudsman or the DOJ or erode their respective powers. If at all, the
investigative function of the commission will complement those of the two
offices. As pointed out by the Solicitor General, the recommendation to
prosecute is but a consequence of the overall task of the commission to
conduct a fact-finding investigation.[62] The actual prosecution of suspected
offenders, much less adjudication on the merits of the charges against
them,[63] is certainly not a function given to the commission. The phrase,
when in the course of its investigation, under Section 2(g), highlights this
fact and gives credence to a contrary interpretation from that of the
petitioners. The function of determining probable cause for the filing of the
appropriate complaints before the courts remains to be with the DOJ and the
Ombudsman.[64]

At any rate, the Ombudsmans power to investigate under R.A. No. 6770 is
not exclusive but is shared with other similarly authorized government
agencies. Thus, in the case ofOmbudsman v. Galicia,[65] it was written:

This power of investigation granted to the Ombudsman by the 1987


Constitution and The Ombudsman Act is not exclusive but is shared
with other similarly authorized government agencies such as the
PCGG and judges of municipal trial courts and municipal circuit
trial courts. The power to conduct preliminary investigation on
charges against public employees and officials is likewise
concurrently shared with the Department of Justice. Despite the
passage of the Local Government Code in 1991, the Ombudsman
retains concurrent jurisdiction with the Office of the President and
the local Sanggunians to investigate complaints against local
elective officials. [Emphasis supplied].

Also, Executive Order No. 1 cannot contravene the power of the


Ombudsman to investigate criminal cases under Section 15 (1) of R.A. No.
6770, which states:
(1) Investigate and prosecute on its own or on complaint by
any person, any act or omission of any public officer or employee,
office or agency, when such act or omission appears to be illegal,
unjust, improper or inefficient. It has primary jurisdiction over
cases cognizable by the Sandiganbayan and, in the exercise of its
primary jurisdiction, it may take over, at any stage, from any
investigatory agency of government, the investigation of such
cases. [Emphases supplied]

The act of investigation by the Ombudsman as enunciated above


contemplates the conduct of a preliminary investigation or the determination
of the existence of probable cause. This is categorically out of the PTCs
sphere of functions. Its power to investigate is limited to obtaining facts so
that it can advise and guide the President in the performance of his duties
relative to the execution and enforcement of the laws of the land. In this
regard, the PTC commits no act of usurpation of the Ombudsmans
primordial duties.

The same holds true with respect to the DOJ. Its authority under Section 3
(2), Chapter 1, Title III, Book IV in the Revised Administrative Code is by
no means exclusive and, thus, can be shared with a body likewise tasked to
investigate the commission of crimes.

Finally, nowhere in Executive Order No. 1 can it be inferred that the


findings of the PTC are to be accorded conclusiveness. Much like its
predecessors, the Davide Commission, the Feliciano Commission and the
Zenarosa Commission, its findings would, at best, be recommendatory in
nature. And being so, the Ombudsman and the DOJ have a wider degree of
latitude to decide whether or not to reject the recommendation. These offices,
therefore, are not deprived of their mandated duties but will instead be aided
by the reports of the PTC for possible indictments for violations of graft
laws.

Violation of the Equal Protection Clause

Although the purpose of the Truth Commission falls within the


investigative power of the President, the Court finds difficulty in upholding
the constitutionality of Executive Order No. 1 in view of its apparent
transgression of the equal protection clause enshrined in Section 1, Article
III (Bill of Rights) of the 1987 Constitution. Section 1 reads:

Section 1. No person shall be deprived of life, liberty, or


property without due process of law, nor shall any person be denied
the equal protection of the laws.

The petitioners assail Executive Order No. 1 because it is violative of


this constitutional safeguard. They contend that it does not apply equally to
all members of the same class such that the intent of singling out the
previous administration as its sole object makes the PTC an adventure in
partisan hostility.[66] Thus, in order to be accorded with validity, the
commission must also cover reports of graft and corruption in virtually all
administrations previous to that of former President Arroyo.[67]

The petitioners argue that the search for truth behind the reported
cases of graft and corruption must encompass acts committed not only
during the administration of former President Arroyo but also during prior
administrations where the same magnitude of controversies and
anomalies[68] were reported to have been committed against the Filipino
people. They assail the classification formulated by the respondents as it
does not fall under the recognized exceptions because first, there is no
substantial distinction between the group of officials targeted for
investigation by Executive Order No. 1 and other groups or persons who
abused their public office for personal gain; and second, the selective
classification is not germane to the purpose of Executive Order No. 1 to end
corruption.[69] In order to attain constitutional permission, the petitioners
advocate that the commission should deal with graft and grafters prior and
subsequent to the Arroyo administration with the strong arm of the law with
equal force.[70]

Position of respondents

According to respondents, while Executive Order No. 1 identifies the


previous administration as the initial subject of the investigation, following
Section 17 thereof, the PTC will not confine itself to cases of large scale
graft and corruption solely during the said
administration.[71] Assuming arguendo that the commission would confine
its proceedings to officials of the previous administration, the petitioners
argue that no offense is committed against the equal protection clause for the
segregation of the transactions of public officers during the previous
administration as possible subjects of investigation is a valid classification
based on substantial distinctions and is germane to the evils which the
Executive Order seeks to correct.[72] To distinguish the Arroyo
administration from past administrations, it recited the following:

First. E.O. No. 1 was issued in view of widespread


reports of large scale graft and corruption in the previous
administration which have eroded public confidence in public
institutions. There is, therefore, an urgent call for the
determination of the truth regarding certain reports of large
scale graft and corruption in the government and to put a
closure to them by the filing of the appropriate cases against
those involved, if warranted, and to deter others from
committing the evil, restore the peoples faith and confidence in
the Government and in their public servants.

Second. The segregation of the preceding administration


as the object of fact-finding is warranted by the reality that
unlike with administrations long gone, the current
administration will most likely bear the immediate consequence
of the policies of the previous administration.

Third. The classification of the previous administration as


a separate class for investigation lies in the reality that
the evidence of possible criminal activity, the evidence that
could lead to recovery of public monies illegally dissipated, the
policy lessons to be learned to ensure that anti-corruption laws
are faithfully executed, are more easily established in the
regime that immediately precede the current administration.

Fourth. Many administrations subject the transactions of


their predecessors to investigations to provide closure to issues
that are pivotal to national life or even as a routine measure of
due diligence and good housekeeping by a nascent
administration like the Presidential Commission on Good
Government (PCGG), created by the late President Corazon C.
Aquino under Executive Order No. 1 to pursue the recovery of
ill-gotten wealth of her predecessor former President Ferdinand
Marcos and his cronies, and the Saguisag Commission created
by former President Joseph Estrada under Administrative Order
No, 53, to form an ad-hoc and independent citizens committee
to investigate all the facts and circumstances surrounding
Philippine Centennial projects of his predecessor, former
President Fidel V. Ramos.[73] [Emphases supplied]

Concept of the Equal Protection Clause

One of the basic principles on which this government was founded is that of
the equality of right which is embodied in Section 1, Article III of the 1987
Constitution. The equal protection of the laws is embraced in the concept of
due process, as every unfair discrimination offends the requirements of
justice and fair play. It has been embodied in a separate clause, however, to
provide for a more specific guaranty against any form of undue favoritism or
hostility from the government. Arbitrariness in general may be challenged
on the basis of the due process clause. But if the particular act assailed
partakes of an unwarranted partiality or prejudice, the sharper weapon to cut
it down is theequal protection clause.[74]

According to a long line of decisions, equal protection simply requires


that all persons or things similarly situated should be treated alike, both as to
rights conferred and responsibilities imposed.[75] It requires public bodies
and institutions to treat similarly situated individuals in a similar
manner.[76] The purpose of the equal protection clause is to secure every
person within a states jurisdiction against intentional and arbitrary
discrimination, whether occasioned by the express terms of a statue or by its
improper execution through the states duly constituted authorities.[77] In
other words, the concept of equal justice under the law requires the state to
govern impartially, and it may not draw distinctions between individuals
solely on differences that are irrelevant to a legitimate governmental
objective.[78]

The equal protection clause is aimed at all official state actions, not
just those of the legislature.[79] Its inhibitions cover all the departments of the
government including the political and executive departments, and extend to
all actions of a state denying equal protection of the laws, through whatever
agency or whatever guise is taken. [80]

It, however, does not require the universal application of the laws to
all persons or things without distinction. What it simply requires is equality
among equals as determined according to a valid classification. Indeed, the
equal protection clause permits classification. Such classification, however,
to be valid must pass the test ofreasonableness. The test has four requisites:
(1) The classification rests on substantial distinctions; (2) It is germane to the
purpose of the law; (3) It is not limited to existing conditions only; and
(4) It applies equally to all members of the same class.[81] Superficial
differences do not make for a valid classification.[82]

For a classification to meet the requirements of constitutionality, it


must include or embrace all persons who naturally belong to the
class.[83] The classification will be regarded as invalid if all the members of
the class are not similarly treated, both as to rights conferred and obligations
imposed. It is not necessary that the classification be made with absolute
symmetry, in the sense that the members of the class should possess the
same characteristics in equal degree. Substantial similarity will suffice; and
as long as this is achieved, all those covered by the classification are to be
treated equally. The mere fact that an individual belonging to a class differs
from the other members, as long as that class is substantially distinguishable
from all others, does not justify the non-application of the law to him.[84]

The classification must not be based on existing circumstances only,


or so constituted as to preclude addition to the number included in the class.
It must be of such a nature as to embrace all those who may thereafter be in
similar circumstances and conditions. It must not leave out or underinclude
those that should otherwise fall into a certain classification. As elucidated
in Victoriano v. Elizalde Rope Workers' Union[85] and reiterated in a long
line of cases,[86]
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 state.
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. [Citations
omitted]
Applying these precepts to this case, Executive Order No. 1 should be
struck down as violative of the equal protection clause. The clear mandate of
the envisioned truth commission is to investigate and find out the truth
concerning the reported cases of graft and corruption during the previous
administration[87] only. The intent to single out the previous administration is
plain, patent and manifest. Mention of it has been made in at least three
portions of the questioned executive order. Specifically, these are:

WHEREAS, there is a need for a separate body dedicated solely to


investigating and finding out the truth concerning the reported
cases of graft and corruption during theprevious administration, and
which will recommend the prosecution of the offenders and secure
justice for all;

SECTION 1. Creation of a Commission. There is hereby created


the PHILIPPINE TRUTH COMMISSION, hereinafter referred to as
the COMMISSION, which shall primarily seek and find the truth on,
and toward this end, investigate reports of graft and corruption of
such scale and magnitude that shock and offend the moral and
ethical sensibilities of the people, committed by public officers and
employees, their co-principals, accomplices and accessories from
the private sector, if any, during the previous administration; and
thereafter recommend the appropriate action or measure to be
taken thereon to ensure that the full measure of justice shall be
served without fear or favor.

SECTION 2. Powers and Functions. The Commission, which shall


have all the powers of an investigative body under Section 37,
Chapter 9, Book I of the Administrative Code of 1987, is primarily
tasked to conduct a thorough fact-finding investigation of reported
cases of graft and corruption referred to in Section 1, involving third
level public officers and higher, their co-principals, accomplices and
accessories from the private sector, if any, during the previous
administration and thereafter submit its finding and
recommendations to the President, Congress and the Ombudsman.
[Emphases supplied]

In this regard, it must be borne in mind that the Arroyo administration


is but just a member of a class, that is, a class of past administrations. It is
not a class of its own. Not to include past administrations similarly situated
constitutes arbitrariness which the equal protection clause cannot
sanction. Such discriminating differentiation clearly reverberates to label the
commission as a vehicle for vindictiveness and selective retribution.

Though the OSG enumerates several differences between the Arroyo


administration and other past administrations, these distinctions are not
substantial enough to merit the restriction of the investigation to the previous
administration only. The reports of widespread corruption in the Arroyo
administration cannot be taken as basis for distinguishing said administration
from earlier administrations which were also blemished by similar
widespread reports of impropriety. They are not inherent in, and do not inure
solely to, the Arroyo administration. As Justice Isagani Cruz put it,
Superficial differences do not make for a valid classification.[88]

The public needs to be enlightened why Executive Order No. 1


chooses to limit the scope of the intended investigation to the previous
administration only. The OSG ventures to opine that to include other past
administrations, at this point, may unnecessarily overburden the commission
and lead it to lose its effectiveness.[89] The reason given is specious. It is
without doubt irrelevant to the legitimate and noble objective of the PTC to
stamp out or end corruption and the evil it breeds.[90]

The probability that there would be difficulty in unearthing evidence


or that the earlier reports involving the earlier administrations were already
inquired into is beside the point. Obviously, deceased presidents and cases
which have already prescribed can no longer be the subjects of inquiry by
the PTC. Neither is the PTC expected to conduct simultaneous investigations
of previous administrations, given the bodys limited time and resources. The
law does not require the impossible (Lex non cogit ad impossibilia).[91]

Given the foregoing physical and legal impossibility, the Court


logically recognizes the unfeasibility of investigating almost a centurys
worth of graft cases. However, the fact remains that Executive Order No. 1
suffers from arbitrary classification. The PTC, to be true to its mandate of
searching for the truth, must not exclude the other past administrations. The
PTC must, at least, have the authority to investigate all past
administrations. While reasonable prioritization is permitted, it should not
be arbitrary lest it be struck down for being unconstitutional. In the often
quoted language of Yick Wo v. Hopkins,[92]

Though the law itself be fair on its face and impartial in


appearance, yet, if applied and administered by public
authority with an evil eye and an unequal hand, so as
practically to make unjust and illegal discriminations between
persons in similar circumstances, material to their rights, the
denial of equal justice is still within the prohibition of the
constitution. [Emphasis supplied]

It could be argued that considering that the PTC is an ad hoc body, its
scope is limited. The Court, however, is of the considered view that although
its focus is restricted, the constitutional guarantee of equal protection under
the laws should not in any way be circumvented. The Constitution is the
fundamental and paramount law of the nation to which all other laws must
conform and in accordance with which all private rights determined and all
public authority administered.[93] Laws that do not conform to the
Constitution should be stricken down for being unconstitutional.[94] While
the thrust of the PTC is specific, that is, for investigation of acts of graft and
corruption, Executive Order No. 1, to survive, must be read together with the
provisions of the Constitution. To exclude the earlier administrations in the
guise of substantial distinctions would only confirm the petitioners lament
that the subject executive order is only an adventure in partisan hostility. In
the case of US v. Cyprian,[95] it was written: A rather limited number of such
classifications have routinely been held or assumed to be arbitrary; those
include: race, national origin, gender, political activity or membership in a
political party, union activity or membership in a labor union, or more
generally the exercise of first amendment rights.

To reiterate, in order for a classification to meet the requirements of


constitutionality, it must include or embrace all persons who naturally
belong to the class.[96] Such a classification must not be based on existing
circumstances only, or so constituted as to preclude additions to the number
included within a class, but must be of such a nature as to embrace all those
who may thereafter be in similar circumstances and conditions. Furthermore,
all who are in situations and circumstances which are relative to the
discriminatory legislation and which are indistinguishable from those of the
members of the class must be brought under the influence of the law and
treated by it in the same way as are the members of the class.[97]

The Court is not unaware that mere underinclusiveness is not fatal to


the validity of a law under the equal protection clause.[98] Legislation is not
unconstitutional merely because it is not all-embracing and does not include
all the evils within its reach.[99] It has been written that a regulation
challenged under the equal protection clause is not devoid of a rational
predicate simply because it happens to be incomplete.[100] In several
instances, the underinclusiveness was not considered a valid reason to strike
down a law or regulation where the purpose can be attained in future
legislations or regulations. These cases refer to the step by step
process.[101] With regard to equal protection claims, a legislature does not run
the risk of losing the entire remedial scheme simply because it fails, through
inadvertence or otherwise, to cover every evil that might conceivably have
been attacked.[102]

In Executive Order No. 1, however, there is no inadvertence. That the


previous administration was picked out was deliberate and intentional as can
be gleaned from the fact that it was underscored at least three times in the
assailed executive order. It must be noted that Executive Order No. 1 does
not even mention any particular act, event or report to be focused on unlike
the investigative commissions created in the past. The equal protection
clause is violated by purposeful and intentional discrimination.[103]

To disprove petitioners contention that there is deliberate


discrimination, the OSG clarifies that the commission does not only confine
itself to cases of large scale graft and corruption committed during the
previous administration.[104] The OSG points to Section 17 of Executive
Order No. 1, which provides:
SECTION 17. Special Provision Concerning Mandate. If and when in the
judgment of the President there is a need to expand the mandate of the
Commission as defined in Section 1 hereof to include the investigation of
cases and instances of graft and corruption during the prior administrations,
such mandate may be so extended accordingly by way of a supplemental
Executive Order.

The Court is not convinced. Although Section 17 allows the President


the discretion to expand the scope of investigations of the PTC so as to
include the acts of graft and corruption committed in other past
administrations, it does not guarantee that they would be covered in the
future. Such expanded mandate of the commission will still depend on the
whim and caprice of the President. If he would decide not to include them,
the section would then be meaningless. This will only fortify the fears of the
petitioners that the Executive Order No. 1 was crafted to tailor-fit the
prosecution of officials and personalities of the Arroyo administration.[105]

The Court tried to seek guidance from the pronouncement in the case
of Virata v. Sandiganbayan,[106] that the PCGG Charter (composed of
Executive Orders Nos. 1, 2 and 14) does not violate the equal protection
clause. The decision, however, was devoid of any discussion on how such
conclusory statement was arrived at, the principal issue in said case being
only the sufficiency of a cause of action.

A final word

The issue that seems to take center stage at present is - whether or not
the Supreme Court, in the exercise of its constitutionally mandated power of
Judicial Review with respect to recent initiatives of the legislature and the
executive department, is exercising undue interference. Is the Highest
Tribunal, which is expected to be the protector of the Constitution, itself
guilty of violating fundamental tenets like the doctrine of separation of
powers? Time and again, this issue has been addressed by the Court, but it
seems that the present political situation calls for it to once again explain the
legal basis of its action lest it continually be accused of being a hindrance to
the nations thrust to progress.

The Philippine Supreme Court, according to Article VIII, Section 1 of


the 1987 Constitution, is vested with Judicial Power that 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 of abuse of discretion amounting to lack or excess of
jurisdiction on the part of any branch or instrumentality of the government.

Furthermore, in Section 4(2) thereof, it is vested with the power of


judicial review which is the power to declare a treaty, international or
executive agreement, law, presidential decree, proclamation, order,
instruction, ordinance, or regulation unconstitutional. This power also
includes the duty to rule on the constitutionality of the application, or
operation of presidential decrees, proclamations, orders, instructions,
ordinances, and other regulations. These provisions, however, have been
fertile grounds of conflict between the Supreme Court, on one hand, and the
two co-equal bodies of government, on the other. Many times the Court has
been accused of asserting superiority over the other departments.

To answer this accusation, the words of Justice Laurel would be a


good source of enlightenment, to wit: And when the judiciary mediates to
allocate constitutional boundaries, it does not assert any superiority over the
other departments; it does not in reality nullify or invalidate an act of the
legislature, but only asserts the solemn and sacred obligation assigned to it
by the Constitution to determine conflicting claims of authority under the
Constitution and to establish for the parties in an actual controversy the
rights which that instrument secures and guarantees to them.[107]

Thus, the Court, in exercising its power of judicial review, is not


imposing its own will upon a co-equal body but rather simply making sure
that any act of government is done in consonance with the authorities and
rights allocated to it by the Constitution. And, if after said review, the Court
finds no constitutional violations of any sort, then, it has no more authority
of proscribing the actions under review. Otherwise, the Court will not be
deterred to pronounce said act as void and unconstitutional.

It cannot be denied that most government actions are inspired with


noble intentions, all geared towards the betterment of the nation and its
people. But then again, it is important to remember this ethical principle:
The end does not justify the means. No matter how noble and worthy of
admiration the purpose of an act, but if the means to be employed in
accomplishing it is simply irreconcilable with constitutional parameters, then
it cannot still be allowed.[108] The Court cannot just turn a blind eye and
simply let it pass. It will continue to uphold the Constitution and its
enshrined principles.

The Constitution must ever remain supreme. All must


bow to the mandate of this law. Expediency must not be allowed
to sap its strength nor greed for power debase its rectitude.[109]

Lest it be misunderstood, this is not the death knell for a truth


commission as nobly envisioned by the present administration. Perhaps a
revision of the executive issuance so as to include the earlier past
administrations would allow it to pass the test of reasonableness and not
be an affront to the Constitution. Of all the branches of the government, it
is the judiciary which is the most interested in knowing the truth and so it
will not allow itself to be a hindrance or obstacle to its attainment. It must,
however, be emphasized that the search for the truth must be within
constitutional bounds for ours is still a government of laws and not of
men.[110]

WHEREFORE, the petitions are GRANTED. Executive Order No. 1


is hereby declared UNCONSTITUTIONAL insofar as it is violative of the
equal protection clause of the Constitution.

As also prayed for, the respondents are hereby ordered to cease and
desist from carrying out the provisions of Executive Order No. 1.
SO ORDERED.

JOSE CATRAL MENDOZA


Associate Justice

WE CONCUR:

See separate opinion (concurring)


RENATO C. CORONA
Chief Justice

See dissenting opinion Please see dissenting opinion


ANTONIO T. CARPIO CONCHITA CARPIO MORALES
Associate Justice Associate Justice

I certify that Justice Velasco left his concurring vote See concurring & dissenting
opinion
PRESBITERO J. VELASCO, JR. ANTONIO EDUARDO B. NACHURA
Associate Justice Associate Justice

See separate concurring opinion See separate opinion (concurring)


TERESITA J. LEONARDO-DE CASTRO ARTURO D. BRION
Associate Justice Associate Justice
See separate concurring opinion see my separate concurring opinion
DIOSDADO M. PERALTA LUCAS P. BERSAMIN
Associate Justice Associate Justice

See separate dissenting opinion


MARIANO C. DEL CASTILLO ROBERTO A. ABAD
Associate Justice Associate Justice

See separate opinion (concurring)


MARTIN S. VILLARAMA, JR. JOSE PORTUGAL PEREZ
Associate Justice Associate Justice

See dissenting opinion


MARIA LOURDES P.A. SERENO
Associate Justice
CERTIFICATION

Pursuant to Section 13, Article VIII of the Constitution, I certify that


the conclusions in the above Decision had been reached in consultation
before the case was assigned to the writer of the opinion of the Court.

RENATO C. CORONA
Chief Justice

[1]
Angara v. The Electoral Commission, 63 Phil. 139, 158 (1936).
[2]
Bernas, The 1987 Constitution of the Republic of the Philippines; A Commentary, 1996 ed., p.
xxxiv, citing Miller, Lectures on the Constitution of the United States 64 (1893); 1 Schwartz, The Powers
of Government 1 (1963).
[3]
Cruz, Philippine Political law, 2002 ed. p. 12.
[4]
Id.
[5]
Resolution dated August 24, 2010 consolidating G.R. No. 192935 with G.R. No. 193036, rollo, pp.
87-88.
[6]
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.
[7]
Biraogo Petition, p. 5, rollo, p. 7.
[8]
Salvador Laurel v. Hon. Desierto, G.R. No. 145368, April 12, 2002, citing F.R. Mechem, A Treatise On
The Law of Public Offices and Officers.
[9]
International Center for Transitional Justice, <http://www.ictj.org/en/tj/138.html> visited November 20,
2010.
[10]
Freeman, The Truth Commission and Procedural Fairness, 2006 Ed., p. 12, citing Hayner,
UnspeakableTruths: Facing the Challenge of Truth Commissions.
[11]
International Center for Transitional Justice, supra note 9.
[12]
Armando Doronila, Philippine Daily Inquirer, August 2, 2010.
<http://newsinfo.inquirer.net/inquirerheadlines/nation/view/20100802-284444/Truth-body-told-Take-no
prisoners> visited November 9, 2010.
[13]
Lagman Petition, pp. 50-52, rollo, pp. 58-60.
[14]
Rollo, pp. 111-216.
[15]
Otherwise known as the Administrative Code of 1987.
[16] Granting Continuing Authority To The President Of The Philippines To Reorganize The National
Government.
[17]
Otherwise known as the General Appropriations Act of 2010.
[18]
OSG Consolidated Comment, p. 33, rollo, p. 153, citing Uy v. Sandiganbayan, G.R. Nos.
105965-70, March 20, 2001, 354 SCRA 651, 660-661.
[19]
Senate of the Philippines v. Ermita, G.R. No. 169777, April 20, 2006, 488 SCRA 1, 35; and Francisco
v.
House of Representatives, 460 Phil. 830, 842 (2003).
[20]
OSG Memorandum, p. 29, rollo, p. 348.
[21]
G.R. No. 113105, August 19, 1994, 235 SCRA 506, 520.
[22]
Supra note 19, citing Pimentel Jr., v. Executive Secretary, G.R. No. 158088, July 6, 2005, 462 SCRA
623, 631-632.
[23]
OSG Memorandum, p. 30, rollo, p. 349.
[24]
G.R. No. 171396, May 3, 2006, 489 SCRA 160, 216-218.
[25]
Social Justice Society (SJS) v. Dangerous Drugs Board and Philippine Drug Enforcement Agency, G.R.
No. 157870, November 3, 2008, 570 SCRA 410, 421; Tatad v. Secretary of the Department of Energy,
346 Phil 321 (1997); De Guia v. COMELEC, G.R. No. 104712, May 6, 1992, 208 SCRA 420, 422.
[26]
G.R. 132527, July 29, 2005, 465 SCRA 47, 62.
[27]
84 Phil. 368, 373 (1949).
[28]
(1) the character of the funds 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 other party with a more direct and specific interest in the
questions being raised.
[29]
G.R. No. 174697, July 8, 2010.
[30]
Kilosbayan,Inc. v. Guingona, Jr., G.R. No. 113375, May 5, 1994, 232 SCRA 110, 139.
[31]
Biraogo Memorandum, p. 7, rollo, p. 69.
[32]
Id. at 6, rollo, p. 68.
[33]
Id. at 9, rollo, p. 71.
[34]
Id. at 10, rollo, p. 72.
[35]
Id. at 10-11, rollo pp. 72-73.
[36]
Lagman Memorandum, G.R. No 193036, pp. 10-11, rollo, pp. 270-271.
[37]
OSG Memorandum, p. 32, rollo, p. 351.
[38]
Id. at 33, rollo, p. 352.
[39]
OSG Consolidated Comment, p. 24, rollo, p. 144.
[40]
OSG Memorandum, pp. 38-39, rollo, pp. 357-358.
[41]
Citing Department of Health v. Camposano, G.R. No. 157684, April 27, 2005, 457 SCRA 438, 450.
[42]
Citing Evangelista v. Jarencio, No. L-27274, November 27, 1975, 68 SCRA 99, 104.
[43]
Citing Rodriguez v. Santos Diaz, No. L-19553, February 29, 1964, 10 SCRA 441, 445.
[44]
G.R. No. 166620, April 20, 2010.
[45]
Consolidated Comment, p. 45, rollo, p. 165.
[46]
G.R. Nos. 142801-802, July 10, 2001, 360 SCRA 718, also cited in Banda, supra.
[47]
The Veterans Federation of the Philippines v. Reyes, G. R. No. 155027, February 28, 2006, 483 SCRA
526, 564; DOTC v. Mabalot, 428 Phil. 154, 164-165 (2002); Mondano v. Silvosa, 97 Phil. 143 (1955).
[48]
OSG Memorandum, p. 56, rollo, p. 375.
[49]
G.R. No. 112745, October 16, 1997, 280 SCRA 713, 730.
[50]
TSN, September 28, 2010, pp. 205-207.
[51]
OSG Memorandum, p. 37, rollo, p.356.
[52]
G.R. 88211, September 15, 1989, 177 SCRA 688.
[53]
Id. at 691.
[54]
496 Phil. 886, 896-897 (2005).
[55]
Consolidated Comment, p. 48; rollo, p. 168.
[56]
Section 17. The President shall have control of all the executive departments, bureaus, and offices. He
shall ensure that the laws be faithfully executed.
[57]
Ople v. Torres, 354 Phil. 948, 967 (1998).
[58]
Smart Communications, Inc. et al. v. National Telecommunications Commission, 456 Phil. 145, 156
(2003).
[59] G.R. No. 96681, December 2, 1991, 204 SCRA 483.
[60]
Id. at 492.
[61]
TSN, September 28, 2010, pp. 39-44; and OSG Memorandum, p. 67, rollo, p. 339.
[62]
OSG Consolidated Comment, p. 55, rollo, p. 175.
[63]
Id. at 56, rollo, p. 176.
[64]
Id.
[65]
G.R. No. 167711, October 10, 2008, 568 SCRA 327, 339.
[66]
Lagman Petition, pp. 43, 50-52, rollo, pp. 51, 50-60.
[67]
Lagman Memorandum, G.R. 193036, pp. 28-29, rollo, pp. 347-348.
[68]
Lagman Petition, p. 31, rollo, p. 39.
[69]
Id. at 28-29, rollo, pp. 36-37.
[70]
Id. at 29, rollo, p. 37.
[71]
OSG Memorandum, p. 88; rollo, p. 407.
[72]
OSG Consolidated Comment. p. 68, rollo, p. 188.
[73]
OSG Memorandum, pp. 90-93, rollo, pp. 409-412.
[74]
The Philippine Judges Association v. Hon. Pardo, G.R. No. 105371, November 11, 1993, 227 SCRA
703, 711.
[75]
Id. at 712, citing Ichong v. Hernandez, 101 Phil. 1155 (1957); Sison, Jr. v. Ancheta, No. L-59431, July
25, 1984, 130 SCRA 654; Association of Small Landowners in the Philippines v. Secretary of Agrarian
Reform, G.R. No. 7842, July 14, 1989, 175 SCRA 343, 375.
[76]
Guino v. Senkowski, 54 F 3d 1050 (2d. Cir. 1995) cited in Am. Jur, 2d, Vol. 16 (b), p. 302.
[77]
Edward Valves, Inc. v. Wake Country, 343 N.C. 426 cited in Am. Jur. 2d, Vol. 16 (b), p. 303.
[78]
Lehr v. Robertson, 463 US 248, 103 cited in Am. Jur. 2d, Vol. 16 (b), p. 303.
[79]
See Columbus Bd. of Ed. v. Penick, 443 US 449 cited Am. Jur. 2d, Vol. 16 (b), pp. 316-317.
[80]
See Lombard v. State of La., 373 US 267 cited in Am. Jur. 2d, Vol. 16 (b), p. 316.
[81]
Beltran v. Secretary of Health, 512 Phil 560, 583 (2005).
[82]
Cruz, Constitutional Law, 2003 ed., p. 128.
[83]
McErlain v. Taylor, 207 Ind. 240 cited in Am. Jur. 2d, Vol. 16 (b), p. 367.
[84]
Cruz, Constitutional Law, 2003 ed., pp. 135-136.
[85]
No. L-25246, 59 SCRA 54, 77-78 (September 12, 1974).
[86]
Basa v. Federacion Obrera de la Industria Tabaquera y Otros Trabajadores de Filipinas (FOITAF), No.
L-27113, November 19, 1974, 61 SCRA 93, 110-111; Anuncension v. National Labor Union, No.
L-26097, November 29, 1977, 80 SCRA 350, 372-373; Villegas v. Hiu Chiong Tsai Pao Ho, No.
L-29646, November 10, 1978, 86 SCRA 270, 275; Dumlao v. Comelec, No. L-52245, January 22, 1980,
95 SCRA 392, 404; Ceniza v. Comelec, No. L-52304, January 28, 1980, 95 SCRA 763,
772-773; Himagan v. People, G.R. No. 113811, October 7, 1994, 237 SCRA 538; The Conference of
Maritime Manning Agencies, Inc. v. POEA, G.R. No. 114714, April 21, 1995, 243 SCRA 666, 677; JMM
Promotion and Management, Inc. v. Court of Appeals, G.R. No. 120095, August 5, 1996, 260 SCRA 319,
331332; and Tiu v. Court of Appeals, G.R. No. 127410, January 20, 1999, 301 SCRA 278, 288-289. See
also Ichong v. Hernandez, No. L-7995, 101 Phil. 1155 (1957); Vera v. Cuevas, Nos. L-33693-94, May 31,
1979, 90 SCRA 379, 388; and Tolentino v. Secretary of Finance, G.R. Nos. 115455, 115525, 115543,
115544, 115754, 115781, 115852, 115873, and 115931, August 25, 1994, 235 SCRA 630, 684.
[87] th
7 Whereas clause, Executive Order No. 1.
[88]
Cruz, Constitutional Law, 2003 ed., p. 128.
[89]
OSG, Memorandum, p. 89, rollo, p. 408.
[90] th
6 Whereas clause, Executive Order No. 1
[91]
Lee, Handbook of Legal Maxims, 2002 Ed., p.
[92]
118 US 357, http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=us&vol=118&invol=35 <accessed
on December 4, 2010>.
[93]
Macalintal v. COMELEC, G.R. No. 157013, July 10, 2003, 405 SCRA 614, pp. 631-632; Manila Prince
Hotel vs. GSIS, 335 Phil. 82, 101 (1997).
[94]
Id. at 632.
[95]
756 F. Supp. 388, N.. D. Ind., 1991, Jan 30, 1991, Crim No. HCR 90-42;
also http://in.findacase.com/research/wfrmDocViewer.aspx/xq/fac.19910130_0000002.NIN.htm/qx <acc
essed December 5, 2010>
[96]
McErlain v. Taylor, 207 Ind. 240 cited in Am. Jur. 2d, Vol. 16 (b), p. 367.
[97] Martin v. Tollefson, 24 Wash. 2d 211 cited in Am. Jur. 2d, Vol. 16 (b), pp. 367-368 .
[98]
Nixon v. Administrator of General Services, 433 US 425 cited in Am. Jur. 2d, Vol. 16 (b), p. 371.
[99]
Hunter v. Flowers, 43 So 2d 435 cited in Am. Jur. 2d, Vol. 16 (b), p. 370.
[100]
Clements v. Fashing, 457 US 957.
[101]
See Am. Jur. 2d, Vol. 16 (b), pp. 370-371, as footnote (A state legislature may, consistently with the
Equal Protection Clause, address a problem one step at a time, or even select one phase of one field and
apply a remedy there, neglecting the others. [Jeffeson v. Hackney, 406 US 535].
[102]
McDonald v. Board of Election Comrs of Chicago, 394 US 802 cited in Am Jur 2d, Footnote No. 9.
[103]
Ricketts v. City of Hardford, 74 F. 3d 1397 cited in Am. Jur. 2d, Vol. 16 (b), p. 303.
[104]
OSG Consolidated Comment, p. 66, rollo, p.186.
[105]
Lagman Memorandum, p. 30; rollo, p. 118.
[106]
G.R. No. 86926, October 15, 1991; 202 SCRA 680.
[107]
Angara v. Electoral Commission, 63 Phil. 139, 158 (1936).
[108]
Cruz, Philippine Political Law, 2002 ed., pp. 12-13.
[109]
Id.
[110]
Republic v. Southside Homeowners Association, G.R. No. 156951, September 22, 2006.
United States v. Nixon, 418 U.S. 683 (1974)

United States v. Nixon

No. 73-1766

Argued July 8, 1974

Decided July 24, 1974*

418 U.S. 683

CERTIORARI BEFORE JUDGMENT TO THE UNITED STATES COURT

OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT

Syllabus

Following indictment alleging violation of federal statutes by certain staff members of


the White House and political supporters of the President, the Special Prosecutor filed a
motion under Fed.Rule Crim.Proc. 17(c) for a subpoena duces tecum for the production
before trial of certain tapes and documents relating to precisely identified conversations
and meetings between the President and others. The President, claiming executive
privilege, filed a motion to quash the subpoena. The District Court, after treating the
subpoenaed material as presumptively privileged, concluded that the Special Prosecutor
had made a sufficient showing to rebut the presumption and that the requirements of
Rule 17(c) had been satisfied. The court thereafter issued an order for an in
camera examination of the subpoenaed material, having rejected the President's
contentions (a) that the dispute between him and the Special Prosecutor was
nonjusticiable as an "intra-executive" conflict and (b) that the judiciary lacked authority
to review the President's assertion of executive privilege. The court stayed its order
pending appellate review, which the President then sought in the Court of Appeals. The
Special Prosecutor then filed in this Court a petition for a writ of certiorari before
judgment (No. 73-1766), and the President filed a cross-petition for such a writ
challenging the grand jury action (No. 73-1834). The Court granted both petitions.

Held:

1. The District Court's order was appealable as a "final" order under 28 U.S.C. 1291,
was therefore properly "in" the Court of Appeals, 28 U.S.C. 1254, when the petition for
certiorari before judgment was filed in this Court, and is now properly before this Court
for review. Although such an order is normally not final and subject to appeal, an
exception is made in a
"limited class of

Page 418 U. S. 684

cases where denial of immediate review would render impossible any review
whatsoever of an individual's claims,"

United States v. Ryan, 402 U. S. 530, 402 U. S. 533. Such an exception is proper in the
unique circumstances of this case, where it would be inappropriate to subject the
President to the procedure of securing review by resisting the order and inappropriate
to require that the District Court proceed by a traditional contempt citation in order to
provide appellate review. Pp. 418 U. S. 690-692.

2. The dispute between the Special Prosecutor and the President presents a justiciable
controversy. Pp. 418 U. S. 692-697.

(a) The mere assertion of an "intra-branch dispute," without more, does not defeat
federal jurisdiction. United States v. ICC,337 U. S. 426. P. 418 U. S. 693.

(b) The Attorney General, by regulation, has conferred upon the Special Prosecutor
unique tenure and authority to represent the United States, and has given the Special
Prosecutor explicit power to contest the invocation of executive privilege in seeking
evidence deemed relevant to the performance of his specially delegated duties. While
the regulation remains in effect, the Executive Branch is bound by it. United States ex rel.
Accardi v. Shaughnessy, 347 U. S. 260. Pp. 418 U. S. 694-696.

(c) The action of the Special Prosecutor within the scope of his express authority seeking
specified evidence preliminarily determined to be relevant and admissible in the
pending criminal case, and the President's assertion of privilege in opposition thereto,
present issues "of a type which are traditionally justiciable," United States v. ICC,
supra, at 337 U. S. 430, and the fact that both litigants are officers of the Executive
Branch is not a bar to justiciability. Pp. 418 U. S. 696-697.

3. From this Court's examination of the material submitted by the Special Prosecutor in
support of his motion for the subpoena, much of which is under seal, it is clear that the
District Court's denial of the motion to quash comported with Rule 17(c), and that the
Special Prosecutor has made a sufficient showing to justify a subpoena for production
before trial. Pp. 418 U. S. 697-702.

4. Neither the doctrine of separation of powers nor the generalized need for
confidentiality of high-level communications, without more, can sustain an absolute,
unqualified Presidential privilege of immunity from judicial process under all
circumstances. See, e.g., 5 U. S. Madison, 1 Cranch 137, 5 U. S. 177; Baker v. Carr, 369 U.
S. 186, 369 U. S. 211. Absent a claim of need to protect military, diplomatic, or sensitive
national security secrets, the confidentiality of

Page 418 U. S. 685

Presidential communications is not significantly diminished by producing material for a


criminal trial under the protected conditions of in camera inspection, and any absolute
executive privilege under Art. II of the Constitution would plainly conflict with the
function of the courts under the Constitution. Pp. 418 U. S. 703-707.

5. Although the courts will afford the utmost deference to Presidential acts in the
performance of an Art. II function,United States v. Burr, 25 F.Cas. 187, 190, 191-192 (No.
14,694), when a claim of Presidential privilege as to materials subpoenaed for use in a
criminal trial is based, as it is here, not on the ground that military or diplomatic secrets
are implicated, but merely on the ground of a generalized interest in confidentiality, the
President's generalized assertion of privilege must yield to the demonstrated, specific
need for evidence in a pending criminal trial and the fundamental demands of due
process of law in the fair administration of criminal justice. Pp. 418 U. S. 707-713.

6. On the basis of this Court's examination of the record, it cannot be concluded that the
District Court erred in orderingin camera examination of the subpoenaed material,
which shall now forthwith be transmitted to the District Court. Pp.418 U. S. 713-714.

7. Since a president's communications encompass a vastly wider range of sensitive


material than would be true of an ordinary individual, the public interest requires that
Presidential confidentiality be afforded the greatest protection consistent with the fair
administration of justice, and the District Court has a heavy responsibility to ensure that
material involving Presidential conversations irrelevant to or inadmissible in the criminal
prosecution be accorded the high degree of respect due a President, and that such
material be returned under seal to its lawful custodian. Until released to the Special
Prosecutor, no in camera material is to be released to anyone. Pp. 418 U. S. 714-716.

No. 73-1766, 377 F.Supp. 1326, affirmed; No. 73-1834, certiorari dismissed as
improvidently granted.

BURGER, C.J., delivered the opinion of the Court, in which all Members joined except
REHNQUIST, J., who took no part in the consideration or decision of the cases.

Page 418 U. S. 686

MR. CHIEF JUSTICE BURGER delivered the opinion of the Court.

This litigation presents for review the denial of a motion, filed in the District Court on
behalf of the President of the United States, in the case of United States v.
Mitchell (D.C.Crim. No. 7110), to quash a third-party subpoena duces tecum issued by
the United States District Court for the District of Columbia, pursuant to Fed.Rule
Crim.Proc. 17(c). The subpoena directed the President to produce certain tape
recordings and documents relating to his conversations with aides and advisers. The
court rejected the President's claims of absolute executive privilege, of lack of
jurisdiction, and of failure to satisfy the requirements of Rule 17(c). The President
appealed to the Court of Appeals. We granted both the United States' petition for
certiorari before judgment (No. 7 1766), [Footnote 1] and also the President's
cross-petition for certiorari

Page 418 U. S. 687

before judgment (No. 73-1834), [Footnote 2] because of the public importance of the
issues presented and the need for their prompt resolution. 417 U.S. 927 and 960 (1974).

On March 1, 1974, a grand jury of the United States District Court for the District of
Columbia returned an indictment charging seven named individuals [Footnote 3] with
various offenses, including conspiracy to defraud the United States and to obstruct
justice. Although he was not designated as such in the indictment, the grand jury named
the President, among others, as an unindicted coconspirator. [Footnote 4] On April 18,
1974, upon motion of the Special

Page 418 U. S. 688

Prosecutor, see n 8, infra, a subpoena duces tecum was issued pursuant to Rule 17(c) to
the President by the United States District Court and made returnable on May 2, 1974.
This subpoena required the production, in advance of the September 9 trial date, of
certain tapes, memoranda, papers, transcripts, or other writings relating to certain
precisely identified meetings between the President and others. [Footnote 5] The
Special Prosecutor was able to fix the time, place, and persons present at these
discussions because the White House daily logs and appointment records had been
delivered to him. On April 30, the President publicly released edited transcripts of 43
conversations; portions of 20 conversations subject to subpoena in the present case
were included. On May 1, 1974, the President's counsel filed a "special appearance" and
a motion to quash the subpoena under Rule 17(c). This motion was accompanied by a
formal claim of privilege. At a subsequent hearing, [Footnote 6] further motions to
expunge the grand jury's action naming the President as an unindicted coconspirator
and for protective orders against the disclosure of that information were filed or raised
orally by counsel for the President.

On May 20, 1974, the District Court denied the motion to quash and the motions to
expunge and for protective orders. 377 F.Supp. 1326. It further ordered "the President
or any subordinate officer, official, or employee with custody or control of the
documents or
Page 418 U. S. 689

objects subpoenaed," id. at 1331, to deliver to the District Court, on or before May 31,
1974, the originals of all subpoenaed items, as well as an index and analysis of those
items, together with tape copies of those portions of the subpoenaed recordings for
which transcripts had been released to the public by the President on April 30. The
District Court rejected jurisdictional challenges based on a contention that the dispute
was nonjusticiable because it was between the Special Prosecutor and the Chief
Executive and hence "intra-executive" in character; it also rejected the contention that
the Judiciary was without authority to review an assertion of executive privilege by the
President. The court's rejection of the first challenge was based on the authority and
powers vested in the Special Prosecutor by the regulation promulgated by the Attorney
General; the court concluded that a justiciable controversy was presented. The second
challenge was held to be foreclosed by the decision in Nixon v. Sirica, 159 U.S.App.D.C.
58, 487 F.2d 700 (1973).

The District Court held that the judiciary, not the President, was the final arbiter of a
claim of executive privilege. The court concluded that, under the circumstances of this
case, the presumptive privilege was overcome by the Special Prosecutor'sprima
facie "demonstration of need sufficiently compelling to warrant judicial examination in
chambers. . . ." 377 F.Supp. at 1330. The court held, finally, that the Special Prosecutor
had satisfied the requirements of Rule 17(c). The District Court stayed its order pending
appellate review on condition that review was sought before 4 p.m., May 24. The court
further provided that matters filed under seal remain under seal when transmitted as
part of the record.

On May 24, 1974, the President filed a timely notice of appeal from the District Court
order, and the certified record from the District Court was docketed in the United

Page 418 U. S. 690

States Court of Appeals for the District of Columbia Circuit. On the same day, the
President also filed a petition for writ of mandamus in the Court of Appeals seeking
review of the District Court order.

Later on May 24, the Special Prosecutor also filed, in this Court, a petition for a writ of
certiorari before judgment. On May 31, the petition was granted with an expedited
briefing schedule. 417 U.S. 927. On June 6, the President filed, under seal, a
cross-petition for writ of certiorari before judgment. This cross-petition was granted
June 1, 1974, 417 U.S. 960, and the case was set for argument on July 8, 1974.

JURISDICTION
The threshold question presented is whether the May 20, 1974, order of the District
Court was an appealable order and whether this case was properly "in" the Court of
Appeals when the petition for certiorari was filed in this Cort. 28 U.S.C. 1254. The
Court of Appeals' jurisdiction under 28 U.S.C. 1291 encompasses only "final decisions
of the district courts." Since the appeal as timely filed and all other procedural
requirements were met, the petition is properly before this Court for consideration if
the District Court order was final. 28 U.S.C. 1254(1), 2101(e).

The finality requirement of 28 U.S.C. 1291 embodies a strong congressional policy


against piecemeal reviews, and against obstructing or impeding an ongoing judicial
proceeding by interlocutory appeals. See, e.g., Cobbledick v. United States, 309 U. S.
323, 309 U. S. 324-326 (1940). This requirement ordinarily promotes judicial efficiency
and hastens the ultimate termination of litigation. In applying this principle to an order
denying a motion to quash and requiring the production of evidence pursuant

Page 418 U. S. 691

to a subpoena duces tecum, it has been repeatedly held that the order is not final, and
hence not appealable. United States v. Ryan, 402 U. S. 530, 402 U. S.
532 (1971); Cobbledick v. United States, supra; Alexander v. United States, 201 U. S.
117 (1906). This Court has

"consistently held that the necessity for expedition in the administration of the criminal
law justifies putting one who seeks to resist the production of desired information to a
choice between compliance with a trial court's order to produce prior to any review of
that order, and resistance to that order with the concomitant possibility of an
adjudication of contempt if his claims are rejected on appeal."

United States v. Ryan, supra, at 402 U. S. 533.

The requirement of submitting to contempt, however, is not without exception, and in


some instances the purposes underlying the finality rule require a different result. For
example, in Perlman v. United States, 247 U. S. 7 (1918), a subpoena had been directed
to a third party requesting certain exhibits; the appellant, who owned the exhibits,
sought to raise a claim of privilege. The Court held an order compelling production was
appealable because it was unlikely that the third party would risk a contempt citation in
order to allow immediate review of the appellant's claim of privilege. Id. at247 U. S.
12-13. That case fell within the "limited class of cases where denial of immediate review
would render impossible any review whatsoever of an individual's claims." United States
v. Ryan, supra, at 402 U. S. 533.

Here too, the traditional contempt avenue to immediate appeal is peculiarly


inappropriate due to the unique setting in which the question arises. To require a
President of the United States to place himself in the posture of disobeying an order of a
court merely to trigger the procedural mechanism for review of the ruling would be

Page 418 U. S. 692

unseemly, and would present an unnecessary occasion for constitutional confrontation


between two branches of the Government. Similarly, a federal judge should not be
placed in the posture of issuing a citation to a President simply in order to invoke review.
The issue whether a President can be cited for contempt could itself engender
protracted litigation, and would further delay both review on the merits of his claim of
privilege and the ultimate termination of the underlying criminal action for which his
evidence is sought. These considerations lead us to conclude that the order of the
District Court was an appealable order. The appeal from that order was therefore
properly "in" the Court of Appeals, and the case is now properly before this Court on the
writ of certiorari before judgment. 28 U.S.C. 1254; 28 U.S.C. 2101(e).Gay v. Ruff, 292
U. S. 25, 292 U. S. 30 (1934). [Footnote 7]

II

JUSTICIABILITY

In the District Court, the President's counsel argued that the court lacked jurisdiction to
issue the subpoena because the matter was an intra-branch dispute between a
subordinate and superior officer of the Executive Branch, and hence not subject to
judicial resolution. That argument has been renewed in this Court with emphasis on the
contention that the dispute does not present a "case" or "controversy" which can be
adjudicated in the federal courts. The President's counsel argues that the federal courts
should not intrude into areas committed to the other branches of Government.

Page 418 U. S. 693

He views the present dispute as essentially a "jurisdictional" dispute within the


Executive Branch which he analogizes to a dispute between two congressional
committees. Since the Executive Branch has exclusive authority and absolute discretion
to decide whether to prosecute a case, Confiscation Cases, 7 Wall. 454 (1869); United
States v. Cox, 342 F.2d 167, 171 (CA5), cert. denied sub nom. Cox v. Hauber, 381 U.S.
935 (1965), it is contended that a President's decision is final in determining what
evidence is to be used in a given criminal case. Although his counsel concedes that the
President ha delegated certain specific powers to the Special Prosecutor, he has not

"waived nor delegated to the Special Prosecutor the President's duty to claim privilege
as to all materials . . . which fall within the President's inherent authority to refuse to
disclose to any executive officer."
Brief for the President 42. The Special Prosecutor's demand for the items therefore
presents, in the view of the President's counsel, a political question under Baker v.
Carr, 369 U. S. 186 (1962), since it involves a "textually demonstrable" grant of power
under Art. II.

The mere assertion of a claim of an "intra-branch dispute," without more, has never
operated to defeat federal jurisdiction; justiciability does not depend on such a surface
inquiry. In United States v. ICC, 337 U. S. 426 (1949), the Court observed, "courts must
look behind names that symbolize the parties to determine whether a justiciable case or
controversy is presented." Id. at 337 U. S. 430. See also Powell v. McCormack, 395 U. S.
486 (1969); ICC v. Jersey City, 322 U. S. 503 (1944); United States ex rel. Chapman v.
FPC, 345 U. S. 153 (1953); Secretary of Agriculture v. United States, 347 U. S.
645(1954); FMB v. Isbrandtsen Co., 356 U. S. 481, 356 U. S. 483 n. 2 (1958); United
States v. Marine Bancorporation, ante, p. 418 U. S. 602; and United States v. Connecticut
National Bank, ante, p. 418 U. S. 656.

Page 418 U. S. 694

Our starting point is the nature of the proceeding for which the evidence is sought --
here, a pending criminal prosecution. It is a judicial proceeding in a federal court alleging
violation of federal laws, and is brought in the name of the United States as
sovereign. Berger v. United States, 295 U. S. 78, 295 U. S. 88 (1935). Under the authority
of Art. II, 2, Congress has vested in the Attorney General the power to conduct the
criminal litigation of the United States Government. 28 U.S.C. 516. It has also vested in
him the power to appoint subordinate officers to assist him in the discharge of his duties.
28 U.S.C. 509, 510, 515, 533. Acting pursuant to those statutes, the Attorney General
has delegated the authority to represent the United States in these particular matters to
a Special Prosecutor with unique authority and tenure. [Footnote 8] The regulation gives
the

Page 418 U. S. 695

Special Prosecutor explicit power to contest the invocation of executive privilege in the
process of seeking evidence deemed relevant to the performance of these specially
delegated duties. [Footnote 9] 38 Fed.Reg. 30739, as amended by 38 Fed.Reg. 32805.

So long as this regulation is extant, it has the force of law. In United States ex rel. Accardi
v. Shaughnessy, 347 U. S. 260(1954), regulations of the Attorney General delegated
certain of his discretionary powers to the Board

Page 418 U. S. 696

of Immigration Appeals and required that Board to exercise its own discretion on
appeals in deportation cases. The Court held that, so long as the Attorney General's
regulations remained operative, he denied himself the authority to exercise the
discretion delegated to the Board even though the original authority was his and he
could reassert it by amending the regulations. Service v. Dulles, 354 U. S. 363, 354 U. S.
388 (1957), and Vitarelli v. Seaton, 359 U. S. 535 (1959), reaffirmed the basic holding
of Accardi.

Here, as in Accardi, it is theoretically possible for the Attorney General to amend or


revoke the regulation defining the Special Prosecutor's authority. But he has not done so.
[Footnote 10] So long as this regulation remains in force, the Executive Branch is bound
by it, and indeed the United States, as the sovereign composed of the three branches, is
bound to respect and to enforce it. Moreover, the delegation of authority to the Special
Prosecutor in this case is not an ordinary delegation by the Attorney General to a
subordinate officer: with the authorization of the President, the Acting Attorney General
provided in the regulation that the Special Prosecutor was not to be removed without
the "consensus" of eight designated leaders of Congress. N 8, supra.

The demands of and the resistance to the subpoena present an obvious controversy in
the ordinary sense, but that alone is not sufficient to meet constitutional standards. In
the constitutional sense, controversy means more than disagreement and conflict;
rather it means the kind of controversy courts traditionally resolve. Here

Page 418 U. S. 697

at issue is the production or nonproduction of specified evidence deemed by the Special


Prosecutor to be relevant and admissible in a pending criminal case. It is sought by one
official of the Executive Branch within the scope of his express authority; it is resisted by
the Chief Executive on the ground of his duty to preserve the confidentiality of the
communications of the President. Whatever the correct answer on the merits, these
issues are "of a type which are traditionally justiciable." United States v. ICC, 337 U.S.
at 337 U. S. 430. The independent Special Prosecutor, with his asserted need for the
subpoenaed material in the underlying criminal prosecution, is opposed by the
President, with his steadfast assertion of privilege against disclosure of the material. This
setting assures there is

"that concrete adverseness which sharpens the presentation of issues upon which the
court so largely depends for illumination of difficult constitutional questions."

Baker v. Carr, 369 U.S. at 369 U. S. 204. Moreover, since the matter is one arising in the
regular course of a federal criminal prosecution, it is within the traditional scope of Art.
III power. Id. at 369 U. S. 198.

In light of the uniqueness of the setting in which the conflict arises, the fact that both
parties are officer of the Executive Branch cannot be viewed as a barrier to justiciability.
It would be inconsistent with the applicable law and regulation, and the unique facts of
this case, to conclude other than that the Special Prosecutor has standing to bring this
action, and that a justiciable controversy is presented for decision.

III

RULE 17(c)

The subpoena duces tecum is challenged on the ground that the Special Prosecutor
failed to satisfy the requirements of Fed.Rule Crim.Proc. 17(c), which governs

Page 418 U. S. 698

the issuance of subpoenas duces tecum in federal criminal proceedings. If we sustained


this challenge, there would be no occasion to reach the claim of privilege asserted with
respect to the subpoenaed material. Thus, we turn to the question whether the
requirements of Rule 17(c) have been satisfied. See Arkansas Louisiana Gas Co. v. Dept.
of Public Utilities, 304 U. S. 61, 304 U. S. 64 (1938); Ashwander v. TVA, 297 U. S. 288, 297
U. S. 346-347 (1936) (Brandeis, J., concurring).

Rule 17(c) provides:

"A subpoena may also command the person to whom it is directed to produce the books,
papers, documents or other objects designated therein. The court on motion made
promptly may quash or modify the subpoena if compliance would be unreasonable or
oppressive. The court may direct that books, papers, documents or objects designated
in the subpoena be produced before the court at a time prior to the trial or prior to the
time when they are to be offered in evidence and may upon their production permit the
books, papers, documents or objects or portions thereof to be inspected by the parties
and their attorneys."

A subpoena for documents may be quashed if their production would be "unreasonable


or oppressive," but not otherwise. The leading case in this Court interpreting this
standard is Bowman Dairy Co. v. United States, 341 U. S. 214(1951). This case recognized
certain fundamental characteristics of the subpoena duces tecum in criminal cases: (1) it
was not intended to provide a means of discovery for criminal cases, id. at 341 U. S. 220;
(2) its chief innovation was to expedite the trial by providing a time and place before
trial for the inspection of

Page 418 U. S. 699

subpoenaed materials, [Footnote 11] ibid. As both parties agree, cases decided in the
wake of Bowman have generally followed Judge Weinfeld's formulation in United States
v. Iozia, 13 F.R.D. 335, 338 (SDNY 1952), as to the required showing. Under this test, in
order to require production prior to trial, the moving party must show: (1) that the
documents are evidentiary [Footnote 12] and relevant; (2) that they are not otherwise
procurable reasonably in advance of trial by exercise of due diligence; (3) that the party
cannot properly prepare for trial without such production and inspection in advance of
trial, and that the failure to obtain such inspection may tend unreasonably to delay the
trial; and (4) that

Page 418 U. S. 700

the application is made in good faith and is not intended as a general "fishing
expedition."

Against this background, the Special Prosecutor, in order to carry his burden, must clear
three hurdles: (1) relevancy; (2) admissibility; (3) specificity. Our own review of the
record necessarily affords a less comprehensive view of the total situation than was
available to the trial judge, and we are unwilling to conclude that the District Court erred
in the evaluation of the Special Prosecutor's showing under Rule 17(c). Our conclusion is
based on the record before us, much of which is under seal. Of course, the contents of
the subpoenaed tapes could not at that stage be described fully by the Special
Prosecutor, but there was a sufficient likelihood that each of the tapes contains
conversations relevant to the offenses charged in the indictment. United States v.
Gross, 24 F.R.D. 138 (SDNY 1959). With respect to many of the tapes, the Special
Prosecutor offered the sworn testimony or statements of one or more of the
participants in the conversations as to what was said at the time. As for the remainder
of the tapes, the identity of the participants and the time and place of the conversations,
taken in their total context, permit a rational inference that at least part of the
conversations relate to the offenses charged in the indictment.

We also conclude there was a sufficient preliminary showing that each of the
subpoenaed tapes contains evidence admissible with respect to the offenses charged in
the indictment. The most cogent objection to the admissibility of the taped
conversations here at issue is that they are a collection of out-of-court statements by
declarants who will not be subject to cross-examination, and that the statements are
therefore inadmissible hearsay. Here, however, most of the tapes apparently contain
conversations

Page 418 U. S. 701

to which one or more of the defendant named in the indictment were party. The
hearsay rule does not automatically bar all out-of-court statements by a defendant in a
criminal case. [Footnote 13] Declarations by one defendant may also be admissible
against other defendant upon a sufficient showing, by independent evidence, [Footnote
14] of a conspiracy among one or more other defendants and the declarant and if the
declarations at issue were in furtherance of that conspiracy. The same is true of
declarations of coconspirators who are not defendants in the case on trial. Dutton v.
Evans,400 U. S. 74, 400 U. S. 81 (1970). Recorded conversations may also be admissible
for the limited purpose of impeaching the credibility of any defendant who testifies or
any other coconspirator who testifies. Generally, the need for evidence to impeach
witnesses is insufficient to require its production in advance of trial. See, e.g., United
States v. Carter, 15 F.R.D. 367,

Page 418 U. S. 702

371 (DC 1954). Here, however, there are other valid potential evidentiary uses for the
same material, and the analysis and possible transcription of the tapes may take a
significant period of time. Accordingly, we cannot conclude that the District Court erred
in authorizing the issuance of the subpoena duces tecum.

Enforcement of a pretrial subpoena duces tecum must necessarily be committed to the


sound discretion of the trial court, since the necessity for the subpoena most often turns
upon a determination of factual issues. Without a determination of arbitrariness or that
the trial court finding was without record support, an appellate court will not ordinarily
disturb a finding that the applicant for a subpoena complied with Rule 17(c). See, e.g.,
Sue v. Chicago Transit Authority, 279 F.2d 416, 419 (CA7 1960); Shotkin v. Nelson, 146
F.2d 402 (CA10 1944).

In a case such as this, however, where a subpoena is directed to a President of the


United States, appellate review, in deference to a coordinate branch of Government,
should be particularly meticulous to ensure that the standards of Rule 17(c) have been
correctly applied. United States v. Burr, 25 F.Cas. 30, 34 (No. 14,692d) (CC Va. 1807).
From our examination of the materials submitted by the Special Prosecutor to the
District Court in support of his motion for the subpoena, we are persuaded that the
District Court's denial of the President's motion to quash the subpoena was consistent
with Rule 17(c). We also conclude that the Special Prosecutor has made a sufficient
showing to justify a subpoena for production before trial. The subpoenaed materials are
not available from any other source, and their examination and processing should not
await trial in the circumstances shown. Bowman Dairy Co. v. United States, 341 U. S.
214 (1951); United States v. Iozia, 13 F.R.D. 335 (SDNY 1952).

Page 418 U. S. 703

IV

THE CLAIM OF PRIVILEGE A

Having determined that the requirements of Rule 17(c) were satisfied, we turn to the
claim that the subpoena should be quashed because it demands "confidential
conversations between a President and his close advisors that it would be inconsistent
with the public interest to produce." App. 48a. The first contention is a broad claim that
the separation of powers doctrine precludes judicial review of a President's claim of
privilege. The second contention is that, if he does not prevail on the claim of absolute
privilege, the court should hold as a matter of constitutional law that the privilege
prevails over the subpoena duces tecum.

In the performance of assigned constitutional duties, each branch of the Government


must initially interpret the Constitution, and the interpretation of its powers by any
branch is due great respect from the others. The President's counsel, as we have noted,
reads the Constitution as providing an absolute privilege of confidentiality for all
Presidential communications. Many decisions of this Court, however, have
unequivocally reaffirmed the holding of Marbury v. Madison,1 Cranch 137 (1803), that
"[i]t is emphatically the province and duty of the judicial department to say what the law
is." Id.at 5 U. S. 177. No holding of the Court has defined the scope of judicial power
specifically relating to the enforcement of a subpoena for confidential Presidential
communications for use in a criminal prosecution, but other exercises of power by the
Executive Branch and the Legislative Branch have been found invalid as in conflict with
the Constitution. Powell v. McCormack, 395 U. S. 486 (1969); Youngstown Sheet & Tube
Co. v. Sawyer, 343 U. S. 579 (1952). In a

Page 418 U. S. 704

series of cases, the Court interpreted the explicit immunity conferred by express
provisions of the Constitution on Members of the House and Senate by the Speech or
Debate Clause, U.S.Const. Art. I, 6. Doe v. McMillan, 412 U. S. 306(1973); Gravel v.
United States, 408 U. S. 606 (1972); United States v. Brewster, 408 U. S.
501 (1972); United States v. Johnson383 U. S. 169 (1966). Since this Court has
consistently exercised the power to construe and delineate claims arising under express
powers, it must follow that the Court has authority to interpret claims with respect to
powers alleged to derive from enumerated powers.

Our system of government

"requires that federal courts on occasion interpret the Constitution in a manner at


variance with the construction given the document by another branch."

Powell v. McCormack, supra, at 395 U. S. 549. And in Baker v. Carr, 369 U.S. at 369 U. S.
211, the Court stated:

"Deciding whether a matter has in any measure been committed by the Constitution to
another branch of government, or whether the action of that branch exceeds whatever
authority has been committed, is itself a delicate exercise in constitutional
interpretation, and is a responsibility of this Court as ultimate interpreter of the
Constitution."
Notwithstanding the deference each branch must accord the others, the "judicial Power
of the United States" vested in the federal courts by Art. III, 1, of the Constitution can
no more be shared with the Executive Branch than the Chief Executive, for example, can
share with the Judiciary the veto power, or the Congress share with the Judiciary the
power to override a Presidential veto. Any other conclusion would be contrary to the
basic concept of separation of powers and the checks and balances that flow from the
scheme of a tripartite government. The Federalist, No. 47, p. 313 (S. Mittell ed.

Page 418 U. S. 705

1938). We therefore reaffirm that it is the province and duty of this Court "to say what
the law is" with respect to the claim of privilege presented in this case. Marbury v.
Madison, supra at 5 U. S. 177.

In support of his claim of absolute privilege, the President's counsel urges two grounds,
one of which is common to all governments and one of which is peculiar to our system
of separation of powers. The first ground is the valid need for protection of
communications between high Government officials and those who advise and assist
them in the performance of their manifold duties; the importance of this confidentiality
is too plain to require further discussion. Human experience teaches that those who
expect public dissemination of their remarks may well temper candor with a concern for
appearances and for their own interests to the detriment of the decisionmaking process.
[Footnote 15] Whatever the nature of the privilege of confidentiality of Presidential
communications in the exercise of Art. II powers, the privilege can be said to derive from
the supremacy of each branch within its own assigned area of constitutional duties.
Certain powers and privileges flow from the nature of enumerated powers; [Footnote
16] the protection of the confidentiality of

Page 418 U. S. 706

Presidential communications has similar constitutional underpinnings.

The second ground asserted by the President's counsel in support of the claim of
absolute privilege rests on the doctrine of separation of powers. Here it is argued that
the independence of the Executive Branch within its own sphere,Humphrey's Executor v.
United States, 295 U. S. 602, 295 U. S. 629-630 (1935); Kilbourn v. Thompson, 103 U. S.
168, 103 U. S. 190-191 (1881), insulates a President from a judicial subpoena in an
ongoing criminal prosecution, and thereby protects confidential Presidential
communications.

However, neither the doctrine of separation of powers nor the need for confidentiality
of high-level communications, without more, can sustain an absolute, unqualified
Presidential privilege of immunity from judicial process under all circumstances. The
President's need for complete candor and objectivity from advisers calls for great
deference from the courts. However, when the privilege depends solely on the broad,
undifferentiated claim of public interest in the confidentiality of such conversations, a
confrontation with other values arises. Absent a claim of need to protect military,
diplomatic, or sensitive national security secrets, we find it difficult to accept the
argument that even the very important interest in confidentiality of Presidential
communications is significantly diminished by production of such material for in
camera inspection with all the protection that a district court will be obliged to provide.

Page 418 U. S. 707

The impediment that an absolute, unqualified privilege would place in the way of the
primary constitutional duty of the Judicial Branch to do justice in criminal prosecutions
would plainly conflict with the function of the courts under Art. III. In designing the
structure of our Government and dividing and allocating the sovereign power among
three co-equal branches, the Framers of the Constitution sought to provide a
comprehensive system, but the separate powers were not intended to operate with
absolute independence.

"While the Constitution diffuses power the better to secure liberty, it also contemplate
that practice will integrate the dispersed powers into a workable government. It enjoins
upon its branches separateness but interdependence, autonomy but reciprocity."

Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. at 343 U. S. 635 (Jackson, J.,
concurring). To read the Art. II powers of the President as providing an absolute
privilege as against a subpoena essential to enforcement of criminal statutes on no
more than a generalized claim of the public interest in confidentiality of nonmilitary and
nondiplomatic discussions would upset the constitutional balance of "a workable
government" and gravely impair the role of the courts under Art. III.

C.

Since we conclude that the legitimate needs of the judicial process may outweigh
Presidential privilege, it is necessary to resolve those competing interests in a manner
that preserves the essential functions of each branch. The right and indeed the duty to
resolve that question does not free the Judiciary from according high respect to the
representations made on behalf of the President. United States v. Burr, 25 F.Cas. 187,
190, 191-192 (No. 14,694) (CC Va. 1807).

Page 418 U. S. 708

The expectation of a President to the confidentiality of his conversations and


correspondence, 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 decisionmaking. 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. [Footnote 17]
In Nixon v. Sirica, 159 U.S.App.D.C. 58, 487 F.2d 700 (1973), the Court of Appeals held
that such Presidential communications are "presumptively privileged," id. at 75, 487
F.2d at 717, and this position is accepted by both parties in the present litigation. We
agree with Mr. Chief Justice Marshall's observation, therefore, that "[i]n no case of his
kind would a court be required to proceed against the president as against an ordinary
individual." United States v. Burr, 25 F.Cas. at 192.

But this presumptive privilege must be considered in light of our historic commitment to
the rule of law. This

Page 418 U. S. 709

is nowhere more profoundly manifest than, in our view, that "the twofold aim [of
criminal justice] is that guilt shall not escape or innocence suffer." Berger v. United
States, 295 U.S. at 295 U. S. 88. 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.

Only recently the Court restated the ancient proposition of law, albeit in the context of a
grand jury inquiry, rather than a trial,

"that 'the public . . . has a right to every man's evidence,' except for those persons
protected by a constitutional, common law, or statutory privilege, United States v.
Bryan, 339 U.S. [323, 339 U. S. 331 (1950)]; Blackmer v. United States, 284 U. S. 421, 284
U. S. 438 (1932). . . ."

Branzburg v. Hayes, 408 U. S. 665, 408 U. S. 688 (1972). The privileges referred to by the
Court are designed to protect weighty and legitimate competing interests. Thus, the
Fifth Amendment to the Constitution provides that no man "shall be compelled in any
criminal case to be a witness against himself." And, generally, an attorney or a priest
may not be required to disclose what has been revealed in professional confidence.
These and other interests are recognized in law by privileges

Page 418 U. S. 710

against forced disclosure, established in the Constitution, by statute, or at common law.


Whatever their origins, these exceptions to the demand for every man's evidence are
not lightly created nor expansively construed, for they are in derogation of the search
for truth. [Footnote 18]

In this case, the President challenges a subpoena served on him as a third party
requiring the production of materials for use in a criminal prosecution; he does so on
the claim that he has a privilege against disclosure of confidential communications. He
does not place his claim of privilege on the ground they are military or diplomatic
secrets. As to these areas of Art. II duties, the courts have traditionally shown the
utmost deference to Presidential responsibilities. In C. & S. Air Lines v. Waterman S.S.
Corp., 333 U. S. 103, 333 U. S. 111 (1948), dealing with Presidential authority involving
foreign policy considerations, the Court said:

"The President, both as Commander-in-Chief and as the Nation's organ for foreign
affairs, has available intelligence services whose reports are not and ought not to be
published to the world. It would be intolerable that courts, without the relevant
information, should review and perhaps nullify actions of the Executive taken on
information properly held secret."

In United States v. Reynolds, 345 U. S. 1 (1953), dealing

Page 418 U. S. 711

with a claimant's demand for evidence in a Tort Claims Act case against the Government,
the Court said:

"It may be possible to satisfy the court, from all the circumstances of the case, that
there is a reasonable danger that compulsion of the evidence will expose military
matters which, in the interest of national security, should not be divulged. When this is
the case, the occasion for the privilege is appropriate, and the court should not
jeopardize the security which the privilege is meant to protect by insisting upon an
examination of the evidence, even by the judge alone, in chambers."

Id. at 345 U. S. 10. No case of the Court, however, has extended this high degree of
deference to a President's generalized interest in confidentiality. Nowhere in the
Constitution, as we have noted earlier, is there any explicit reference to a privilege of
confidentiality, yet to the extent this interest relates to the effective discharge of a
President's powers, it is constitutionally based.
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 witnesses 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

Page 418 U. S. 712

administration of criminal justice. [Footnote 19] The interest in preserving


confidentiality is weighty indeed, and entitled to great respect. However, we cannot
conclude that advisers will be moved to temper the candor of their remarks by the
infrequent occasions of disclosure because of the possibility that such conversations will
be called for in the context of a criminal prosecution. [Footnote 20]

On the other hand, the allowance of the privilege to withhold evidence that is
demonstrably relevant in a criminal trial would cut deeply into the guarantee of due
process of law and gravely impair the basic function of the court. A President's
acknowledged need for confidentiality

Page 418 U. S. 713

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 communications 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.

D
We have earlier determined that the District Court did not err in authorizing the
issuance of the subpoena. If a President concludes that compliance with a subpoena
would be injurious to the public interest, he may properly, as was done here, invoke a
claim of privilege on the return of the subpoena. Upon receiving a claim of privilege
from the Chief Executive, it became the further duty of the District Court to treat the
subpoenaed material as presumptively privileged and to require the Special Prosecutor
to demonstrate that the Presidential material was "essential to the justice of the
[pending criminal] case." United States v. Burr, 25 F.Cas. at 192. Here, the District Court
treated the material as presumptively privileged, proceeded to find that the Special

Page 418 U. S. 714

Prosecutor had made a sufficient showing to rebut the presumption, and ordered an in
camera examination of the subpoenaed material. On the basis of our examination of the
record, we are unable to conclude that the District Court erred in ordering the
inspection. Accordingly, we affirm the order of the District Court that subpoenaed
materials be transmitted to that court. We now turn to the important question of the
District Court's responsibilities in conducting thein camera examination of Presidential
materials or communications delivered under the compulsion of the subpoenaduces
tecum.

Enforcement of the subpoena duces tecum was stayed pending this Court's resolution of
the issues raised by the petitions for certiorari. Those issues now having been disposed
of, the matter of implementation will rest with the District Court.

"[T]he guard, furnished to [the President] to protect him from being harassed by
vexatious and unnecessary subpoenas, is to be looked for in the conduct of a [district]
court after those subpoenas have issued; not in any circumstance which is to precede
their being issued."

United States v. Burr, 25 F.Cas. at 34. Statements that meet the test of admissibility and
relevance must be isolated; all other material must be excised. At this stage, the District
Court is not limited to representations of the Special Prosecutor as to the evidence
sought by the subpoena; the material will be available to the District Court. It is
elementary that in camera inspection of evidence is always a procedure calling for
scrupulous protection against any release or publication of material not found by the
court, at that stage, probably admissible in evidence and relevant to the issues of the
trial for which it is sought. That being true of an ordinary situation, it is obvious that the
District Court has

Page 418 U. S. 715


a very heavy responsibility to see to it that Presidential conversations, which are either
not relevant or not admissible, are accorded that high degree of respect due the
President of the United States. Mr. Chief Justice Marshall, sitting as a trial judge in
the Burr case, supra, was extraordinarily careful to point out that

"[i]n no case of this kind would a court be required to proceed against the president as
against an ordinary individual."

25 F.Cas. at 192. Marshall's statement cannot be read to mean in any sense that a
President is above the law, but relates to the singularly unique role under Art. II of a
President's communications and activities, related to the performance of duties under
that Article. Moreover, a President's communications and activities encompass a vastly
wider range of sensitive material than would be true of any "ordinary individual." It is
therefore necessary [Footnote 21] in the public interest to afford Presidential
confidentiality the greatest protection consistent with the fair administration of justice.
The need for confidentiality even as to idle conversations with associates in which casual
reference might be made concerning political leaders within the country or foreign
statesmen is too obvious to call for further treatment. We have no doubt that the
District Judge will at all times accord to Presidential records that high degree of
deference suggested in United States v. Burr, supra, and will discharge his responsibility
to see to

Page 418 U. S. 716

it that, until released to the Special Prosecutor, no in camera material is revealed to


anyone. This burden applies with even greater force to excised material; once the
decision is made to excise, the material is restored to its privileged status, and should be
returned under seal to its lawful custodian.

Since this matter came before the Court during the pendency of a criminal prosecution,
and on representations that time is of the essence, the mandate shall issue forthwith.

Affirmed.

MR. JUSTICE REHNQUIST took no part in the consideration or decision of these cases.

* Together with No. 73-1834, Nixon, President of the United States v. United States, also
on certiorari before judgment to the same court.

[Footnote 1]

See 28 U.S.C. 1254(1) and 2101(e) and our Rule 20. See, e.g., Youngstown Sheet &
Tube Co. v. Sawyer, 343 U. S. 579 (1952);United States v. United Mine Workers, 330 U. S.
258 (1947); Carter v. Carter Coal Co, 298 U. S. 238 (1936); Rickert Rice Mills v.
Fontenot, 297 U. S. 110 (1936); Railroad Retirement Board v. Alton R. Co., 295 U. S.
330 (1935); Norman v. Baltimore & Ohio R. Co, 294 U. S. 240 (1935)

[Footnote 2]

The cross-petition in No. 73-1824 raised the issue whether the grand jury acted within
its authority in naming the President as an unindicted coconspirator. Since we find
resolution of this issue unnecessary to resolution of the question whether the claim of
privilege is to prevail, the cross-petition for certiorari is dismissed as improvidently
granted and the remainder of this opinion is concerned with the issues raised in No.
73-1766. On June 19, 1974, the President's counsel moved for disclosure and transmittal
to this Court of all evidence presented to the grand jury relating to its action in naming
the President as an unindicted coconspirator. Action on this motion was deferred
pending oral argument of the case, and is now denied.

[Footnote 3]

The seven defendants were John N. Mitchell, H. R. Haldeman, John D. Ehrlichman,


Charles W. Colson, Robert C. Mardian, Kenneth W. Parkinson, and Gordon Strachan.
Each has occupied either a position of responsibility on the White House Staff or a
position with the Committee for the Re-election of the President. Colson entered a
guilty plea on another charge, and is no longer a defendant.

[Footnote 4]

The President entered a special appearance in the District Court on June 6 and
requested that court to lift its protective order regarding the naming of certain
individuals as coconspirators and to any additional extent deemed appropriate by the
Court. This motion of the President was based on the ground that the disclosures to the
news media made the reasons for continuance of the protective order no longer
meaningful. On June 7, the District Court removed its protective order and, on June 10,
counsel for both parties jointly moved this Court to unseal those parts of the record
which related to the action of the grand jury regarding the President. After receiving a
statement in opposition from the defendants, this Court denied that motion on June 15,
1974, except for the grand jury's immediate finding relating to the status of the
President as an unindicted coconspirator. 417 U.S. 960.

[Footnote 5]

The specific meetings and conversations are enumerated in a schedule attached to the
subpoena. App. 42a-46a.

[Footnote 6]
At the joint suggestion of the Special Prosecutor and counsel for the President, and with
the approval of counsel for the defendants, further proceedings in the District Court
were held in camera.

[Footnote 7]

The parties have suggested that this Court has jurisdiction on other grounds. In view of
our conclusion that there is jurisdiction under 28 U.S.C. 1254(1) because the District
Court's order was appealable, we need not decide whether other jurisdictional vehicles
are available.

[Footnote 8]

The regulation issued by the Attorney General pursuant to his statutory authority vests
in the Special Prosecutor plenary authority to control the course of investigations and
litigation related to

"all offenses arising out of the 1972 Presidential Election for which the Special
Prosecutor deems it necessary and appropriate to assume responsibility, allegations
involving the President, members of the White House staff, or Presidential appointees,
and any other matters which he consents to have assigned to him by the Attorney
General."

38 Fed.Reg. 30739, as amended by 38 Fed.Reg. 32805. In particular, the Special


Prosecutor was given full authority, inter alia, "to contest the assertion of Executive
Privilege' . . . and handl[e] all aspects of any cases within his jurisdiction." Id. at 30739.
The regulation then goes on to provide:

"In exercising this authority, the Special Prosecutor will have the greatest degree of
independence that is consistent with the Attorney General's statutory accountability for
all matters falling within the jurisdiction of the Department of Justice. The Attorney
General will not countermand or interfere with the Special Prosecutor's decisions or
actions. The Special Prosecutor will determine whether and to what extent he will
inform or consult with the Attorney General about the conduct of his duties and
responsibilities. In accordance with assurances given by the President to the Attorney
General that the President will not exercise his Constitutional powers to effect the
discharge of the Special Prosecutor or to limit the independence that he is hereby given,
the Special Prosecutor will not be removed from his duties except for extraordinary
improprieties on his part and without the President's first consulting the Majority and
the Minority Leaders and Chairmen and ranking Minority Members of the Judiciary
Committees of the Senate and House of Representatives and ascertaining that their
consensus is in accord with his proposed action."

[Footnote 9]
That this was the understanding of Acting Attorney General Robert Bork, the author of
the regulation establishing the independence of the Special Prosecutor, is shown by his
testimony before the Senate Judiciary Committee:

"Although it is anticipated that Mr. Jaworski will receive cooperation from the White
House in getting any evidence he feels he needs to conduct investigations and
prosecutions, it is clear and understood on all sides that he has the power to use judicial
processes to pursue evidence if disagreement should develop."

Hearings on the Special Prosecutor before the Senate Committee on the Judiciary, 93d
Cong., 1st Sess., pt. 2, p. 450 (1973). Acting Attorney General Bork gave similar
assurances to the House Subcommittee on Criminal Justice. Hearings on H. J Res. 784
and H.R. 10937 before the Subcommittee on Criminal Justice of the House Committee
on the Judiciary, 93d Cong., 1st Sess., 266 (1973). At his confirmation hearings, Attorney
General William Saxbe testified that he shared Acting Attorney General Bork's views
concerning the Special Prosecutor's authority to test any claim of executive privilege in
the courts. Hearings on the Nomination of William B. Saxbe to be Attorney General
before the Senate Committee on the Judiciary, 93d Cong., 1st Sess., 9 (1973).

[Footnote 10]

At his confirmation hearings, Attorney General William Saxbe testified that he agreed
with the regulation adopted by Acting Attorney General Bork, and would not remove
the Special Prosecutor except for "gross impropriety." Id. at 5-6, 8-10. There is no
contention here that the Special Prosecutor is guilty of any such impropriety.

[Footnote 11]

The Court quoted a statement of a member of the advisory committee that the purpose
of the Rule was to bring documents into court

"in advance of the time that they are offered in evidence, so that they may then be
inspected in advance, for the purpose . . . of enabling the party to see whether he can
use [them] or whether he wants to use [them]."

341 U.S. at 341 U. S. 220 n. 5. The Manual for Complex and Multidistrict Litigation
published by the Federal Judicial Center recommends that use of Rule 17(c) be
encouraged in complex criminal cases in order that each party may be compelled to
produce its documentary evidence well in advance of trial and in advance of the time it
is to be offered. P. 150.

[Footnote 12]

The District Court found here that it was faced with


"the more unusual situation . . . where the subpoena, rather than being directed to the
government by defendants, issues to what, as a practical matter, is a third party."

United States v. Mitchell, 377 F.Supp. 1326, 1330 (DC 1974). The Special Prosecutor
suggests that the evidentiary requirement of Bowman Dairy Co. and Iozia does not apply
in its full vigor when the subpoena duces tecum is issued to third parties, rather than to
government prosecutors. Brief for United States 128-129. We need not decide whether
a lower standard exists, because we are satisfied that the relevance and evidentiary
nature of the subpoenaed tapes were sufficiently shown as a preliminary matter to
warrant the District Court's refusal to quash the subpoena.

[Footnote 13]

Such statements are declarations by a party defendant that "would surmount all
objections based on the hearsay rule . . ." and, at least as to the declarant himself,
"would be admissible for whatever inferences" might be reasonably drawn.United
States v. Matlock, 415 U. S. 164, 415 U. S. 172 (1974). On Lee v. United States, 343 U. S.
747, 343 U. S. 757 (1952). See also C. McCormick, Evidence 270, pp. 651-652 (2d
ed.1972).

[Footnote 14]

As a preliminary matter, there must be substantial, independent evidence of the


conspiracy, at least enough to take the question to the jury. United States v. Vaught, 485
F.2d 320, 323 (CA4 1973); United States v. Hoffa, 349 F.2d 20, 412 (CA6 1965), aff'd on
other grounds, 385 U. S. 293 (1966); United States v. Santos, 385 F.2d 43, 45 (CA7
1967), cert. denied, 390 U.S. 954 (1968); United States v. Morton, 483 F.2d 573, 576
(CA8 1973); United States v. Spanos, 462 F.2d 1012, 1014 (CA9 1972);Carbo v. United
States, 314 F.2d 718, 737 (CA9 1963), cert. denied, 377 U.S. 953 (1964). Whether the
standard has been satisfied is a question of admissibility of evidence to be decided by
the trial judge.

[Footnote 15]

There is nothing novel about governmental confidentiality. The meetings of the


Constitutional Convention in 1787 were conducted in complete privacy. 1 M. Farrand,
The Records of the Federal Convention of 1787, pp. xi-xxv (1911). Moreover, all records
of those meetings were sealed for more than 30 years after the Convention. See 3 Stat.
475, 15th Cong., 1st Sess., Res. 8 (1818). Most of the Framers acknowledged that,
without secrecy, no constitution of the kind that was developed could have been written.
C. Warren, The Making of the Constitution 134-139 (1937).

[Footnote 16]
The Special Prosecutor argues that there is no provision in the Constitution for a
Presidential privilege as to the President's communications corresponding to the
privilege of Members of Congress under the Speech or Debate Clause. But the silence of
the Constitution on this score is not dispositive.

"The rule of constitutional interpretation announced in McCulloch v. Maryland, 4 Wheat.


316, that that which was reasonably appropriate and relevant to the exercise of a
granted power was to be considered as accompanying the grant, has been so universally
applied that it suffices merely to state it."

Marshall v. Gordon, 243 U. S. 521, 243 U. S. 537 (1917).

[Footnote 17]

"Freedom of communication vital to fulfillment of the aims of wholesome relationships


is obtained only by removing the specter of compelled disclosure. . . . [G]overnment . . .
needs open but protected channels for the kind of plain talk that is essential to the
quality of its functioning."

Carl Zeiss Stiftung v. v. E. B. Carl Zeis, Jena, 4 F.R.D. 318, 325 (DC 1966). See Nixon v.
Sirica, 159 U.S.App.D.C. 58, 71, 487 F.2d 700, 713 (1973); Kaiser Aluminum & Chem.
Corp. v. United States, 141 Ct.Cl. 38, 157 F.Supp. 939 (1958) (Reed, J.); The Federalist,
No. 64 (S. Mittell ed.1938).

[Footnote 18]

Because of the key role of the testimony of witnesses in the judicial process, courts have
historically been cautious about privileges. Mr. Justice Frankfurter, dissenting in Elkins v.
United States, 364 U. S. 206, 364 U. S. 234 (1960), said of this:

"Limitations are properly placed upon the operation of this general principle only to the
very limited extent that permitting a refusal to testify or excluding relevant evidence has
a public good transcending the normally predominant principle of utilizing all rational
means for ascertaining truth."

[Footnote 19]

We are not here concerned with the balance between the President's generalized
interest in confidentiality and the need for relevant evidence in civil litigation, nor with
that between the confidentiality interest and congressional demands for information,
nor with the President's interest in preserving state secrets. We address only the conflict
between the President's assertion of a generalized privilege of confidentiality and the
constitutional need for relevant evidence in criminal trials.
[Footnote 20]

Mr. Justice Cardozo made this point in an analogous context. Speaking for a unanimous
Court in Clark v. United States, 289 U. S. 1 (1933), he emphasized the importance of
maintaining the secrecy of the deliberations of a petit jury in a criminal case.

"Freedom of debate might be stifled and independence of thought checked if jurors


were made to feel that their arguments and ballots were to be freely published to the
world."

Id. at 289 U. S. 13. Nonetheless, the Court also recognized that isolated inroads on
confidentiality designed to serve the paramount need of the criminal law would not
vitiate the interests served by secrecy:

"A juror of integrity and reasonable firmness will not fear to speak his mind if the
confidences of debate are barred to the ears of mere impertinence or malice. He will not
expect to be shielded against the disclosure of his conduct in the event that there is
evidence reflecting upon his honor. The chance that now and then there may be found
some timid soul who will take counsel of his fears and give way to their repressive
power is too remote and shadowy to shape the course of justice."

Id. at 289 U. S. 16.

[Footnote 21]

When the subpoenaed material is delivered to the District Judge in camera, questions
may arise as to the excising of parts, and it lies within the discretion of that court to seek
the aid of the Special Prosecutor and the President's counsel for in camera consideration
of the validity of particular excision, whether the basis of excision is relevancy or
admissibility or under such cases as United States v. Reynolds, 345 U. S. 1 (1953), or C. &
S. Air Line v. Waterman S.S. Corp., 333 U. S. 103(1948).
Republic of the Philippines
SUPREME COURT
Manila

EN BANC

G.R. No. 95367 May 23, 1995

COMMISSIONER JOSE T. ALMONTE, VILLAMOR C. PEREZ, NERIO ROGADO, and


ELISA RIVERA,petitioners,
vs.
HONORABLE CONRADO M. VASQUEZ and CONCERNED CITIZENS, respondents.

MENDOZA, J.:

This is a petition for certiorari, prohibition, and mandamus to annul the subpoena duces
tecum and orders issued by respondent Ombudsman, requiring petitioners Nerio Rogado and
Elisa Rivera, as chief accountant and record custodian, respectively, of the Economic
Intelligence and Investigation Bureau (EIIB) to produce "all documents relating to Personal
Services Funds for the year 1988 and all evidence, such as vouchers (salary) for the whole
plantilla of EIIB for 1988" and to enjoin him from enforcing his orders.

Petitioner Jose T. Almonte was formerly Commissioner of the EIIB, while Villamor C. Perez is
Chief of the EIIB's Budget and Fiscal Management Division. The subpoena duces tecum was
issued by the Ombudsman in connection with his investigation of an anonymous letter
alleging that funds representing savings from unfilled positions in the EIIB had been illegally
disbursed. The letter, purporting to have been written by an employee of the EIIB and a
concerned citizen, was addressed to the Secretary of Finance, with copies furnished several
government offices, including the Office of the Ombudsman.

The letter reads in pertinent parts:

1 These are the things that I have been observing. During the implementation of E.O. 127 on
May 1, 1988, one hundred ninety (190) personnel were dismissed. Before that
implementation, we had a monthly savings of P500,000.00 from unfilled plantilla position plus
the implementation of RA 6683 wherein seventy (70) regular employees availed a total
amount of P1,400,000.00 was saved from the government monthly. The question is, how do
they used or disbursed this savings? The EIIB has a syndicate headed by the Chief of Budget
Division who is manipulating funds and also the brain of the so called "ghost agents" or the
"Emergency Intelligence Agents" (EIA). The Commissioner of EIIB has a biggest share on this.
Among his activities are:

a) Supporting RAM wherein he is involved. He gives big amount especially during the Dec.
Failed coup.

b) Payment for thirty five (30) mini UZI's.

c) Payment for the purchased of Maxima '87 for personal used of the Commissioner.
d) Another observation was the agents under the Director of NCR EIIB is the sole operating
unit within Metro Manila which was approved by no less than the Commissioner due to
anomalous activities of almost all agents assigned at the central office directly under the
Commissioner. Retired Brig. Gen. Almonte as one of the Anti-Graft board member of the
Department of Finance should not tolerate this. However, the Commissioner did not
investigate his own men instead, he placed them under the 15-30 payroll.

e) Many more which are personal.

2. Sir, my question is this. Can your good office investigate EII intelligence funds particularly
Personal Services (01) Funds? I wonder why the Dep't of Budget & Mgmt. cannot compel
EIIB to submit an actual filled up position because almost half of it are vacant and still they are
releasing it. Are EIIB plantilla position classified? It is included in the Personal Services
Itemization (PSI) and I believe it is not classified and a ruling from Civil Service Commission
that EIIB is not exempted from Civil Service. Another info, when we had salary differential last
Oct '88 all money for the whole plantilla were released and from that alone, Millions were
saved and converted to ghost agents of EIA.

3. Another thing that I have observed was the Chief Budget Division possesses high caliber
firearms such as a mini UZI, Armalite rifle and two (2) 45 cal. pistol issued to him by the
Assistant Commissioner wherein he is not an agent of EIIB and authorized as such according
to memorandum order number 283 signed by the President of the Republic of the Philippines
effective 9 Jan. 1990.

Another observation was when EIIB agents apprehended a certain civilian who possesses
numerous assorted high powered firearms. Agents plus one personnel from the legal
proclaimed only five (5) firearms and the remaining was pilfered by them.

Another observation is almost all EIIB agents collects payroll from the big time smuggler
syndicate monthly and brokers every week for them not to be apprehended.

Another observation is the commissioner allocates funds coming from the intelligence funds
to the media to sustain their good image of the bureau.

In his comment 1 on the letter-complaint, petitioner Almonte denied that as a result of the
separation of personnel, the EIIB had made some savings. He averred that the only funds
released to his agency by the Department of Budget and Management (DBM) were those
corresponding to 947 plantilla positions which were filled. He also denied that there were "ghost
agents" in the EIIB and claimed that disbursements for "open" (i.e., "overt" personnel) and "closed"
(i.e., "covert" personnel) plantillas of the agency had been cleared by the Commission on Audit
(COA); that the case of the 30 Uzis had already been investigated by Congress, where it was
shown that it was not the EIIB but an agent who had spent for the firearms and they were only
loaned to the EIIB pending appropriation by Congress; that, contrary to the charge that a Maxima
car had been purchased for his use, he was using a government issued car from the NICA; that it
was his prerogative as Commissioner to "ground" agents in the EIIB main office so that they could
be given reorientation and retraining; that the allegation that the EIIB operatives pilfered smuggled
firearms was without factual basis because the firearms were the subject of seizure proceedings
before the Collector of Customs, Port of Manila; that the EIIB had been uncompromising toward
employees found involved in anomalous activities; and that intelligence funds had not been used
for media propaganda and if media people went to the EIIB it was because of newsworthy stories.
Petitioner asked that the complaint be dismissed and the case considered closed.
Similarly petitioner Perez, budget chief of the EIIB, denied in his comment 2 dated April 3, 1990
that savings had been realized from the implementation of E.O. No. 127, since the DBM provided
allocations for only the remaining 947 personnel. He said that the disbursement of funds for the
plantilla positions for "overt" and "covert" personnel had been cleared by the COA and that the
high-powered firearms had been issued for the protection of EIIB personnel attending court
hearings and the Finance Officer in withdrawing funds from the banks.

The Graft Investigation Officer of the Ombudsman's office, Jose F. Sao, found the comments
unsatisfactory, being "unverified and plying only on generalizations without meeting
specifically the points raised by complainant as constitutive of the alleged anomalies." 3 He,
therefore, asked for authority to conduct a preliminary investigation. Anticipating the grant of his
request, he issued a subpoena 4 to petitioners Almonte and Perez, requiring them to submit their
counter-affidavits and the affidavits of their witnesses, as well as a subpoena duces tecum 5 to the
Chief of the EIIB's Accounting Division ordering him to bring "all documents relating to Personal
Services Funds for the year 1988 and all evidence, such as vouchers (salary) for the whole
plantilla of EIIB for 1988."

Petitioners Almonte and Perez moved to quash the subpoena and the subpoena duces tecum.
In his Order dated June 15, 1990, 6 respondent Ombudsman granted the motion to quash the
subpoena in view of the fact that there were no affidavits filed against petitioners. But he denied
their motion to quash the subpoena duces tecum. He ruled that petitioners were not being forced
to produce evidence against themselves, since the subpoena duces tecum was directed to the
Chief Accountant, petitioner Nerio Rogado. In addition the Ombudsman ordered the Chief of the
Records a Section of the EIIB, petitioner Elisa Rivera, to produce before the investigator "all
documents relating to Personnel Service Funds, for the year 1988, and all documents, salary
vouchers for the whole plantilla of the EIIB for 1988, within ten (10) days from receipt hereof."

Petitioners Almonte and Perez moved for a reconsideration, arguing that Rogado and Rivera
were EIIB employees under their supervision and that the Ombudsman was doing indirectly
what he could not do directly,i.e., compelling them (petitioners Almonte and Perez) to produce
evidence against themselves.

Petitioners' motion was denied in respondent Ombudsman's order dated August 6, 1990.
Hence, this petition which questions the orders of June 15, 1990 and August 6, 1990 of
respondent Ombudsman.

To put this case in perspective it should be stated at the outset that it does not concern a
demand by a citizen for information under the freedom of information guarantee of the
Constitution. 7 Rather it concerns the power of the Office of the Ombudsman to obtain evidence in
connection with an investigation conducted by it vis-a-vis the claim of privilege of an agency of the
Government. Thus petitioners raise the following issues: 8

I. WHETHER OR NOT A CASE BROUGHT ABOUT BY AN UNSIGNED AND UNVERIFIED


LETTER COMPLAINT IS AN "APPROPRIATE CASE" WITHIN THE CONCEPT OF THE
CONSTITUTION IN WHICH PUBLIC RESPONDENT CAN OBLIGE PETITIONERS BY
VIRTUE OF HIS SUBPOENA DUCES TECUM TO PRODUCE TO HIM "ALL DOCUMENTS
RELATING TO PERSONAL SERVICES FUNDS FOR THE YEAR 1988 AND ALL
EVIDENCES, SUCH AS VOUCHERS (SALARY) FOR THE WHOLE PLANTILLA OF EIIB
FOR 1988."

II. WHETHER OR NOT "ALL DOCUMENTS RELATING TO PERSONAL SERVICES FUNDS


FOR THE YEAR 1988 AND ALL EVIDENCES, SUCH AS VOUCHERS (SALARY) FOR THE
WHOLE PLANTILLA OF EIIB FOR 1988" ARE CLASSIFIED AND, THEREFORE, BEYOND
THE REACH OF PUBLIC RESPONDENT'S SUBPOENA DUCES TECUM.

I.

There are several subsidiary issues raised by petitioners, but the principal ones revolve on the
question whether petitioners can be ordered to produce documents relating to personal
services and salary vouchers of EIIB employees on the plea that such documents are
classified. Disclosure of the documents in question is resisted on the ground that "knowledge
of EIIB's documents relative to its Personal Services Funds and its plantilla . . . will
necessarily [lead to] knowledge of its operations, movements, targets, strategies, and tactics
and the whole of its being" and this could "destroy the EIIB." 9

Petitioners do not question the power of the Ombudsman to issue a subpoena duces
tecum nor the relevancy or materiality of the documents required to be produced, to the
pending investigation in the Ombudsman's office. Accordingly, the focus of discussion should
be on the Government's claim of privilege.

A.

At common law a governmental privilege against disclosure is recognized with respect to


state secrets bearing on military, diplomatic and similar matters. This privilege is based upon
public interest of such paramount importance as in and of itself transcending the individual
interests of a private citizen, even though, as a consequence thereof, the plaintiff cannot
enforce his legal rights. 10

In addition, in the litigation over the Watergate tape subpoena in 1973, the U.S. Supreme
Court recognized the right of the President to the confidentiality of his conversations and
correspondence, which it likened to "the claim of confidentiality of judicial deliberations." Said
the Court in United States v. Nixon: 11

The expectation of a President to the confidentiality of his conversations and correspondence,


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 the government and inextricably rooted in the separation of
powers under the Constitution. . . .

Thus, the Court for the first time gave executive privilege a constitutional status and a new
name, although not necessarily a new birth. 12

"The confidentiality of judicial deliberations" mentioned in the opinion of the Court referred to
the fact that Justices of the U.S. Supreme Court and judges of lower federal courts have
traditionally treated their working papers and judicial notes as private property. A 1977
proposal in the U.S. Congress that Justices and judges of lower federal courts "should be
encouraged to make such arrangements as will assure the preservation and eventual
availability of their personal papers, especially the deposit of their papers in the same
depository they select for [their] Public Papers" 13 was rebuffed by the Justices who, in a letter to
the Chairman of the Subcommittee on Regulation and Government Information of the U.S. Senate,
referred to "difficult concerns respecting the appropriate separation that must be maintained
between the legislative branch and this Court." 14

There are, in addition to such privileges, statutorily-created ones such as the Government's
privilege to withhold the identity of persons who furnish information of violations of laws. 15

With respect to the privilege based on state secret, the rule was stated by the U.S. Supreme
Court as follows:

Judicial control over the evidence in a case cannot be abdicated to the caprice of executive
officers. Yet we will not go so far as to say that the court may automatically require a complete
disclosure to the judge before the claim of privilege will be accepted in any case. It may be
possible to satisfy the court, from all the circumstances of the case, that there is a reasonable
danger that compulsion of the evidence will expose military matters which, in the interest of
national security, should not be divulged. When this is the case, the occasion for the privilege
is appropriate, and the court should not jeopardize the security which the privilege is meant to
protect by insisting upon an examination of the evidence, even by the judge alone, in
chambers. . . . In each case, the showing of necessity which is made will determine how far
the court should probe in satisfying itself that the occasion for invoking the privilege is
appropriate. Where there is a strong showing of necessity, the claim of privilege should not be
lightly accepted, but even the most compelling necessity cannot overcome the claim of
privilege if the court is ultimately satisfied that military secrets are at stake. A fortiori, where
necessity is dubious, a formal claim of privilege, made under the circumstances of this case,
will have to prevail. 16

On the other hand, where the claim of confidentiality does not rest on the need to protect
military, diplomatic or other national security secrets but on a general public interest in the
confidentiality of his conversations, courts have declined to find in the Constitution an
absolute privilege of the President against a subpoena considered essential to the
enforcement of criminal laws. 17

B.

In the case at bar, there is no claim that military or diplomatic secrets will be disclosed by the
production of records pertaining to the personnel of the EIIB. Indeed, EIIB's function is the
gathering and evaluation of intelligence reports and information regarding "illegal activities
affecting the national economy, such as, but not limited to, economic sabotage, smuggling,
tax evasion, dollar salting." 18 Consequently, while in cases which involve state secrets it may be
sufficient to determine from the circumstances of the case that there is reasonable danger that
compulsion of the evidence will expose military matters without compelling production, 19 no similar
excuse can be made for a privilege resting on other considerations.

Nor has our attention been called to any law or regulation which considers personnel records
of the EIIB as classified information. To the contrary, COA Circular No. 88-293, which
petitioners invoke to support their contention that there is adequate safeguard against misuse
of public funds, provides that the "only item of expenditure which should be treated strictly
confidential" is that which refers to the "purchase of information and payment of rewards."
Thus, part V, No. 7 of the Circular reads:

The only item of expenditure which should be treated as strictly confidential because it falls
under the category of classified information is that relating to purchase of information and
payment of rewards. However, reasonable records should be maintained and kept for
inspection of the Chairman, Commission on Audit or his duly authorized representative. All
other expenditures are to be considered unclassified supported by invoices, receipts and
other documents, and, therefore, subject to reasonable inquiry by the Chairman or his duly
authorized representative. 20

It should be noted that the regulation requires that "reasonable records" be kept justifying the
confidential or privileged character of the information relating to informers. There are no such
reasonable records in this case to substitute for the records claimed to be confidential.

The other statutes and regulations 21 invoked by petitioners in support of their contention that the
documents sought in the subpoena duces tecum of the Ombudsman are classified merely indicate
the confidential nature of the EIIB's functions, but they do not exempt the EIIB from the duty to
account for its funds to the proper authorities. Indeed by denying that there were savings made
from certain items in the agency and alleging that the DBM had released to the EIIB only the
allocations needed for the 947 personnel retained after its reorganization, petitioners in effect
invited inquiry into the veracity of their claim. If, as petitioners claim, the subpoenaed records have
been examined by the COA and found by it to be regular in all respects, there is no reason why
they cannot be shown to another agency of the government which by constitutional mandate is
required to look into any complaint concerning public office.

On the other hand, the Ombudsman is investigating a complaint that several items in the EIIB
were filled by fictitious persons and that the allotments for these items in 1988 were used for
illegal purposes. The plantilla and other personnel records are relevant to his investigation.
He and his Deputies are designated by the Constitution "protectors of the people" and as
such they are required by it "to act promptly on complaints in any form or manner against
public officials or employees of the Government, or any subdivision, agency or instrumentality
thereof, including government-owned or controlled corporation." 22

His need for the documents thus outweighs the claim of confidentiality of petitioners. What is
more, while there might have been compelling reasons for the claim of privilege in 1988 when
it was asserted by petitioners, now, seven years later, these reasons may have been
attenuated, if they have not in fact ceased. The agents whose identities could not then be
revealed may have ceased from the service of the EIIB, while the covert missions to which
they might have been deployed might either have been accomplished or abandoned. On the
other hand, the Ombudsman's duty to investigate the complaint that there were in 1988
unfilled positions in the EIIB for which continued funding was received by its officials and put
to illegal use, remains.

Above all, even if the subpoenaed documents are treated as presumptively privileged, this
decision would only justify ordering their inspection in camera but not their nonproduction.
However, as concession to the nature of the functions of the EIIB and just to be sure no
information of a confidential character is disclosed, the examination of records in this case
should be made in strict confidence by the Ombudsman himself. Reference may be made to
the documents in any decision or order which the Ombudsman may render or issue but only
to the extent that it will not reveal covert activities of the agency. Above all, there must be a
scrupulous protection of the documents delivered.

With these safeguards outlined, it is believed that a satisfactory resolution of the conflicting
claims of the parties is achieved. It is not amiss to state that even matters of national security
have been inquired into in appropriate in camera proceedings by the courts. In Lansang
v. Garcia 23 this Court held closed door sessions, with only the immediate parties and their
counsel present, to determine claims that because of subversion there was imminent danger to
public safety warranting the suspension of the writ of habeas corpus in 1971. Again in Marcos
v. Manglapus 24 the Court met behind closed doors to receive military briefings on the threat posed
to national security by the return to the country of the former President and his family. In the United
States, a similar inquiry into the danger to national security as a result of the publication of
classified documents on the Vietnam war was upheld by the U.S. Supreme Court. 25 We see no
reason why similar safeguards cannot be made to enable an agency of the Government, like the
Office of the Ombudsman, to carry out its constitutional duty to protect public interests 26 while
insuring the confidentiality of classified documents.

C.

Petitioners contend that under Art. XI, 13(4) the Ombudsman can act only "in any
appropriate case, and subject to such limitations as may be provided by law" and that
because the complaint in this case is unsigned and unverified, the case is not an appropriate
one. This contention lacks merit. As already stated, the Constitution expressly enjoins the
Ombudsman to act on any complaint filed "in any form or manner" concerning official acts or
omissions. Thus, Art. XI, 12 provides:

The Ombudsman and his Deputies, as protectors of the people, shall act promptly on
complaints filed in any form or manner against public officials or employees of the
Government, or any subdivision, agency, or instrumentality thereof, including
government-owned or controlled corporations and shall in appropriate cases, notify the
complainants of the action taken and the result thereof. (Emphasis added)

Similarly, the Ombudsman Act of 1989 (Rep. Act No. 6770) provides in 26(2):

The Office of the Ombudsman shall receive complaints from any source in whatever
form concerning an official act or omission. It shall act on the complaint immediately and if it
finds the same entirely baseless, it shall dismiss the same and inform the complainant of such
dismissal citing the reasons therefor. If it finds a reasonable ground to investigate further, it
shall first furnish the respondent public officer or employee with a summary of the complaint
and require him to submit a written answer within seventy-two hours from receipt thereof. If
the answer is found satisfactory, it shall dismiss the case. (Emphasis added)

Accordingly, in Diaz v. Sandiganbayan 27 the Court held that testimony given at a fact-finding
investigation and charges made in a pleading in a case in court constituted a sufficient basis for
the Ombudsman to commence investigation, because a formal complaint was really not
necessary.

Rather than referring to the form of complaints, therefore, the phrase "in an appropriate case"
in Art. XI, 12 means any case concerning official act or omission which is alleged to be
"illegal, unjust, improper, or inefficient."28 The phrase "subject to such limitations as may be
provided by law" refers to such limitations as may be provided by Congress or, in the absence
thereof, to such limitations as may be imposed by the courts. Such limitations may well include a
requirement that the investigation be concluded in camera, with the public excluded, as exception
to the general nature of the proceedings in the Office of the Ombudsman. 29 A reconciliation is
thereby made between the demands of national security and the requirement of accountability
enshrined in the Constitution. 30

What has been said above disposes of petitioners' contention that the anonymous
letter-complaint against them is nothing but a vexatious prosecution. It only remains to say
that the general investigation in the Ombudsman' s office is precisely for the purpose of
protecting those against whom a complaint is filed against hasty, malicious, and oppressive
prosecution as much as securing the State from useless and expensive trials. There may also
be benefit resulting from such limited in camera inspection in terms of increased public
confidence that the privilege is not being abused and increased likelihood that no abuse is in
fact occurring.

II.

Nor is there violation of petitioner's right to the equal protection of the laws. Petitioners
complain that "in all forum and tribunals . . . the aggrieved parties . . . can only hale
respondents via their verified complaints or sworn statements with their identities fully
disclosed," while in proceedings before the Office of the Ombudsman anonymous letters
suffice to start an investigation. In the first place, there can be no objection to this procedure
because it is provided in the Constitution itself. In the second place, it is apparent that in
permitting the filing of complaints "in any form and in a manner," the framers of the
Constitution took into account the well-known reticence of the people which keep them from
complaining against official wrongdoings. As this Court had occasion to point out, the Office of
the Ombudsman is different from the other investigatory and prosecutory agencies of the
government because those subject to its jurisdiction are public officials who, through official
pressure and influence, can quash, delay or dismiss investigations held against them. 31 On
the other hand complainants are more often than not poor and simple folk who cannot afford to
hire lawyers. 32

III.

Finally, it is contended that the issuance of the subpoena duces tecum would violate
petitioners' right against self-incrimination. It is enough to state that the documents required to
be produced in this case are public records and those to whom the subpoena duces tecum is
directed are government officials in whose possession or custody the documents are.
Moreover, if, as petitioners claim the disbursement by the EIIB of funds for personal service
has already been cleared by the COA, there is no reason why they should object to the
examination of the documents by respondent Ombudsman.

WHEREFORE, the petition is DISMISSED, but it is directed that the inspection of


subpoenaed documents be made personally in camera by the Ombudsman, and with all the
safeguards outlined in this decision.

SO ORDERED.

Narvasa, C.J., Feliciano, Padilla, Regalado, Davide, Jr., Romero, Bellosillo, Melo, Quiason,
Puno and Vitug, JJ., concur.

Francisco, J., is on leave.

Separate Opinions

KAPUNAN, J., dissenting:

The well-written ponencia of Mr. Justice Mendoza would postulate that the Economic
Intelligence and Investigation Bureau (EIIB) documents relating to the Personal Services
Funds for the year 1988 and all documentary evidence, including salary vouchers for the
whole plantilla of the EIIB for 1988 be produced before the Ombudsman over the objections of
the EIIB Commissioner on the ground that the documents contain highly confidential matters,
apart from the fact that the expenditures had been cleared in audit by the Commission on
Audit (COA). The reasons relied upon in the ponencia are a) that the EIIB documents at issue
are not classified under COA (Commission on Audit) Circular No. 88-293, Part V No. 7 which
limits such matters exclusively to expenditures relating to the purchase of information and
payment of rewards; and b) the documents relating to disbursement and expenditures of the
EIIB for personal funds had already been previously examined by the Commission on Audit
when such outlay had been passed upon in audit in the said Office, such that there is no
confidentiality privilege to protect.

With due respect, I beg to disagree.

Disclosure of the documents as required by the Ombudsman would necessarily defeat the
legal mandate of the EIIB as the intelligence arm of the executive branch of government
relating to matters affecting the economy of the nation. As such, EIIB's functions are related to
matters affecting national security. In the performance of its function in relation with the
gathering of intelligence information executive privilege could as well be invoked by the EIIB,
especially in relation to its covert operations.

The determination, by the executive branch, through its appropriate agencies, of a question
as affecting the national security is a policy decision for which this Court has neither the
competence nor the mandate to infringe upon. In the absence of a clear showing a grave
abuse of discretion on the part of the Executive, acting through its (national security) agencies,
I am of the opinion that we cannot interfere with a determination, properly made, on a
question affecting economic security lest we are prepared to ride roughshod over certain
prerogatives of our political branches. In an area obviously affecting the national security,
disclosure of confidential information on the promptings of some dissatisfied employees
would potentially disturb a number of carefully laid-out operations dependent on secrecy and I
am not prepared to do this. The characterization of the documents as classified information is
not a shield for wrongdoing but a barrier against the burden some requests for information
which necessarily interfere with the proper performance of their duties. To give in, at every
turn, to such requests would be greatly disruptive of governmental functions. More so in this
case, since expenditures of the EIIB for personal funds had already been previously
examined and passed upon in audit by the Commission on Audit. There has been no
allegation of any irregularity in the COA's earlier examination, and in the absence of
substantiated allegations, the previous determination ought to be accorded our respect unless
we want to encourage unnecessary and tiresome forays and investigations into government
activities which would not only end up nowhere but which would also disrupt or derail such
activities.

The confidentiality privilege invoked by petitioners attaches in the exercise of the functions of
the EIIB, as presidential immunity is bestowed by reason of the political functions of the Chief
Executive, as a separate and co-equal branch of government. By the same parity of
reasoning, the disclosure of the EIIB documents required to be examined by the Ombudsman
even in camera proceedings will under the pretext of ascertaining the proper disbursements
of the EIIB funds will unnecessarily impair the performance by the EIIB of its functions
especially those affecting national security.

The constitutional right allowing disclosure of governmental documents, i.e., the right to
information on matters of public concern is not absolute. While access to official records may
not be prohibited, it may be regulated. 1Regulation includes appropriate authority to determine
what documents are of public concern, the manner of access to information contained in such
documents and to withhold information under certain circumstances, particularly, as in this case,
those circumstances affecting the national security. 2

Besides, as I emphasized earlier, the determination of the legality of EIIB's disbursements of


funds allocated to it are properly within the competence of the Commission on Audit, which as
the ponencia of Justice Mendoza finds, has been cleared in audit. The Commission on Audit
had adopted, as in the past, measures to protect "classified information" pertaining to
examination of expenditures of intelligence agencies. In the present case, disclosure of
information to any other agency would unnecessarily expose the covert operations of EIIB, as
a government agency charged with national security functions.

I, therefore, vote to give due course to the petition.

Separate Opinions

KAPUNAN, J., dissenting:

The well-written ponencia of Mr. Justice Mendoza would postulate that the Economic
Intelligence and Investigation Bureau (EIIB) documents relating to the Personal Services
Funds for the year 1988 and all documentary evidence, including salary vouchers for the
whole plantilla of the EIIB for 1988 be produced before the Ombudsman over the objections of
the EIIB Commissioner on the ground that the documents contain highly confidential matters,
apart from the fact that the expenditures had been cleared in audit by the Commission on
Audit (COA). The reasons relied upon in the ponencia are a) that the EIIB documents at issue
are not classified under COA (Commission on Audit) Circular No. 88-293, Part V No. 7 which
limits such matters exclusively to expenditures relating to the purchase of information and
payment of rewards; and b) the documents relating to disbursement and expenditures of the
EIIB for personal funds had already been previously examined by the Commission on Audit
when such outlay had been passed upon in audit in the said Office, such that there is no
confidentiality privilege to protect.

With due respect, I beg to disagree.

Disclosure of the documents as required by the Ombudsman would necessarily defeat the
legal mandate of the EIIB as the intelligence arm of the executive branch of government
relating to matters affecting the economy of the nation. As such, EIIB's functions are related to
matters affecting national security. In the performance of its function in relation with the
gathering of intelligence information executive privilege could as well be invoked by the EIIB,
especially in relation to its covert operations.

The determination, by the executive branch, through its appropriate agencies, of a question
as affecting the national security is a policy decision for which this Court has neither the
competence nor the mandate to infringe upon. In the absence of a clear showing a grave
abuse of discretion on the part of the Executive, acting through its (national security) agencies,
I am of the opinion that we cannot interfere with a determination, properly made, on a
question affecting economic security lest we are prepared to ride roughshod over certain
prerogatives of our political branches. In an area obviously affecting the national security,
disclosure of confidential information on the promptings of some dissatisfied employees
would potentially disturb a number of carefully laid-out operations dependent on secrecy and I
am not prepared to do this. The characterization of the documents as classified information is
not a shield for wrongdoing but a barrier against the burden some requests for information
which necessarily interfere with the proper performance of their duties. To give in, at every
turn, to such requests would be greatly disruptive of governmental functions. More so in this
case, since expenditures of the EIIB for personal funds had already been previously
examined and passed upon in audit by the Commission on Audit. There has been no
allegation of any irregularity in the COA's earlier examination, and in the absence of
substantiated allegations, the previous determination ought to be accorded our respect unless
we want to encourage unnecessary and tiresome forays and investigations into government
activities which would not only end up nowhere but which would also disrupt or derail such
activities.

The confidentiality privilege invoked by petitioners attaches in the exercise of the functions of
the EIIB, as presidential immunity is bestowed by reason of the political functions of the Chief
Executive, as a separate and co-equal branch of government. By the same parity of
reasoning, the disclosure of the EIIB documents required to be examined by the Ombudsman
even in camera proceedings will under the pretext of ascertaining the proper disbursements
of the EIIB funds will unnecessarily impair the performance by the EIIB of its functions
especially those affecting national security.

The constitutional right allowing disclosure of governmental documents, i.e., the right to
information on matters of public concern is not absolute. While access to official records may
not be prohibited, it may be regulated. 1Regulation includes appropriate authority to determine
what documents are of public concern, the manner of access to information contained in such
documents and to withhold information under certain circumstances, particularly, as in this case,
those circumstances affecting the national security. 2

Besides, as I emphasized earlier, the determination of the legality of EIIB's disbursements of


funds allocated to it are properly within the competence of the Commission on Audit, which as
the ponencia of Justice Mendoza finds, has been cleared in audit. The Commission on Audit
had adopted, as in the past, measures to protect "classified information" pertaining to
examination of expenditures of intelligence agencies. In the present case, disclosure of
information to any other agency would unnecessarily expose the covert operations of EIIB, as
a government agency charged with national security functions.

I, therefore, vote to give due course to the petition.

Footnotes

1 Rollo, pp. 36-37.

2 Id., p. 38.

3 Id., p. 39.

4 Id., p. 41.

5 Id., p. 42.

6 Id., pp. 53-54.


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

8 Petitioners' Memorandum, p. 6.

9 Petitioners' Memorandum, p. 27.

10 Anno., Government Privilege Against Disclosure of Official Information, 95 L. Ed. 3-4


and 7, pp. 427-29, 434.

11 418 U.S. 683, 708-9, 41 L. Ed. 2d 1039, 1061-4 (1973).

12 Freund, The Supreme Court 1973 Term Foreword: On Presidential Privilege, 88 HARV.
L. REV. 13, 18-35 (1974).

13 Final Report of the National Study Commission on Records and Documents of Federal
Officials (March 31, 1977), quoted in BLOCH & KRATTENMAKER, SUPREME COURT
POLITICS: THE INSTITUTION AND ITS PROCEDURES 677-87 (1994).

14 Letter of Chief Justice William H. Rehnquist dated June 7, 1993 to Sen. Joseph I.
Lieberman, Chairman, Subcommittee on Regulation and Government Information, U.S.
Senate, quoted in BLOCH & KRATTENMAKER, id., at 687-8.

15 COA Circular No. 88-293.

16 United States v. Reynolds, 345 U.S. 1, 10-11, 97 L. Ed. 727, 734-35 (1953). In this case
the U.S. Supreme Court reversed a lower court order requiring the government to produce
documents relating to the crash of a military aircraft which had been engaged in a secret
mission to test electronic equipment. The fact conceded by respondents, that the aircraft was
on secret military mission, justified nonproduction of the report of the accident. It was
apparent the report contained state secrets which in the interest of national security could not
be divulged even in the chambers of the judge or in camera. There was "a reasonable danger
that the investigation report would contain references to the secret electronic equipment
which was the primary concern of the mission."

17 In United States v. Nixon, 418 U.S. 683, 41 L. Ed. 2d 1039 (1974), the Court, while
acknowledging that the President's need "for complete candor and objectivity from advisers
calls for great deference from the courts," nonetheless held that such generalized claim of
confidentiality could not prevail over the "specific need for evidence in a pending criminal
trial." Accordingly the Court ordered the tapes of conversations of President Nixon to be
turned over to the trial judge for in camera inspection to determine whether they were relevant
and admissible apart from being privileged. Similarly in Nixon v. Administrator of General
Services, 433 U.S. 425, 53 L. Ed. 2d 867 (1977) it was held that the mere screening of tapes
and other records of President Nixon's conversations with employees of the Federal
Government, to be done by professional archivists for the purpose of "legitimate historical and
governmental purpose," constituted "a very limited intrusion . . . into executive confidentiality
comparable to those held to justify in camera inspection." 433 U.S. at 451-52, 53 L. Ed. 2d. at
896-97. Accordingly the validity of the law, entitled "Presidential Recordings and Materials
Preservation Act," was upheld against the claim that "the Presidential privilege shields the
records from archival scrutiny."

18 E.O. No. 127.

19 United States v. Reynolds, supra note 16.

20 Quoted in Petitioners' Memorandum, p. 27.

21 Petitioners cite in their Memorandum, at p. 19, the following:

19. Release of Intelligence and Confidential Funds. Intelligence and confidential funds
provided for in the budgets of departments, bureaus, offices or other agencies of the national
government,including amounts from savings authorized by Special Provisions to be used for
intelligence and counter-intelligence activities, shall be released only upon approval of the
President of the Philippines. (RA 6642-GAA for CY 1988).

Effective immediately, all requests for the allocation or release of intelligence funds shall
indicate in full detail the specific purposes for which said funds shall be spent and shall
explain the circumstances giving rise to the necessity for the expenditure and the particular
aims to be accomplished. (Letter of Instructions No. 1282 dated January 12, 1983).

Any disbursement of intelligence funds should not be allowed in audit, unless it is in strict
compliance with the provisions of Letters of Instruction
No. . . . and 1282. Any officer or employee who violates the provisions of the aforementioned
Letter of Instruction shall be dealt with administratively without prejudice to any criminal action
that may be warranted. (Memorandum Circular No. 1290 of the Office of the President dated
August 19, 1985).

22 Art. XI, 12.

23 42 SCRA 448 (1971).

24 117 SCRA 668 (1989).

25 New York Times Co. v. United States [The Pentagon Papers Case], 403 U.S. 713, 29 L.
Ed. 2d 822 (1971).

26 Art. XI, 13. The Office of the Ombudsman shall have the following powers, functions, and
duties:

(1) Investigate on its own, or on complaint by any person, 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.

(2) Direct, upon complaint or at its own instance, any public official or employee of the
Government, or any subdivision, agency or instrumentality thereof, as well as of any
government-owned or controlled corporation with original charter, to perform and expedite
any act or duty required by law, or to stop, prevent and correct any abuse or impropriety in the
performance of duties.
(3) Direct the officer concerned to take appropriate action against a public official or employee
at fault, and recommend his removal, suspension, demotion, fine, censure, or prosecution,
and ensure compliance therewith.

(4) Direct the officer concerned, in any appropriate case, and subject to such limitations as
may be provided by law, to furnish it with copies of documents relating to contracts or
transactions entered into by his office involving the disbursement or use of public funds or
properties, and report any irregularity to the Commission on Audit for appropriate action.

(5) Request any government agency for assistance and information necessary in the
discharge of its responsibilities, and to examine, if necessary, pertinent records and
documents.

xxx xxx xxx

(7) Determine the causes of inefficiency, red tape, mismanagement, fraud, and corruption in
the Government and make recommendations or their elimination and the observance of high
standards of ethics and efficiency.

In the performance of his functions the Ombudsman is given under Republic Act No. 6770,
15(8) the power to issue subpoena and subpoena duces tecum.

27 219 SCRA 675 (1993).

28 Art. XI, 13(1).

29 Art. XI, 13(6) requires the Office of the Ombudsman to "publicize matters covered by its
investigation when circumstances so warrant and with due prudence."

30 Art. XI, 1 provides: "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."

31 Deloso v. Domingo, 191 SCRA 545, 551 (1990).

32 2 RECORD OF THE CONSTITUTIONAL COMMISSION, pp. 369-370.

KAPUNAN, J., dissenting:

1 BERNAS, I THE CONSTITUTION OF THE REPUBLIC OF THE PHILIPPINES, 265 (1987).

2 See id., at 267.


Supreme Court
Manila
EN BANC

AKBAYAN CITIZENS ACTION


PARTY (AKBAYAN), PAMBANSANG G.R. No. 170516
KATIPUNAN NG MGA SAMAHAN
SA KANAYUNAN (PKSK), Present:
ALLIANCE OF PROGRESSIVE PUNO, C.J.,
LABOR (APL), VICENTE A. FABE, QUISUMBING,
ANGELITO R. MENDOZA, MANUEL YNARES-SANTIAGO,
P. QUIAMBAO, ROSE BEATRIX CARPIO,
CRUZ-ANGELES, CONG. LORENZO AUSTRIA-MARTINEZ,
R. TANADA III, CONG. MARIO CORONA,
JOYO AGUJA, CONG. LORETA ANN CARPIO MORALES,
P. ROSALES, CONG. ANA AZCUNA,
THERESIA TINGA,
HONTIVEROS-BARAQUEL, AND CHICO-NAZARIO,
CONG. EMMANUEL JOEL J. VELASCO, JR.,
VILLANUEVA, NACHURA,
Petitioners, REYES,
LEONARDO-DE CASTRO, &
- versus BRION, JJ.

THOMAS G. AQUINO, in his capacity


as Undersecretary of the Department of
Trade and Industry (DTI) and
Chairman and Chief Delegate of the
Philippine Coordinating Committee
(PCC) for the Japan-Philippines
Economic Partnership Agreement,
EDSEL T. CUSTODIO, in his capacity
as Undersecretary of the Department of Promulgated:
Foreign Affairs (DFA) and Co-Chair of
the PCC for the JPEPA, EDGARDO
ABON, in his capacity as Chairman of July 16, 2008
the Tariff Commission and lead
negotiator for Competition Policy and
Emergency Measures of the JPEPA,
MARGARITA SONGCO, in her
capacity as Assistant Director-General
of the National Economic Development
Authority (NEDA) and lead negotiator
for Trade in Services and Cooperation
of the JPEPA, MALOU MONTERO, in
her capacity as Foreign Service Officer
I, Office of the Undersecretary for
International Economic Relations of the
DFA and lead negotiator for the
General and Final Provisions of the
JPEPA, ERLINDA ARCELLANA, in
her capacity as Director of the Board of
Investments and lead negotiator for
Trade in Goods (General Rules) of the
JPEPA, RAQUEL ECHAGUE, in her
capacity as lead negotiator for Rules of
Origin of the JPEPA, GALLANT
SORIANO, in his official capacity as
Deputy Commissioner of the Bureau of
Customs and lead negotiator for
Customs Procedures and Paperless
Trading of the JPEPA, MA. LUISA
GIGETTE IMPERIAL, in her capacity
as Director of the Bureau of Local
Employment of the Department of
Labor and Employment (DOLE) and
lead negotiator for Movement of
Natural Persons of the JPEPA,
PASCUAL DE GUZMAN, in his
capacity as Director of the Board of
Investments and lead negotiator for
Investment of the JPEPA, JESUS
MOTOOMULL, in his capacity as
Director for the Bureau of Product
Standards of the DTI and lead
negotiator for Mutual Recognition of
the JPEPA, LOUIE CALVARIO, in his
capacity as lead negotiator for
Intellectual Property of the JPEPA,
ELMER H. DORADO, in his capacity
as Officer-in-Charge of the Government
Procurement Policy Board Technical
Support Office, the government agency
that is leading the negotiations on
Government Procurement of the
JPEPA, RICARDO V. PARAS, in his
capacity as Chief State Counsel of the
Department of Justice (DOJ) and lead
negotiator for Dispute Avoidance and
Settlement of the JPEPA, ADONIS
SULIT, in his capacity as lead
negotiator for the General and Final
Provisions of the JPEPA, EDUARDO R.
ERMITA, in his capacity as Executive
Secretary, and ALBERTO ROMULO,
in his capacity as Secretary of the DFA,*
Respondents.
x - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -x

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 JAPAN-PHILIPPINES ECONOMIC
PARTNERSHIP AGREEMENT)[1] to study and negotiate the proposed
JPEPA, and to furnish the Committee with a copy of the latest draft of the
JPEPA. Usec. Aquino did not heed the request, however.

Congressman Aguja later requested for the same document,


but Usec. Aquino, by letter of November 2, 2005, replied that the
Congressman shall be provided with a copy thereof once the negotiations are
completed and as soon as a thorough legal review of the proposed agreement
has been conducted.

In a separate move, the House Committee, through


Congressman Herminio G. Teves, requested Executive Secretary
Eduardo Ermita to furnish it with all documents on the subject including the
latest draft of the proposed agreement, the requests and offers etc.[2] Acting
on the request, Secretary Ermita, by letter of June 23, 2005, wrote
CongressmanTeves as follows:

In its letter dated 15 June 2005 (copy enclosed), [the] D[epartment of]
F[oreign] A[ffairs] explains that the Committees request to be furnished
all documents on the JPEPA may be difficult to accomplish at this
time, since the proposed Agreement has been a work in progress for
about three years. A copy of the draft JPEPA will however be forwarded
to the Committee as soon as the text thereof is settled and complete.
(Emphasis supplied)

Congressman Aguja also requested NEDA


Director-General Romulo Neri and 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 thatUsec. Aquino would provide the Congressman with
a copy once the negotiation is completed. And by letter of July 18, 2005,
NEDA Assistant Director-General Margarita R.Songco informed the
Congressman that his request addressed to Director-General Neri had been
forwarded to Usec. Aquino who would be in the best position to respond to
the request.

In its third hearing conducted on August 31, 2005, the House Committee
resolved to issue a subpoena for the most recent draft of the JPEPA, but the
same was not pursued because by Committee Chairman
Congressman Teves information, then House Speaker Jose de Venecia had
requested him to hold in abeyance the issuance of the subpoena until the
President gives her consent to the disclosure of the documents.[3]

Amid speculations that the JPEPA might be signed by the Philippine


government within December 2005, the present petition was filed
on December 9, 2005.[4] The agreement was to be later signed on September
9, 2006 by President Gloria Macapagal-Arroyo and Japanese Prime
Minister Junichiro Koizumi in Helsinki, Finland, following which the
President endorsed it to the Senate for its concurrence pursuant to Article
VII, Section 21 of the Constitution. To date, the JPEPA is still being
deliberated upon by the Senate.

The JPEPA, which will be the first bilateral free trade agreement to be
entered into by the Philippines with another country in the event the Senate
grants its consent to it, covers a broad range of topics which respondents
enumerate as follows: trade in goods, rules of origin, customs procedures,
paperless trading, trade in services, investment, intellectual property rights,
government procurement, movement of natural persons, cooperation,
competition policy, mutual recognition, dispute avoidance and settlement,
improvement of the business environment, and general and final
provisions.[5]
While the final text of the JPEPA has now been made accessible to the
public since September 11, 2006,[6] respondents do not dispute that, at the
time the petition was filed up to the filing of petitioners Reply when the
JPEPA was still being negotiated the initial drafts thereof were kept from
public view.

Before delving on the substantive grounds relied upon by petitioners in


support of the petition, the Court finds it necessary to first resolve some
material procedural issues.

Standing

For a petition for mandamus such as the one at bar to be given due course, it
must be instituted by a party aggrieved by the alleged inaction of any
tribunal, corporation, board or person which unlawfully excludes said party
from the enjoyment of a legal right.[7] Respondents deny that petitioners
have such standing to sue. [I]n the interest of a speedy and definitive
resolution of the substantive issues raised, however, respondents consider it
sufficient to cite a portion of the ruling in Pimentel v. Office of Executive
Secretary[8]which emphasizes the need for a personal stake in the outcome of
the controversy on questions of standing.

In a petition anchored upon the right of the people to information on matters


of public concern, which is a public right by its very nature, petitioners need
not show that they have any legal or special interest in the result, it being
sufficient to show that they are citizens and, therefore, part of the general
public which possesses the right.[9] As the present petition is anchored on the
right to information and petitioners are all suing in their capacity as citizens
and groups of citizens including petitioners-members of the House of
Representatives who additionally are suing in their capacity as such, the
standing of petitioners to file the present suit is grounded in jurisprudence.

Mootness
Considering, however, that [t]he principal relief petitioners are praying for is
the disclosure of the contents of the JPEPA prior to its finalization between
the two States parties,[10] public disclosure of the text of the JPEPA after its
signing by the President, during the pendency of the present petition, has
been largely rendered moot and academic.

With the Senate deliberations on the JPEPA still pending, the agreement as it
now stands cannot yet be considered as final and binding between the two
States. Article 164 of the JPEPA itself provides that the agreement does not
take effect immediately upon the signing thereof. For it must still go through
the procedures required by the laws of each country for its entry into
force, viz:

Article 164
Entry into Force

This Agreement shall enter into force on the thirtieth day after the date on
which the Governments of the Parties exchange diplomatic notes
informing each other that their respective legal procedures necessary
for entry into force of this Agreement have been completed. It shall
remain in force unless terminated as provided for in Article
165.[11] (Emphasis supplied)

President Arroyos endorsement of the JPEPA to the Senate for concurrence


is part of the legal procedures which must be met prior to the agreements
entry into force.

The text of the JPEPA having then been made accessible to the public, the
petition has become moot and academic to the extent that it seeks the
disclosure of the full text thereof.

The petition is not entirely moot, however, because petitioners seek to


obtain, not merely the text of the JPEPA, but also the Philippine and
Japanese offers in the course of the negotiations.[12]

A discussion of the substantive issues, insofar as they impinge on petitioners


demand for access to the Philippine and Japanese offers, is thus in order.
Grounds relied upon by petitioners

Petitioners assert, first, that the refusal of the government to disclose the
documents bearing on the JPEPA negotiations violates their right to
information on matters of publicconcern[13] and contravenes other
constitutional provisions on transparency, such as that on the policy of full
public disclosure of all transactions involving public interest.[14]Second,
they contend that non-disclosure of the same documents undermines their
right to effective and reasonable participation in all levels of social, political,
and economic decision-making.[15] Lastly, they proffer that divulging the
contents of the JPEPA only after the agreement has been concluded will
effectively make the Senate into a mere rubber stamp of the Executive, in
violation of the principle of separation of powers.

Significantly, the grounds relied upon by petitioners for the disclosure of


the latest text of the JPEPA are, except for the last, the same as those cited
for the disclosure of the Philippine and Japanese offers.

The first two grounds relied upon by petitioners which bear on the merits of
respondents claim of privilege shall be discussed. The last, being
purely speculatory given that the Senate is still deliberating on the JPEPA,
shall not.

The JPEPA is a matter of public concern

To be covered by the right to information, the information sought must meet


the threshold requirement that it be a matter of public concern. Apropos is
the teaching of Legaspi v. Civil Service Commission:

In determining whether or not a particular information is of public concern


there is no rigid test which can be applied. Public concern like public
interest is a term that eludes exact definition.Both terms embrace a broad
spectrum of subjects which the public may want to know, either because
these directly affect their lives, or simply because such matters naturally
arouse the interest of an ordinary citizen. In the final analysis, it is for the
courts to determine on a case by case basis whether the matter at issue is
of interest or importance, as it relates to or affects the
public.[16] (Underscoring supplied)

From the nature of the JPEPA as an international trade agreement, it is


evident that the Philippine and Japanese offers submitted during the
negotiations towards its execution are matters of public concern. This,
respondents do not dispute. They only claim that diplomatic negotiations are
covered by the doctrine of executive privilege, thus constituting an
exception to the right to information and the policy of full public disclosure.

Respondents claim of privilege

It is well-established in jurisprudence that neither the right to information


nor the policy of full public disclosure is absolute, there being matters which,
albeit of public concern or public interest, are recognized as privileged in
nature. The types of information which may be considered privileged have
been elucidated in Almonte v. Vasquez,[17] Chavez v. PCGG,[18] Chavez v.
Public Estates Authority,[19] and most recently in Senate v. Ermita[20] where
the Court reaffirmed the validity of the doctrine of executive privilege in this
jurisdiction and dwelt on its scope.

Whether a claim of executive privilege is valid depends on the ground


invoked to justify it and the context in which it is made.[21] In the present
case, the ground for respondents claim of privilege is set forth in
their Comment, viz:

x x x The categories of information that may be considered privileged


includes matters of diplomatic character and under negotiation and
review. In this case, the privileged character of thediplomatic
negotiations has been categorically invoked and clearly explained by
respondents particularly respondent DTI Senior Undersecretary.

The documents on the proposed JPEPA as well as the text which is subject
to negotiations and legal review by the parties fall under the exceptions to
the right of access to information on matters of public concern and policy
of public disclosure. They come within the coverage of executive
privilege. At the time when the Committee was requesting for copies of
such documents, the negotiations were ongoing as they are still now and
the text of the proposed JPEPA is still uncertain and subject to
change. Considering the status and nature of such documents then and now,
these are evidently covered by executive privilege consistent with existing
legal provisions and settled jurisprudence.

Practical and strategic considerations likewise counsel against the


disclosure of the rolling texts which may undergo radical change or
portions of which may be totally abandoned. Furthermore,
the negotiations of the representatives of the Philippines as well as of
Japan must be allowed to explore alternatives in the course of the
negotiations in the same manner as judicial deliberations and working
drafts of opinions are accorded strict confidentiality.[22] (Emphasis and
underscoring supplied)

The ground relied upon by respondents is thus not simply that the
information sought involves a diplomatic matter, but that it pertains
to diplomatic negotiations then in progress.

Privileged character of diplomatic negotiations

The privileged character of diplomatic negotiations has been recognized in


this jurisdiction. In discussing valid limitations on the right to information,
the Court in Chavez v. PCGG held that information on inter-government
exchanges prior to the conclusion of treaties and executive agreements may
be subject to reasonable safeguards for the sake of national interest.[23] Even
earlier, the same privilege was upheld in Peoples Movement for Press
Freedom (PMPF) v. Manglapus[24] wherein the Court discussed the reasons
for the privilege in more precise terms.

In PMPF v. Manglapus, the therein petitioners were seeking information


from the Presidents representatives on the state of the then on-going
negotiations of the RP-US Military Bases Agreement.[25] The Court denied
the petition, stressing that secrecy of negotiations with foreign countries is
not violative of the constitutional provisions of freedom of speech or of the
press nor of the freedom of access to information. The Resolution went on
to state, thus:

The nature of diplomacy requires centralization of authority and


expedition of decision which are inherent in executive action. Another
essential characteristic of diplomacy is its confidential
nature. Although much has been said about open and secret diplomacy,
with disparagement of the latter, Secretaries of State Hughes
and Stimson have clearly analyzed and justified the practice. In the words
of Mr. Stimson:

A complicated negotiation . . . cannot be carried


through without many, many private talks and
discussion, man to man; many tentative suggestions and
proposals.Delegates from other countries come and tell
you in confidence of their troubles at home and of their
differences with other countries and with other
delegates; they tell you of what they would do under
certain circumstances and would not do under other
circumstances. . . If these reports . . . should become
public . . . who would ever trust American Delegations
in another conference? (United States Department of State,
Press Releases, June 7, 1930, pp. 282-284.).

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 makestreaties with the advice
and consent of the Senate; but he alone negotiates. Into the field of
negotiation the Senate cannot intrude; and Congress itself is powerless to
invade it. As Marshall said in his great argument of March 7, 1800, in the
House of Representatives, The President is the sole organ of the nation
in its external relations, and its sole representative with foreign
nations. Annals, 6th Cong., col. 613. . . (Emphasis supplied; underscoring
in the original)

Applying the principles adopted in PMPF v. Manglapus, it is clear that while


the final text of the JPEPA may not be kept perpetually confidential since
there should be ample opportunity for discussion before [a treaty] is
approved the offers exchanged by the parties during the negotiations
continue to be privileged even after the JPEPA is published. It is reasonable
to conclude that the Japanese representatives submitted their offers with the
understanding that historic confidentiality[27] would govern the
same. Disclosing these offers could impair the ability of the Philippines to
deal not only with Japan but with other foreign governments in
future negotiations.

A ruling that Philippine offers in treaty negotiations should now be open to


public scrutiny would discourage future Philippine representatives from
frankly expressing their views during negotiations. While, on first
impression, it appears wise to deter Philippine representatives from entering
into compromises, it bears noting that treaty negotiations, or any negotiation
for that matter, normally involve a process of quid pro quo, and oftentimes
negotiators have to be willing to grant concessions in an area of lesser
importance in order to obtain more favorable terms in an area of
greater national interest. Apropos are the following observations of
Benjamin S. Duval, Jr.:

x x x [T]hose involved in the practice of negotiations appear to be in


agreement that publicity leads to grandstanding, tends to freeze
negotiating positions, and inhibits the give-and-take essential to
successful negotiation. As Sissela Bok points out, if negotiators have
more to gain from being approved by their own sides than by making a
reasoned agreement with competitors or adversaries, then they are inclined
to 'play to the gallery . . .'' In fact, the public reaction may leave them
little option. It would be a brave, or foolish, Arab leader who expressed
publicly a willingness for peace with Israel that did not involve the return
of the entire West Bank, or Israeli leader who stated publicly a willingness
to remove Israel's existing settlements from Judea and Samaria in return
for peace.[28] (Emphasis supplied)

Indeed, by hampering the ability of our representatives to compromise,


we may be jeopardizing higher national goals for the sake of securing less
critical ones.
Diplomatic negotiations, therefore, are recognized as privileged in this
jurisdiction, the JPEPA negotiations constituting no exception. It bears
emphasis, however, that such privilege is only presumptive. For as Senate
v. Ermita holds, recognizing a type of information as privileged does not
mean that it will be considered privileged in all instances.Only after a
consideration of the context in which the claim is made may it be determined
if there is a public interest that calls for the disclosure of the desired
information, strong enough to overcome its traditionally privileged status.

Whether petitioners have established the presence of such a public interest


shall be discussed later. For now, the Court shall first pass upon the
arguments raised by petitioners against the application of PMPF
v. Manglapus to the present case.

Arguments proffered by petitioners against the application of PMPF


v. Manglapus
Petitioners argue that PMPF v. Manglapus cannot be applied in toto to the
present case, there being substantial factual distinctions between the two.

To petitioners, the first and most fundamental distinction lies in the


nature of the treaty involved. They stress that PMPF v. Manglapus involved
the Military Bases Agreement which necessarily pertained to matters
affecting national security; whereas the present case involves an economic
treaty that seeks to regulate trade and commerce between
the Philippines and Japan, matters which, unlike those covered by the
Military Bases Agreement, are not so vital to national security to disallow
their disclosure.

Petitioners argument betrays a faulty assumption that information, to be


considered privileged, must involve national security. The recognition
in Senate v. Ermita[29] that executive privilege has encompassed claims of
varying kinds, such that it may even be more accurate to speak of executive
privileges, cautions against such generalization.

While there certainly are privileges grounded on the necessity of


safeguarding national security such as those involving military secrets, not
all are founded thereon. One example is the informers privilege, or the
privilege of the Government not to disclose the identity of a person or
persons who furnish information of violations of law to officers charged
with the enforcement of that law.[30] The suspect involved need not be so
notorious as to be a threat to national security for this privilege to apply in
any given instance.Otherwise, the privilege would be inapplicable in all but
the most high-profile cases, in which case not only would this be contrary to
long-standing practice. It would also be highly prejudicial to law
enforcement efforts in general.

Also illustrative is the privilege accorded to presidential communications,


which are presumed privileged without distinguishing between those which
involve matters of national security and those which do not, the rationale for
the privilege being that
x x x [a] frank exchange of exploratory ideas and assessments, free from
the glare of publicity and pressure by interested parties, is essential to
protect the independence of decision-makingof those tasked to exercise
Presidential, Legislative and Judicial power. x x x[31] (Emphasis supplied)

In the same way that the privilege for judicial deliberations does not depend
on the nature of the case deliberated upon, so presidential communications
are privileged whether they involve matters of national security.
It bears emphasis, however, that the privilege accorded to presidential
communications is not absolute, one significant qualification being that the
Executive cannot, any more than the other branches of government, invoke
a general confidentiality privilege to shield its officials and employees from
investigations by the proper governmental institutions into possible criminal
wrongdoing. [32] This qualification applies whether the privilege is being
invoked in the context of a judicial trial or a congressional investigation
conducted in aid of legislation.[33]

Closely related to the presidential communications privilege is


the deliberative process privilege recognized in the United States. As
discussed by the U.S. Supreme Court inNLRB v. Sears, Roebuck &
Co,[34] deliberative process covers documents reflecting advisory opinions,
recommendations and deliberations comprising part of a process by which
governmental decisions and policies are formulated. Notably, the privileged
status of such documents rests, not on the need to protect national
security but, on the obvious realization that officials will not communicate
candidly among themselves if each remark is a potential item of discovery
and front page news, the objective of the privilege being to enhance the
quality of agency decisions. [35]

The diplomatic negotiations privilege bears a close resemblance to the


deliberative process and presidential communications privilege. It may be
readily perceived that the rationale for the confidential character of
diplomatic negotiations, deliberative process, and presidential
communications is similar, if not identical.
The earlier discussion on PMPF v. Manglapus[36] shows that the privilege for
diplomatic negotiations is meant to encourage a frank exchange of
exploratory ideas between the negotiating parties by shielding such
negotiations from public view. Similar to the privilege for presidential
communications, the diplomatic negotiations privilege seeks, through the
same means, to protect the independence in decision-making of the President,
particularly in its capacity as the sole organ of the nation in its external
relations, and its sole representative with foreign nations. And, as with the
deliberative process privilege, the privilege accorded to diplomatic
negotiations arises, not on account of the content of the information per se,
but because the information is part of a process of deliberation which, in
pursuit of the public interest, must be presumed confidential.

The decision of the U.S. District Court, District of Columbia in Fulbright


& Jaworski v. Department of the Treasury[37] enlightens on the close relation
between diplomatic negotiations and deliberative process privileges. The
plaintiffs in that case sought access to notes taken by a member of
the U.S. negotiating team during the
U.S.-French taxtreaty negotiations. Among the points noted therein were
the issues to be discussed, positions which the French and U.S. teams took
on some points, the draft language agreed on, and articles which needed to
be amended. Upholding the confidentiality of those notes, Judge Green ruled,
thus:

Negotiations between two countries to draft a treaty represent a true


example of a deliberative process. Much give-and-take must occur for
the countries to reach an accord. A description of the negotiations at any
one point would not provide an onlooker a summary of the discussions
which could later be relied on as law. It would not be working law as the
points discussed and positions agreed on would be subject to change at any
date until the treaty was signed by the President and ratified by the Senate.

The policies behind the deliberative process privilege support


non-disclosure. Much harm could accrue to the negotiations process if
these notes were revealed. Exposure of the pre-agreement positions of
the French negotiators might well offend foreign governments and
would lead to less candor by the U. S. in recording the events of the
negotiations process. As several months pass in between negotiations,
this lack of record could hinder readily the U. S. negotiating team. Further
disclosure would reveal prematurely adopted policies. If these policies
should be changed, public confusion would result easily.
Finally, releasing these snapshot views of the negotiations would be
comparable to releasing drafts of the treaty, particularly when the
notes state the tentative provisions and language agreed on. As drafts
of regulations typically are protected by the deliberative process
privilege, Arthur Andersen & Co. v. Internal Revenue Service, C.A. No.
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
bothpre-decisional and part of the agency's deliberative or
decision-making process.[40]
Judge Friedman, in CIEL, himself cognizant of a superficial similarity of
context between the two cases, based his decision on what he perceived to
be a significant distinction: he found the negotiators notes that were sought
in Fulbright to be clearly internal, whereas the documents being sought
in CIEL were those produced by or exchanged with an outside party, i.e.
Chile. The documents subject of Fulbright being clearly internal in
character, the question of disclosure therein turned not on the threshold
requirement of Exemption 5 that the document be inter-agency, but on
whether the documents were part of the agency's pre-decisional deliberative
process. On this basis, Judge Friedman found that Judge Green's discussion
[in Fulbright] of the harm that could result from disclosure therefore is
irrelevant, since the documents at issue [in CIEL] are not inter-agency,
and the Court does not reach the question of deliberative
process. (Emphasis supplied)

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

Going back to the present case, the Court recognizes that the
information sought by petitioners includes documents produced and
communicated by a party external to the Philippine government, namely,
the Japanese representatives in the JPEPA negotiations, and to that extent
this case is closer to the factual circumstances of CIEL than those
ofFulbright.
Nonetheless, for reasons which shall be discussed shortly, this Court echoes
the principle articulated in Fulbright that the public policy underlying the
deliberative process privilege requires that diplomatic negotiations should
also be accorded privileged status, even if the documents subject of the
present case cannot be described as purely internal in character.

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

In this jurisdiction, however, there is no counterpart of the FOIA, nor is


there any statutory requirement similar to FOIA Exemption 5 in
particular. Hence, Philippine courts, when assessing a claim of privilege for
diplomatic negotiations, are more free to focus directly on the issue
of whether the privilege being claimed is indeed supported by public
policy, without having to consider as the CIEL court did if these
negotiations fulfill a formal requirement of being inter-agency. Important
though that requirement may be in the context of domestic negotiations, it
need not be accorded the same significance when dealing with international
negotiations.

There being a public policy supporting a privilege for diplomatic


negotiations for the reasons explained above, the Court sees no reason to
modify, much less abandon, the doctrine in PMPF v. Manglapus.

A second point petitioners proffer in their attempt to differentiate PMPF


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

Petitioners thus conclude that the present case involves the right of members
of Congress to demand information on negotiations of international trade
agreements from the Executive branch, a matter which was not raised
in PMPF v. Manglapus.

While indeed the petitioners in PMPF v. Manglapus consisted only of


members of the mass media, it would be incorrect to claim that the doctrine
laid down therein has no bearing on a controversy such as the present, where
the demand for information has come from members of Congress, not only
from private citizens.

The privileged character accorded to diplomatic negotiations does


not ipso facto lose all force and effect simply because the same privilege
is now being claimed under different circumstances. The probability of
the claim succeeding in the new context might differ, but to say that the
privilege, as such, has no validity at all in that context is another matter
altogether.

The Courts statement in Senate v. Ermita that presidential refusals to furnish


information may be actuated by any of at least three distinct kinds of
considerations [state secrets privilege, informers privilege, and a generic
privilege for internal deliberations], and may be asserted, with differing
degrees of success, in the context of either judicial or legislative
investigations,[41] implies that a privilege, once recognized, may be invoked
under different procedural settings. That this principle holds true particularly
with respect to diplomatic negotiations may be inferred from PMPF
v. Manglapus itself, where the Court held that it is the President alone who
negotiates treaties, and not even the Senate or the House of
Representatives, unless asked, may intrude upon that process.
Clearly, the privilege for diplomatic negotiations may be invoked not
only against citizens demands for information, but also in the context of
legislative investigations.

Hence, the recognition granted in PMPF v. Manglapus to the privileged


character of diplomatic negotiations cannot be considered irrelevant in
resolving the present case, the contextual differences between the two cases
notwithstanding.
As third and last point raised against the application of PMPF
v. Manglapus in this case, petitioners proffer that the socio-political and
historical contexts of the two cases are worlds apart. They claim that the
constitutional traditions and concepts prevailing at the time PMPF
v. Manglapus came about, particularly the school of thought that the
requirements of foreign policy and the ideals of transparency were
incompatible with each other or the incompatibility hypothesis, while valid
when international relations were still governed by power, politics and wars,
are no longer so in this age of international cooperation.[42]

Without delving into petitioners assertions respecting the incompatibility


hypothesis, the Court notes that the ruling in PMPF v. Manglapus is
grounded more on the nature of treaty negotiations as such than on a
particular socio-political school of thought. If petitioners are suggesting that
the nature of treaty negotiations have so changed that [a]n ill-timed speech
by one of the parties or a frank declaration of the concession which are
exacted or offered on both sides no longer lead[s] to widespread propaganda
to block the negotiations, or that parties in treaty negotiations no
longer expect their communications to be governed by historic
confidentiality, the burden is on them to substantiate the same. This
petitioners failed to discharge.

Whether the privilege applies only at certain stages of the negotiation


process

Petitioners admit that diplomatic negotiations on the JPEPA are entitled to a


reasonable amount of confidentiality so as not to jeopardize the diplomatic
process. They argue, however, that the same is privileged only at certain
stages of the negotiating process, after which such information must
necessarily be revealed to the public.[43] They add that the duty to disclose
this information was vested in the government when the negotiations moved
from the formulation and exploratory stage to the firming up of definite
propositions or official recommendations, citing Chavez v.
[44] [45]
PCGG and Chavez v. PEA.

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 constitutedefinite propositions by the
government and should not cover recognized exceptions like
privileged information, military and diplomatic secrets and similar
matters affecting national security and public
order. x x x[46] (Emphasis and underscoring supplied)

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

Whether there is sufficient public interest to overcome the claim of


privilege

It being established that diplomatic negotiations enjoy a presumptive


privilege against disclosure, even against the demands of members of
Congress for information, the Court shall now determine whether petitioners
have shown the existence of a public interest sufficient to overcome the
privilege in this instance.
To clarify, there are at least two kinds of public interest that must be
taken into account. One is the presumed public interest in favor of keeping
the subject information confidential, which is the reason for the privilege
in the first place, and the other is the public interest in favor of disclosure,
the existence of which must be shown by the party asking for
information. [47]

The criteria to be employed in determining whether there is a sufficient


public interest in favor of disclosure may be gathered from cases such as U.S.
v. Nixon,[48] Senate Select Committee on Presidential Campaign Activities v.
Nixon,[49] and In re Sealed Case.[50]

U.S. v. Nixon, which involved a claim of the presidential communications


privilege against the subpoena duces tecum of a district court in
a criminal case, emphasized the need to balance such claim of privilege
against the constitutional duty of courts to ensure a fair administration
of criminal justice.

x x x the allowance of the privilege to withhold evidence that


is demonstrably relevant in a criminal trial would cut deeply into the
guarantee of due process of law and gravely impair the basic function
of the courts. A Presidents acknowledged need for confidentiality in
the communications of his office is general in nature, whereas
the constitutional need for production of relevant evidence in a
criminal proceeding is specific and central to the fair adjudication of a
particular criminal case in the administration of justice. Without
access to specific facts a criminal prosecution may be totally
frustrated. The Presidents broad interest in confidentiality of
communications will not be vitiated by disclosure of a limited number of
conversations preliminarily shown to have some bearing on the pending
criminal cases. (Emphasis, italics and underscoring supplied)

Similarly, Senate Select Committee v. Nixon,[51] which involved a


claim of the presidential communications privilege against the
subpoena duces tecum of a Senate committee, spoke of the need to balance
such claim with the duty of Congress to perform its legislative functions.

The staged decisional structure established in Nixon v. Sirica was designed


to ensure that the President and those upon whom he directly relies in the
performance of his duties could continue to work under a general
assurance that their deliberations would remain confidential. So long
as the presumption that the public interest favors confidentiality can
be defeated only by astrong showing of need by another institution of
government- a showing that the responsibilities of that institution
cannot responsibly be fulfilled without access to records of the
President's deliberations- we believed in Nixon v. Sirica, and continue to
believe, that the effective functioning of the presidential office will not be
impaired. x x x

xxxx

The sufficiency of the Committee's showing of need has come to


depend, therefore, entirely on whether the subpoenaed materials
are critical to the performance of its legislative
functions. x x x (Emphasis and underscoring supplied)

In re Sealed Case[52] involved a claim of the deliberative process and


presidential communications privileges against a subpoena duces tecum of a
grand jury. On the claim of deliberative process privilege, the court stated:

The deliberative process privilege is a qualified privilege and can


be overcome by a sufficient showing of need. This need determination
is to be made flexibly on a case-by-case, ad hoc basis. "[E]ach time [the
deliberative process privilege] is asserted the district court must undertake
a fresh balancing of the competing interests," taking into account factors
such as "the relevance of the evidence," "the availability of other
evidence," "the seriousness of the litigation," "the role of the
government," and the "possibility of future timidity by government
employees. x x x (Emphasis, italics and underscoring supplied)

Petitioners have failed to present the strong and sufficient showing of


need referred to in the immediately cited cases. The arguments they proffer
to establish their entitlement to the subject documents fall short of this
standard.

Petitioners go on to assert that the non-involvement of the Filipino people in


the JPEPA negotiation process effectively results in the bargaining away of
their economic and property rights without their knowledge and participation,
in violation of the due process clause of the Constitution. They claim,
moreover, that it is essential for the people to have access to the initial offers
exchanged during the negotiations since only through such disclosure can
their constitutional right to effectively participate in decision-making be
brought to life in the context of international trade agreements.

Whether it can accurately be said that the Filipino people were not involved
in the JPEPA negotiations is a question of fact which this Court need not
resolve. Suffice it to state that respondents had presented documents
purporting to show that public consultations were conducted on the
JPEPA. Parenthetically, petitioners consider these alleged consultations as
woefully selective and inadequate.[53]

AT ALL EVENTS, since it is not disputed that the offers exchanged by the
Philippine and Japanese representatives have not been disclosed to the public,
the Court shall pass upon the issue of whether access to the documents
bearing on them is, as petitioners claim, essential to their right to participate
in decision-making.

The case for petitioners has, of course, been immensely weakened by the
disclosure of the full text of the JPEPA to the public since September 11,
2006, even as it is still being deliberated upon by the Senate and, therefore,
not yet binding on the Philippines. Were the Senate to concur with the
validity of the JPEPA at this moment, there has already been, in the words
of PMPF v. Manglapus, ample opportunity for discussion before [the treaty]
is approved.

The text of the JPEPA having been published, petitioners have failed to
convince this Court that they will not be able to meaningfully exercise their
right to participate in decision-making unless the initial offers are also
published.

It is of public knowledge that various non-government sectors and private


citizens have already publicly expressed their views on the JPEPA, their
comments not being limited to general observations thereon but on its
specific provisions. Numerous articles and statements critical of the JPEPA
have been posted on the Internet.[54] Given these developments, there is no
basis for petitioners claim that access to the Philippine and Japanese offers is
essential to the exercise of their right to participate in decision-making.

Petitioner-members of the House of Representatives additionally


anchor their claim to have a right to the subject documents on the basis of
Congress inherent power to regulate commerce, be it domestic or
international. They allege that Congress cannot meaningfully exercise the
power to regulate international trade agreements such as the JPEPA without
being given copies of the initial offers exchanged during the negotiations
thereof. In the same vein, they argue that the President cannot exclude
Congress from the JPEPA negotiations since whatever power and authority
the President has to negotiate international trade agreements is derived only
by delegation of Congress, pursuant to Article VI, Section 28(2) of the
Constitution and Sections 401 and 402 of Presidential Decree No. 1464.[55]

The subject of Article VI Section 28(2) of the Constitution is not the


power to negotiate treaties and international agreements, but the power to fix
tariff rates, import and export quotas, and other taxes. Thus it provides:

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

As to the power to negotiate treaties, the constitutional basis thereof is


Section 21 of Article VII the article on the Executive Department
which states:

No treaty or international agreement shall be valid and effective unless


concurred in by at least two-thirds of all the Members of the Senate.
The doctrine in PMPF v. Manglapus that the treaty-making power is
exclusive to the President, being the sole organ of the nation in its external
relations, was echoed in BAYAN v. Executive Secretary[56] where the Court
held:

By constitutional fiat and by the intrinsic nature of his office, the


President, as head of State, is the sole organ and authority in the
external affairs of the country. In many ways, the President is the
chief architect of the nation's foreign policy; his "dominance in the
field of foreign relations is (then) conceded." Wielding vast powers
and influence, his conduct in the external affairs of the nation,
as Jefferson describes, is executive altogether.

As regards the power to enter into treaties or international


agreements, the Constitution vests the same in the President, subject
only to the concurrence of at least two thirds vote of all the members
of the Senate. In this light, the negotiation of the VFA and the subsequent
ratification of the agreement are exclusive acts which pertain solely to the
President, in the lawful exercise of his vast executive and diplomatic
powers granted him no less than by the fundamental law itself. Into the
field of negotiation the Senate cannot intrude, and Congress itself is
powerless to invade it. x x x (Italics in the original; emphasis and
underscoring supplied)

The same doctrine was reiterated even more recently in Pimentel v.


Executive Secretary[57] where the Court ruled:

In our system of government, the President, being the head of state, is


regarded as the sole organ and authority in external relations and is the
country's sole representative with foreign nations. As the chief architect
of foreign policy, the President acts as the country's mouthpiece with
respect to international affairs. Hence, the President is vested with the
authority to deal with foreign states and governments, extend or withhold
recognition, maintain diplomatic relations, enter into treaties, and
otherwise transact the business of foreign relations. In the realm of
treaty-making, the President has the sole authority to negotiate with
other states.

Nonetheless, while the President has the sole authority to negotiate


and enter into treaties, the Constitution provides a limitation to his
power by requiring the concurrence of 2/3 of all the members of the
Senate for the validity of the treaty entered into by him.
x x x (Emphasis and underscoring supplied)
While the power then to fix tariff rates and other taxes clearly belongs to
Congress, and is exercised by the President only by delegation of that body,
it has long been recognized that the power to enter into treaties is vested
directly and exclusively in the President, subject only to the concurrence of
at least two-thirds of all the Members of the Senate for the validity of the
treaty. In this light, the authority of the President to enter into trade
agreements with foreign nations provided under P.D. 1464[58] may be
interpreted as an acknowledgment of a power already inherent in its
office. It may not be used as basis to hold the President or its representatives
accountable to Congress for the conduct of treaty negotiations.
This is not to say, of course, that the Presidents power to enter into treaties is
unlimited but for the requirement of Senate concurrence, since the President
must still ensure that all treaties will substantively conform to all the relevant
provisions of the Constitution.

It follows from the above discussion that Congress, while possessing


vast legislative powers, may not interfere in the field of treaty
negotiations. While Article VII, Section 21 provides for Senate concurrence,
such pertains only to the validity of the treaty under consideration, not to the
conduct of negotiations attendant to its conclusion. Moreover, it is not even
Congress as a whole that has been given the authority to concur as a means
of checking the treaty-making power of the President, but only the Senate.

Thus, as in the case of petitioners suing in their capacity as private citizens,


petitioners-members of the House of Representatives fail to present
a sufficient showing of need that the information sought is critical to the
performance of the functions of Congress, functions that do not include
treaty-negotiation.

Respondents alleged failure to timely claim executive privilege

On respondents invocation of executive privilege, petitioners find the same


defective, not having been done seasonably as it was raised only in their
Comment to the present petition and not during the House Committee
hearings.
That respondents invoked the privilege for the first time only in their
Comment to the present petition does not mean that the claim of privilege
should not be credited.Petitioners position presupposes that an assertion of
the privilege should have been made during the House Committee
investigations, failing which respondents are deemed to have waived it.

When the House Committee and


petitioner-Congressman Aguja requested respondents for copies of the
documents subject of this case, respondents replied that the negotiations
were still on-going and that the draft of the JPEPA would be released once
the text thereof is settled and complete. There was no intimation that the
requested copies are confidential in nature by reason of public policy. The
response may not thus be deemed a claim of privilege by the standards
of Senate v. Ermita, which recognizes as claims of privilege only those
which are accompanied by precise and certain reasons for preserving
the confidentiality of the information being sought.

Respondents failure to claim the privilege during the House Committee


hearings may not, however, be construed as a waiver thereof by the
Executive branch. As the immediately preceding paragraph indicates, what
respondents received from the House Committee and
petitioner-Congressman Aguja were mere requests for information. And
as priorlystated, the House Committee itself refrained from pursuing its
earlier resolution to issue a subpoena duces tecum on account of then
Speaker Jose de Venecias alleged request to Committee Chairperson
Congressman Teves to hold the same in abeyance.

While it is a salutary and noble practice for Congress to refrain from issuing
subpoenas to executive officials out of respect for their office until resort to
it becomes necessary, the fact remains that such requests are not a
compulsory process. Being mere requests, they do not strictly call for an
assertion of executive privilege.
The privilege is an exemption to Congress power of inquiry.[59] So
long as Congress itself finds no cause to enforce such power, there is no
strict necessity to assert the privilege. In this light, respondents failure to
invoke the privilege during the House Committee investigations did not
amount to a waiver thereof.

The Court observes, however, that the claim of privilege appearing in


respondents Comment to this petition fails to satisfy in full the requirement
laid down in Senate v. Ermitathat the claim should be invoked by the
President or through the Executive Secretary by order of the
President.[60] Respondents claim of privilege is being sustained, however, its
flaw notwithstanding, because of circumstances peculiar to the case.

The assertion of executive privilege by the Executive Secretary, who is one


of the respondents herein, without him adding the phrase by order of the
President, shall be considered as partially complying with the requirement
laid down in Senate v. Ermita. The requirement that the phrase by order of
the President should accompany the Executive Secretarys claim of privilege
is a new rule laid down for the first time in Senate v. Ermita, which was not
yet final and executory at the time respondents filed their Comment to the
petition.[61] A strict application of this requirement would thus be
unwarranted in this case.

Response to the Dissenting Opinion of the Chief Justice

We are aware that behind the dissent of the Chief Justice lies a
genuine zeal to protect our peoples right to information against any abuse of
executive privilege. It is a zeal that We fully share.

The Court, however, in its endeavor to guard against the abuse of


executive privilege, should be careful not to veer towards the opposite
extreme, to the point that it would strike down as invalid even a legitimate
exercise thereof.
We respond only to the salient arguments of the Dissenting Opinion
which have not yet been sufficiently addressed above.

1. After its historical discussion on the allocation of power over international


trade agreements in the United States, the dissent concludes that it will be
turning somersaults with history to contend that the President is the sole
organ for external relations in that jurisdiction. With regard to this opinion,
We make only the following observations:

There is, at least, a core meaning of the phrase sole organ of the nation in its
external relations which is not being disputed, namely, that the power
to directly negotiate treaties and international agreements is vested by our
Constitution only in the Executive. Thus, the dissent states that Congress has
the power to regulate commerce with foreign nationsbut does not have the
power to negotiate international agreements directly.[62]

What is disputed is how this principle applies to the case at bar.

The dissent opines that petitioner-members of the House of Representatives,


by asking for the subject JPEPA documents, are not seeking
to directly participate in the negotiations of the JPEPA, hence, they cannot
be prevented from gaining access to these documents.

On the other hand, We hold that this is one occasion where the following
ruling in Agan v. PIATCO[63] and in other cases both before and since should
be applied:

This Court has long and consistently adhered to the legal maxim that
those that cannot be done directly cannot be done indirectly. To
declare the PIATCO contracts valid despite the clear statutory prohibition
against a direct government guarantee would not only make a mockery of
what the BOT Law seeks to prevent -- which is to expose the government
to the risk of incurring a monetary obligation resulting from a contract of
loan between the project proponent and its lenders and to which the
Government is not a party to -- but would also render the BOT Law
useless for what it seeks to achieve - to make use of the resources of the
private sector in the financing, operation and maintenance of
infrastructure and development projects which are necessary for national
growth and development but which the government, unfortunately, could
ill-afford to finance at this point in time.[64]

Similarly, while herein petitioners-members of the House of Representatives


may not have been aiming to participate in the negotiations directly, opening
the JPEPA negotiations to their scrutiny even to the point of giving them
access to the offers exchanged between the Japanese and Philippine
delegations would have made a mockery of what the Constitution sought to
prevent and rendered it useless for what it sought to achieve when it vested
the power of direct negotiation solely with the President.

What the U.S. Constitution sought to prevent and aimed to achieve in


defining the treaty-making power of the President, which our Constitution
similarly defines, may be gathered from Hamiltons explanation of why the
U.S. Constitution excludes the House of Representatives from the
treaty-making process:

x x x The fluctuating, and taking its future increase into account, the
multitudinous composition of that body, forbid us to expect in it those
qualities which are essential to the proper execution of such a
trust. Accurate and comprehensive knowledge of foreign politics; a steady
and systematic adherence to the same views; a nice and uniform sensibility
to national character, decision,secrecy and dispatch; are incompatible with
a body so variable and so numerous. The very complication of the
business by introducing a necessity of the concurrence of so many
different bodies, would of itself afford a solid objection. The greater
frequency of the calls upon the house of representatives, and the greater
length of time which it would often be necessary to keep them together
when convened, to obtain their sanction in the progressive stages of a
treaty, would be source of so great inconvenience and expense, as alone
ought to condemn the project.[65]

These considerations a fortiori apply in this jurisdiction, since the Philippine


Constitution, unlike that of the U.S., does not even grant the Senate the
power to advise the Executive in the making of treaties, but only vests in that
body the power to concur in the validity of the treaty after negotiations have
been concluded.[66] Much less, therefore, should it be inferred that the House
of Representatives has this power.
Since allowing petitioner-members of the House of Representatives access
to the subject JPEPA documents would set a precedent for future
negotiations, leading to the contravention of the public interests articulated
above which the Constitution sought to protect, the subject documents
should not be disclosed.

2. The dissent also asserts that respondents can no longer claim the
diplomatic secrets privilege over the subject JPEPA documents now that
negotiations have been concluded, since their reasons for nondisclosure cited
in the June 23, 2005 letter of Sec. Ermita, and later in their Comment,
necessarily apply only for as long as the negotiations were still pending;

In their Comment, respondents contend that the negotiations of the


representatives of the Philippines as well as of Japan must be allowed to
explore alternatives in the course of the negotiations in the same manner as
judicial deliberations and working drafts of opinions are accorded strict
confidentiality. That respondents liken the documents involved in the
JPEPA negotiations to judicial deliberations and working drafts of
opinions evinces, by itself, that they were claiming confidentiality not
only until, but even after, the conclusion of the negotiations.

Judicial deliberations do not lose their confidential character once a decision


has been promulgated by the courts. The same holds true with respect to
working drafts of opinions, which are comparable to
intra-agency recommendations. Such intra-agency recommendations are
privileged even after the position under consideration by the agency has
developed into a definite proposition, hence, the rule in this jurisdiction that
agencies have the duty to disclose only definite propositions, and not the
inter-agency and intra-agency communications during the stage when
common assertions are still being formulated.[67]

3. The dissent claims that petitioner-members of the House of


Representatives have sufficiently shown their need for the same documents
to overcome the privilege. Again, We disagree.
The House Committee that initiated the investigations on the JPEPA did not
pursue its earlier intention to subpoena the documents. This strongly
undermines the assertion that access to the same documents by the House
Committee is critical to the performance of its legislative functions. If the
documents were indeed critical, the House Committee should have, at the
very least, issued a subpoena duces tecum or, like what the Senate did
in Senate v. Ermita, filed the present petition as a legislative body, rather
than leaving it to the discretion of individual Congressmen whether to
pursue an action or not. Such acts would have served as strong indicia that
Congress itself finds the subject information to be critical to its legislative
functions.

Further, given that respondents have claimed executive privilege,


petitioner-members of the House of Representatives should have, at least,
shown how its lack of access to the Philippine and Japanese offers would
hinder the intelligent crafting of legislation. Mere assertion that the
JPEPA covers a subject matter over which Congress has the power to
legislate would not suffice. As Senate Select Committee v. Nixon[68] held,
the showing required to overcome the presumption favoring confidentiality
turns, not only on the nature and appropriateness of the function in the
performance of which the material was sought, but also the degree to which
the material was necessary to its fulfillment.This petitioners failed to do.

Furthermore, from the time the final text of the JPEPA including its annexes
and attachments was published, petitioner-members of the House of
Representatives have been free to use it for any legislative purpose they may
see fit. Since such publication, petitioners need, if any, specifically for the
Philippine and Japanese offers leading to the final version of the JPEPA, has
become even less apparent.

In asserting that the balance in this instance tilts in favor of disclosing the
JPEPA documents, the dissent contends that the Executive has failed to
show how disclosing them afterthe conclusion of negotiations would impair
the performance of its functions. The contention, with due respect, misplaces
the onus probandi. While, in keeping with the general presumption of
transparency, the burden is initially on the Executive to provide precise and
certain reasons for upholding its claim of privilege, once the Executive is
able to show that the documents being sought are covered by a recognized
privilege, the burden shifts to the party seeking information to overcome the
privilege by a strong showing of need.

When it was thus established that the JPEPA documents are covered by the
privilege for diplomatic negotiations pursuant to PMPF v. Manglapus, the
presumption arose that their disclosure would impair the performance of
executive functions. It was then incumbent on petitioner- requesting parties
to show that they have a strong need for the information sufficient to
overcome the privilege. They have not, however.

4. Respecting the failure of the Executive Secretary to explicitly state that he


is claiming the privilege by order of the President, the same may not be
strictly applied to the privilege claim subject of this case.

When the Court in Senate v. Ermita limited the power of invoking the
privilege to the President alone, it was laying down a new rule for which
there is no counterpart even in theUnited States from which the concept of
executive privilege was adopted. As held in the 2004 case of Judicial Watch,
Inc. v. Department of Justice,[69] citing In re Sealed Case,[70] the issue of
whether a President must personally invoke the [presidential
communications] privilege remains an open question. U.S. v. Reynolds,[71] on
the other hand, held that [t]here must be a formal claim of privilege,
lodged by the head of the department which has control over the matter, after
actual personal consideration by that officer.

The rule was thus laid down by this Court, not in adherence to any
established precedent, but with the aim of preventing the abuse of the
privilege in light of its highly exceptional nature. The Courts recognition that
the Executive Secretary also bears the power to invoke the privilege,
provided he does so by order of the President, is meant to avoid laying down
too rigid a rule, the Court being aware that it was laying down a new
restriction on executive privilege. It is with the same spirit that the Court
should not be overly strict with applying the same rule in this peculiar
instance, where the claim of executive privilege occurred before the
judgment in Senate v. Ermita became final.

5. To show that PMPF v. Manglapus may not be applied in the present case,
the dissent implies that the Court therein erred in citing US
v. Curtiss Wright[72] and the book entitled The New American Government
and Its Work[73] since these authorities, so the dissent claims, may not be
used to calibrate the importance of the right to information in the Philippine
setting.

The dissent argues that since Curtiss-Wright referred to a conflict between


the executive and legislative branches of government, the factual setting
thereof was different from that of PMPF v. Manglapus which involved a
collision between governmental power over the conduct of foreign affairs
and the citizens right to information.

That the Court could freely cite Curtiss-Wright a case that upholds the
secrecy of diplomatic negotiations against congressional demands for
information in the course of laying down a ruling on the public right to
information only serves to underscore the principle mentioned earlier that
the privileged character accorded to diplomatic negotiations does not ipso
facto lose all force and effect simply because the same privilege is now
being claimed under different circumstances.

PMPF v. Manglapus indeed involved a demand for information from private


citizens and not an executive-legislative conflict, but so did Chavez v.
PEA[74] which held that the [publics] right to information . . . does not extend
to matters recognized as privileged information under the separation of
powers. What counts as privileged information in an executive-legislative
conflict is thus also recognized as such in cases involving the publics right to
information.

Chavez v. PCGG[75] also involved the publics right to information, yet


the Court recognized as a valid limitation to that right the same privileged
information based on separation of powers closed-door Cabinet meetings,
executive sessions of either house of Congress, and the internal deliberations
of the Supreme Court.

These cases show that the Court has always regarded claims of privilege,
whether in the context of an 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 whereCongress would be denied access to a particular
information because of a claim of executive privilege, but the general
public would have access to the same information, the claim of privilege
notwithstanding.

Absurdity would be the ultimate result if, for instance, the Court adopts the
clear and present danger test for the assessment of claims of privilege
against citizens demands for information. If executive information, when
demanded by a citizen, is privileged only when there is a clear and present
danger of a substantive evil that the State has a right to prevent, it would be
very difficult for the Executive to establish the validity of its claim in each
instance. In contrast, if the demand comes from Congress, the Executive
merely has to show that the information is covered by a recognized privilege
in order to shift the burden on Congress to present a strong showing of
need. This would lead to a situation where it would be more difficult for
Congress to access executive information than it would be for private
citizens.

We maintain then that when the Executive has already shown that an
information is covered by executive privilege, the party demanding the
information must present a strong showing of need, whether that party is
Congress or a private citizen.
The rule that the same showing of need test applies in both these contexts,
however, should not be construed as a denial of the importance of analyzing
the context in which an executive privilege controversy may happen to be
placed. Rather, it affirms it, for it means that the specific need being shown
by the party seeking information in every particularinstance is highly
significant in determining whether to uphold a claim of privilege. This need
is, precisely, part of the context in light of which every claim of privilege
should be assessed.

Since, as demonstrated above, there are common principles that should be


applied to executive privilege controversies across different contexts, the
Court in PMPF v. Manglapusdid not err when it cited
the 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 sinceSeptember 11, 2006. As for their demand for
copies of the Philippine and Japanese offers submitted during the JPEPA
negotiations, the same must be denied, respondents claim of executive
privilege being valid.

Diplomatic negotiations have, since the Court promulgated its Resolution


in PMPF v. Manglapus on September 13, 1988, been recognized as
privileged in this jurisdiction and the reasons proffered by petitioners against
the application of the ruling therein to the present case have not persuaded
the Court. Moreover, petitioners both private citizens and members of the
House of Representatives have failed to present a sufficient showing of
need to overcome the claim of privilege in this case.

That the privilege was asserted for the first time in respondents Comment to
the present petition, and not during the hearings of the House Special
Committee on Globalization, is of no moment, since it cannot be interpreted
as a waiver of the privilege on the part of the Executive branch.

For reasons already explained, this Decision shall not be interpreted as


departing from the ruling in Senate v. Ermita that executive privilege should
be invoked by the President or through the Executive Secretary by order of
the President.
WHEREFORE, the petition is DISMISSED.

SO ORDERED.

CONCHITA CARPIO MORALES


Associate Justice

WE CONCUR:

REYNATO S. PUNO
Chief Justice

LEONARDO A. QUISUMBING CONSUELO YNARES- SANTIAGO


Associate Justice Associate Justice

ANTONIO T. CARPIO MA. ALICIA AUSTRIA-MARTINEZ


Associate Justice Associate Justice

RENATO C. CORONA ADOLFO S. AZCUNA


Associate Justice Associate Justice
DANTE O. TINGA
Associate Justice MINITA V. CHICO-NAZARIO
Associate Justice

PRESBITERO J. VELASCO, JR.


Associate Justice ANTONIO EDUARDO B. NACHURA
Associate Justice

RUBEN T. REYES TERESITA J. LEONARDO-DE CASTRO


Associate Justice Associate Justice

ARTURO D. BRION
Associate Justice

CERTIFICATION

Pursuant to Section 13, Article VIII of the Constitution, I certify that the
conclusions in the above Decision had been reached in consultation before
the case was assigned to the writer of the opinion of the Court.
REYNATO S. PUNO
Chief Justice

*
In the case title as indicated in the petition, only the name of Usec. Thomas G. Aquino appears in the
portion for Respondents, to wit: HON. THOMAS G. AQUINO, in his capacity as Chairman and Chief
Delegate of the Philippine Coordinating Committee for the Japan-Philippines Economic Partnership
Agreement, et al. (Underscoring supplied) The other respondents are enumerated in the body of the
petition. (Rollo, pp. 20-23) The Court motu proprio included the names of these other respondents in
the case title to conform to Sec. 1, par. 2, Rule 7 of the Rules of Civil Procedure, as well as the
capacities in which they are being sued. Moreover, it inserted therein that respondent Usec. Aquino, as
stated in the petition, is also being sued in his capacity as DTI Undersecretary.
[1]
Effective May 28, 2003.
[2]
Annex F of Petition, rollo, p. 95.
[3]
The Petition quoted the following statement of Congressman Teves appearing in the transcript of the
Committee hearing held on October 12, 2005:
THE CHAIRPERSON. Now I call on Usec. Aquino to furnish us a copy of the draft JPEPA and enunciate
to this body the positive as well as the negative impact of said agreement. Is this the draft that the
government will sign in December or this will still be subjected to revisions in the run-up to its
signing? x x x We requested also to subpoena this but then the Speaker requested me to hold
in abeyance because he wanted to get a (sic) consent of the President before we can x xx the
department can furnish us a copy of this agreement. (Rollo, p. 32)
[4]
Id. at 16.
[5]
Annex A, Comment, rollo, p. 207.
[6]
Respondents Manifestation dated September 12, 2007; vide Business Philippines: A Department of Trade
and Industry Website at www.business.gov.ph,
particularly www.business.gov.ph/DTI_News.php?contentID=136 (visited August 9, 2007).
[7]
Legaspi v. Civil Service Commission, G.R. No. L-72119, May 29, 1987; 150 SCRA 530, 535.
[8]
G.R. No. 158088, July 6, 2005; 462 SCRA 622, 630-631.
[9]
Supra note 7 at 536.
[10]
Reply to the Comment of the Solicitor General, rollo, p. 319 (underscoring supplied).
[11]
Business Philippines: A Department of Trade and Industry
Website, http://www.business.gov.ph/filedirectory/JPEPA.pdf, accessed on June 12, 2007.
[12]
By Resolution dated August 28, 2007, this Court directed the parties to manifest whether the Philippine
and Japanese offers have been made accessible to the public just like the full text of the JPEPA and, if
not, whether petitioners still intend to pursue their prayer to be provided with copies thereof. In
compliance, petitioners manifested that the offers have not yet been made public and reiterated their
prayer that respondents be compelled to provide them with copies thereof, including all pertinent
attachments and annexes thereto (Manifestation and Motion dated September 17, 2007). Respondents,
on the other hand, asserted that the offers have effectively been made accessible to the public
since September 11, 2006 (Manifestation dated September 12, 2007). Respondents claim does not
persuade, however. By their own manifestation, the documents posted on the DTI website on that date
were only the following: (1) Joint Statement on the Occasion of the Signing of the Agreement between
Japan and the Republic of the Philippines, (2) the full text of the JPEPA itself and its annexes, (3) the
JPEPA implementing Agreement, and (4) resource materials on the JPEPA including presentations of
the [DTI] during the hearings of the Senates Committee on Trade and Commerce and Committee on
Economic Affairs. While these documents no doubt provide very substantial information on the JPEPA,
the publication thereof still falls short of addressing the prayer of petitioners to be provided with copies
of the Philippine and Japanese offers. Thus, the petition, insofar as it prays for access to these offers,
has not become moot.
[13]
CONSTITUTION, Art. III, Sec. 7.
[14]
Id. at Art. II, Sec. 28.
[15]
Id. at Art. XIII, Sec. 16.
[16]
Supra note 7 at 541.
[17]
314 Phil. 150 (1995).
[18]
360 Phil. 133 (1998).
[19]
433 Phil. 506 (2002).
[20]
G.R. No. 169777, April 20, 2006, 488 SCRA 1.
[21]
Id. at 51.
[22]
Rollo, pp. 191-192.
[23]
360 Phil. 133, 764 (1998), citing V RECORD OF THE CONSTITUTIONAL COMMISSION 25
(1986).
[24]
G.R. No. 84642, Resolution of the Court En Banc dated September 13, 1988.
[25]
Specifically, petitioners therein asked that the Court order respondents to (1) open to petitioners their
negotiations/sessions with the U.S. counterparts on the agreement; (2) reveal and/or give petitioners
access to the items which they have already agreed upon; and (3) reveal and/or make accessible the
respective positions on items they have not agreed upon, particularly the compensation package for the
continued use by the U.S. of their military bases and facilities in the Philippines.
[26]
299 U.S. 304 (1936).
[27]
Vide Xerox Corp. v. U.S. (12 Cl.Ct. 93). Against the claim of a taxpayer for the production of a letter
from the Inland Revenue of the United Kingdom to the associate commissioner of the Internal Revenue
Service (IRS), defendant asserted a claim of privilege, relying on the affidavit of Lawrence B. Gibbs,
Commissioner of IRS, which stated that the production of the letter would impair the United States
government's ability to deal with the tax authorities of foreign governments * * * by breaching
the historic confidentiality of negotiations between the United States and foreign sovereigns * * *.
(Emphasis supplied) The U.S. court therein ruled thus: Given the context in which the letter in question
was written, it is reasonable to conclude that frank and honest expression of views on the treaty
language in issue were expressed, views that ostensibly were expressed in the belief that historic
confidentiality would govern such expressions. (Underscoring supplied)
[28]
B. DuVal, Jr., Project Director, American Bar Foundation. B.A., 1958, University of Virginia; J.D.,
1961, Yale University, THE OCCASIONS OF SECRECY (47 U. Pitt. L. Rev. 579).
[29]
Supra note 20 at 46.
[30]
Ibid.
[31]
Supra note 19 at 189.
[32]
Senate Select Committee on Presidential Campaign Activities v. Nixon, 498 F.2d 725, 162 U.S.App.D.C.
183.
[33]
Vide Arnault v. Nazareno, 87 PHIL. 29, 46 (1950): In the present case the jurisdiction of the Senate, thru
the Special Committee created by it, to investigate the Buenavista and Tambobong estates deal is not
challenged by the petitioner; and we entertain no doubt as to the Senates authority to do so and as to
the validity of Resolution No. 8 hereinabove quoted. The transaction involved a questionable and
allegedly unnecessary and irregular expenditure of no less than P5,000,000 of public funds, of which
Congress is the constitutional guardian. x x x
[34]
421 U.S., at 150, 95 S.Ct. 1504, reiterated in Department of the Interior and Bureau of Indian Affairs v.
Klamath Water Users Protective Association, 532 U.S. 1, 121 S.Ct. 1060.
[35]
Id. at 151, 95 S.Ct. 1504 (emphasis supplied).
[36]
Supra note 24.
[37]
545 F.Supp. 615, May 28, 1982.
[38]
237 F.Supp.2d 17.
[39]
5 U.S.C. 552(b)(5).
[40]
CIEL v. Office of U.S. Trade Representative, 237 F.Supp.2d 17. Vide Department of the Interior and
Bureau of Indian Affairs v. Klamath Water Users Protective Association, 532 U.S. 1, 121 S.Ct. 1060:
Exemption 5 protects from disclosure inter-agency or intra-agency memorandums or letters which
would not be available by law to a party other than an agency in litigation with the agency. 5 U.S.C.
552(b)(5). To qualify, a document must thus satisfy two conditions: its source must be a Government
agency, and it must fall within the ambit of a privilege against discovery under judicial standards that
would govern litigation against the agency that holds it.
[41]
Supra note 20 at 46 (emphasis supplied).
[42]
Petitioners expound as follows:
It has been 18 years since the PMPF v. Manglapus case, and the world has changed considerably in that
span of time. The Berlin Wall fell in 1989, bringing down with it the Cold War and its attendant
hostilities, and ushering in a new era of globalization and international economic cooperation as
we know it. The Philippines now finds itself part of an international economic community as a
member of both the ASEAN Free Trade Area (AFTA) and the World Trade Organization
(WTO). Domestically, this Honorable Court has repeatedly upheld the peoples right to information
on matters of public concern, allowing ordinary Filipino citizens to inquire into various
government actions such as GSIS loans to public officials, settlement of Marcos ill-gotten wealth,
and sale of reclaimed land to foreign corporations. (Rollo, p. 326)
[43]
Rollo, pp. 50-51.
[44]
Supra note 18.
[45]
Supra note 19.
[46]
433 Phil. 506, 534 (2002), citing PMPF v. Manglapus, supra note 24 and Chavez v. PCGG, supra note
18.
[47]
In re Sealed Case (121 F.3d 729, 326 U.S.App.D.C. 276 [1997]) states thus: Nixon, GSA, Sirica, and the
other Nixon cases all employed a balancing methodology in analyzing whether, and in what
circumstances, the presidential communications privilege can be overcome. Under this methodology,
these opinions balanced the public interests served by protecting the President's confidentiality
in a particular context with those furthered by requiring disclosure.(Emphasis supplied)
[48]
418 U.S. 683 (1974).
[49]
Supra note 31.
[50]
Supra note 47.
[51]
Supra note 32
[52]
Supra note 47.
[53]
Rollo, p. 349.
[54]
For a small sampling, vide Primer sa Japan-Philippine Economic Partnership Agreement (JPEPA)
at www.bayan.ph/downloads/Primer%20on%20jpepa.pdf; A RESOLUTION EXPRESSING
SUPPORT TO THE CALLS FOR THE SENATE TO REJECT THE JAPAN-PHILIPPINES
PARTNERSHIP AGREEMENT (JPEPA)
at www.nccphilippines.org/indexfiles/Page1562.htm; JPEPA Ratification: Threat Economics at
http://www.aer.ph/index.php?option/=com_content&task=view&id=632&Itemid=63 (all sites visited
on February 2, 2008).
[55]
Entitled A DECREE TO CONSOLIDATE AND CODIFY ALL THE TARIFF AND CUSTOMS
LAWS OF THE PHILIPPINES, promulgated June 11, 1978. In light of the arguments of petitioners,
the most salient portion of the provisions cited by them is Section 402(1) which states, in part: For the
purpose of expanding foreign markets x x x in establishing and maintaining better relations between
the Philippines and other countries, the President is authorized from time to time:
(1.1) To enter into trade agreements with foreign governments or instrumentalities thereof;
xxx
[56]
396 Phil. 623, 663 (2000).
[57]
G.R. No. 158088, July 6, 2005, 462 SCRA 622, 632-633.
[58]
Supra note 55.
[59]
G.R. No. 169777, April 20, 2006, 488 SCRA 1, 44.
[60]
Id. at 68.
[61]
According to the records of this Court, the judgment in Senate v. Ermita was entered on July 21,
2006. Respondents filed their Comment on May 15, 2006.
[62]
Revised Dissenting Opinion, p. 15 (Emphasis and underscoring supplied).
[63]
450 PHIL. 744 (2003), penned by then Associate Justice Puno.
[64] Id., at 833 (Italics in the original, emphasis and underscoring supplied)
[65] The Federalist, No. 75 (Italics in the original, emphasis and underscoring supplied).
[66]
Article II Section 2 of the U.S. Constitution states: He [the President] shall have Power, by and with the
Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present
concur x x x. (Emphasis and underscoring supplied) On the other hand, Article VII Section 21 of the
Philippine Constitution 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.
[67]
Supra note 18.
[68]
162 U.S. App.D.C. 183, 189.
[69]
365 F.3d 1108, 361 U.S.App.D.C. 183 (2004).
[70]
Supra note 47.
[71]
345 U.S. 1, 73 S.Ct. 528 (1953)
[72]
Supra at note 63.
[73]
Supra at note 64.
[74]
Supra note 19.
[75]
Supra at note 18.
[76]
U.S. v. Nixon (418 U.S. 683) states: Nowhere in the Constitution x x x is there any explicit reference to a
privilege of confidentiality, yet to the extent this interest relates to the effective discharge of a
Presidents powers, it is constitutionally based. (Emphasis, italics and underscoring supplied)
[77]
In re Sealed Case (121 F.3d 729) states thus: Nixon, GSA, Sirica, and the other Nixon cases all
employed a balancing methodology in analyzing whether, and in what circumstances, the presidential
communications privilege can be overcome.Under this methodology, these opinions balanced
the public interests served by protecting the Presidents confidentiality in a particular context
with those furthered by requiring disclosure. (Emphasis and underscoring supplied)
[78]
G.R. No. 139465, October 17, 2000, penned by then Associate Justice Reynato S. Puno.
In that case, respondent Mark Jimenez claimed under the due process clause the right to
notice and hearing in the extradition proceedings against him. Consider the following enlightening
disquisition of the Court:
In the case at bar, on one end of the balancing pole is the private respondents claim to
due process predicated on Section 1, Article III of the Constitution, which provides that
No person shall be deprived of life, liberty, or property without due process of
law Without a bubble of a doubt, procedural due process of law lies at the foundation of a
civilized society which accords paramount importance to justice and fairness. It has to be
accorded the weight it deserves.
This brings us to the other end of the balancing pole. Petitioner avers that the Court
should give more weight to our national commitment under the RP-US Extradition Treaty
to expedite the extradition to the United States of persons charged with violation of some
of its laws. Petitioner also emphasizes the need to defer to the judgment of the Executive
on matters relating to foreign affairs in order not to weaken if not violate the principle of
separation of powers.
Considering that in the case at bar, the extradition proceeding is only at its evaluation
stage, the nature of the right being claimed by the private respondent is nebulous and the
degree of prejudice he will allegedly suffer is weak, we accord greater weight to the
interests espoused by the government thru the petitioner Secretary of Justice.
x x x (Emphasis, italics, and underscoring supplied)
[79]
Constitution, Art. XIII, Sec. 16.
[80]
433 U.S. 425.
[81]
88 Stat. 1695.
[82]
G.R. No. 180643, March 25, 2008.
[83]
Emphasis supplied.
Republic of the Philippines
SUPREME COURT
Manila

EN BANC

G.R. No. 82585 November 14, 1988

MAXIMO V. SOLIVEN, ANTONIO V. ROCES, FREDERICK K. AGCAOLI, and


GODOFREDO L. MANZANAS,petitioners,
vs.
THE HON. RAMON P. MAKASIAR, Presiding Judge of the Regional Trial Court of Manila,
Branch 35, UNDERSECRETARY SILVESTRE BELLO III, of the Department of Justice,
LUIS C. VICTOR, THE CITY FISCAL OF MANILA and PRESIDENT CORAZON C.
AQUINO, respondents.

G.R. No. 82827 November 14, 1988

LUIS D. BELTRAN, petitioner,


vs.
THE HON. RAMON P. MAKASIAR, Presiding Judge of Branch 35 of the Regional Trial
Court, at Manila, THE HON. LUIS VICTOR, CITY FISCAL OF MANILA, PEOPLE OF THE
PHILIPPINES, SUPERINTENDENT OF THE WESTERN POLICE DISTRICT, and THE
MEMBERS OF THE PROCESS SERVING UNIT AT THE REGIONAL TRIAL COURT OF
MANILA, respondents.

G.R. No. 83979 November 14, 1988.

LUIS D. BELTRAN, petitioner,


vs.
EXECUTIVE SECRETARY CATALINO MACARAIG, SECRETARY OF JUSTICE SEDFREY
ORDOEZ, UNDERSECRETARY OF JUSTICE SILVESTRE BELLO III, THE CITY FISCAL
OF MANILA JESUS F. GUERRERO, and JUDGE RAMON P. MAKASIAR, Presiding
Judge of Branch 35 of the Regional Trial Court, at Manila, respondents.

Angara, Abello, Concepcion, Regala and Cruz for petitioners in G.R. No. 82585.

Perfecto V. Fernandez, Jose P. Fernandez and Cristobal P. Fernandez for petitioner in G.R.
Nos. 82827 and 83979.

RESOLUTION

PER CURIAM:

In these consolidated cases, three principal issues were raised: (1) whether or not petitioners
were denied due process when informations for libel were filed against them although the
finding of the existence of a prima faciecase was still under review by the Secretary of Justice
and, subsequently, by the President; (2) whether or not the constitutional rights of Beltran
were violated when respondent RTC judge issued a warrant for his arrest without personally
examining the complainant and the witnesses, if any, to determine probable cause; and (3)
whether or not the President of the Philippines, under the Constitution, may initiate criminal
proceedings against the pe