Right to Information

59.) Chavez vs. PCGG

FACTS: Petitioner asks this Court to define the nature and the extent of the people’s constitutional right
to information on matters of public concern. Petitioner, invoking his constitutional right to information
and the correlative duty of the state to disclose publicly all its transactions involving the national interest,
demands that respondents make public any and all negotiations and agreements pertaining to PCGG’s
task of recovering the Marcoses’ ill-gotten wealth.

ISSUE: Are the negotiations leading to a settlement on ill-gotten wealth of the Marcoses within the
scope of the constitutional guarantee of access to information?

HELD: Yes. Considering the intent of the framers of the Constitution, it is incumbent upon the PCGG
and its officers, as well as other government representatives, to disclose sufficient public information on
any proposed settlement they have decided to take up with the ostensible owners and holders of ill-gotten
wealth. Such information, though, must pertain to definite propositions of the government, not necessarily
to intra-agency or inter-agency recommendations or communications during the stage when common
assertions are still in the process of being formulated or are in the “exploratory” stage. There is a need, of
course, to observe the same restrictions on disclosure of information in general --such as on matters
involving national security, diplomatic or foreign relations, intelligence and other classified information
Right to Information

60.) Chavez vs. Philippine Estate Authority

Facts: On February 4, 1977, then President Ferdinand E. Marcos issued Presidential Decree No. 1084
creating PEA. PD No. 1084 tasked PEA "to reclaim land, including foreshore and submerged areas," and
"to develop, improve, acquire, lease and sell any and all kinds of lands." On the same date, then President
Marcos issued Presidential Decree No. 1085 transferring to PEA the "lands reclaimed in the foreshore and
offshore of the Manila Bay" under the Manila-Cavite Coastal Road and Reclamation Project (MCCRRP).
On January 19, 1988, then President Corazon C. Aquino issued Special Patent No. 3517, granting and
transferring to PEA "the parcels of land so reclaimed under the Manila-Cavite Coastal Road and
Reclamation Project (MCCRRP) containing a total area of one million nine hundred fifteen thousand
eight hundred ninety four (1,915,894) square meters." Subsequently, on April 9, 1988, the Register of
Deeds of the Municipality of Parañaque issued Transfer Certificates of Title Nos. 7309, 7311, and 7312,
in the name of PEA, covering the three reclaimed islands known as the "Freedom Islands" located at the
southern portion of the Manila-Cavite Coastal Road, Parañaque City.

PEA and AMARI entered into the JVA through negotiation without public bidding. On April 28, 1995,
the Board of Directors of PEA, in its Resolution No. 1245, confirmed the JVA. On June 8, 1995, then
President Fidel V. Ramos, through then Executive Secretary Ruben Torres, approved the JVA.

The Senate Committees reported the results of their investigation in Senate Committee Report No. 560
dated September 16, 1997. Among the conclusions of their report are: (1) the reclaimed lands PEA seeks
to transfer to AMARI under the JVA are lands of the public domain which the government has not
classified as alienable lands and therefore PEA cannot alienate these lands; (2) the certificates of title
covering the Freedom Islands are thus void, and (3) the JVA itself is illegal.

On December 5, 1997, then President Fidel V. Ramos issued Presidential Administrative Order No. 365
creating a Legal Task Force to conduct a study on the legality of the JVA in view of Senate Committee
Report No. 560. The members of the Legal Task Force were the Secretary of Justice, the Chief
Presidential Legal Counsel, and the Government Corporate Counsel. The Legal Task Force upheld the
legality of the JVA, contrary to the conclusions reached by the Senate Committees.

On April 27, 1998, petitioner Frank I. Chavez ("Petitioner" for brevity) as a taxpayer, filed the instant
Petition for Mandamus with Prayer for the Issuance of a Writ of Preliminary Injunction and Temporary
Restraining Order. Petitioner contends the government stands to lose billions of pesos in the sale by PEA
of the reclaimed lands to AMARI. Petitioner prays that PEA publicly disclose the terms of any
renegotiation of the JVA, invoking Section 28, Article II, and Section 7, Article III, of the 1987
Constitution on the right of the people to information on matters of public concern.

Due to the approval of the Amended JVA by the Office of the President, petitioner now prays that on
"constitutional and statutory grounds the renegotiated contract be declared null and void."

Issue: The issues raised by petitioner, PEA and AMARI are as follows:

1. Whether the reliefs prayed for are moot and academic because of subsequent events;

2. Whether the petition should be dismissed for failing to observe the principle of governing the
heirarchy of courts;

3. Whether the petition should be dismissed for non-exhaustion of administrative remedies;

4. Whether petitioner has locus standi;

5. Whether the constitutional right to information includes information on on-going neogtiations

BEFORE a final agreement;

6. Whether the stipulations in the amended joint venture agreement for the transfer to AMARI of
certain lands, reclaimed and still to be reclaimed violate the 1987 Constitution; and

7. Whether the Court has jurisdiction over the issue whether the amended JVA is grossly
disadvantageous to the government

Held: 1. We rule that the signing and of the Amended JVA by PEA and AMARI and its approval by the
President cannot operate to moot the petition and divest the Court of its jurisdiction. PEA and AMARI
have still to implement the Amended JVA. The prayer to enjoin the signing of the Amended JVA on
constitutional grounds necessarily includes preventing its implementation if in the meantime PEA and
AMARI have signed one in violation of the Constitution. Petitioner's principal basis in assailing the
renegotiation of the JVA is its violation of the Section 3, Article XII of the Constitution, which prohibits
the government from alienating lands of the public domain to private corporations. The Amended JVA is
not an ordinary commercial contract but one which seeks to transfer title and ownership to 367.5 hectares
of reclaimed lands and submerged areas of Manila Bay to a single private corporation.

Also, the instant petition is a case of first impression being a wholly government owned corporation
performing public as well as proprietary functions. All previous decisions of the Court involving Section
3, Article XII of the 1987 Constitution, or its counterpart provision in the 1973 Constitution, covered
agricultural lands sold to private corporations which acquired the lands from private parties.

Lastly, there is a need to resolve immediately the constitutional issue raised in this petition because of the
possible transfer at any time by PEA to AMARI of title and ownership to portions of the reclaimed lands.
Under the Amended JVA, PEA is obligated to transfer to AMARI the latter's seventy percent
proportionate share in the reclaimed areas as the reclamation progresses, The Amended JVA even allows
AMARI to mortgage at any time the entire reclaimed area to raise financing for the reclamation project.

2. The instant case, however, raises constitutional issues of transcendental importance to the public. The
Court can resolve this case without determining any factual issue related to the case. Also, the instant case
is a petition for mandamus which falls under the original jurisdiction of the Court under Section 5, Article
VIII of the Constitution. We resolve to exercise primary jurisdiction over the instant case.

3. PEA was under a positive legal duty to disclose to the public the terms and conditions for the sale of
its lands. The law obligated PEA make this public disclosure even without demand from petitioner or
from anyone. PEA failed to make this public disclosure because the original JVA, like the Amended JVA,
was the result of a negotiated contract, not of a public bidding. Considering that PEA had an affirmative
statutory duty to make the public disclosure, and was even in breach of this legal duty, petitioner had the
right to seek direct judicial intervention.

The principle of exhaustion of administrative remedies does not apply when the issue involved is a purely
legal or constitutional question. The principal issue in the instant case is the capacity of AMARI to
acquire lands held by PEA in view of the constitutional ban prohibiting the alienation of lands of the
public domain to private corporations. We rule that the principle of exhaustion of administrative remedies
does not apply in the instant case.

The petitioner has standing to bring this taxpayer's suit because the petition seeks to compel PEA to
comply with its constitutional duties. There are two constitutional issues involved here. First is the right
of citizens to information on matters of public concern. Second is the application of a constitutional
provision intended to insure the equitable distribution of alienable lands of the public domain among
Filipino Citizens.

The thrust of the second issue is to prevent PEA from alienating hundreds of hectares of alienable lands of
the public domain in violation of the Constitution, compelling PEA to comply with a constitutional duty
to the nation.

4. Ordinary taxpayers have a right to initiate and prosecute actions questioning the validity of acts or
orders of government agencies or instrumentalities, if the issues raised are of 'paramount public interest,'
and if they 'immediately affect the social, economic and moral well being of the people.'

We rule that since the instant petition, brought by a citizen, involves the enforcement of constitutional
rights — to information and to the equitable diffusion of natural resources — matters of transcendental
public importance, the petitioner has the requisite locus standi.

5. The State policy of full transparency in all transactions involving public interest reinforces the
people's right to information on matters of public concern. This State policy is expressed in Section 28,
Article II of the Constitution, thus: “Subject to reasonable conditions prescribed by law, the State adopts
and implements a policy of full public disclosure of all its transactions involving public interest."
Contrary to AMARI's contention, the commissioners of the 1986 Constitutional Commission understood
that the right to information "contemplates inclusion of negotiations leading to the consummation of the
transaction." Certainly, a consummated contract is not a requirement for the exercise of the right to
information. Otherwise, the people can never exercise the right if no contract is consummated, and if one
is consummated, it may be too late for the public to expose its defects.
 Requiring a consummated contract will keep the public in the dark until the contract, which may be
grossly disadvantageous to the government or even illegal, becomes a fait accompli.

However, the right to information does not compel PEA to prepare lists, abstracts, summaries and the
like relating to the renegotiation of the JVA. 34 The right only affords access to records, documents and
papers, which means the opportunity to inspect and copy them. One who exercises the right must copy the
records, documents and papers at his expense. The exercise of the right is also subject to reasonable
regulations to protect the integrity of the public records and to minimize disruption to government
operations, like rules specifying when and how to conduct the inspection and copying.

6. Article 339 of the Civil Code of 1889 defined property of public dominion as follows:

"Art. 339. Property of public dominion is —

1. That devoted to public use, such as roads, canals, rivers, torrents, ports and bridges constructed by
the State, riverbanks, shores, roadsteads, and that of a similar character;

2. That belonging exclusively to the State which, without being of general public use, is employed in
some public service, or in the development of the national wealth, such as walls, fortresses, and other
works for the defense of the territory, and mines, until granted to private individuals.

Property devoted to public use referred to property open for use by the public. In contrast, property
devoted to public service referred to property used for some specific public service and open only to those
authorized to use the property.Property of public dominion referred not only to property devoted to public
use, but also to property not so used but employed to develop the national wealth. This class of property
constituted property of public dominion although employed for some economic or commercial activity to
increase the national wealth.

"Art. 341. Property of public dominion, when no longer devoted to public use or to the defense of the
territory, shall become a part of the private property of the State." This provision, however, was not self-
executing. The legislature, or the executive department pursuant to law, must declare the property no
longer needed for public use or territorial defense before the government could lease or alienate the
property to private parties.

Act No. 2874 of the Philippine Legislature

Sec. 55. Any tract of land of the public domain which, being neither timber nor mineral land, shall be
classified as suitable for residential purposes or for commercial, industrial, or other productive purposes
other than agricultural purposes, and shall be open to disposition or concession, shall be disposed of under
the provisions of this chapter, and not otherwise.

The rationale behind this State policy is obvious. Government reclaimed, foreshore and marshy public
lands for non-agricultural purposes retain their inherent potential as areas for public service. This is the
reason the government prohibited the sale, and only allowed the lease, of these lands to private parties.
The State always reserved these lands for some future public service.

However, government reclaimed and marshy lands, although subject to classification as disposable
public agricultural lands, could only be leased and not sold to private parties because of Act No. 2874.

The 1987 Constitution continues the State policy in the 1973 Constitution banning private corporations
from acquiring any kind of alienable land of the public domain. Like the 1973 Constitution, the 1987
Constitution allows private corporations to hold alienable lands of the public domain only through lease.
As in the 1935 and 1973 Constitutions, the general law governing the lease to private corporations of
reclaimed, foreshore and marshy alienable lands of the public domain is still CA No. 141.
 Without the constitutional ban, individuals who already acquired the maximum area of alienable lands
of the public domain could easily set up corporations to acquire more alienable public lands. An
individual could own as many corporations as his means would allow him. An individual could even hide
his ownership of a corporation by putting his nominees as stockholders of the corporation. The
corporation is a convenient vehicle to circumvent the constitutional limitation on acquisition by
individuals of alienable lands of the public domain.

PD No. 1085, coupled with President Aquino's actual issuance of a special patent covering the
Freedom Islands, is equivalent to an official proclamation classifying the Freedom Islands as alienable or
disposable lands of the public domain. Being neither timber, mineral, nor national park lands, the
reclaimed Freedom Islands necessarily fall under the classification of agricultural lands of the public
domain. Under the 1987 Constitution, agricultural lands of the public domain are the only natural
resources that the State may alienate to qualified private parties. All other natural resources, such as the
seas or bays, are "waters . . . owned by the State" forming part of the public domain, and are inalienable
pursuant to Section 2, Article XII of the 1987 Constitution.

In short, DENR is vested with the power to authorize the reclamation of areas under water, while PEA
is vested with the power to undertake the physical reclamation of areas under water whether directly or
through private contractors. DENR is also empowered to classify lands of the public domain into
alienable or disposable lands subject to the approval of the President. On the other hand, PEA is tasked to
develop, sell or lease the reclaimed alienable lands of the public domain.

Clearly, the mere physical act of reclamation by PEA of foreshore or submerged areas does not make
the reclaimed lands alienable or disposable lands of the public domain, much less patrimonial lands of
PEA. Likewise, the mere transfer by the National Government of lands of the public domain to PEA does
not make the lands alienable or disposable lands of the public domain, much less patrimonial lands of
PEA.

There is no express authority under either PD No. 1085 or EO No. 525 for PEA to sell its reclaimed
lands. PD No. 1085 merely transferred "ownership and administration" of lands reclaimed from Manila
Bay to PEA, while EO No. 525 declared that lands reclaimed by PEA "shall belong to or be owned by
PEA." PEA's charter, however, expressly tasks PEA "to develop, improve, acquire, administer, deal in,
subdivide, dispose, lease and sell any and all kinds of lands . . . owned, managed, controlled and/or
operated by the government." 87 (Emphasis supplied) There is, therefore, legislative authority granted to
PEA to sell its lands, whether patrimonial or alienable lands of the public domain. PEA may sell to
private parties its patrimonial properties in accordance with the PEA charter free from constitutional
limitations. The constitutional ban on private corporations from acquiring alienable lands of the public
domain does not apply to the sale of PEA's patrimonial lands.

Moreover, under Section 79 of PD No. 1445, otherwise known as the Government Auditing Code, the
government is required to sell valuable government property through public bidding. Section 79 of PD
No. 1445 mandates that:... "In the event that the public auction fails, the property may be sold at a private
sale at such price as may be fixed by the same committee or body concerned and approved by the
Commission."

However, the original JVA dated April 25, 1995 covered not only the Freedom Islands and the
additional 250 hectares still to be reclaimed, it also granted an option to AMARI to reclaim another 350
hectares. The original JVA, a negotiated contract, enlarged the reclamation area to 750 hectares. The
failure of public bidding on December 10, 1991, involving only 407.84 hectares, is not a valid
justification for a negotiated sale of 750 hectares, almost double the area publicly auctioned.

Jurisprudence holding that upon the grant of the patent or issuance of the certificate of title the
alienable land of the public domain automatically becomes private land cannot apply to government units
and entities like PEA.
 The grant of legislative authority to sell public lands in accordance with Section 60 of CA No. 141
does not automatically convert alienable lands of the public domain into private or patrimonial lands. The
alienable lands of the public domain must be transferred to qualified private parties, or to government
entities not tasked to dispose of public lands, before these lands can become private or patrimonial lands.
Otherwise, the constitutional ban will become illusory if Congress can declare lands of the public domain
as private or patrimonial lands in the hands of a government agency tasked to dispose of public lands.

To allow vast areas of reclaimed lands of the public domain to be transferred to PEA as private lands
will sanction a gross violation of the constitutional ban on private corporations from acquiring any kind of
alienable land of the public domain. This scheme can even be applied to alienable agricultural lands of the
public domain since PEA can "acquire . . . any and all kinds of lands."

The 157.84 hectares of reclaimed lands comprising the Freedom Islands, now covered by certificates
of title in the name of PEA, are alienable lands of the public domain. PEA may lease these lands to
private corporations but may not sell or transfer ownership of these lands to private corporations.

7. Considering that the Amended JVA is null and void ab initio, there is no necessity to rule on this
last issue. Besides, the Court is not the trier of facts, and this last issue involves a determination of factual
matters.

WHEREFORE, the petition is GRANTED. The Public Estates Authority and Amari Coastal Bay
Development Corporation are PERMANENTLY ENJOINED from implementing the Amended Joint
Venture Agreement which is hereby declared NULL and VOID ab initio.
Right to Information

60.) Neri vs.Senate Committee on Accountability

Facts: In these proceedings, this Court has been called upon to exercise its power of review and arbitrate a
hotly, even acrimoniously, debated dispute between the Court’s co-equal branches of government. On
September 26, 2007, petitioner appeared before respondent Committees and testified for about eleven
(11) hours on matters concerning the National Broadband Project (the “NBN Project”), a project awarded
by the Department of Transportation and Communications (“DOTC”) to Zhong Xing
Telecommunications Equipment (“ZTE”). Petitioner disclosed that then Commission on Elections
(“COMELEC”) Chairman Benjamin Abalos offered him P200 Million in exchange for his approval of the
NBN Project. He further narrated that he informed President Gloria Macapagal Arroyo (“President
Arroyo”) of the bribery attempt and that she instructed him not to accept the bribe. However, when
probed further on President Arroyo and petitioner’s discussions relating to the NBN Project, petitioner
refused to answer, invoking “executive privilege.” To be specific, petitioner refused to answer questions
on: (a) whether or not President Arroyo followed up the NBN Project,4 (b) whether or not she directed
him to prioritize it,5 and (c) whether or not she directed him to approve it.

Respondent Committees persisted in knowing petitioner’s answers to these three questions by requiring
him to appear and testify once more on November 20, 2007. On November 15, 2007, Executive Secretary
Eduardo R. Ermita wrote to respondent Committees and requested them to dispense with petitioner’s
testimony on the ground of executive privilege.

The senate thereafter issued a show cause order, unsatisfied with the reply, therefore, issued an Order
citing Neri in contempt and ordering his arrest and detention at the Office of the Senate Sergeant-at-Arms
until such time that he would appear and give his testimony.

On the same date, petitioner moved for the reconsideration of the above Order. Denied. Petition for
certiorari and Supplemental Petition for Certiorari (with Urgent Application for TRO/Preliminary
Injunction) granted by the SC court.

CORE ISSUE:

(1) whether or not there is a recognized presumptive presidential communications privilege in our legal
system;

(2) whether or not there is factual or legal basis to hold that the communications elicited by the three (3)
questions are covered by executive privilege;

(3) whether or not respondent Committees have shown that the communications elicited by the three (3)
questions are critical to the exercise of their functions; and

(4) whether or not respondent Committees committed grave abuse of discretion in issuing the contempt
order.

HELD:

There Is a Recognized Presumptive

Presidential Communications Privilege

Respondent Committees argue as if this were the first time the presumption in favor of the presidential
communications privilege is mentioned and adopted in our legal system. That is far from the truth. There,
the Court enumerated the cases in which the claim of executive privilege was recognized, among them
Almonte v. Chavez, Chavez v. Presidential Commission on Good Government (PCGG),14 and Chavez v.
PEA.15 The Court articulated in these cases that, “”the right to information does not extend to matters
recognized as ‘privileged information’ under the separation of powers, by which the Court meant
Presidential conversations, correspondences, and discussions in closed-door Cabinet meetings.”

In this case, it was the President herself, through Executive Secretary Ermita, who invoked executive
privilege on a specific matter involving an executive agreement between the Philippines and China, which
was the subject of the three (3) questions propounded to petitioner Neri in the course of the Senate
Committees’ investigation. Thus, the factual setting of this case markedly differs from that passed upon in
Senate v. Ermita.

A President and those who assist him must be free to explore alternatives in the process of shaping
policies and making decisions and to do so in a way many would be unwilling to express except privately.
These are the considerations justifying a presumptive privilege for Presidential communications. The
privilege is fundamental to the operation of government and inextricably rooted in the separation of
powers under the Constitution x x x

II

There Are Factual and Legal Bases to

Hold that the Communications Elicited by the

Three (3) Questions Are Covered by Executive Privilege

A. The power to enter into an executive agreement is a “quintessential and non-delegable presidential
power.”

First, respondent Committees contend that the power to secure a foreign loan does not relate to a
“quintessential and non-delegable presidential power,” because the Constitution does not vest it in the
President alone, but also in the Monetary Board which is required to give its prior concurrence and to
report to Congress.

This argument is unpersuasive.

The fact that a power is subject to the concurrence of another entity does not make such power less
executive. The power to enter into an executive agreement is in essence an executive power. This
authority of the President to enter into executive agreements without the concurrence of the Legislature
has traditionally been recognized in Philippine jurisprudence. Now, the fact that the President has to
secure the prior concurrence of the Monetary Board, which shall submit to Congress a complete report of
its decision before contracting or guaranteeing foreign loans, does not diminish the executive nature of the
power. In the same way that certain legislative acts require action from the President for their validity
does not render such acts less legislative in nature.

B. The “doctrine of operational proximity” was laid down precisely to limit the scope of the presidential
communications privilege but, in any case, it is not conclusive.

Second, respondent Committees also seek reconsideration of the application of the “doctrine of
operational proximity” for the reason that “it maybe misconstrued to expand the scope of the presidential
communications privilege to communications between those who are ‘operationally proximate’ to the
President but who may have “no direct communications with her.”

It must be stressed that the doctrine of “operational proximity” was laid down in In re: Sealed
Case27precisely to limit the scope of the presidential communications privilege. In the case at bar, the
danger of expanding the privilege “to a large swath of the executive branch” (a fear apparently entertained
by respondents) is absent because the official involved here is a member of the Cabinet, thus, properly
within the term “advisor” of the President; in fact, her alter ego and a member of her official family.
C. The President’s claim of executive privilege is not merely based on a generalized interest; and in
balancing respondent Committees’ and the President’s clashing interests, the Court did not disregard the
1987 Constitutional provisions on government transparency, accountability and disclosure of information.

The Letter dated November 15, 2007 of Executive Secretary Ermita specified presidential
communications privilege in relation to diplomatic and economic relations with another sovereign nation
as the bases for the claim. Even in Senate v. Ermita, it was held that Congress must not require the
Executive to state the reasons for the claim with such particularity as to compel disclosure of the
information which the privilege is meant to protect. This is a matter of respect for a coordinate and co-
equal department.

Privileged character of diplomatic negotiations

In PMPF v. Manglapus, .” 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.

With respect to respondent Committees’ invocation of constitutional prescriptions regarding the right of
the people to information and public accountability and transparency, the Court finds nothing in these
arguments to support respondent Committees’ case.

There is no debate as to the importance of the constitutional right of the people to information and the
constitutional policies on public accountability and transparency. These are the twin postulates vital to the
effective functioning of a democratic government. In the case at bar, this Court, in upholding executive
privilege with respect to three (3) specific questions, did not in any way curb the public’s right to
information or diminish the importance of public accountability and transparency.

This Court did not rule that the Senate has no power to investigate the NBN Project in aid of legislation.
There is nothing in the assailed Decision that prohibits respondent Committees from inquiring into the
NBN Project. They could continue the investigation and even call petitioner Neri to testify again.

III.

Respondent Committees Failed to Show That

the Communications Elicited by the Three Questions

Are Critical to the Exercise of their Functions

The jurisprudential test laid down by this Court in past decisions on executive privilege is that the
presumption of privilege can only be overturned by a showing of compelling needfor disclosure of the
information covered by executive privilege.

In the Motion for Reconsideration, respondent Committees argue that the information elicited by the three
(3) questions are necessary in the discharge of their legislative functions, among them, (a) to consider the
three (3) pending Senate Bills, and (b) to curb graft and corruption.

We remain unpersuaded by respondents’ assertions.

The burden to show this is on the respondent Committees, since they seek to intrude into the sphere of
competence of the President in order to gather information which, according to said respondents, would
“aid” them in crafting legislation. Clearly, the need for hard facts in crafting legislation cannot be equated
with the compelling or demonstratively critical and specific need for facts which is so essential to the
judicial power to adjudicate actual controversies.

For sure, a factual basis for situations covered by bills is not critically needed before legislatives bodies
can come up with relevant legislation unlike in the adjudication of cases by courts of law. Interestingly,
during the Oral Argument before this Court, the counsel for respondent Committees impliedly admitted
that the Senate could still come up with legislations even without petitioner answering the three (3)
questions. In other words, the information being elicited is not so critical after all.

Oversight Function of the Congress

Anent the function to curb graft and corruption, it must be stressed that respondent Committees’ need for
information in the exercise of this function is not as compelling as in instances when the purpose of the
inquiry is legislative in nature. This is because curbing graft and corruption is merely an oversight
function of Congress.44 And if this is the primary objective of respondent Committees in asking the three
(3) questions covered by privilege, it may even contradict their claim that their purpose is legislative in
nature and not oversight. In any event, whether or not investigating graft and corruption is a legislative or
oversight function of Congress, respondent Committees’ investigation cannot transgress bounds set by the
Constitution.

Office of the Ombudsman: The Office of the Ombudsman is the body properly equipped by the
Constitution and our laws to preliminarily determine whether or not the allegations of anomaly are true
and who are liable therefor.

IV

Respondent Committees Committed Grave

Abuse of Discretion in Issuing the Contempt Order

Respondent Committees contend that their Rules of Procedure Governing Inquiries in Aid of Legislation
(the “Rules”) are beyond the reach of this Court. While it is true that this Court must refrain from
reviewing the internal processes of Congress, as a co-equal branch of government, however, when a
constitutional requirement exists, the Court has the duty to look into Congress’ compliance therewith. We
cannot turn a blind eye to possible violations of the Constitution simply out of courtesy.

Section 21, Article VI of the Constitution states that:

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

We do not believe that respondent Committees have the discretion to set aside their rules anytime they
wish. This is especially true here where what is involved is the contempt power. It must be stressed that
the Rules are not promulgated for their benefit. More than anybody else, it is the witness who has the
highest stake in the proper observance of the Rules.

Congress as a “continuing body”

On the nature of the Senate as a “continuing body,” this Court sees fit to issue a clarification. Certainly,
there is no debate that the Senate as an institution is “continuing”, as it is not dissolved as an entity with
each national election or change in the composition of its members. However, in the conduct of its day-to-
day business the Senate of each Congress acts separately and independently of the Senate of the Congress
before it.

Motion for Reconsideration Denied.

__________

NOTES:

“Quintessential” is defined as the most perfect embodiment of something, the concentrated essence of
substance.24
“non-delegable” means that a power or duty cannot be delegated to another or, even if delegated, the
responsibility remains with the obligor.

Restrictions on the right to information: (1) national security matters, (2) trade secrets and banking
transactions, (3) criminal matters, and (4) other confidential information. National security matters
include state secrets regarding military and diplomatic matters, as well as information on inter-
government exchanges prior to the conclusion of treaties and executive agreements. It was further held
that even where there is no need to protect such state secrets, they must be “examined in strict confidence
and given scrupulous protection.”
Right to Information

62.)CENTER FOR PEOPLE EMPOWERMENT IN GOVERNANCE (CenPEG), Petitioner, vs.

COMMISSION ON ELECTIONS (COMELEC), Respondent.

Nature of the case:

This case concerns the duty of the Commission on Elections (COMELEC) to disclose the source code for
the Automated Election System (AES) technologies it used in the 2010 national and local elections

Petitioner:

On May 26, 2009 petitioner Center for People Empowerment in Governance (CenPEG), a non-
government organization,1 wrote respondent COMELEC, requesting a copy of the source code of the
Precinct Count Optical Scan (PCOS) programs, the Board of Canvassers Consolidation/Canvassing
System (BOC CCS) programs for the municipal, provincial, national, and congressional canvass, the
COMELEC server programs, and the source code of the in-house COMELEC programs called the Data
Capturing System (DCS) utilities.

CenPEG invoked the following pertinent portion of Section 12 of Republic Act (R.A.) 9369, which
provides:

“Once an AES technology is selected for implementation, the Commission shall promptly make the
source code of that technology available and open to any interested political party or groups which may
conduct their own review thereof.”

COMELEC claimed, reiterating what it said in its August 26, 2009 letter to CenPEG, that it would make
the source code available for review by the end of February 2010 "under a controlled environment."
“Apparently, this review had not taken place and was overtaken by the May 10, 2010 elections.”

Comelec failed to provide plaintiffs with the source code of identified canvass machines despite repeated
requests and demands. CenPEG is now praying for the issuance of a writ of mandamus, despite the lapse
of the May 2010 elections, claiming that the source code remained important and relevant "not only for
compliance with the law, and the purpose thereof, but especially in the backdrop of numerous admissions
of errors and claims of fraud.”.

Respondent:

On August 26, 2009 COMELEC replied that the source code CenPEG wanted did not yet exist for the
following reasons:

1) that it had not yet received the baseline source code of the provider, Smartmatic, since payment to it
had been withheld as a result of a pending suit;

2) its customization of the baseline source code was targeted for completion in November 2009 yet; 3)
under Section 11 of R.A. 9369, the customized source code still had to be reviewed by "an established
international certification entity," which review was expected to be completed by the end of February
2010; and 4) only then would the AES be made available for review under a controlled environment.

COMELEC claimed in its comment that CenPEG did not have a clear, certain, and well-defined right that
was enforceable by mandamus because COMELEC’s duty to make the source code available presupposed
that it already had the same.

Court:

The Court finds the petition and this last manifestation meritorious.

The pertinent portion of Section 12 of R.A. 9369 is clear in that "once an AES technology is selected for
implementation, the Commission shall promptly make the source code of that technology available and
open to any interested political party or groups which may conduct their own review thereof." The
COMELEC has offered no reason not to comply with this requirement of the law. Indeed, its only excuse
for not disclosing the source code was that it was not yet available when CenPEG asked for it and,
subsequently, that the review had to be done, apparently for security reason, "under a controlled
environment." The elections had passed and that reason is already stale.

WHEREFORE, the Court GRANTS the petition for mandamus and DIRECTS the COMELEC to make
the source codes for the AES technologies it selected for implementation pursuant to R.A. 9369
immediately available to CenPEG and all other interested political parties or groups for independent
review.