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Political Law Part V: Article VI – The Legislative Department

Political Law Part V: Article VI – The Legislative Department

POLITICAL LAW PART V

ARTICLE VI – THE LEGISLATIVE DEPARTMENT

1.  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.

a.  Define legislative power

– Basic concepts of the grant of legislative power:

1. it cannot pass irrepealable laws

2. principle of separation of powers

3. non-delegability of legislative powers

- reason for principle that the legislature  cannot pass irrepeablable laws

- Separation of Powers

Read:

a. ANGARA VS. ELECTORAL COMMISSION, 63 Phil. 139

               b.   PLANAS VS. GIL, 67 Phil. 62

               c.  LUZON STEVEDORING VS. SSS, 34 SCRA  178

               d.   GARCIA VS. MACARAIG, 39 SCRA 106

e. Bondoc vs. HRET, Sept. 26, 1991

f. DEFENSOR SANTIAGO VS. COMELEC, 270 SCRA 106

b.   Nature of legislative power

c.   What are the limitations to the grant of legislative powers to the legislature?

d.   Explain the doctrine of non-delegation power.

e.   Permissive delegation of legislative power.

1)   Sec. 23 (2) of Article VI (Emergency powers to the President in case of war or other national emergency, for a limited period and subject to such restrictions as Congress may provide, to exercise powers necessary and proper to carry out a declared national policy. Unless sooner withdrawn by Resolution of Congress, such powers shall cease upon the next adjournment thereof.

2)   Sec. 28 (2) of Article VI. 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.

– Other exceptions: traditional

3.   Delegation to local governments

The reason behind this delegation is because the local government is deemed to know better the needs of the people therein.

a.   See Section 5 of Article X

b.   Read:

aa.  RUBI VS. PROVINCIAL BOARD, 39 Phil. 660

                    bb.  PEOPLE VS. VERA, 65 Phil 56

A law delegating to the local government units the power to fund the salary of probation officers in their area is unconstitutional for violation of the equal protection of the laws. In areas where there is a probation officer because the local government unit appropriated an amount for his salaries, convicts may avail of probation while in places where no funds were set aside for probation officers, convicts therein could not apply for probation.

a.            Reason for the delegation

4) Delegation of Rule-making power to  administrative bodies

5) Delegation to the People  (Section 2, Art. XVII of the Constitution and Section 32, Article VI—The Congress shall, as early as possible, provide for a system of initiative and referendum, and the exceptions therefrom, whereby the people can directly propose and enact laws or approve or reject any act or law or part thereof passed by the Congress of local legislative body after the registration of a petition thereof signed by at least 10% of the total number of registered voters, of which every legislative district must be represented by at least 3% of the registered voters thereof.

f.   Delegation of rule-making power to administrative bodies.

1)   What is the completeness test? The sufficiency of standard test?

Read:  1.   PELAEZ VS. AUDITOR GENERAL, 15 SCRA 569

During the period from September 4 to October 29, 1964 the President of the Philippines, purporting to act pursuant to Section 68 of the Revised Administrative Code, issued Executive Orders Nos. 93 to 121, 124 and 126 to 129; creating thirty-three (33) municipalities.

The third paragraph of Section 3 of Republic Act No. 2370, reads:

Barrios shall not be created or their boundaries altered nor their names changed except under the provisions of this Act or by Act of Congress.

Pursuant to the first two (2) paragraphs of the same Section 3:

All barrios existing at the time of the passage of this Act shall come under the provisions hereof.

Upon petition of a majority of the voters in the areas affected, a new barrio may be created or the name of an existing one may be changed by the provincial board of the province, upon recommendation of the council of the municipality or municipalities in which the proposed barrio is stipulated. The recommendation of the municipal council shall be embodied in a resolution approved by at least two-thirds of the entire membership of the said council: Provided, however, That no new barrio may be created if its population is less than five hundred persons.

Hence, since January 1, 1960, when Republic Act No. 2370 became effective, barrios may “not be created or their boundaries altered nor their names changed” except by Act of Congress or of the corresponding provincial board “upon petition of a majority of the voters in the areas affected” and the “recommendation of the council of the municipality or municipalities in which the proposed barrio is situated.” Petitioner argues, accordingly: “If the President, under this new law, cannot even create a barrio, can he create a municipality which is composed of several barrios, since barrios are units of municipalities?”

Moreover, section 68 of the Revised Administrative Code, upon which the disputed executive orders are based, provides:

The (Governor-General) President of the Philippines may by executive order define the boundary, or boundaries, of any province, subprovince, municipality, [township] municipal district, or other political subdivision, and increase or diminish the territory comprised therein, may divide any province into one or more subprovinces, separate any political division other than a province, into such portions as may be required, merge any of such subdivisions or portions with another, name any new subdivision so created, and may change the seat of government within any subdivision to such place therein as the public welfare may require: Provided, That the authorization of the (Philippine Legislature) Congress of the Philippines shall first be obtained whenever the boundary of any province or subprovince is to be defined or any province is to be divided into one or more subprovinces. When action by the (Governor-General) President of the Philippines in accordance herewith makes necessary a change of the territory under the jurisdiction of any administrative officer or any judicial officer, the (Governor-General) President of the Philippines, with the recommendation and advice of the head of the Department having executive control of such officer, shall redistrict the territory of the several officers affected and assign such officers to the new districts so formed.

Respondent alleges that the power of the President to create municipalities under this section does not amount to an undue delegation of legislative power, relying upon Municipality of Cardona vs. Municipality of Binañgonan (36 Phil. 547), which, he claims, has settled it. Such claim is untenable, for said case involved, not the creation of a new municipality, but a mere transfer of territory  from an already existing municipality (Cardona) to another municipality (Binañgonan), likewise, existing at the time of and prior to said transfer (See Gov’t of the P.I. ex rel. Municipality of Cardona vs. Municipality, of Binañgonan [34 Phil. 518, 519-5201)  in consequence of the fixing and definition, pursuant to Act No. 1748, of the common boundaries of two municipalities.

It is obvious, however, that, whereas the power to fix such common boundary, in order to avoid or settle conflicts of jurisdiction between adjoining municipalities, may partake of an administrative nature  involving, as it does, the adoption of means and ways to carry into effect the law creating said municipalities  the authority to create municipal corporations is essentially legislative in nature. 

Although 1a Congress may delegate to another branch of the Government the power to fill in the details in the execution, enforcement or administration of a law, it is essential, to forestall a violation of the principle of separation of powers, that said law:

(a) be complete in itself  it must set forth therein the policy to be executed, carried out or implemented by the delegate   and

(b) fix a standard  the limits of which are sufficiently determinate or determinable  to which the delegate must conform in the performance of his functions.

Indeed, without a statutory declaration of policy, the delegate would in effect, make or formulate such policy, which is the essence of every law; and, without the aforementioned standard, there would be no means to determine, with reasonable certainty, whether the delegate has acted within or beyond the scope of his authority. Hence, he could thereby arrogate upon himself the power, not only to make the law, but, also  and this is worse  to unmake it, by adopting measures inconsistent with the end sought to be attained by the Act of Congress, thus nullifying the principle of separation of powers and the system of checks and balances, and, consequently, undermining the very foundation of our Republican system.

Section 68 of the Revised Administrative Code does not meet these well settled requirements for a valid delegation of the power to fix the details in the enforcement of a law. It does not enunciate any policy to be carried out or implemented by the President. Neither does it give a standard sufficiently precise to avoid the evil effects above referred to. In this connection, we do not overlook the fact that, under the last clause of the first sentence of Section 68, the President:

... may change the seat of the government within any subdivision to such place therein as the public welfare may require.

At any rate, the conclusion would be the same, insofar as the case at bar is concerned, even if we assumed that the phrase "as the public welfare may require," in said Section 68, qualifies all other clauses thereof. It is true that in Calalang vs. Williams (70 Phil. 726) and People vs. Rosenthal (68 Phil. 328), this Court had upheld "public welfare" and "public interest," respectively, as sufficient standards for a valid delegation of the authority to execute the law. But, the doctrine laid down in these cases  as all judicial pronouncements  must be construed in relation to the specific facts and issues involved therein, outside of which they do not constitute precedents and have no binding effect.  The law construed in the Calalang case conferred upon the Director of Public Works, with the approval of the Secretary of Public Works and Communications, the power to issue rules and regulations to promote safe transit upon national roads and streets. Upon the other hand, the Rosenthal case referred to the authority of the Insular Treasurer, under Act No. 2581, to issue and cancel certificates or permits for the sale of speculative securities. Both cases involved grants to administrative officers of powers related to the exercise of their administrative functions, calling for the determination of questions of fact.

2              TUPAS VS. OPLE, 137 SCRA 108 (Most representative)

1.           US VS. ANG TANG HO, 43 Phil. 1

At its special session of 1919, the Philippine Legislature passed Act No. 2868, entitled "An Act penalizing the monopoly and holding of, and speculation in, palay, rice, and corn under extraordinary circumstances, regulating the distribution and sale thereof, and authorizing the Governor-General, with the consent of the Council of State, to issue the necessary rules and regulations therefor, and making an appropriation for this purpose," the material provisions of which are as follows:

Section 1. The Governor-General is hereby authorized, whenever, for any cause, conditions arise resulting in an extraordinary rise in the price of palay, rice or corn, to issue and promulgate, with the consent of the Council of State, temporary rules and emergency measures for carrying out the purpose of this Act, to wit:

(a) To prevent the monopoly and hoarding of, and speculation in, palay, rice or corn.

August 1, 1919, the Governor-General issued a proclamation fixing the price at which rice should be sold.

August 8, 1919, a complaint was filed against the defendant, Ang Tang Ho, charging him with the sale of rice at an excessive price as follows:

The undersigned accuses Ang Tang Ho of a violation of Executive Order No. 53 of the Governor-General of the Philippines, dated the 1st of August, 1919, in relation with the provisions of sections 1, 2 and 4 of Act No. 2868, committed as follows:

That on or about the 6th day of August, 1919, in the city of Manila, Philippine Islands, the said Ang Tang Ho, voluntarily, illegally and criminally sold to Pedro Trinidad, one ganta of rice at the price of eighty centavos (P.80), which is a price greater than that fixed by Executive Order No. 53 of the Governor-General of the Philippines, dated the 1st of August, 1919, under the authority of section 1 of Act No. 2868. Contrary to law.

Upon this charge, he was tried, found guilty and sentenced to five months' imprisonment and to pay a fine of P500, from which he appealed to this court, claiming that the lower court erred in finding Executive Order No. 53 of 1919, to be of any force and effect, in finding the accused guilty of the offense charged, and in imposing the sentence.

The official records show that the Act was to take effect on its approval; that it was approved July 30, 1919; that the Governor-General issued his proclamation on the 1st of August, 1919; and that the law was first published on the 13th of August, 1919; and that the proclamation itself was first published on the 20th of August, 1919.

The question here involves an analysis and construction of Act No. 2868, in so far as it authorizes the Governor-General to fix the price at which rice should be sold. It will be noted that section 1 authorizes the Governor-General, with the consent of the Council of State, for any cause resulting in an extraordinary rise in the price of palay, rice or corn, to issue and promulgate temporary rules and emergency measures for carrying out the purposes of the Act. By its very terms, the promulgation of temporary rules and emergency measures is left to the discretion of the Governor-General. The Legislature does not undertake to specify or define under what conditions or for what reasons the Governor-General shall issue the proclamation, but says that it may be issued "for any cause," and leaves the question as to what is "any cause" to the discretion of the Governor-General. The Act also says: "For any cause, conditions arise resulting in an extraordinary rise in the price of palay, rice or corn." The Legislature does not specify or define what is "an extraordinary rise." That is also left to the discretion of the Governor-General. The Act also says that the Governor-General, "with the consent of the Council of State," is authorized to issue and promulgate "temporary rules and emergency measures for carrying out the purposes of this Act." It does not specify or define what is a temporary rule or an emergency measure, or how long such temporary rules or emergency measures shall remain in force and effect, or when they shall take effect. That is to say, the Legislature itself has not in any manner specified or defined any basis for the order, but has left it to the sole judgement and discretion of the Governor-General to say what is or what is not "a cause," and what is or what is not "an extraordinary rise in the price of rice," and as to what is a temporary rule or an emergency measure for the carrying out the purposes of the Act. Under this state of facts, if the law is valid and the Governor-General issues a proclamation fixing the minimum price at which rice should be sold, any dealer who, with or without notice, sells rice at a higher price, is a criminal. There may not have been any cause, and the price may not have been extraordinary, and there may not have been an emergency, but, if the Governor-General found the existence of such facts and issued a proclamation, and rice is sold at any higher price, the seller commits a crime.

By the organic law of the Philippine Islands and the Constitution of the United States all powers are vested in the Legislative, Executive and Judiciary. It is the duty of the Legislature to make the law; of the Executive to execute the law; and of the Judiciary to construe the law. The Legislature has no authority to execute or construe the law, the Executive has no authority to make or construe the law, and the Judiciary has no power to make or execute the law. Subject to the Constitution only, the power of each branch is supreme within its own jurisdiction, and it is for the Judiciary only to say when any Act of the Legislature is or is not constitutional. Assuming, without deciding, that the Legislature itself has the power to fix the price at which rice is to be sold, can it delegate that power to another, and, if so, was that power legally delegated by Act No. 2868? In other words, does the Act delegate legislative power to the Governor-General? By the Organic Law, all  Legislative power is vested in the Legislature, and the power conferred upon the Legislature to make laws cannot be delegated to the Governor-General, or any one else. The Legislature cannot delegate the legislative power to enact any law. If Act no 2868 is a law unto itself and within itself, and it does nothing more than to authorize the Governor-General to make rules and regulations to carry the law into effect, then the Legislature itself created the law. There is no delegation of power and it is valid. On the other hand, if the Act within itself does not define crime, and is not a law, and some legislative act remains to be done to make it a law or a crime, the doing of which is vested in the Governor-General, then the Act is a delegation of legislative power, is unconstitutional and void.

The act, in our judgment, wholly fails to provide definitely and clearly what the standard policy should contain,  so that it could be put in use as a uniform policy required to take the place of all others, without the determination of the insurance commissioner in respect to maters involving the exercise of a legislative discretion that could not be delegated, and without which the act could not possibly be put in use as an act in conformity to which all fire insurance policies were required to be issued.

The result of all the cases on this subject is that a law must be complete, in all its terms and provisions, when it leaves the legislative branch of the government, and nothing must be left to the judgement of the electors or other appointee or delegate of the legislature, so that, in form and substance, it is a law in all its details in presenti, but which may be leftto take effect in futuro, if necessary, upon the ascertainment of any prescribed fact or event.

                    4.   TIO VS. VIDEOGRAM REGULATORY BOARD, 151 SCRA 208

                    5.   FREE TELEPHONE WORKERS UNION,   108 SCRA 757 (Affecting National interest)

                   6.   PHILCOMSAT VS. ALCUAZ, December  18, 1989

Fundamental is the rule that delegation of legislative power may be sustained only upon the ground that some standard for its exercise is provided and that the legislature in making the delegation has prescribed the manner of the exercise of the delegated power. Therefore, when the administrative agency concerned, respondent NTC in this case, establishes a rate, its act must both be non- confiscatory and must have been established in the manner prescribed by the legislature; otherwise, in the absence of a fixed standard, the delegation of power becomes unconstitutional. In case of a delegation of rate-fixing power, the  only standard which the legislature is required to prescribe for the guidance of the administrative authority is that the rate be reasonable and just. However, it has been held that even in the absence of an express requirement as to reasonableness, this standard may be implied.

It becomes important then to ascertain the nature of the power delegated to respondent NTC and the manner required by the statute for the lawful exercise thereof.

Pursuant to Executive Orders Nos. 546 and 196, respondent NTC is empowered, among others, to determine and prescribe rates pertinent to the operation of public service communications which necessarily include the power to promulgate rules and regulations in connection therewith. And, under Section 15(g) of Executive Order No. 546, respondent NTC should be guided by the requirements of public safety, public interest and reasonable feasibility of maintaining effective competition of private entities in communications and broadcasting facilities. Likewise, in Section 6(d) thereof, which provides for the creation of the Ministry of Transportation and Communications with control and supervision over respondent NTC, it is specifically provided that the national economic viability of the entire network or components of the communications systems contemplated therein should be maintained at reasonable rates.

II.      On another tack, petitioner submits that the questioned order violates procedural due process because it was issued motu proprio, without notice to petitioner and without the benefit of a hearing. Petitioner laments that said order was based merely on an "initial evaluation," which is a unilateral evaluation, but had petitioner been given an opportunity to present its side before the order in question was issued, the confiscatory nature of the rate reduction and the consequent deterioration of the public service could have been shown and demonstrated to respondents. Petitioner argues that the function involved in the rate fixing-power of NTC is adjudicatory and hence quasi-judicial, not quasi- legislative; thus, notice and hearing are necessary and the absence thereof results in a violation of due process.

Respondents admit that the application of a policy like the fixing of rates as exercised by administrative bodies is quasi-judicial rather than quasi-legislative: that where the function of the administrative agency is legislative, notice and hearing are not required, but where an order applies to a named person, as in the instant case, the function involved is adjudicatory.  Nonetheless, they insist that under the facts obtaining the order in question need not be preceded by a hearing, not because it was issued pursuant to respondent NTC's legislative function but because the assailed order is merely interlocutory, it being an incident in the ongoing proceedings on petitioner's application for a certificate of public convenience; and that petitioner is not the only primary source of data or information since respondent is currently engaged in a continuing review of the rates charged.

We find merit in petitioner's contention.

In Vigan Electric Light Co., Inc. vs. Public Service Commission,  we made a categorical classification as to when the rate-filing power of administrative bodies is quasi-judicial and when it is legislative, thus:

Moreover, although the rule-making power and even the power to fix rates- when such rules and/or rates are meant to apply to all enterprises of a given kind throughout the Philippines-may partake of a legislative character, such is not the nature of the order complained of. Indeed, the same applies exclusively to petitioner herein. What is more, it is predicated upon the finding of fact-based upon a report submitted by the General Auditing Office-that petitioner is making a profit of more than 12% of its invested capital, which is denied by petitioner. Obviously, the latter is entitled to cross-examine the maker of said report, and to introduce evidence to disprove the contents thereof and/or explain or complement the same, as well as to refute the conclusion drawn therefrom by the respondent. In other words, in making said finding of fact, respondent performed a function partaking of a quasi-judicial character, the valid exercise of which demands previous notice and hearing.

This rule was further explained in the subsequent case of  The Central Bank of the Philippines vs. Cloribel, et al. to wit:

It is also clear from the authorities that where the function of the administrative body is legislative, notice of hearing is not required by due process of law (See Oppenheimer, Administrative Law, 2 Md. L.R. 185, 204, supra, where it is said: 'If the nature of the administrative agency is essentially legislative, the requirements of notice and hearing are not necessary. The validity of a rule of future action which affects a group, if vested rights of liberty or property are not involved, is not determined according to the same rules which apply in the case of the direct application of a policy to a specific individual) ... It is said in 73 C.J.S. Public Administrative Bodies and Procedure, sec. 130, pages 452 and 453: 'Aside from statute, the necessity of notice and hearing in an administrative proceeding depends on the character of the proceeding and the circumstances involved. In so far as generalization is possible in view of the great variety of administrative proceedings, it may be stated as a general rule that notice and hearing are not essential to the validity of administrative action where the administrative body acts in the exercise of executive, administrative, or legislative functions; but where a public administrative body acts in a judicial or quasi-judicial matter, and its acts are particular and immediate rather than general and prospective, the person whose rights or property may be affected by the action is entitled to notice and hearing.

The order in question which was issued by respondent Alcuaz no doubt contains all the attributes of a quasi-judicial adjudication. Foremost is the fact that said order pertains exclusively to petitioner and to no other. Further, it is premised on a finding of fact, although patently superficial, that there is merit in a reduction of some of the rates charged- based on an initial evaluation of petitioner's financial statements-without affording petitioner the benefit of an explanation as to what particular aspect or aspects of the financial statements warranted a corresponding rate reduction. No rationalization was offered nor were the attending contingencies, if any, discussed, which prompted respondents to impose as much as a fifteen percent (15%) rate reduction. It is not far-fetched to assume that petitioner could be in a better position to rationalize its rates vis-a-vis the viability of its business requirements. The rates it charges result from an exhaustive and detailed study it conducts of the multi-faceted intricacies attendant to a public service undertaking of such nature and magnitude. We are, therefore, inclined to lend greater credence to petitioner's ratiocination that an immediate reduction in its rates would adversely affect its operations and the quality of its service to the public considering the maintenance requirements, the projects it still has to undertake and the financial outlay involved. Notably, petitioner was not even afforded the opportunity to cross-examine the inspector who issued the report on which respondent NTC based its questioned order.

At any rate, there remains the categorical admission made by respondent NTC that the questioned order was issued pursuant to its quasi-judicial functions. It, however, insists that notice and hearing are not necessary since the assailed order is merely incidental to the entire proceedings and, therefore, temporary in nature. This postulate is bereft of merit.

g.   May rules and regulations promulgated by administrative bodies/agencies have the force of law? penal law? In order to be considered as one with the force and effect of a penal law, what conditions must concur? See U.S. vs. GRIMMAUD, 220 U.S. 506 (1911) or the 1987 PHILIPPINE CONSTITUTION - a reviewer - Primer by FR. JOAQUIN BERNAS, 1987 edition.

5.   PEO. VS. ROSENTHAL, 68 Phil. 328

                    6.   US VS. BARRIAS, 11 Phil. 327

                    7.   VILLEGAS VS. HIU CHIONG TSAI PAO HO, 86 SCRA 270

h.   Delegation to the people. See Section 2(1) of Art. XVII.

i.   Classify the membership of the legislative department. Differentiate their qualifications, elections/selections and as to the participation of the Commission on Appointments in order to validate their membership.

j.   Manner of election and selection

1)   Read again TUPAS VS. OPLE, 137 SCRA 108

2.           Sections 2.   The Senate shall be composed of twenty-four Senators who shall be elected at large by the qualified voters of the Philippines, as may be provided for by law.

3.           Section 3. No person shall be a Senator unless he is a natural-born citizen of the Philippines, and, on the day of the election, is at least 35 years of age, able to read and write, a registered voter, and a resident of the Philippines for not less than 2 years immediately preceding the day of the election.

4.           Section 4. The term of office of the Senators shall be  six years and shall commence, unless otherwise provided by law, at noon on the 30^th day of June next following their election.

No Senator shall serve for more than two consecutive terms. Voluntary renunciation of the office for any length of time shall not be considered as an interruption in the continuity of his service for the full term for which he was elected.

Qualifications, term of office, etc., of a senator or member of the House of Representatives.

2.           Sections 5.  [1] The House of representatives shall be composed of not more than 250 members, unless otherwise fixed by law, who shall be elected from legislative districts apportioned among the provinces, cities, and the Metropolitan Manila area in accordance  with the number of their respective inhabitants, and on the basis of a uniform and progressive ratio, and those who, as provided by law, shall  be elected through a party-list system of registered national, regional and sectoral parties or organizations.

[2] The party-list representatives shall constitute 20% of the total number of representatives including those under the party-list. For three (3) consecutive terms after the ratification of this Constitution, ½ of the seats allocated to party-list representatives shall be filled, as provided by law, by selection or election from the labor, peasant, urban poor, indigenous cultural communities, women youth, and such other sectors, as may be provided by law, except the religious sector.

[3] Each legislative district shall comprise, as far as practicable, contiguous, compact and adjacent territory. Each city with a population of at least one hundred fifty thousand, or each province, shall have at least one representative.

          [4] Within 3 years following the return of every census, the Congress shall make a reapportionment of legislative districts based on standards provided in this section

Section 6. No person shall be a member of the House of Representatives unless he is a natural born citizen of the Philippines and, on the day of the election, is at least 25 years of age, able to read and write, and except the party-list representatives, a registered voter in the district in which he shall be elected, and a resident thereof for a period of not less than 1 year immediately preceding the day of the election.

Read:

1.           ANTONIO BENGSON III VS. HOUSE OF REPRESENTATIVES ELECTORAL TRIBUNAL and TEODORO CRUZ, 357 SCRA 545

  Rep. Act No. 2630

“Sec. 1. Any person who had lost his Philippine Citizenship by rendering service to, or accepting commission in, the Armed Forces of the United States, or after separation from the Armed Forces of the United states, acquired US citizenship, MAY REACQUIRE PHILIPPINE CITIZENSHIP BY TAKING AN OATH OF ALLEGIANCE TO THE REPUBLIC OF THE PHILIPPINES AND REGISTERING THE SAME WITH THE LOCAL CIVIL REGISTRY IN THE PLACE WHERE HE RESIDES OR LAST RESIDED IN THE PHILIPPINES. The said Oath of allegiance shall contain a renunciation of any other citizenship.”

2.           Section 2, Article IV, 1987 Philippine Constitution

“Section 2. Natural born citizens are those citizens of the Philippines from birth without having to perform an act to acquire or perfect their Philippine citizenship. Those who elect Philippine Citizenship in accordance with par. 3* , Section 1 shall be deemed natural born citizens.”

OCAMPO VS. HOUSE ELECTORAL TRIBUNAL  and MARIO CRESPO, a.k.a. MARK JIMENEZ, June 15, 2004

Who takes the place of  the winning candidate as a Member of the House of Representatives  who was disqualified after he was proclaimed as such?

Facts:

The petitioner and Mark Jimenez were candidates for Congressman of the 6^th District of manila for the May 14, 2001 elections. Mark Jimenez won over the petitioner with 32,097 votes as against petitioner’s 31,329 votes.

3.             Petitioner filed an electoral protest before the HRET based on the following grounds: 1] misreading of ballots; 2] falsification of election returns; 3]substitution of election returns; 4] use of marked, spurious fake and stray ballots; and 5] presence of ballots written by one or two persons.

4.             On March 6, 2003, the HRET issued its Decision in the case of ABANTE, ET AL. VS. MARI CRESPO, a.k.a. MARK JIMENEZ, et al.,  declaring Mark Jimenez “ ineligible for the Office of Representative of Sixth District of Manila for lack of residence in the District. Mark Jimenez filed a Motion for Reconsideration which was denied.

As a result of said disqualification of Jimenez, the petitioner claimed that all the votes cast for the former should not be counted and since he garnered the second highest number of votes, he should be declared winner in the May 14, 2001 elections and be proclaimed the duly elected Congressman of the 6^th District of manila.

Issues:

Are the votes of Mark Jimenez stray votes and should not be counted?

Whether the petitioner as second places should be proclaimed winner since the winner was disqualified?

Held:

1.           There must be a final judgment disqualifying a candidate in order that the votes of a disqualified candidate can be considered “stray”. This final judgment must be rendered BEFORE THE ELECTION. This was the ruling in the case of CODILLA VS. DE VENECIA. Hence, when a candidate has not been disqualified by final judgment during the election day he was voted for, the votes cast in his favor cannot be declared stray. To do so would amount to disenfranchising the electorate in whom sovereignty resides. The reason behind this is that the people voted for him bona fide and in the honest belief that the candidate was then qualified to be the person to whom they would entrust the exercise of the powers of government.

2.           The subsequent disqualification of a candidate who obtained the highest number of votes does not entitle the second placer to be declared the winner. The said principle was laid down as early as  1912 and reiterated in the cases of LABO VS. COMELEC, ABELLA  VS. COMELEC and DOMINO VS. COMELEC.

Section 7. The members of the House of Representatives shall be elected for a term of 3 years which shall begin, unless otherwise provided by law, at noon on the 30^th day of June next following their election.

          No member of the House of Representative shall serve for a period of more than  3 consecutive terms. Voluntary renunciation of the office for any length of time shall not be considered as an interruption in the continuity of his service for the full term for which he was elected.

Section 8. Unless otherwise provided by law, the regular election of the Senators and the Members of the House of Representatives shall be held on the second Monday of May.

a. On the manner of nomination and appointment of         Sectoral representatives to the Hose of  Representatives.

Read: 1. Exec. Order No. 198, June 18, 1987

2.. DELES VS. COMMISSION ON APPOINTMENTS,                                                                  September 4, 1989

b. On gerrymandering

Read:  CENIZA vs. COMELEC, 95 SCRA 763

 4.  Section 9. In case of vacancy in the Senate or in the House of Representatives, a special election may be called to fill such vacancy in the manner prescribed by law, but the Senator or Member of the House of representatives thus elected shall serve only the unexpired term.

Read:  1. LOZADA vs. COMELEC, 120 SCRA 337

          COMELEC cannot call a special election (for the legislative districts whose Congressmen resigned or died while in office) without a law passed by Congress appropriating funds for the said purpose.

             2. RA 6645-RE: Filling up of Congress Vacancy, December 28, 1987

5.  Section 10. The salaries of Senators and Members of the House of Representatives shall be determined by law. No increase in said compensation shall take effect until after the expiration of the full term of all the members of the Senate and the House of representatives approving such increase.

a.   How much is the present salary of the members of Congress? P204,000.00 [P17,000.00 per month]  as per Section 17, Art. XVIII of the Constitution. The President’s salary is P300,000.00 per annum,  while the VP, Speaker, Senate President and Chief Justice is P240,000.00 per annum. The Chairman of the Constitutional Commissions salary is P204,000.00 and the members, P180,000.00 per annum.

b.   Read:

1.           Section 17, Article 18)  (P300,000.00 for the President; P240,000.00 for VP, Senate President; Speaker; Chief Justice; P204,000.00 for Senators, Representatives, Chairmen of CC; P180,000.00 for members of the Constitutional Commissions)

2.            PHILCONSA VS. JIMENEZ, 15 SCRA 479;

3.            LIGOT VS. MATHAY, 56 SCRA 823

 6.  Section 11. A Senator or Member of the House of representatives shall, in all offenses punishable by not more than 6 years imprisonment, be privileged from arrest while the Congress is in session. No member shall be questioned nor be held liable in any other place for any debate in the Congress or in any committee thereof.

a.   Privilege from arrest

Read:     Martinez vs. Morfe, MARTINEZ VS. MORFE, 44 SCRA 22

b.   Freedom of Speech and debate

Read:

1)   OSMENA VS. PENDATUN, 109 Phil. 863

          2)   JIMENEZ VS. CABANGBANG, 17 SCRA 876

7.   Section 12.  All members of the Senate and the House of Representatives shall, upon assumption of office, make a full disclosure of their financial and business interests. They shall notify the House concerned of a potential conflict of interest that may arise from the filing of a proposed legislation of which they are authors.

 8.   Section 13. No Senator or Member of the House of Representatives may hold any other office or employment in the government, or any subdivision, agency or instrumentality thereof, including government-owned and controlled corporations or their subsidiaries, during his term without forfeiting his seat. Neither shall he be appointed to any office which may have been created or the emoluments thereof increased during the term for which he was elected.

Read:

1)           ADAZA vs. PACANA, 135 SCRA 431

After taking his oath as a member of the Batasang Pambansa (Congress) , he is deemed to have resigned his position as Governor of Negros Oriental because as a legislator, he is not allowed to hold any other office in the government.

2)           PUNZALAN vs. MENDOZA, 140 SCRA 153

A provincial governor who took his oath as a member of the Batasang Pambansa as “appointed member” for being a member of the Cabinet is allowed to return to his former position as Governor if he resigns from the Batasan. This is so because he was just an “appointed” member as distinguished from the Adaza Case. (Note: It appears that an appointed member of the Batasan is placed in a better position than the elected members)

3) Compare with Section 10, Art. VIII of the 1973 Constitution

9.  Section 14. No Senator or Member of the House of Representatives may personally appear as counsel before any court of justice or before the Electoral Tribunals, or quasi-judicial bodies and other administrative bodies. Neither shall he, directly or indirectly, be interested financially in any contract with, or any franchise or special privilege granted by the Government, or any subdivision, agency or instrumentality thereof, including any government owned or controlled corporation, or its subsidiary, during his term of office. He shall not intervene in any matter before any office of the government  for his pecuniary benefit or where he may be called upon to act on account of his office.

Read:

1)   VILLEGAS vs. LEGASPI, 113 SCRA 39

2)   PUYAT vs. DE GUZMAN, 113 SCRA 31

What could not be done directly could not likewise be done indirectly. So a member of Congress who is a stockholder of the corporation involved in a case is not allowed to appear under the guise that he is appearing as such, not as counsel for the corporation.

10.        Sections 15. The Congress shall convene once every year on the 4^th Monday of July for its regular season, unless a different date is fixed by law, and shall continue to be in session for such number of days as it may determine until 30 days before the opening  of its next regular session, exclusive of Saturdays, Sundays, and legal holidays. The President may call a special session at any time.

          Section 16. [1] The Senate shall elect its President and the House of Representatives, its Speaker, by a majority vote of all its respective members.

          Each house shall choose such other officers as it may deem necessary.

          [2] A majority of each house shall constitute a quorum to do business, but a smaller number may adjourn from day to day and may compel the attendance of absent members in such manner, and under such penalties, as such House may provide.

          [3] Each House may determine the rules of its proceedings, punish its members for disorderly behavior, and with the concurrence of 2/3 of all its members, suspend or expel a Member. A penalty of suspension, when imposed, shall mot exceed sixty days.

NOTE: In the cases of:

1.            MIRIAM DEFENSOR SANTIAGO VS. SANDIGANBAYAN; and

2.            REP. PAREDES VS. SANDIGANBAYAN,

-the Supreme Court held that a member of Congress may also be suspended by the Sandiganbayan in accordance with Section 13 of RA 3019. This preventive suspension applies to all public officials, including members of Congress. Otherwise, the same will be considered class legislation if Senators and Congressmen who commit the same is exempt from the preventive suspension imposed therein.

Other than the foregoing, a member of Congress can be suspended by the Congress itself.

[4] Each House shall keep a journal of its proceedings, and from time to time publish the same, excepting such parts as may, in its judgment, affect national security; and the yeas and nays on any  question shall, at the request of one fifth of the members present, be entered in the journal.

Each House shall also keep a record of its proceedings.

[Neither House during the sessions of the Congress, shall without the consent of the other, adjourn for more than three days, nor to any place than that which the 2 Houses shall be sitting.

Read:

1)   AVELINO vs. CUENCO, 83 Phil. 17, Read also the motion for reconsideration dated March 14, 1949

2)   Disciplinary measures on erring members

Read: OSMENA vs. PENDATUN, 109 Phil. 863

3)   Dual purpose for keeping a journal

4)   Journal entry and enrolled bill theories; which is conclusive over the other?

Read:

U.S. vs. PONS, 34 Phil. 729

The journal prevails over extraneous evidence like accounts of newspaper journalists and reporters as to what the proceedings all about.

          b.   MABANAG vs. LOPEZ VITO, 78 Phil. 1

CASCO PHIL. VS. GIMENEZ, 7 SCRA 347

The enrolled bill prevails over the journal. If the enrolled bill provides that it is urea formaldehyde is the one exempt from tax, and not urea and formaldehyde which appears in the journal which was really approved, the former prevails and only CURATIVE LEGISLATION COULD CHANGE THE SAME, NOT JUDICIAL LEGISLATION.

          d.   MORALES vs. SUBIDO, 27 Phil. 131

          e.   ASTORGA vs. VILLEGAS, 56 SCRA 714

(NOTE: The journal prevails over the enrolled bill on all matters required to be entered in the journals, like yeas and nays on the final reading of a bill or on any question at the request of 1/5  of the members present. )

5)   Differentiate a "regular" from a "special" session.

11.  Section 17. The Senate and the House of Representatives shall each have an Electoral tribunal which shall be the sole judge of all election contests relating to election, returns, and qualifications of their respective members. Each Electoral tribunal shall be composed of 9 members, 3 of whom shall be justices of the Supreme Court to be designated by the Chief justice, and the remaining six shall be  members of the Senate or House of Representatives as the case may be, who shall be chosen on the basis of proportional representation from the political parties and the parties or organizations registered under the party-list system represented therein. The senior justice in the Electoral tribunal shall be its Chairman.

See Sec. 2 (2) of Art. IX-C and last par. Sec. 4, Art. VII

Read:

1)   LAZATIN  VS. COMELEC, G.R. No. 80007, January 25, 1988

     2) FIRDAUSI ABBAS, ET AL. VS. THE SENATE ELECTORAL           TRIBUNAL,October 27, 1988

     3)ENRILE VS. COMELEC & SANCHEZ; ENRILE VS. COMELEC & RAZUL AND SANCHEZ VS. COMELEC, Aug. 12, 1987, 153 SCRA 57

    4. BONDOC VS. HRET, supra

11.        Section 18. There shall be a Commission on Appointments consisting of the Senate President, as ex-oficio chairman, 12 senators and 12 members of the House of Representatives, as the case may be, who shall be chosen on the basis of proportional representation from the political parties and the parties or organizations registered under the party-list system represented therein. The chairman of the commission shall not vote, except in case of a tie. The commission shall act on all appointments submitted to it within 30 session days of the Congress from their submission. The Commission shall rule by a majority of all the members.

Read:

1.           RAUL DAZA VS. LUIS SINGSON,  December 21, 1989

If the changes in the political party affiliations of the members of Congress is substantial so as to dramatically decrease the membership of one party while reducing the other, the number of representatives of the different parties in the Commission on Appointments may also be changed in proportion to their actual memberships. (NOTE: In Cunanan vs. Tan, the membership of the Senators was only “temporary” so as not to result in the change of membership in the Commission on Appointments)

2.           GUINGONA VS. GONZALES, October 20, 1992

Since 12 Senators are members of the Commission on Appointments, in addition to the Senate President as the head thereof, every two (2) Senators are entitled to one (1) representative in the Commission. Parties, however, are not allowed to “round off” their members, I.e., 7 Senators are entitled to 3 representatives in the Commission on Appointments, not 4 since 7/2 is only 3.5.

          Further, there is nothing in the Constitution which requires that there must be 24 members of the Commission. If the different  parties do not coalesce, then the possibility that  the total number of Senators in the CA is less than 12 is indeed a reality. (Example: Lakas---13 Senators; LDP---11 Senators. In this case, Lakas is entitled to 6 members in the CA (13/2= 6.5) while LBP would have 5 members (11/2= 5.5)

3. GUINGONA S. GONZALES, March 1, 1993 (Resolution of the Motion for Reconsideration of the October 20, 1992 Decision)

To be discussed later together with Sec. 16, Art. VII.

12-a. Section 19. The electoral tribunals and the Commission on Appointments shall be constituted within 30 days after the Senate and the House of Representatives shall have been organized with the election of the President and the Speaker. The Commission  on Appointments shall meet only while the Congress is in session, at the call of its Chairman or a majority of all its members, to discharge such powers and functions as are herein conferred upon it.

13.  Sec. 20. The records and books of accounts of the Congress shall be preserved and be open to the public in accordance with law, and such books shall be audited by the Commission on Audit which shall publish annually an itemized list of amounts paid to and expenses incurred for each member.

14.  Section 21. The Senate or the House of Representatives or any of its respective committees may conduct inquiries in aid of legislation in accordance with its duly published rules of procedure. The rights of persons appearing in or affected by such inquiries shall be respected.

Read:     1)   ARNAULT vs. NAZARENO, 87 Phil. 29

“A witness who refuses to answer a query by the Committee may be detained during the term of the members imposing said penalty but the detention should not be too long as to violate the witness’ right to due process of law.”

Power of Congress to conduct investigation in aid of legislation; question hour

SENATE OF THE PHILIPPINES, represented by SENATE PRESIDENT FRANKLIN DRILON, ET AL., VS. EXEC. SEC. EDUARDO ERMITA, ET AL., G.R. No. 16977, April 20, 2006

CARPIO MORALES, J.:

The Facts:

In the exercise of its legislative power, the Senate of the Philippines, through its various Senate Committees, conducts inquiries or investigations in aid of legislation which call for,inter alia, the attendance of officials and employees of the executive department, bureaus, and offices including those employed in Government Owned and Controlled Corporations, the Armed Forces of the Philippines (AFP), and the Philippine National Police (PNP).

On September 21 to 23, 2005, the Committee of the Senate as a whole issued invitations to various officials of the Executive Department for them to appear on September 29, 2005 as resource speakers in a public hearing on the railway project of the North Luzon Railways Corporation with the China National Machinery and Equipment Group (hereinafter North Rail Project).  The public hearing was sparked by a privilege speech of Senator Juan Ponce Enrile urging the Senate to investigate the alleged overpricing and other unlawful provisions of the contract covering the North Rail Project.

The Senate Committee on National Defense and Security likewise issued invitations dated September 22, 2005 to the following officials of the AFP: the Commanding General of the Philippine Army, Lt. Gen. Hermogenes C. Esperon; Inspector General of the AFP Vice Admiral Mateo M. Mayuga; Deputy Chief of Staff for Intelligence of the AFP Rear Admiral Tirso R. Danga; Chief of the Intelligence Service of the AFP Brig. Gen. Marlu Q. Quevedo; Assistant Superintendent of the Philippine Military Academy (PMA) Brig. Gen. Francisco V. Gudani; and Assistant Commandant, Corps of Cadets of the PMA, Col. Alexander F. Balutan, for them to attend as resource persons in a public hearing scheduled on September 28, 2005 on the following: (1) Privilege Speech of Senator Aquilino Q. Pimentel Jr., delivered on June 6, 2005 entitled “Bunye has Provided Smoking Gun or has Opened a Can of Worms that Show Massive Electoral Fraud in the Presidential Election of May 2005”; (2) Privilege Speech of Senator Jinggoy E. Estrada delivered on July 26, 2005 entitled “The Philippines as the Wire-Tapping Capital of the World”; (3) Privilege Speech of Senator Rodolfo Biazon delivered on August 1, 2005 entitled “Clear and Present Danger”; (4) Senate Resolution No. 285  filed by Senator Maria Ana Consuelo Madrigal – Resolution Directing the Committee on National Defense and Security to Conduct an Inquiry, in Aid of Legislation, and in the National Interest, on the Role of the Military in the So-called “Gloriagate Scandal”; and (5) Senate Resolution No. 295 filed by Senator Biazon – Resolution Directing the Committee on National Defense and Security to Conduct an Inquiry, in Aid of Legislation, on the Wire-Tapping of the President of the Philippines.

Also invited to the above-said hearing scheduled on September 28 2005 was the AFP Chief of Staff, General Generoso S. Senga who, by letter dated September 27, 2005, requested for its postponement “due to a pressing operational situation that demands [his] utmost personal attention” while “some of the invited AFP officers are currently attending to other urgent operational matters.”

On September 28, 2005, Senate President Franklin M. Drilon received from Executive Secretary Eduardo R. Ermita a letter[1] dated September 27, 2005 “respectfully request[ing] for the postponement of the hearing [regarding the NorthRail project] to which various officials of the Executive Department have been invited” in order to “afford said officials ample time and opportunity to study and prepare for the various issues so that they may better enlighten the Senate Committee on its investigation.”

Senate President Drilon, however, wrote[2] Executive Secretary Ermita that the Senators “are unable to accede to [his request]” as it “was sent belatedly” and “[a]ll preparations and arrangements as well as notices to all resource persons were completed [the previous] week.”

Senate President Drilon likewise received on September 28, 2005 a letter from the President of the North Luzon Railways Corporation Jose L. Cortes, Jr. requesting that the hearing on the NorthRail project be postponed or cancelled until a copy of the report of the UP Law Center on the contract agreements relative to the project had been secured.

On September 28, 2005, the President of the Philippines issued E.O. 464, “Ensuring Observance of the Principle of Separation of Powers, Adherence to the Rule on Executive Privilege and Respect for the Rights of Public Officials Appearing in Legislative Inquiries in Aid of Legislation Under the Constitution, and For Other Purposes,” which, pursuant to Section 6 thereof, took effect immediately.  The salient provisions of the Order are as follows:

SECTION 1. Appearance by Heads of Departments Before Congress. – In accordance with Article VI, Section 22 of the Constitution and to implement the Constitutional provisions on the separation of powers between co-equal branches of the government, all heads of departments of the Executive Branch of the government shall secure the consent of the President prior to appearing before either House of Congress.

When the security of the State or the public interest so requires and the President so states in writing, the appearance shall only be conducted in executive session.

SECTION. 2. Nature, Scope and Coverage of Executive Privilege. –

(a) Nature and Scope. – The rule of confidentiality based on executive privilege is fundamental to the operation of government and rooted in the separation of powers under the Constitution (Almonte vs. Vasquez, G.R. No. 95367, 23 May 1995). Further, Republic Act No. 6713 or the Code of Conduct and Ethical Standards for Public Officials and Employees provides that Public Officials and Employees shall not use or divulge confidential or classified information officially known to them by reason of their office and not made available to the public to prejudice the public interest.

Executive privilege covers all confidential or classified information between the President and the public officers covered by this executive order, including:

1.           Conversations and correspondence between the President and the public official covered by this executive order (Almonte vs. Vasquez G.R. No. 95367, 23 May 1995; Chavez v. Public Estates Authority, G.R. No. 133250, 9 July 2002);

2.           Military, diplomatic and other national security matters which in the interest of national security should not be divulged (Almonte vs. Vasquez, G.R. No. 95367, 23 May 1995; Chavez v. Presidential Commission on Good Government, G.R. No. 130716, 9 December 1998).

3.           Information between inter-government agencies prior to the conclusion of treaties and executive agreements (Chavez v. Presidential Commission on Good Government, G.R. No. 130716, 9 December 1998);

4.           Discussion in close-door Cabinet meetings (Chavez v. Presidential Commission on Good Government, G.R. No. 130716, 9 December 1998);

5.           Matters affecting national security and public order (Chavez v. Public Estates Authority, G.R. No. 133250, 9 July 2002).

(b) Who are covered. – The following are covered by this executive order:

1.           Senior officials of executive departments who in the judgment of the department heads are covered by the executive privilege;

2.           Generals and flag officers of the Armed Forces of the Philippines and such other officers who in the judgment of the Chief of Staff are covered by the executive privilege;

3.           Philippine National Police (PNP) officers with rank of chief superintendent or higher and such other officers who in the judgment of the Chief of the PNP are covered by the executive privilege;

4.           Senior national security officials who in the judgment of the National Security Adviser are covered by the executive privilege; and

5.           Such other officers as may be determined by the President.

SECTION 3. Appearance of Other Public Officials Before Congress. – All public officials enumerated in Section 2 (b) hereof shall secure prior consent of the President prior to appearing before either House of Congress to ensure the observance of the principle of separation of powers, adherence to the rule on executive privilege and respect for the rights of public officials appearing in inquiries in aid of legislation. (Emphasis and underscoring supplied)

A transparent government is one of the hallmarks of a truly republican state.  Even in the early history of republican thought, however, it has been recognized that the head of government may keep certain information confidential in pursuit of the public interest.  Explaining the reason for vesting executive power in only one magistrate, a distinguished delegate to the U.S. Constitutional Convention said: “Decision, activity, secrecy, and dispatch will generally characterize the proceedings of one man, in a much more eminent degree than the proceedings of any greater number; and in proportion as the number is increased, these qualities will be diminished.”

Considering that no member of the executive department  would want to appear in the above Senate investigations in aid of legislation by virtue of Proc. No. 464, the petitioners filed the present petitions to declare the same unconstitutional because the President abused her powers in issuing Executive Order No. 464.

 I S S U E S:

1. Whether E.O. 464 contravenes the power of inquiry vested in Congress;

2. Whether E.O. 464 violates the right of the people to information on matters of public concern; and

3. Whether respondents have committed grave abuse of discretion when they implemented E.O. 464 prior to its publication in a newspaper of general circulation.

 H E L D:

Before proceeding to resolve the issue of the constitutionality of E.O. 464, ascertainment of whether the requisites for a valid exercise of the Court’s power of judicial review are present is in order.

Like almost all powers conferred by the Constitution, the power of judicial review is subject to limitations, to wit: (1) there must be an actual case or controversy calling for the exercise of judicial power; (2) the person challenging the act must have standing to challenge the validity of the subject act or issuance; otherwise stated, he must have a personal and substantial interest in the case such that he has sustained, or will sustain, direct injury as a result of its enforcement; (3) the question of constitutionality must be raised at the earliest opportunity; and (4) the issue of constitutionality must be the very lis mota of the case.[3]

Invoking this Court’s ruling in National Economic Protectionism Association v. Ongpin[4]and Valmonte v. Philippine Charity Sweepstakes Office,[5] respondents assert that to be considered a proper party, one must have a personal and substantial interest in the case, such that he has sustained or will sustain direct injury due to the enforcement of E.O. 464.[6]

The Supreme Court, however, held  that when suing as a citizen, the interest of the petitioner in assailing the constitutionality of laws, presidential decrees, orders, and other regulations, must be direct and personal.  In Franciso v. House of Representatives,[7] this Court held that when the proceeding involves the assertion of a public right, the mere fact that he is a citizen satisfies the requirement of personal interest.

I

          The Congress power of inquiry is expressly recognized in Section 21 of Article VI of the Constitution which reads:

SECTION 21.         The Senate or the House of Representatives or any of its respective committees may conduct inquiries in aid of legislation in accordance with its duly published rules of procedure. The rights of persons appearing in or affected by such inquiries shall be respected.  (Underscoring supplied)

The 1935 Constitution did not contain a similar provision.  Nonetheless, in Arnault v. Nazareno,[8] a case decided in 1950 under that Constitution, the Court already recognized that the power of inquiry is inherent in the power to legislate.

Arnault involved a Senate investigation of the reportedly anomalous purchase of the Buenavista and Tambobong Estates by the Rural Progress Administration.  Arnault, who was considered a leading witness in the controversy, was called to testify thereon by the Senate.  On account of his refusal to answer the questions of the senators on an important point, he was, by resolution of the Senate, detained for contempt.  Upholding the Senate’s power to punish Arnault for contempt, this Court held:

Although there is no provision in the Constitution expressly investing either House of Congress with power to make investigations and exact testimony to the end that it may exercise its legislative functions advisedly and effectively, such power is so far incidental to the legislative function as to be implied.  In other words, the power of inquiry – with process to enforce it – is an essential and appropriate auxiliary to the legislative function.  A legislative body cannot legislate wisely or effectively in the absence of information respecting the conditions which the legislation is intended to affect or change; and where the legislative body does not itself possess the requisite information – which is not infrequently true – recourse must be had to others who do possess it.  Experience has shown that mere requests for such information are often unavailing, and also that information which is volunteered is not always accurate or complete; so some means of compulsion is essential to obtain what is needed.[9] . . .   (Emphasis and underscoring supplied)

That this power of inquiry is broad enough to cover officials of the executive branch may be deduced from the same case.  The power of inquiry, the Court therein ruled, is co-extensive with the power to legislate.[10]  The matters which may be a proper subject of legislation and those which may be a proper subject of investigation are one.  It follows that the operation of government, being a legitimate subject for legislation, is a proper subject for investigation.

Since Congress has authority to inquire into the operations of the executive branch, it would be incongruous to hold that the power of inquiry does not extend to executive officials who are the most familiar with and informed on executive operations.

As discussed in Arnault, the power of inquiry, “with process to enforce it,” is grounded on the necessity of information in the legislative process.  If the information possessed by executive officials on the operation of their offices is necessary for wise legislation on that subject, by parity of reasoning, Congress has the right to that information and the power to compel the disclosure thereof.

For one, as noted in Bengzon v. Senate Blue Ribbon Committee,[11] the inquiry itself might not properly be in aid of legislation, and thus beyond the constitutional power of Congress.  Such inquiry could not usurp judicial functions.  Parenthetically, one possible way for Congress to avoid such a result as occurred in Bengzon is to indicate in its invitations to the public officials concerned, or to any person for that matter, the possible needed statute which prompted the need for the inquiry.  Given such statement in its invitations, along with the usual indication of the subject of inquiry and the questions relative to and in furtherance thereof, there would be less room for speculation on the part of the person invited on whether the inquiry is in aid of legislation.

Section 21, Article VI likewise establishes crucial safeguards that proscribe the legislative power of inquiry.  The provision requires that the inquiry be done in accordance with the Senate or House’s duly published rules of procedure, necessarily implying the constitutional infirmity of an inquiry conducted without duly published rules of procedure.  Section 21 also mandates that the rights of persons appearing in or affected by such inquiries be respected, an imposition that obligates Congress to adhere to the guarantees in the Bill of Rights.

A distinction was thus made between inquiries in aid of legislation and the question hour. While attendance was meant to be discretionary in the question hour, it was compulsory in inquiries in aid of legislation.

Sections 21 and 22, therefore, while closely related and complementary to each other, should not be considered as pertaining to the same power of Congress.  One specifically relates to the power to conduct inquiries in aid of legislation, the aim of which is to elicit information that may be used for legislation, while the other pertains to the power to conduct a question hour, the objective of which is to obtain information in pursuit of Congress’ oversight function.

When Congress merely seeks to be informed on how department heads are implementing the statutes which it has issued, its right to such information is not as imperative as that of the President to whom, as Chief Executive, such department heads must give a report of their performance as a matter of duty.   In such instances, Section 22, in keeping with the separation of powers, states that Congress may only request their appearance.  Nonetheless, when the inquiry in which Congress requires their appearance is “in aid of legislation” under Section 21, the appearance is mandatory for the same reasons stated inArnault.[12]

In fine, the oversight function of Congress may be facilitated by compulsory process only to the extent that it is performed in pursuit of legislation. This is consistent with the intent discerned from the deliberations of the Constitutional Commission.

Ultimately, the power of Congress to compel the appearance of executive officials under Section 21 and the lack of it under Section 22 find their basis in the principle of separation of powers.  While the executive branch is a co-equal branch of the legislature, it cannot frustrate the power of Congress to legislate by refusing to comply with its demands for information.

When Congress exercises its power of inquiry, the only way for department heads to exempt themselves therefrom is by a valid claim of privilege.  They are not exempt by the mere fact that they are department heads.  Only one executive official may be exempted from this power — the President on whom executive power is vested, hence, beyond the reach of Congress except through the power of impeachment.

Section 1, in view of its specific reference to Section 22 of Article VI of the Constitution and the absence of any reference to inquiries in aid of legislation, must be construed as limited in its application to appearances of department heads in the question hour  is therefore CONSTITUTIONAL.

It is different insofar as Sections 2 and 3 are concerned. Section 3 of E.O. 464 requires all the public officials enumerated in Section 2(b) to secure the consent of the President prior to appearing before either house of Congress.  The enumeration is broad.  It covers all senior officials of executive departments, all officers of the AFP and the PNP, and all senior national security officials who, in the judgment of the heads of offices designated in the same section (i.e. department heads, Chief of Staff of the AFP, Chief of the PNP, and the National Security Adviser), are “covered by the executive privilege.”

The enumeration also includes such other officers as may be determined by the President.  Given the title of Section 2 — “Nature, Scope and Coverage of Executive Privilege” —, it is evident that under the rule of ejusdem generis, the determination by the President under this provision is intended to be based on a similar finding of coverage under executive privilege.

While there is no Philippine case that directly addresses the issue of whether executive privilege may be invoked against Congress, it is gathered from Chavez v. PEA that certain information in the possession of the executive may validly be claimed as privileged even against Congress.   Thus, the case holds:

There is no claim by PEA that the information demanded by petitioner is privileged information rooted in the separation of powers.  The information does not coverPresidential conversations, correspondences, or discussions during closed-door Cabinet meetings which, like internal-deliberations of the Supreme Court and other collegiate courts, or executive sessions of either house of Congress, are recognized as confidential.  This kind of information cannot be pried open by a co-equal branch of government.  A frank exchange of exploratory ideas and assessments, free from the glare of publicity and pressure by interested parties, is essential to protect the independence of decision-making of those tasked to exercise Presidential, Legislative and Judicial power.  This is not the situation in the instant case.[13] (Emphasis and underscoring supplied)

The claim of privilege under Section 3 of E.O. 464 in relation to Section 2(b) is thus invalidper se.  It is not asserted.  It is merely implied.  Instead of  providing precise and certain reasons for the claim, it merely invokes E.O. 464, coupled with an announcement that the President has not given her consent.  It is woefully insufficient for Congress to determine whether the withholding of information is justified under the circumstances of each case.  It severely frustrates the power of inquiry of Congress.

In fine, Section 3 and Section 2(b) of E.O. 464 must be invalidated.

2

E.O 464 likewise violates the constitutional provision on the right to information on matters of public concern.  There are clear distinctions between the right of Congress to information which underlies the power of inquiry and the right of the people to information on matters of public concern.  For one, the demand of a citizen for the production of documents pursuant to his right to information does not have the same obligatory force as a subpoena duces tecum issued by Congress.  Neither does the right to information grant a citizen the power to exact testimony from government officials.  These powers belong only to Congress and not to an individual citizen.

To the extent that investigations in aid of legislation are generally conducted in public, however, any executive issuance tending to unduly limit disclosures of information in such investigations necessarily deprives the people of information which, being presumed to be in aid of legislation, is presumed to be a matter of public concern.  The citizens are thereby denied access to information which they can use in formulating their own opinions on the matter before Congress — opinions which they can then communicate to their representatives and other government officials through the various legal means allowed by their freedom of expression.  Thus holds Valmonte v. Belmonte

It is in the interest of the State that the channels for free political discussion be maintained to the end that the government may perceive and be responsive to the people’s will.  Yet, this open dialogue can be effective only to the extent that the citizenry is informed and thus able to formulate its will intelligently.  Only when the participants in the discussion are aware of the issues and have access to information relating thereto can such bear fruit.[14]  (Emphasis and underscoring supplied)

The impairment of the right of the people to information as a consequence of E.O. 464 is, therefore, in the sense explained above, just as direct as its violation of the legislature’s power of inquiry.

3

          The  implementation of Proc. 464 before it was published in the Official Gazette as illegal.     Due process thus requires that the people should have been apprised of this issuance before it was implemented. This is clear from the doctrine laid down in the case of TANADA VS. TUVERA.

WHEREFORE, the petitions are PARTLY GRANTED.        Sections 2(b) and 3 of Executive Order No. 464 (series of 2005), “Ensuring Observance of the Principle of Separation of Powers, Adherence to the Rule on Executive  Privilege and Respect for the Rights of Public Officials Appearing in Legislative Inquiries in Aid of Legislation Under the Constitution, and For Other Purposes,” are declared VOID.

Bengzon, Jr. vs. Senate Blue Ribbon Committee, Nov. 20, 1991

This is a petition for prohibition with prayer for the issuance of a temporary restraining order and/or injunctive relief, to enjoin the respondent Senate Blue Ribbon committee from requiring the petitioners to testify and produce evidence at its inquiry into the alleged sale of the equity of Benjamin “Kokoy” Romualdez to the Lopa Group in thirty-six (36) or thirty-nine (39) corporations.

Coming to the specific issues raised in this case, petitioners contend that (1) the Senate Blue Ribbon Committee’s inquiry has no valid legislative purpose, i.e., it is not done in aid of legislation; (2) the sale or disposition of hte Romualdez corporations is a “purely private transaction” which is beyond the power of the Senate Blue Ribbon Committee to inquire into; and (3) the inquiry violates their right to due process.

The 1987 Constitution  expressly recognizes the power of both houses of Congress to conduct inquiries in aid of legislation. 1Thus, Section 21, Article VI thereof provides:

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

The power of both houses of Congress to conduct inquiries in aid of legislation is not, therefore, absolute or unlimited. Its exercise is circumscribed by the afore-quoted provision of the Constitution. Thus, as provided therein, the investigation must be “in aid of legislation in accordance with its duly published rules of procedure” and that “the rights of persons appearing in or affected by such inquiries shall be respected.” It follows then that the rights of persons under the Bill of Rights must be respected, including the right to due process and the right not to be compelled to testify against one’s self.

The power to conduct formal inquiries or investigations in specifically provided for in Sec. 1 of the Senate Rules of Procedure Governing Inquiries in Aid of Legislation. Such inquiries may refer to the implementation or re-examination of any law or in connection with any proposed legislation or the formulation of future legislation. They may also extend to any and all matters vested by the Constitution in Congress and/or in the Seante alone.

As held in Jean L. Arnault vs. Leon Nazareno, et al., 16 the inquiry, to be within the jurisdiction of the legislative body making it, must be material or necessary to the exercise of a power in it vested by the Constitution, such as to legislate or to expel a member.

Under Sec. 4 of the aforementioned Rules, the Senate may refer to any committee or committees any speech or resolution filed by any Senator which in its judgment requires an appropriate inquiry in aid of legislation. In order therefore to ascertain the character or nature of an inquiry, resort must be had to the speech or resolution under which such an inquiry is proposed to be made.

A perusal of the speech of Senator Enrile reveals that he (Senator Enrile) made a statement which was published in various newspapers on 2 September 1988 accusing Mr. Ricardo “Baby” Lopa of “having taken over the FMMC Group of Companies.” As a consequence thereof, Mr. Lopa wrote a letter to Senator Enrile on 4 September 1988 categorically denying that he had “taken over ” the FMMC Group of Companies; that former PCGG Chairman Ramon Diaz himself categorically stated in a telecast interview by Mr. Luis Beltran on Channel 7 on 31 August 1988 that there has been no takeover by him (Lopa); and that theses repeated allegations of a “takeover” on his (Lopa’s) part of FMMC are baseless as they are malicious.

The Lopa reply prompted Senator Enrile, during the session of the Senate on 13 September 1988, to avail of the privilege hour, 17 so that he could repond to the said Lopa letter, and also to vindicate his reputation as a Member of the Senate of the Philippines, considering the claim of Mr. Lopa that his (Enrile’s) charges that he (Lopa) had taken over the FMMC Group of Companies are “baseless” and “malicious.” Thus, in his speech, 18 Senator Enrile said, among others, as follows:

It appeals, therefore, that the contemplated inquiry by respondent Committee is not really “in aid of legislation” because it is not related to a purpose within the jurisdiction of Congress, since the aim of the investigation is to find out whether or not the relatives of the President or Mr. Ricardo Lopa had violated Section 5 RA No. 3019, the “Anti-Graft and Corrupt Practices Act”, a matter that appears more within the province of the courts rather than of the legislature. Besides, the Court may take judicial notice that Mr. Ricardo Lopa died during the pendency of this case. In John T. Watkins vs. United States, 20 it was held :

… The power of congress to conduct investigations in inherent in the legislative process. That power is broad. it encompasses inquiries concerning the administration of existing laws as well as proposed, or possibly needed statutes. It includes surveys of defects in our social, economic, or political system for the purpose of enabling Congress to remedy them. It comprehends probes into departments of the Federal Government to expose corruption, inefficiency or waste. But broad as is this power of inquiry, it is not unlimited. There is no general authority to expose the private affairs of individuals without justification in terms of the functions of congress. This was freely conceded by Solicitor General in his argument in this case. Nor is the Congress a law enforcement or trial agency. These are functions of the executive and judicial departments of government. No inquiry is an end in itself; it must be related to and in furtherance of a legitimate task of Congress. Investigations  conducted solely for the personal aggrandizement of the investigators or to “punish” those investigated are indefensible. (emphasis supplied)

Broad as it is, the power is not, however, without limitations. Since congress may only investigate into those areas in which it may potentially legislate or appropriate, it cannot inquire into matters which are within the exclusive province of one of the other branches of the government. Lacking the judicial power given to the Judiciary, it cannot inquire into mattes that are exclusively the concern of the Judiciary. Neither can it supplant the Executive in what exclusively belongs to the Executive. …

Moreover, this right of the accused is extended to respondents in administrative investigations but only if they partake of the nature of a criminal proceeding or analogous to a criminal proceeding. In Galman vs. Pamaran, 26 the Court reiterated the doctrine in Cabal vs. Kapuanan (6 SCRA 1059) to illustrate the right of witnesses to invoke the right against self-incrimination not only in criminal proceedings but also in all other types of suit

We do not here modify these doctrines. If we presently rule that petitioners may not be compelled by the respondent Committee to appear, testify and produce evidence before it, it is only because we hold that the questioned inquiry is not in aid of legislation and, if pursued, would be violative of the principle of separation of powers between the legislative and the judicial departments of government, ordained by the Constitution.

Investigation in aid of legislation; Executive Privilege

ROMULO L. NERI VS. SENATE COMMITTEE ON ACCOUNTABILITY OF PUBLIC OFFICERS AND INVESTIGATIONS, SENATE COMMITTEE ON TRADE AND COMMERCE, AND SENATE COMMITTEE ON NATIONAL DEFENSE AND SECURITY, G.R. No. 180643, March 25, 2008

LEONARDO-DE CASTRO, J. (En Banc)

THE FACTS:

On April 21, 2007, the Department of Transportation and Communication (DOTC) entered into a contract with Zhong Xing Telecommunications Equipment (ZTE) for the supply of equipment and services for the National Broadband Network (NBN) Project in the amount of U.S. $ 329,481,290 (approximately P16 Billion Pesos).  The Project was to be financed by the People’s Republic of China. In connection with this NBN Project, various Resolutions were introduced in the Senat

At the same time, the investigation was claimed to be relevant to the consideration of three (3) pending bills in the Senate.

Respondent Committees initiated the investigation by sending invitations to certain personalities and cabinet officials involved in  the  NBN  Project.  Petitioner was among those invited.  He was summoned to appear and testify on September 18, 20, and 26 and October 25, 2007.   However, he attended only the September 26 hearing, claiming he was “out of town” during the other dates.

In the September 18, 2007 hearing, businessman Jose de Venecia III testified that several high executive officials and power brokers were using their influence to push the approval of the NBN Project by the NEDA.  It appeared that the Project was initially approved as a Build-Operate-Transfer (BOT) project but, on March 29, 2007, the NEDA acquiesced to convert it into a government-to-government project, to be financed through a loan from the Chinese Government.

On September 26, 2007, petitioner testified before respondent Committees for eleven (11) hours.  He disclosed that then Commission on Elections (COMELEC) Chairman Benjamin Abalos offered him P200 Million in exchange for his approval of the NBN Project.  He further narrated that he informed President Arroyo about the bribery attempt and that she instructed him not to accept the bribe.  However, when probed further on what they discussed about the NBN Project, petitioner refused to answer, invoking “executive privilege”. In particular, he refused to answer the questions on (a) whether or not President Arroyo followed up the NBN Project,^[15][6] (b) whether or not she directed him to prioritize it,^[16][7]  and (c) whether or not she directed him to approve.^[17][8]

Unrelenting, respondent Committees issued a Subpoena Ad Testificandum to petitioner, requiring him to appear and testify on   November 20, 2007.

However, in the Letter dated November 15, 2007, Executive Secretary Eduardo R. Ermita requested respondent Committees to dispense with petitioner’s testimony on the ground of  executive  privilege.   The pertinent portion of the letter reads:

With reference to the subpoena ad testificandum issued to Secretary Romulo Neri to appear and testify again on 20 November 2007 before the Joint Committees you chair, it will be recalled that Sec. Neri had already testified and exhaustively discussed the ZTE / NBN project, including his conversation with the President thereon last 26 September 2007.

Asked to elaborate further on his conversation with the President, Sec. Neri asked for time to consult with his superiors in line with the ruling of the Supreme Court in Senate v. Ermita, 488 SCRA 1 (2006).

Specifically, Sec. Neri sought guidance on the possible invocation of executive privilege on the following questions, to wit:

a)          Whether the President followed up the (NBN) project?

b)          Were you dictated to prioritize the ZTE?

c)          Whether the President said to go ahead and approve the project after being told about the alleged bribe?

Following the ruling in Senate v. Ermita, the foregoing questions fall under conversations and correspondence between the President and public officials which are considered executive privilege (Almonte v. Vasquez, G.R. 95637, 23 May 1995; Chavez v. PEA, G.R. 133250, July 9, 2002).

The context in which executive privilege is being invoked is that the information sought to be disclosed might impair our diplomatic as well as economic relations with the People’s Republic of China.  

In light of the above considerations, this Office is constrained to invoke the settled doctrine of executive privilege as refined in Senate v. Ermita, and has advised Secretary Neri accordingly.

On November 20, 2007, petitioner did not appear before respondent Committees.  Thus, on November 22, 2007, the latter issued the show cause Letter requiring him to explain why he should not be cited in contempt. The Letter reads:

Since you have failed to appear in the said hearing, the Committees on Accountability of Public Officers and Investigations (Blue Ribbon), Trade and Commerce and National Defense and Security require you to show cause why you should not be cited in contempt under Section 6, Article 6 of the Rules of the Committee on Accountability of Public Officers and Investigations (Blue Ribbon).

The Senate expects your explanation on or before 2 December 2007.

On November 29, 2007, petitioner replied to respondent Committees, manifesting that it was not his intention to ignore the Senate hearing and that he thought the only remaining questions were those he claimed to be covered by executive privilege, thus:

It was not my intention to snub the last Senate hearing.  In fact, I have cooperated with the task of the Senate in its inquiry in aid of legislation as shown by my almost 11 hours stay during the hearing on 26 September 2007.  During said hearing, I answered all the questions that were asked of me, save for those which I thought was covered by executive privilege, and which was confirmed by the Executive Secretary in his Letter 15 November 2007. In good faith, after that exhaustive testimony, I thought that what remained were only the three questions, where the Executive Secretary claimed executive privilege.  Hence, his request  that  my  presence  be dispensed with.

In addition, petitioner submitted a letter prepared by his counsel, Atty. Antonio R. Bautista, stating, among others that: (1) his (petitioner) non-appearance was upon the order of the President; and (2) his conversation with President Arroyo dealt with delicate and sensitive national security and diplomatic matters relating to the impact of the bribery scandal involving high government officials and the possible loss of confidence of foreign investors and lenders in the Philippines.  The letter ended with a reiteration of petitioner’s request that he “be furnished in advance” as to what else he needs to clarify so that he may adequately prepare for the hearing.

On  December 7, 2007, petitioner filed with this Court the present petition for certiorariassailing the show cause Letter dated November 22, 2007.

Respondent Committees found petitioner’s explanations unsatisfactory.  Without responding to his request for advance notice of the matters that he should still clarify, they issued the Order dated January 30, 2008, citing him in contempt of respondent Committees and ordering his arrest and detention at the Office of the Senate Sergeant-At-Arms until such time that he would appear and give his testimony. The said Order states:

ORDER

For  failure to appear and testify in the Committee’s hearing on Tuesday, September 18, 2007; Thursday, September 20, 2007; Thursday, October 25, 2007; and Tuesday, November 20, 2007, despite personal notice and Subpoenas Ad Testificandum sent to and received by him, which thereby delays, impedes and obstructs, as it has in fact delayed, impeded and obstructed the inquiry into the subject reported irregularities, AND for failure to explain satisfactorily why he should not be cited for contempt (Neri letter of 29 November 2007), herein attached) ROMULO L. NERI is hereby cited in contempt of this (sic) Committees and ordered arrested and detained in the Office of the Senate Sergeant-At-Arms until such time that he will appear and give his testimony.

The Sergeant-At-Arms is hereby directed to carry out and implement this Order and make a return hereof within twenty four (24) hours from its enforcement.

On the same date, petitioner moved for the reconsideration of the above Order.^[18][9]  He insisted that he has not shown “any contemptible conduct worthy of contempt and arrest.”  He emphasized his willingness to testify on new matters, however, respondent Committees did not respond to his request for advance notice of questions.  He also mentioned the petition for certiorari he filed on December 7, 2007. According to him, this should restrain respondent Committees from enforcing the show cause Letter “through the issuance of declaration of contempt” and arrest.

In view of  respondent Committees’ issuance of  the contempt Order,  petitioner  filed on February 1, 2008  a  Supplemental Petition for Certiorari (With Urgent Application for TRO/Preliminary Injunction), seeking to restrain the implementation of the said contemptOrder.

On February 5, 2008, the Court issued a Status Quo Ante Order        (a) enjoining respondent Committees from implementing their contempt Order,  (b) requiring the parties to observe the status quo prevailing prior    to the issuance of the assailed order, and (c)requiring respondent  Committees to file their comment.

Petitioner contends that respondent Committees’  show cause Letter  and contempt Order  were  issued  with  grave  abuse  of  discretion amounting  to  lack  or  excess  of  jurisdiction.  He stresses that his conversations with President Arroyo are “candid discussions meant to explore options in making policy decisions.” According to him, these discussions   “dwelt on the impact of the bribery scandal involving high government officials on the country’s diplomatic relations and economic and military affairs and the possible loss of confidence of foreign investors and lenders in the Philippines.”  He also emphasizes that his claim of executive privilege is upon the order of the President and within the parameters laid down in Senate v. Ermita^[19][10] and United States v. Reynolds.^[20][11]  Lastly, he argues that he is precluded from disclosing communications made  to  him  in  official  confidence  under Section 7^[21][12] of Republic Act No. 6713,  otherwise known as Code of Conduct and Ethical Standards for Public Officials and Employees, and Section 24^[22][13] (e) of Rule 130 of the Rules of Court.

Respondent Committees assert the contrary. They argue that             (1) petitioner’s testimony is material and pertinent in the investigation conducted in aid of legislation; (2)there is no valid justification for petitioner to claim executive privilege; (3) there is no abuse of their authority to order petitioner’s arrest; and (4) petitioner has not come to court with clean hands.

I S S U E S:

1.           What communications between the President and petitioner Neri are covered by the principle of ‘executive privilege’?

1.a Did Executive Secretary Ermita correctly invoke the principle of executive privilege, by order of the President, to cover                         (i) conversations of the President in the exercise of her executive and policy decision-making and (ii) information,  which might impair our diplomatic as well as economic relations with the People’s Republic of China?

1.b. Did petitioner Neri correctly invoke executive privilege to avoid testifying on his conversations with the President on the NBN contract on his assertions that the said conversations “dealt with delicate and sensitive national security and diplomatic matters relating to the impact of bribery scandal involving high government officials and the possible loss of confidence of foreign investors and lenders in the Philippines”x  x  x within the principles laid down in Senate v. Ermita (488 SCRA 1 [2006])?

1.c Will the claim of executive privilege in this case violate the following  provisions of the Constitution:

Sec. 28, Art. II (Full public disclosure of all transactions involving     public interest)

Sec. 7, Art. III (The right of the people to information on matters of  public concern

Sec. 1, Art. XI (Public office is a public trust)

Sec. 17, Art. VII (The President shall ensure that the laws be faithfully executed)

and the due process clause and the principle of separation of powers?

2.           What is the proper procedure to be followed in invoking executive privilege?

3.           Did the Senate Committees gravely abuse their discretion in ordering the arrest of petitioner for non-compliance with the subpoena?

H E L D:

At the core of this controversy are the two (2) crucial queries, to wit:

First, are the communications elicited by the subject three (3) questions covered by executive privilege?

And second, did respondent Committees commit grave abuse of discretion in issuing the contempt Order?

There is merit in the petition.

At the outset, a glimpse at the landmark case of Senate v. Ermita^[23][18] becomes imperative.  Senate draws in bold strokes the distinction between the legislative andoversight powers of the Congress, as embodied under Sections 21 and 22, respectively,  of  Article VI of the Constitution, to wit:

SECTION 21. The Senate or the House of Representatives or any of its  respective  committees  may  conduct  inquiries in aid of legislation in accordance with its duly published rules of procedure. The rights of persons appearing in or affected by such inquiries shall be respected.

SECTION 22. The heads of department may upon their own initiative, with the consent of the President, or upon the request of either House, or as the rules of each House shall provide, appear before and be heard by such House on any matter pertaining to their departments. Written questions shall be submitted to the President of the Senate or the Speaker of the House of Representatives at least three days before their scheduled appearance.  Interpellations shall not be limited to written questions, but may cover matters related thereto. When the security of the state or the public interest so requires and the President so states in writing, the appearance shall be conducted in executive session.

Senate cautions that while the above provisions are closely related and complementary to each other, they should not be considered as pertaining to the same power of Congress.  Section  21  relates  to the power to conduct inquiries in aid of legislation. Its aim is to elicit information that may be used for legislation. On the other hand, Section 22 pertains to the power to conduct a question hour, the objective of which is to obtain information in pursuit of Congress’ oversight function.^[24][19]   Simply stated, while both powers allow Congress or any of its committees to conduct inquiry, their objectives are different.

This distinction gives birth to another distinction with regard to the use of compulsory process. Unlike in Section 21, Congress cannot compel the appearance of executive officials under Section 22.  The Court’s pronouncement in Senate v. Ermita^[25][20] is clear:

When Congress merely seeks to be informed on how department heads are implementing the statutes which it has issued, its right to such information is not as imperative as that of the President to whom, as Chief Executive, such department heads must give a report of their performance as a matter of duty. In such instances, Section 22, in keeping with the separation of powers, states that Congress may only request their appearance. Nonetheless, when the inquiry in which Congress requires their appearance is ‘in aid of legislation’ under Section 21, the appearance is mandatory for the same reasons stated in Arnault.

I

The Communications Elicited by the Three (3) Questions are Covered by Executive Privilege

We start with the basic premises where the parties have conceded.

The power of Congress to conduct inquiries in aid of legislation is broad.  This is based on the proposition that a legislative body cannot legislate wisely or effectively in the absence of information respecting the conditions which the legislation is intended to affect or change.^[26][21]  Inevitably, adjunct thereto is the compulsory process to enforce it.  But, the power, broad as it is, has limitations.  To be valid, it is imperative that it is done in accordance with the Senate or House duly published rules of procedure and that the rights of the persons appearing in or affected by such inquiries be respected.

The power extends even to executive officials and the only way for them to be exempted is through a valid claim of executive privilege.^[27][22]  This directs us to the consideration of the question – is there a recognized claim of executive privilege despite the revocation of E.O. 464?

A-          There is a Recognized Claim

          of Executive Privilege Despite the

       Revocation of E.O. 464

At this juncture, it must be stressed that the revocation of E.O. 464 does not in any way diminish our concept of executive privilege. This is because this concept has Constitutional underpinnings.  Unlike the United States which has further accorded the concept with statutory status by enacting the Freedom of Information Act^[28][23] and the Federal Advisory Committee Act,^[29][24]  the  Philippines has retained its constitutional origination, occasionally interpreted only by this Court in various cases.  The most recent of these is the case of Senate v. Ermita where this Court declared unconstitutional substantial portions of E.O. 464.  In this regard, it is worthy to note that Executive Ermita’s Letter dated November 15, 2007 limits its bases for the claim of executive privilege to Senate v. Ermita,  Almonte v. Vasquez,^[30][25] and Chavez v. PEA.^[31][26]   There was never a mention of E.O. 464.

While these cases,  especially Senate v. Ermita,^[32][27] have comprehensively discussed the concept of executive privilege, we deem it imperative to explore it once more in view of the clamor for this Court to clearly define the communications covered by executive privilege.

The Nixon and post-Watergate cases established the broad contours of the presidential communications privilege.^[33][28]   In United States v.   Nixon,^[34][29]  the U.S. Court recognized a great public interest in preserving “the confidentiality of conversations that take place in the President’s performance of his official duties.”  It thus considered presidential communications as “presumptively privileged.” Apparently, the presumption is founded on the “President’s generalized interest in confidentiality.”  The privilege is said to be necessary to guarantee the candor of presidential advisors and to provide “the President and         those who assist him… with freedom to explore alternatives in the process of shaping policies and making decisions and to do so in a way many would be unwilling to express except privately.”

In In Re: Sealed Case,^[35][30]  the U.S. Court of Appeals delved deeper.  It ruled that there are two (2) kinds of executive privilege; one is the  presidential  communications  privilege and, the other is the deliberative process privilege.  The former pertains to“communications, documents or other materials that reflect presidential decision-making and deliberations and that the President believes should remain confidential.” The latter includes ‘advisory opinions, recommendations and deliberations comprising part of a process by which governmental decisions and policies are formulated.”

Accordingly, they are characterized by marked distinctions. Presidential communications privilege applies to decision-making of the President while, the deliberative process privilege, to decision-making of  executive  officials.   The first is rooted in the constitutional principle of separation of power and the President’s unique constitutional role;            the  second  on  common  law  privilege.   Unlike  the  deliberative process privilege, the presidential communications privilege applies to documents in their entirety, and covers final and post-decisional materials as well as pre-deliberative ones^[36][31]  As a consequence, congressional or judicial negation of the presidential communications privilege is always subject to greater scrutiny than denial of thedeliberative process privilege. 

Turning on who are the officials covered by the presidential communications privilege,  In Re: Sealed Case confines the privilege only to White House Staff that has “operational proximity” to direct presidential decision-making. Thus, the privilege is meant to encompass only those functions that form the core of presidential  authority, involving what the court characterized as “quintessential and non-delegable Presidential power,”  such as  commander-in-chief power, appointment and removal power,  the power to grant pardons and reprieves, the sole-authority to receive ambassadors and other public officers, the power to negotiate treaties, etc.^[37][32]

Majority of the above jurisprudence have found their way in our jurisdiction.  In Chavez v. PCGG^[38][38], this Court held that there is a “governmental privilege against public disclosure with respect to state secrets regarding military, diplomatic and other security matters.”  In Chavez v. PEA,^[39][39]  there is also a recognition of the confidentiality of Presidential conversations, correspondences, and discussions in closed-door Cabinet meetings.   In Senate v. Ermita, the concept of presidential communications privilege is fully discussed.

As may be gleaned from the above discussion, the claim of executive privilege is highly recognized in cases where the subject of inquiry relates to a power textually committed by the Constitution to the President, such as the area of military and foreign relations.  Under our Constitution, the President is the repository of the commander-in-chief,^[40][40]appointing,^[41][41] pardoning,^[42][42] and diplomatic^[43][43]  powers.  Consistent with the doctrine of separation of powers, the information relating to these powers may enjoy greater confidentiality than others.

The above cases, especially, Nixon, In Re Sealed Case and Judicial Watch, somehow provide the elements of presidential communications privilege, to wit:

1)      The protected communication must relate to a “quintessential  and non-delegable presidential power.”

2)               The communication must be authored or “solicited and received” by a close advisor of the President or the President himself.  The judicial test is that an advisor must be in “operational proximity” with the President.

3)               The presidential communications privilege remains a qualified privilege that may be overcome by a showing of adequate need, such that the information sought “likely contains important evidence” and by the unavailability of the information elsewhere by an appropriate investigating authority.^[44][44]

In the case at bar, Executive Secretary Ermita premised his claim of executive privilege on the ground that the communications elicited by the three (3) questions  “fall under conversation and correspondence between the President and public officials” necessary in “her executive and policy decision-making process”  and, that “the information sought to be disclosed might impair our diplomatic as well as economic relations with the People’s Republic of China.”  Simply put, the bases are presidential communications privilege and executive privilege on matters relating to diplomacy or foreign relations.

Using the above elements, we are convinced that, indeed, the communications elicited by the three (3) questions are covered by the presidential communications privilege.  First, the communications relate to a “quintessential and non-delegable power” of the President, i.e. the power to enter into an executive agreement with other countries. This authority of the President to enter into executive agreements without the concurrence of the Legislature has traditionally been recognized in Philippine jurisprudence.^[45][45]   Second,  the communications are “received” by a close advisor of the President. Under the “operational proximity” test, petitioner can be considered a close advisor, being a member of President Arroyo’s cabinet.  And third, there is no adequate showing of a compelling need that would justify the limitation of the privilege and of the unavailability of the information elsewhere by an appropriate investigating authority.

The third element deserves a lengthy discussion.

United States v. Nixon held that a claim of executive privilege is subject to balancing against other interest.   In other words, confidentiality in executive privilege is not absolutely protected by the Constitution. The U.S. Court held:

[N]either the doctrine of separation of powers, nor the need for confidentiality of high-level communications, without more, can sustain an absolute, unqualified Presidential privilege of immunity from judicial process under all circumstances.

The foregoing is consistent with the earlier case of Nixon v. Sirica,^[46][46] where it was held that presidential communications are presumptively privileged and that the presumption can be overcome only by mere showing of public need by the branch seeking access to conversations. The courts are enjoined to resolve the competing interests of the political branches of the government “in the manner that preserves the essential functions of each Branch.”^[47][47]  Here, the record is bereft of any categorical explanation from respondent Committees to show a compelling or citical need  for  the  answers  to  the  three  (3) questions in the enactment of a law.  Instead, the questions veer more towards the exercise of the legislative oversight function under Section 22 of Article VI rather than Section 21 of the same Article.   Senate v. Ermita  ruled  that  the  “the oversight function of Congress may be facilitated by compulsory process only to the   extent that it is performed in pursuit of legislation.”   It  is  conceded  that it is difficult to draw the line between an inquiry in aid of legislation and an inquiry in the exercise of oversight function of Congress. In this regard, much will depend on the content of the questions and the manner the inquiry is conducted.

Respondent Committees argue that a claim of executive privilege does not guard against a possible disclosure of a crime or wrongdoing.  We see no dispute on this.  It is settled inUnited States v. Nixon^[48][48]  that  “demonstrated, specific need for evidence in pending criminal trial” outweighs the President’s “generalized interest in confidentiality.”  However, the present case’s  distinction with the Nixon case is very evident.   In  Nixon,  there  is  a  pending  criminal  proceeding where  the  information  is requested and it is the demands of due process of law and the fair administration of     criminal justice that the information be disclosed.  This is the reason why the U.S. Court  was  quick  to  “limit the scope of its decision.”   It stressed that it is “not concerned here with the balance between the President’s generalized interest in confidentiality  x  x  x  and congressional demands for information.”   Unlike in Nixon, the information here is elicited, not in a criminal proceeding, but in a legislative inquiry.  In this regard, Senate v. Ermita stressed that the validity of the claim of executive privilege depends not only on the ground invoked but, also, on the procedural setting or the context in which the claim is made.  Furthermore, in Nixon, the President did not interpose any claim of need to protect military, diplomatic or sensitive national security secrets. In the present case, Executive Secretary Ermita categorically claims executive privilege on the grounds of presidential communications privilege in relation to her executive and policy decision-making process and diplomatic secrets.

Respondent Committees further contend that the grant of petitioner’s claim of executive privilege violates the constitutional provisions on the right of the people to information on matters of public concern.^[49][50]   We might have agreed with such contention if petitioner did not appear before them at all.  But petitioner made himself available to them during the September 26 hearing, where he was questioned for eleven (11) hours. Not only that, he expressly manifested his willingness to answer more questions from the Senators, with the exception only of those covered by his claim of executive privilege.

The right to public information, like any other right, is subject to limitation.  Section 7 of Article III provides:

The right of the people to information on matters of public concern shall be recognized.   Access to official records, and to documents, and papers pertaining to official acts, transactions, or decisions, as well as to government research data used as basis for policy development, shall be afforded the citizen, subject to such limitations as may be provided by law.

The provision itself expressly provides the limitation, i.e. as           may  be provided by law.  Some of these laws are Section 7                        of Republic Act (R.A.) No. 6713,^[50][51] Article 229^[51][52] of the                             Revised   Penal  Code,  Section 3 (k)^[52][53] of R.A. No. 3019, and                                            Section 24(e)^[53][54]  of  Rule 130 of  the Rules of Court.   These are in addition to what our body of jurisprudence classifies as confidential^[54][55] and what our Constitution considers as belonging to the larger concept of executive privilege.  Clearly, there is a recognized public interest in the confidentiality of certain information. We find the information subject of this case belonging to such kind.

More than anything else, though, the right of Congress or any of its Committees to obtain information in aid of legislation cannot be equated with the people’s right to public information.  The former cannot claim that every  legislative inquiry is an exercise of the people’s right to information. The distinction between such rights is laid down in Senate v. Ermita:

There are, it bears noting, clear distinctions between the right of Congress to information which underlies the power of inquiry and the right of people to information on matters of public concern. For one, the demand of a citizen for the production of documents pursuant to his right to information does not have the same obligatory force as a subpoena duces tecum issued by Congress. Neither does the right to information grant a citizen the power to exact testimony from government officials. These powers belong only to Congress, not to an individual citizen.

Thus, while Congress is composed of representatives elected by the people, it does not follow, except in a highly qualified sense, that in every exercise of its power of inquiry, the people are exercising their right to information.  

The members of respondent Committees should not invoke as justification in their exercise of power a right properly belonging to the people in general. This is because when they discharge their power, they do so as public officials and members of Congress.  Be that as it may, the right to information must be balanced with and should give way, in appropriate cases, to constitutional precepts particularly those pertaining to delicate interplay of executive-legislative powers and privileges which is the subject of careful review by numerous decided cases.

B-          The Claim of Executive Privilege is Properly Invoked

We now proceed to the issue — whether the claim is properly invoked by the President.Jurisprudence teaches that for the claim to be properly invoked, there must be a formal claim of privilege, lodged by the head of the department which has control over the matter.”^[55][56] A formal and proper claim of executive privilege requires a “precise and certain reason” for preserving their confidentiality.^[56][57]

The Letter dated November 17, 2007 of Executive Secretary Ermita satisfies the requirement.  It serves as the formal claim of privilege.  There, he expressly states that “this Office is constrained to invoke the settled doctrine of executive privilege as refined in Senate v. Ermita, and has advised Secretary Neri accordingly.”  Obviously, he is referring to the Office of the President. That is more than enough compliance. In Senate v. Ermita, a less categorical letter was even adjudged to be sufficient.

With  regard  to  the  existence of  “precise and certain reason,”   we find the grounds relied upon by Executive Secretary Ermita specific enough so as not  “to leave respondent Committees in the dark on how the requested information could be classified as privileged.”  The case of Senate v. Ermita only requires that an allegation be made “whether the information demanded involves military or diplomatic secrets, closed-door Cabinet meetings, etc.” The particular ground must only be specified. The enumeration is not even intended to be comprehensive.”^[57][58]  The following statement of grounds satisfies the requirement:

The context in which executive privilege is being invoked is that the information sought to be disclosed might impair our diplomatic as well as economic relations with the People’s Republic of China.  Given the confidential nature in which these information were conveyed to the President, he cannot provide the Committee any further details of these conversations, without disclosing the very thing the privilege is designed to protect.

At any rate, as held further in Senate v. Ermita, ^[58][59]  the Congress must not require the executive to state the reasons for the claim with such particularity as to compel disclosure of the information which the privilege is meant to protect.  This is a matter of respect to a coordinate and co-equal department.

II

Respondent Committees Committed Grave Abuse of Discretion in Issuing the Contempt Order

It must be reiterated that when respondent Committees issued the show cause Letter dated November 22, 2007, petitioner replied immediately,  manifesting that it was not his intention to ignore the Senate hearing  and that he thought the only remaining questions were the three (3) questions he claimed to be covered by executive privilege. In addition thereto, he submitted Atty. Bautista’s letter,  stating that his non-appearance was upon the order of the President and specifying the reasons why his conversations with President Arroyo are covered by executive privilege. Both correspondences include an expression of his willingness to testify again, provided he “be furnished in advance” copies of the questions. Without responding to his request for advance list of questions, respondent Committees issued the Order dated January 30, 2008, citing him in contempt of respondent Committees and ordering his arrest and detention at the Office of the Senate Sergeant-At-Arms until such time that he would appear and give his testimony.  Thereupon, petitioner filed a motion for reconsideration, informing respondent Committees that he had filed the present petition for certiorari.

Respondent Committees committed grave abuse of discretion in issuing the contemptOrder in view of five (5) reasons:

First,  there being a legitimate claim of executive privilege, the issuance of the contempt Order suffers from constitutional infirmity.

Second,  respondent Committees did not comply with the requirement laid down in Senate v. Ermita that the invitations should contain  the “possible needed statute which prompted the need for the inquiry,”  along with  “the usual indication of the subject of inquiry and thequestions relative to and in furtherance thereof.”    Compliance with this requirement is imperative, both under Sections 21 and 22 of Article VI of the Constitution. This must be so to ensure that the rights of both persons appearing  in  or  affected by such inquiry are respected as mandated by said Section 21 and by virtue of the express language of Section 22.  Unfortunately, despite petitioner’s repeated demands, respondent Committees did not send him an advance list of questions.

Third,  a reading of the transcript of respondent Committees’ January 30, 2008 proceeding reveals that only a minority of the members of the Senate Blue Ribbon Committee was present during the deliberation. ^[59][61]  Section 18 of the Rules of Procedure Governing Inquiries in Aid of Legislation provides that:

“The Committee, by a vote of majority of all its members, may punish for contempt any witness before it who disobeys any order of the Committee or refuses to be sworn or to testify or to answer proper questions by the Committee or any of its members.”

          Clearly, the needed vote is a majority of all the members of the Committee. Apparently, members who did not actually participate in the deliberation were  made to sign the  contempt Order.  Thus, there is a cloud of doubt as to the validity of the contempt Order dated January 30, 2008.

          Fourth,  we find merit in the argument of the OSG that respondent Committees likewise violated Section 21 of Article VI of the Constitution, requiring that the inquiry be  in accordance  with the “duly published rules of procedure.”  We quote the OSG’s explanation:

The phrase ‘duly published rules of procedure’ requires the Senate of every Congress to publish its rules of procedure governing inquiries in aid of legislation because every Senate is distinct from the one before it or after it. Since Senatorial elections are held every three (3) years for one-half of the Senate’s membership, the composition of the Senate also changes by the end of each term. Each Senate may thus enact a different set of rules as it may deem fit. Not having published its Rules of Procedure, the subject hearings in aid of legislation conducted by the 14^th Senate, are therefore, procedurally infirm.

And fifth, respondent Committees’ issuance of the contempt Order is arbitrary and precipitate.  It  must be pointed out that respondent Committees did not first pass upon the claim of executive privilege and inform petitioner of their ruling. Instead, they curtly dismissed his explanation as “unsatisfactory” and simultaneously issued the Order citing him in contempt  and ordering his immediate arrest and detention.

A fact worth highlighting is that petitioner is not an unwilling witness. He manifested several times his readiness to testify before respondent Committees. He refused to answer the three (3) questions because he was ordered by the President to claim executive privilege.  It behooves respondent Committees to first rule on the claim of executive privilege and inform petitioner of their finding thereon, instead of peremptorily dismissing his explanation as “unsatisfactory.”  Undoubtedly, respondent  Committees’  actions  constitute  grave  abuse  of  discretion  for being  arbitrary  and  for  denying  petitioner  due process of law.   The same quality afflicted their conduct when they (a) disregarded petitioner’s    motion for reconsideration alleging that he had filed the present petition before this Court and (b) ignored petitioner’s repeated request for an advance list of questions, if there be any aside from the three (3) questions as to which he claimed to be covered by executive privilege.

Even the courts are repeatedly advised to exercise the power of contempt judiciously and sparingly with utmost self-restraint with the end in view of utilizing the same for correction and preservation of the dignity of the court, not for retaliation or vindication.^[60][63]  Respondent Committees should have exercised the same restraint, after all petitioner is not even an ordinary witness. He holds a high position in a co-equal branch of government.

In this regard, it is important to mention that many incidents of judicial review could have been avoided if powers are discharged with circumspection and deference. Concomitant with the doctrine of separation of powers is the mandate to observe respect to a co-equal branch of the government.

In  this present crusade to “search  for  truth,” we  should turn to the fundamental  constitutional  principles which  underlie our  tripartite system of government,  where the  Legislature enacts  the law, the Judiciary interprets  it  and  the Executive implements  it.  They  are  considered separate,  co-equal,  coordinate  and  supreme  within their respective spheres but, imbued with a system of checks and balances to prevent unwarranted  exercise of  power.   The  Court’s  mandate is  to preserve these  constitutional principles  at all times  to  keep the political branches  of government within constitutional bounds in the exercise of  their respective powers and prerogatives, even if it be in the search for truth. This  is  the only way we can preserve  the stability of our  democratic institutions and uphold  the Rule of Law.

The respondents-Committees were therefore stopped from calling the petitioner and ask the three(3) questions mentioned above in connection with his conversations with the President being covered by the “executive privilege” rule.

Power of Congress to conduct inquiries in aid of legislation; Right to Privacy; Public disclosure of government transactions; right to information on matters of public concern; right against self-incrimination;

CAMILO L. SABIO vs. GORDON, G.R. No. 174340,  October 17, 2006, 504 SCRA 704

Sandoval-Gutierrez, J.

The Facts:

On February 20, 2006, Senator Miriam Defensor Santiago introduced Philippine Senate Resolution No. 455 (Senate Res. No. 455),^[61][4] “directing an inquiry in aid of legislation on the anomalous losses incurred by the Philippines Overseas Telecommunications Corporation (POTC),  Philippine Communications Satellite Corporation (PHILCOMSAT), and PHILCOMSAT Holdings Corporation (PHC) due to the alleged improprieties in their operations by their respective Board of Directors.”

On May 8, 2006, Chief of Staff  Rio C. Inocencio, under the authority of Senator Richard J. Gordon, wrote Chairman Camilo L. Sabio of the PCGG, one of the herein petitioners, inviting him to be one of the resource persons in the public meeting jointly conducted by the Committee on Government Corporations and Public Enterprises and Committee on Public Services.  The purpose of the public meeting was to deliberate on Senate Res. No. 455.^[62][6]

On May 9, 2006, Chairman Sabio declined the invitation because of prior commitment.^[63][7]At the same time, he invoked Section 4(b) of           E.O. No. 1 earlier quoted.

Unconvinced with the above Compliance and Explanation, the Committee on Government Corporations and Public Enterprises and the Committee on Public Services issued an Order^[64][13] directing Major General Jose Balajadia (Ret.), Senate Sergeant-At-Arms, to place Chairman Sabio and his Commissioners under arrest for contempt of the Senate. The Order bears the approval of Senate President Villar and the majority of the Committees’ members.

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

Hence, this petition.

I S S U E:

Crucial to the resolution of the present petitions is the fundamental issue of whetherSection 4(b) of E.O. No. 1 is repealed by the 1987 Constitution.  On this lone issue hinges the merit of the contention of Chairman Sabio and his Commissioners that their refusal to appear before respondent Senate Committees is justified.

Ranged against it  is Article VI, Section 21 of the 1987 Constitution granting respondent Senate Committees the power of legislative inquiry. It reads:

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

On the other arm of the scale is Section 4(b) of E.O. No.1 limiting such power of legislative inquiry by exempting all PCGG members or staff from testifying in any judicial, legislative or administrative proceeding, thus: No member or staff of the Commission shall be required to testify or produce evidence in any judicial, legislative or administrative proceeding concerning matters within its official cognizance.

The Congress’ power of inquiry has been recognized in foreign jurisdictions long before it reached our shores through McGrain v. Daugherty,^[65][15] cited in Arnault v. Nazareno.^[66][16]  In those earlier days, American courts considered the power of inquiry asinherent in the power to legislate.

In Arnault, the Supreme Court adhered to a similar theory.  Citing McGrain, it recognized that the power of inquiry is “an essential and appropriate auxiliary to the legislative function,” thus:

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

Dispelling any doubt as to the Philippine Congress’ power of inquiry, provisions on such power made their maiden appearance in Article VIII, Section 12 of the 1973 Constitution.^[67][18]  Then came the 1987 Constitution incorporating the present Article VI, Section 12.  What was therefore implicit under the 1935 Constitution, as influenced by American jurisprudence, became explicit under the 1973 and 1987 Constitutions.^[68][19]

Notably, the 1987 Constitution recognizes the power of investigation, not just of Congress, but also of “any of its committee.”  This is significant because it constitutes a direct conferral of investigatory power upon the committees and it means that the mechanisms which the Houses can take in order to effectively perform its investigative function are also available to the committees.^[69][20]

It can be said that the Congress’ power of inquiry has gained more solid existence and expansive construal.  The Court’s high  regard  to  such power is rendered more evident inSenate v. Ermita,^[70][21] where it categorically ruled that  “the power of inquiry is broad enough to cover officials of the executive branch.”  Verily, the Court reinforced the doctrine in Arnault  that  “the operation of government, being a legitimate subject for legislation,  is a proper subject for investigation” and  that “the power of inquiry is co-extensive with the power to legislate.”

Considering these jurisprudential instructions,   Section 4(b) is directly repugnant with Article VI, Section 21. Section 4(b) exempts the PCGG members and staff from the Congress’ power of inquiry.  This cannot be countenanced.  Nowhere in the Constitution is any provision granting such exemption.   The Congress’ power of inquiry, being broad,  encompasses everything that concerns the administration of existing laws as well as proposed or possibly needed statutes.^[71][22]  It even extends “to government agencies created by Congress and officers whose positions are within the power of Congress to regulate or even abolish.”^[72][23]  PCGG belongs to this class.

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

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

The provision presupposes that since an incumbent of a public office is invested with certain powers and charged with certain duties pertinent to sovereignty, the powers so delegated to the officer are held in trust for the people and are to be exercised in behalf of the government or of all citizens who may need the intervention of the officers. Such trust extends to all matters within the range of duties pertaining to the office. In other words, public officers are but the servants of the people, and not their rulers.^[73][24] 

Section 4(b), being in the nature of an immunity, is inconsistent with the principle of public accountability.   It places the PCGG members and staff beyond the reach of courts, Congress and other administrative bodies.  Instead of encouraging public accountability, the same provision only institutionalizes irresponsibility and non-accountability.  InPresidential Commission on Good Government v. Peña,^[74][25] Justice Florentino P. Feliciano characterized as “obiter” the portion of the majority opinion barring, on the basis of Sections 4(a) and (b) of E.O. No. 1, a civil case for damages filed against the PCGG and its Commissioners.

He eloquently opined:

The above underscored portions are, it is respectfully submitted, clearly obiter. It is important to make clear that the Court is not here interpreting, much less upholding as valid and constitutional, the literal terms of Section 4 (a), (b) of Executive Order No.1.If Section 4 (a) were given its literal import as immunizing the PCGG or any member thereof from civil liability “for anything done or omitted in the discharge of the task contemplated by this Order,” the constitutionality of Section 4 (a) would, in my submission, be open to most serious doubt. For so viewed, Section 4 (a) would institutionalize the irresponsibility and non-accountability of members and staff of the PCGG, a notion that is clearly repugnant to both the 1973 and 1987 Constitution and a privileged status not claimed by any other official of the Republic under the 1987 Constitution. x  x  x.

x   x    x                                                           x    x   x

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

Chavez v. Sandiganbayan^[75][26] reiterates the same view.  Indeed, Section 4(b) has been frowned upon by this Court even before the filing of the present petitions.

2)           NEGROS ORIENTAL II ELECTRIC COOPERATIVE VS. SANGGUNIANG PANGLUNGSOD OF DUMAGUETE CITY, G.R.   No. 72492, Nov. 5, 1987, 155 SCRA 421

Petitioners contend that the respondent Sangguniang Panlungsod of Dumaguete is bereft of the power to compel the attendance and testimony of witnesses, nor the power to order the arrest of witnesses who fail to obey its subpoena. It is further argued that assuming the power to compel the attendance and testimony of witnesses to be lodged in said body, it cannot be exercised in the investigation of matters affecting the terms and conditions of the franchise granted to NORECO II which are beyond the jurisdiction of the Sangguniang Panlungsod.

Respondents, for their part, claim that inherent in the legislative functions performed by the respondent Sangguniang Panlungsod is the power to conduct investigations in aid of legislation and with it, the power to punish for contempt in inquiries on matters within its jurisdiction (Rollo, p. 46). It is also the position of the respondents that the contempt power, if not expressly granted, is necessarily implied from the powers granted the Sangguniang Panlungsod (Rollo, pp. 48-49). Furthermore, the respondents assert that an inquiry into the installation or use of inefficient power lines and its effect on the power consumption cost on the part of Dumaguete residents is well-within the jurisdiction of the Sangguniang Panlungsod and its committees.

1.       A line should be drawn between the powers of Congress as the repository of the legislative power under the Constitution, and those that may be exercised by the legislative bodies of local government unit, e.g. the Sangguniang Panlungsod of Dumaguete which, as mere creatures of law, possess delegated legislative power. While the Constitution does not expressly vest Congress with the power to punish non-members for legislative contempt, the power has nevertheless been invoked by the legislative body as a means of preserving its authority and dignity (Arnault v. Nazareno, 87 Phil. 29 [1950]); Amault v. Balagtas, 97 Phil. 358 [1955]), in the same way that courts wield an inherent power to “enforce their authority, preserve their integrity, maintain their dignity, and ensure the effectiveness of the administration of justice.” (Commissioner v. Cloribel, 127 Phil. 716, 723 [1967]; In re Kelly 35 Phil. 944 950 [1916], and other cases). The exercise by Congress of this awesome power was questioned for the first time in the leading case of Arnault v. Nazareno, (87 Phil. 29 [1950]) where this Court held that the legislative body indeed possessed the contempt power.

But no person can be punished for contumacy as a witness before either House, unless his testimony is required in a matter into which that House has jurisdiction to inquire. (Kilbourn vs. Thompson, 26, L.ed., 377.)

The principle that Congress or any of its bodies has the power to punish recalcitrant witnesses is founded upon reason and policy. Said power must be considered implied or incidental to the exercise of legislative power. How could a legislative body obtain the knowledge and information on which to base intended legislation if it cannot require and compel the disclosure of such knowledge and information, if it is impotent to punish a defiance of its power and authority? When the framers of the Constitution adopted the principle of separation of powers, making each branch supreme within the real of its respective authority, it must have intended each department’s authority to be full and complete, independently of the other’s authority or power. And how could the authority and power become complete if for every act of refusal every act of defiance, every act of contumacy against it, the legislative body must resort to the judicial department for the appropriate remedy, because it is impotent by itself to punish or deal therewith, with the affronts committed against its authority or dignity. . . (Arnault v. Balagtas, L-6749, July 30, 1955; 97 Phil. 358, 370 [1955]).

The aforequoted pronouncements in the two Arnault cases, supra, broke ground in what was then an unexplored area of jurisprudence, and succeeded in supplying the raison d’ etre of this power of Congress even in the absence of express constitutional grant. Whether or not the reasons for upholding the existence of said power in Congress may be applied mutatis mutandis to a questioned exercise of the power of contempt by the respondent committee of a city council is the threshold issue in the present controversy.

3.       The exercise by the legislature of the contempt power is a matter of self-preservation as that branch of the government vested with the legislative power, independently of the judicial branch, asserts its authority and punishes contempts thereof. The contempt power of the legislature is, therefore, sui generis, and local legislative bodies cannot correctly claim to possess it for the same reasons that the national legislature does. The power attaches not to the discharge of legislative functions per se but to the character of the legislature as one of the three independent and coordinate branches of government. The same thing cannot be said of local legislative bodies which are creations of law.

4.       To begin with, there is no express provision either in the 1973 Constitution or in the Local Government Code (Batas Pambansa Blg. 337) granting local legislative bodies, the power to subpoena witnesses and the power to punish non-members for contempt. Absent a constitutional or legal provision for the exercise of these powers, the only possible justification for the issuance of a subpoena and for the punishment of non-members for contumacious behaviour would be for said power to be deemed implied in the statutory grant of delegated legislative power. But, the contempt power and the subpoena power partake of a judicial nature. They cannot be implied in the grant of legislative power. Neither can they exist as mere incidents of the performance of legislative functions. To allow local legislative bodies or administrative agencies to exercise these powers without express statutory basis would run afoul of the doctrine of separation of powers.

These cannot be presumed to exist in favor of the latter and must be considered as an exception to Sec. 4 of B.P. 337 which provides for liberal rules of interpretation in favor of local autonomy. Since the existence of the contempt power in conjunction with the subpoena power in any government body inevitably poses a potential derogation of individual rights, i.e. compulsion of testimony and punishment for refusal to testify, the law cannot be liberally construed to have impliedly granted such powers to local legislative bodies. It cannot be lightly presumed that the sovereign people, the ultimate source of all government powers, have reposed these powers in all government agencies. The intention of the sovereign people, through their representatives in the legislature, to share these unique and awesome powers with the local legislative bodies must therefore clearly appear in pertinent legislation.

There being no provision in the Local Government Code explicitly granting local legislative bodies, the power to issue compulsory process and the power to punish for contempt, the Sanggunian Panlungsod of Dumaguete is devoid of power to punish the petitioners Torres and Umbac for contempt. The Ad-Hoc Committee of said legislative body has even less basis to claim that it can exercise these powers.

11.        Sections 22. The heads of departments may upon their own initiative, with the consent of the President, or upon the request of either House, as the Rules of each House shall provide, appear before and be heard by such House on any matter pertaining to their departments. Written questions shall be submitted to the President of the Senate or the Speaker of the HR at least 3 days before their scheduled appearance. Interpellations shall not be limited to written questions, but may not cover matter matters related thereto. When the security of the State or the public interest so requires and the President so states in writing, the appearance shall be conducted in executive session.

12.        Section 23 [1] The Congress, by a vote of 2/3 of both Houses in a joint session assembled, voting separately, shall have the sole power to declare the existence of a state of war.

          [2] In times of war or other national emergency, the Congress may, by law, authorize the President, for a limited period and subject to such restrictions as it may prescribe, to exercise powers necessary and proper to carry out a declared national policy. Unless sooner withdrawn by a resolution of the Congress, such powers shall cease upon the next adjournment thereof.

a.   Note the limitations and restrictions for the delegation.

b.   Note also that it could be withdrawn by mere resolution.

c.   What is referred to by the phrase “next adjournment?”

d.   Read:

1)   ARANETA VS. DINGLASAN, 84 Phil. 369

               – the first emergency powers cases

          2)   RODRIGUEZ VS. GELLA, 92 Phil. 603

               – the second emergency powers cases.

               3)   Republic Act No. 6826, Dec.20, 1989 which grants  emergency powers to President Aquino.

13.        Sections 24. All appropriations, revenue or tariff bills, bills authorizing increase of the public debt, bills of local application, and private bills shall originate exclusively  in the House of representatives, but the Senate may propose or concur with amendments.

NOTE:  In Tolentino vs. Secretary of Finance, the Supreme Court held that the E-VAT Law is constitutional even if the same was the VERSION which came from the Senate, not from the House of Representatives. This is so because the Senate is allowed to “propose amendments” to bills which must exclusively originate from the House of Representatives.

14.        Section 25 [1] The Congress may not increase the appropriation recommended by the President for the operation of the government as specified in the budget. The form, content, and manner of preparation of the budget shall be prescribed by law.

[2   No provision or enactment shall be embraced in the general appropriations bill unless it relates specifically to some particular appropriation therein. Any provision or enactment shall be limited in its operation to the appropriation to which it relates.

          [3] The procedure in approving appropriations for the Congress shall strictly follow the procedure for approving appropriations for other departments and agencies.

          [4] A special appropriations bill shall specify the purpose for which it is intended, and shall be supported by funds actually available as certified by the national treasurer, or to be raised by a corresponding revenue proposal therein.

          [5] No law shall be passed authorizing any transfer of appropriations; however, the President, the President of the Senate, the Speaker of the house of Representatives, the Chief justice of the Supreme Court, and the heads of the constitutional commissions may, by law, be authorized to augment any item in the general appropriations law for their respective offices from savings in other items of their respective appropriations.

          [6] Discretionary funds appropriated for particular officials shall be disbursed only for the purposes to be supported by appropriate vouchers and subject to such guidelines as may be prescribed by law.

          [7] If, by the end of any fiscal year, the Congress shall have failed to pass the general appropriations bill for the ensuing fiscal year, the general appropriations law for the preceding year shall be deemed reenacted and shall remain in force and effect until the general  appropriations bill is passed by the Congress.

Read:  DEMETRIA vs. ALBA, 148 SCRA 208

17.        Section 26. [1] Every bill passed by the Congress shall embrace only one subject which shall be expressed in the title thereof.

          [2] No bill shall be passed unless it has passed 3 readings on separate days, and printed copies thereof in its final form have been distributed to its members 3 days before its passage, except when the President certifies as to its necessity of its immediate enactment to meet a public calamity or emergency. Upon the last reading of the bill, no amendment thereto shall be allowed, and the vote thereon shall be taken immediately thereafter, and the yeas and nays entered in the Journal.

Read:

1)   TIO VS. VIDEOGRAM REGULATORY BOARD, 151 SCRA 208

     2)   DE LA CRUZ VS. PARAS, 123 SCRA 569

     3)   INSULAR LUMBER VS. CTA, 104 SCRA 710

    4)     LIDASAN VS. COMELEC, 21 SCRA 496

The case questions the law entitled  “An Act Creating the Municipality of Dianaton in the Province of Lanao del Sur”, but which includes barrios located in another province  Cotabato  to be spared from attack planted upon the constitutional mandate that “No bill which may be enacted into law shall embrace more than one subject which shall be expressed in the title of the bill”?

Doubtless, as the statute stands, twelve barrios  in two municipalities in the province of Cotabato  are transferred to the province of Lanao del Sur. This brought about a change in the boundaries of the two provinces.

Apprised of this development, on September 7, 1967, the Office of the President, through the Assistant Executive Secretary, recommended to Comelec that the operation of the statute be suspended until “clarified by correcting legislation.”

Comelec, by resolution of September 20, 1967, stood by its own interpretation, declared that the statute “should be implemented unless declared unconstitutional by the Supreme Court.”

It may be well to state, right at the outset, that the constitutional provision contains dual limitations upon legislative power. First. Congress is to refrain from conglomeration, under one statute, of heterogeneous subjects. Second. The title of the bill is to be couched in a language sufficient to notify the legislators and the public and those concerned of the import of the single subject thereof.

Of relevance here is the second directive. The subject of the statute must be “expressed in the title” of the bill. This constitutional requirement “breathes the spirit of command.”   Compliance is imperative, given the fact that the Constitution does not exact of Congress the obligation to read during its deliberations the entire text of the bill. In fact, in the case of House Bill 1247, which became Republic Act 4790, only its title was read from its introduction to its final approval in the House of Representatives   where the bill, being of local application, originated.

Of course, the Constitution does not require Congress to employ in the title of an enactment, language of such precision as to mirror, fully index or catalogue all the contents and the minute details therein. It suffices if the title should serve the purpose of the constitutional demand that it inform the legislators, the persons interested in the subject of the bill, and the public, of the nature, scope and consequences of the proposed law and its operation. And this, to lead them to inquire into the body of the bill, study and discuss the same, take appropriate action thereon, and, thus, prevent surprise or fraud upon the legislators.

The test of the sufficiency of a title is whether or not it is misleading; and, which technical accuracy is not essential, and the subject need not be stated in express terms where it is clearly inferable from the details set forth, a title which is so uncertain that the average person reading it would not be informed of the purpose of the enactment or put on inquiry as to its contents, or which is misleading, either in referring to or indicating one subject where another or different one is really embraced in the act, or in omitting any expression or indication of the real subject or scope of the act, is bad.

In determining sufficiency of particular title its substance rather than its form should be considered, and the purpose of the constitutional requirement, of giving notice to all persons interested, should be kept in mind by the court.

With the foregoing principles at hand, we take a hard look at the disputed statute. The title  “An Act Creating the Municipality of Dianaton, in the Province of Lanao del Sur”  8  projects the impression that solely the province of Lanao del Sur is affected by the creation of Dianaton. Not the slightest intimation is there that communities in the adjacent province of Cotabato are incorporated in this new Lanao del Sur town. The phrase “in the Province of Lanao del Sur,” read without subtlety or contortion, makes the title misleading, deceptive. For, the known fact is that the legislation has a two-pronged purpose combined in one statute: (1) it creates the municipality of Dianaton purportedly from twenty-one barrios in the towns of Butig and Balabagan, both in the province of Lanao del Sur; and (2) it also dismembers two municipalities in Cotabato, a province different from Lanao del Sur.

The baneful effect of the defective title here presented is not so difficult to perceive. Such title did not inform the members of Congress as to the full impact of the law; it did not apprise the people in the towns of Buldon and Parang in Cotabato and in the province of Cotabato itself that part of their territory is being taken away from their towns and province and added to the  adjacent Province of Lanao del Sur; it kept the public in the dark as to what towns and provinces were actually affected by the bill. These are the pressures which heavily weigh against the constitutionality of Republic Act 4790.

5)   ALALAYAN VS. NAPOCOR, 24 SCRA 172

6)           CORDERO VS. CABATUANDO, 6 SCRA 418

7)           TATAD VS. SECRETARY OF ENERGY, November 5, 1997, 281 SCRA  333

18.        Section 27.  [1] Every bill passed by Congress shall, before it becomes a law, be presented to the President. If he approves the same, he shall sign it, otherwise, he shall veto it and return the same with his objections to the House where it originated, which shall enter the objections at large in its journal and proceed to reconsider it. If, after such consideration , 2/3 of all the members of such House shall agree to pass the bill, it shall be sent, together with the objections , to the other House by which it shall likewise be reconsidered, and if approved by 2/3 of all the members of that House, it shall become a law. In all such cases, the votes of each house shall be determined by yeas or nays, and the names of the members voting for or against shall be entered in its journal. The President shall communicate his veto of any bill to the House where it originated within 30 days after the date of receipt thereof; otherwise, it shall become a law as if he signed it.

          [2] The President shall have the power to veto any particular item or items in an appropriation, revenue or tariff bill, but the veto shall not affect the item or items to which he does not object.

1)           Read:

a. BENGZON VS. SECRETARY OF JUSTICE, 62 Phil. 912

b. BOLINAO ELECTRONICS VS. VALENCIA, 11 SCRA 486

c. NEPTALI GONZALES VS. MACARAIG, November 19, 1990

Section 55 of the Appropriations Act of 1989 (Section 55 [FY '89] hereinafter), which was vetoed by the President, reads:

SEC. 55.      Prohibition Against the Restoration or Increase of Recommended Appropriations Disapproved and /or Reduced by Congress:  No item of appropriation recommended by the President in the Budget submitted to Congress pursuant to Article VII, Section 22 of the Constitution which has been disapproved or reduced in this Act shall be restored or increased by the use of appropriations authorized for other purposes by augmentation. An item of appropriation for any purpose recommended by the President in the Budget shall be deemed to have been disapproved by Congress if no corresponding appropriation for the specific purpose is provided in this Act.

We quote below the reason for the Presidential veto:

The provision violates Section 25 (5) of Article VI of the Constitution. If allowed, this Section would nullify not only the constitutional and statutory authority of the President, but also that of the President of the Senate, the Speaker of the House of Representatives, the Chief Justice of the Supreme Court, and Heads of Constitutional Commissions, to augment any item in the general appropriations law for their respective offices from savings in other items of their respective appropriation. A careful review of the legislative action on the budget as submitted shows that in almost all cases, the budgets of agencies as recommended by the President, as well as those of the Senate, the House of Representatives, and the Constitutional Commissions, have been reduced. An unwanted consequence of this provision is the inability of the President, the President of the Senate, Speaker of the House of Representatives, the Chief Justice of the Supreme Court, and the heads of Constitutional Commissions to augment any item of appropriation of their respective offices from savings in other items of their respective appropriations even in cases of calamity or in the event of urgent need to accelerate the implementation of essential public services and infrastructure projects.

I am vetoing this provision for the reason that it violates Section 25 (5) of Article VI of the Constitution in relation to Sections 44 and 45 of P.D. No. 1177 as amended by R.A. No. 6670 which authorizes the President to use savings to augment any item of appropriations in the Executive Branch of the Government. 

The fundamental issue raised is whether or not the veto by the President of Section 55 of the 1989 Appropriations Bill (Section 55 FY’89), and subsequently of its counterpart Section 16 of the 1990 Appropriations Bill (Section 16 FY’90), is unconstitutional and without effect.

The focal issue for resolution is whether or not the President exceeded the item veto power accorded by the Constitution. Or differently put, has the President the power to veto “provisions” of an Appropriations Bill?

Petitioners contend that Section 55 FY ’89) and Section 16 (FY’90) are provisions and not items and are, therefore, outside the scope of the item veto power of the President.

The veto power of the President is expressed in Article VI, Section 27 of the 1987 Constitution reading, in full, as follows:

Sec. 27.

(2)     The President shall have the power to veto any particular item or items in an appropriation, revenue, or tariff bill, but the veto shall not affect the item or items to which he does not object.

Paragraph (1) refers to the general veto power of the President and if exercised would result in the veto of the entire bill, as a general rule. Paragraph (2) is what is referred to as the item veto power or the line-veto power. It allows the exercise of the veto over a particular item or items in an appropriation, revenue, or tariff bill. As specified, the President may not veto less than all of an item of an Appropriations Bill. In other words, the power given the Executive to disapprove any item or items in an Appropriations Bill does not grant the authority to veto a part of an item and to approve the remaining portion of the same item.

It is to be noted that the counterpart provision in the 1987 Constitution (Article VI, Section 27 [2], supra), is a verbatim reproduction except for the public official concerned. In other words, also eliminated has been any reference to the veto of a provision. The vital question is: should this exclusion be interpreted to mean as a disallowance of the power to veto a provision, as petitioners urge?

The terms item and provision in budgetary legislation and practice are concededly different. An item in a bill refers to the particulars, the details, the distinct and severable parts . . . of the bill (Bengzon, supra, at 916). It is an indivisible sum of money dedicated to a stated purpose (Commonwealth v. Dodson, 11 S.E., 2d 120, 124, 125, etc., 176 Va. 281). The United States Supreme Court, in the case of Bengzon v. Secretary of Justice (299 U.S. 410, 414, 57 S.Ct 252, 81 L. Ed., 312) declared “that an ‘item’ of an appropriation bill obviously means an item which in itself is a specific appropriation of money, not some general provision of law, which happens to be put into an appropriation bill.”

It is our considered opinion that, notwithstanding the elimination in Article VI, Section 27 (2) of the 1987 Constitution of any reference to the veto of a provision, the extent of the President’s veto power as previously defined by the 1935 Constitution has not changed. This is because the eliminated proviso merely pronounces the basic principle that a distinct and severable part of a bill may be the subject of a separate veto (Bengzon v. Secretary of Justice, 62 Phil., 912, 916 (1926); 2 BERNAS, Joaquin, S.J., The Constitution of the Republic of the Philippines, 1st ed., 154-155, [1988]).

The restrictive interpretation urged by petitioners that the President may not veto a provision without vetoing the entire bill not only disregards the basic principle that a distinct and severable part of a bill may be the subject of a separate veto but also overlooks the Constitutional mandate that any provision in the general appropriations bill shall relate specifically to some particular appropriation therein and that any such provision shall be limited in its operation to the appropriation to which it relates (1987 Constitution, Article VI, Section 25 [2]). In other words, in the true sense of the term, a provision in an Appropriations Bill is limited in its operation to some particular appropriation to which it relates, and does not relate to the entire bill.

But even assuming arguendo that provisions are beyond the executive power to veto, we are of the opinion that Section 55 (FY ’89) and Section 16 (FY ’90) are not provisions in the budgetary sense of the term. Article VI, Section 25 (2) of the 1987 Constitution provides:

Sec. 25        (2)     No provision or enactment shall be embraced in the general appropriations bill unless it relates specifically to some particular appropriation therein. Any such provision or enactment shall be limited in its operation to the appropriation to which it relates.

Explicit is the requirement that a provision in the Appropriations Bill should relate specifically to some “particular appropriation” therein. The challenged “provisions” fall short of this requirement. Firstly, the vetoed “provisions” do not relate to any particular or distinctive appropriation. They apply generally to all items disapproved or reduced by Congress in the Appropriations Bill. Secondly, the disapproved or reduced items are nowhere to be found on the face of the Bill. To discover them, resort will have to be made to the original recommendations made by the President and to the source indicated by petitioners themselves, i.e., the “Legislative Budget Research and Monitoring Office” (Annex B-1 and B-2, Petition). Thirdly, the vetoed Sections are more of an expression of Congressional policy in respect of augmentation from savings rather than a budgetary appropriation. Consequently, Section 55 (FY ’89) and Section 16 (FY ’90) although labelled as “provisions,” are actually inappropriate provisions that should be treated as items for the purpose of the President’s veto power. (Henry v. Edwards [1977] 346 S Rep. 2d, 157-158).

Just as the President may not use his item-veto to usurp constitutional powers conferred on the legislature, neither can the legislature deprive the Governor of the constitutional powers conferred on him as chief executive officer of the state by including in a general appropriation bill matters more properly enacted in separate legislation. The Governor’s constitutional power to veto bills of general legislation … cannot be abridged by the careful placement of such measures in a general appropriation bill, thereby forcing the Governor to choose between approving unacceptable substantive legislation or vetoing “items” of expenditure essential to the operation of government. The legislature cannot by location ot a bill give it immunity from executive veto. Nor it circumvent the Governor’s veto power over substantive legislation by artfully drafting general law measures so that they appear to be true conditions or limitations on an item of appropriation. Otherwise, the legislature would be permitted to impair the constitutional responsibilities and functions of a co-equal branch of government in contravention of the separation of powers doctrine … We are no more willing to allow the legislature to use its appropriation power to infringe on the Governor’s constitutional right to veto matters of substantive legislation than we are to allow the Governor to encroach on the constitutional powers of the legislature. In order to avoid this result, we hold that, when the legislature inserts inappropriate provisions in a general appropriation bill, such provisions must be treated as items for purposes of the Governor’s item veto power over general appropriation bills.

Petitioners maintain, however, that Congress is free to impose conditions in an Appropriations Bill and where conditions are attached, the veto power does not carry with it the power to strike them out, citing Commonwealth v. Dodson (11 SE 2d 130, supra) and Bolinao Electronics Corporation v. Valencia (No. L-20740, June 30, 1964, 11 SCRA 486). In other words, their theory is that Section 55 (FY’89) and Section 16 (FY’90) are such conditions/restrictions and thus beyond the veto power.

There can be no denying that inherent in the power of appropriation is the power to specify how money shall be spent; and that in addition to distinct “items” of appropriation, the Legislature may include in Appropriation Bills qualifications, conditions, limitations or restrictions on expenditure of funds. Settled also is the rule that the Executive is not allowed to veto a condition or proviso of an appropriation while allowing the appropriation itself to stand (Fairfield v. Foster, supra, at 320). That was also the ruling in Bolinao, supra, which held that the veto of a condition in an Appropriations Bill which did not include a veto of the items to which the condition related was deemed invalid and without effect whatsoever.

The Power of augmentation and The Validity of the Veto

The President promptly vetoed Section 55 (FY’89) and Section 16 (FY’90) because they nullify the authority of the Chief Executive and heads of different branches of government to augment any item in the General Appropriations Law for their respective offices from savings in other items of their respective appropriations, as guaranteed by Article VI, Section 25 (5) of the Constitution. Said provision reads:

Sec. 25.       (5)     No law shall be passed authorizing any transfer of appropriations; however, the President, the President of the Senate, the Speaker of the House of Representatives, the Chief Justice of the Supreme Court, and the heads of Constitutional Commissions may, by law, be authorized to augment any item in the general appropriations law for their respective offices from savings in other items of their respective appropriations. (Emphasis ours).

          If, indeed, the Legislature believed that the exercise of the veto powers by the Executive were unconstitutional, the remedy laid down by the Constitution is crystal clear. A Presidential veto may be overriden by the votes of two-thirds of members of Congress (1987 Constitution, Article VI, Section 27[l], supra). But Congress made no attempt to override the Presidential veto. Petitioners’ argument that the veto is ineffectual so that there is “nothing to override” (citing Bolinao) has lost force and effect with the executive veto having been herein upheld.

b.             BENGZON VS. DRILON, April 15, 1992

In the case at bar, the veto of these specific provisions in the General Appropriations Act is tantamount to dictating to the Judiciary how its funds should be utilized, which is clearly repugnant to fiscal autonomy. The freedom of the Chief Justice to make adjustments in the utilization of the funds appropriated for the expenditures of the judiciary, including the use of any savings from any particular item to cover deficits or shortages in other items of the Judiciary is withheld. Pursuant to the Constitutional mandate, the Judiciary must enjoy freedom in the disposition of the funds allocated to it in the appropriations law. It knows its priorities just as it is aware of the fiscal restraints. The Chief Justice must be given a free hand on how to augment appropriations where augmentation is needed.

Furthermore, in the case of Gonzales v. Macaraig (191 SCRA 452 [1990]), the Court upheld the authority of the President and other key officials to augment any item or any appropriation from savings in the interest of expediency and efficiency. The Court stated that:

There should be no question, therefore, that statutory authority has, in fact, been granted. And once given, the heads of the different branches of the Government and those of the Constitutional Commissions are afforded considerable flexibility in the use of public funds and resources (Demetria v. Alba, supra). The doctrine of separation of powers is in no way endangered because the transfer is made within a department (or branch of government) and not from one department (branch) to another.

The Constitution, particularly Article VI, Section 25(5) also provides:

Sec. 25.       (5) No law shall be passed authorizing any transfer of appropriations; however, the President, the President of the Senate, the Speaker of the House of Representatives, the Chief Justice of the Supreme Court, and the heads of Constitutional Commissions may, by law, be authorized to augment any item in the general appropriations law for their respective offices from savings in other items of their respective appropriations.

In the instant case, the vetoed provisions which relate to the use of savings for augmenting items for the payment of the pension differentials, among others, are clearly in consonance with the abovestated pronouncements of the Court. The veto impairs the power of the Chief Justice to augment other items in the Judiciary’s appropriation, in contravention of the constitutional provision on “fiscal autonomy.”

III

Finally, it can not be denied that the retired Justices have a vested right to the accrued pensions due them pursuant to RA 1797.

The right to a public pension is of statutory origin and statutes dealing with pensions have been enacted by practically all the states in the United States (State ex rel. Murray v, Riley, 44 Del 505, 62 A2d 236), and presumably in most countries of the world. Statutory provisions for the support of Judges or Justices on retirement are founded on services rendered to the state. Where a judge has complied with the statutory prerequisite for retirement with pay, his right to retire and draw salary becomes vested and may not, thereafter, be revoked or impaired. (Gay v. Whitehurst, 44 So ad 430)

Thus, in the Philippines, a number of retirement laws have been enacted, the purpose of which is to entice competent men and women to enter the government service and to permit them to retire therefrom with relative security, not only those who have retained their vigor but, more so, those who have been incapacitated by illness or accident. (In re: Amount of the Monthly Pension of Judges and Justices Starting From the Sixth Year of their Retirement and After the Expiration of the Initial Five-year Period of Retirement, (190 SCRA 315 [1990]).

As early as 1953, Rep. Act No. 910 was enacted to grant pensions to retired Justices of the Supreme Court and Court of Appeals.

This was amended by RA 1797 which provided for an automatic adjustment of the pension rates. Through the years, laws were enacted and jurisprudence expounded to afford retirees better benefits.

P.D. No. 1438, for one, was promulgated on June 10, 1978 amending RA 910 providing that the lump sum of 5 years gratuity to which the retired Justices of the Supreme Court and Court of Appeals were entitled was to be computed on the basis of the highest monthly aggregate of transportation, living and representation allowances each Justice was receiving on the date of his resignation. The Supreme Court in a resolution dated October 4, 1990, stated that this law on gratuities covers the monthly pensions of retired Judges and Justices which should include the highest monthly aggregate of transportation, living and representation allowances the retiree was receiving on the date of retirement. (In Re: Amount of the Monthly Pension of Judges and Justices, supra).

The rationale behind the veto which implies that Justices and Constitutional officers are unduly favored is, again, a misimpression.

Immediately, we can state that retired Armed Forces officers and enlisted men number in the tens of thousands while retired Justices are so few they can be immediately identified. Justices retire at age 70 while military men retire at a much younger age  some retired Generals left the military at age 50 or earlier. Yet the benefits in Rep. Act No. 1797 are made to apply equally to both groups. Any ideas arising from an alleged violation of the equal protection clause should first be directed to retirees in the military or civil service where the reason for the retirement provision is not based on indubitable and constitutionally sanctioned grounds, not to a handful of retired Justices whose retirement pensions are founded on constitutional reasons.

The provisions regarding retirement pensions of justices arise from the package of protections given by the Constitution to guarantee and preserve the independence of the Judiciary.

The Constitution expressly vests the power of judicial review in this Court. Any institution given the power to declare, in proper cases, that act of both the President and Congress are unconstitutional needs a high degree of independence in the exercise of its functions. Our jurisdiction may not be reduced by Congress. Neither may it be increased without our advice and concurrence. Justices may not be removed until they reach age 70 except through impeachment. All courts and court personnel are under the administrative supervision of the Supreme Court. The President may not appoint any Judge or Justice unless he or she has been nominated by the Judicial and Bar Council which, in turn, is under the Supreme Court’s supervision. Our salaries may not be decreased during our continuance in office. We cannot be designated to any agency performing administrative or quasi-judicial functions. We are specifically given fiscal autonomy. The Judiciary is not only independent of, but also co-equal and coordinate with the Executive and Legislative Departments. (Article VIII and section 30, Article VI, Constitution).

Any argument which seeks to remove special privileges given by law to former Justices of this Court and the ground that there should be no “grant of distinct privileges” or “preferential treatment” to retired Justices ignores these provisions of the Constitution and, in effect, asks that these Constitutional provisions on special protections for the Judiciary be repealed. The integrity of our entire constitutional system is premised to a large extent on the independence of the Judiciary. All these provisions are intended to preserve that independence. So are the laws on retirement benefits of Justices.

One last point.

The Office of the Solicitor General argues that:

. . . Moreover, by granting these benefits to retired Justices implies that public funds, raised from taxes on other citizens, will be paid off to select individuals who are already leading private lives and have ceased performing public service. Said the United States Supreme Court, speaking through Mr. Justice Miller: “To lay with one hand the power of the government on the property of the citizen, and with the other to bestow upon favored individuals . . . is nonetheless a robbery because it is done under the forms of law . . .” (Law Association V. Topeka, 20 Wall. 655) (Comment, p. 16)

The above arguments are not only specious, impolite and offensive; they certainly are unbecoming of an office whose top officials are supposed to be, under their charter, learned in the law.

Chief Justice Cesar Bengzon and Chief Justice Querube Makalintal, Justices J.B.L. Reyes, Cecilia Muñoz Palma, Efren Plana, Vicente Abad Santos, and, in fact, all retired Justices of the Supreme Court and the Court of Appeals may no longer be in the active service. Still, the Solicitor General and all lawyers under him who represent the government before the two courts and whose predecessors themselves appeared before these retirees, should show some continuing esteem and good manners toward these Justices who are now in the evening of their years.

All that the retirees ask is to be given the benefits granted by law. To characterize them as engaging in “robbery” is intemperate, abrasive, and disrespectful more so because the argument is unfounded.

If the Comment is characteristic of OSG pleadings today, then we are sorry to state that the then quality of research in that institution has severely deteriorated.

In the first place, the citation of the case is, wrong. The title is not LAW Association v. Topeka but Citizen’s Savings and Loan Association of Cleveland, Ohio v. Topeka City (20 Wall. 655; 87 U.S. 729; 22 Law. Ed. 455 [1874]. Second, the case involved the validity of a statute authorizing cities and counties to issue bonds for the purpose of building bridges, waterpower, and other public works to aid private railroads improve their services. The law was declared void on the ground that the right of a municipality to impose a tax cannot be used for private interests.

The case was decided in 1874. The world has turned over more than 40,000 times since that ancient period. Public use is now equated with public interest. Public money may now be used for slum clearance, low-cost housing, squatter resettlement, urban and agrarian reform where only private persons are the immediate beneficiaries. What was “robbery” in 1874 is now called “social justice.” There is nothing about retirement benefits in the cited case. Obviously, the OSG lawyers cited from an old textbook or encyclopedia which could not even spell “loan” correctly. Good lawyers are expected to go to primary sources and to use only relevant citations.

The Court has been deluged with letters and petitions by former colleagues in the Judiciary requesting adjustments in their pensions just so they would be able to cope with the everyday living expenses not to mention the high cost of medical bills that old age entails. As Justice Cruz aptly stated in Teodoro J. Santiago v. COA, (G.R. No. 92284, July 12, 1991);

Retirement laws should be interpreted liberally in favor of the retiree because their intention is to provide for his sustenance, and hopefully even comfort, when he no longer has the stamina to continue earning his livelihood. After devoting the best years of his life to the public service, he deserves the appreciation of a grateful government as best concretely expressed in a generous retirement gratuity commensurate with the value and length of his services. That generosity is the least he should expect now that his work is done and his youth is gone. Even as he feels the weariness in his bones and glimpses the approach of the lengthening shadows, he should be able to luxuriate in the thought that he did his task well, and was rewarded for it.

For as long as these retired Justices are entitled under laws which continue to be effective, the government can not deprive them of their vested right to the payment of their pensions.

WHEREFORE, the petition is hereby GRANTED. The questioned veto is SET ASIDE as illegal and unconstitutional. The vetoed provisions of the 1992 Appropriations Act are declared valid and subsisting. The respondents are ordered to automatically and regularly release pursuant to the grant of fiscal autonomy the funds appropriated for the subject pensions as well as the other appropriations for the Judiciary. The resolution in Administrative Matter No. 91-8-225-CA dated November 28, 1991 is likewise ordered to be implemented as promulgated.

2)   What is a “pocket veto?”

3)   What are the three ways by which a bill becomes a law?

3.           PHILCONSA VS. ENRIQUEZ, 235 SCRA 506

  What is the so-called “executive impoundment”?

It means that although an item of appropriation is not vetoed by the President, he however refuses for whatever reason, to spend funds made possible by Congress. It is the failure to spend or obligate budget authority of any type. Proponents of impoundment have invoked at least three (3) principal sources of authority of the President. [1] authority to impound given to him by Congress, either expressly or impliedly; [2] the executive power drawn from his power as Commander-in-chief; and [3] the Faithful execution clause of the Constitution.

Note that in this case the SC  held that the Countryside Development Fund (CDF) of Congressmen and Senators is CONSTITUTIONAL because the same is “set aside for ‘infrastructure, purchase of ambulances and computers and other priority projects and activities, and credit facilities to qualified beneficiaries as proposed and identified by said Senators and Congressmen.

19.        Section 28.  [1] The rule of taxation shall be uniform and equitable. The Congress shall evolve a progressive system of taxation.

          [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.

          [3] Charitable institutions, churches and parsonages or convents appurtenant thereto, mosques, non-profit cemeteries, and all lands, buildings, and improvements, actually, directly, and exclusively used for religious, charitable, or educational purposes shall be exempt from taxation.

          [4] No law granting any tax exemption shall be passed without the concurrence of a majority of all the members of the Congress.

Section 29. (1) No money shall be paid out of the treasury except in pursuance of an appropriation made by law.

No public money or property shall be appropriated, applied, paid or employed…directly or indirectly for the benefit, use, or support of any sect, denomination, or system of religion…except when such preacher, priest… is assigned to the AFP, or to any penal institution, or government orphanage or leprosarium.

All money collected on any tax for a special purpose shall be treated as a special fund and paid out for such purpose only. If the purpose for which a special fund was created has been fulfilled or abandoned, the balance, if any, shall be transferred to the general funds of the Government.

Read:

      1. Garcia vs. Executive Sec., 211 SCRA 219

      1-a)   PEPSI COLA VS. THE CITY OF BUTUAN, 24 SCRA 789

     2)   PROVINCE OF ABRA VS. HERNANDO, 107 SCRA 104

     3)   APOSTOLIC PREFECT OF BAGUIO VS. TREASURER, 71 Phil. 547

     4)   PASCUAL VS. SECRETARY OF PUBLIC WORKS, 110 Phil. 331

4)           AGLIPAY VS. RUIZ, 64 Phil. 201

5)           MANUEL ALBA VS. PEREZ, G.R. No. 65917, Sept. 24, 1987

Respondent Dr. Francisco A. Perez was named outstanding Health Worker for 1980 by the Ministry of Health on January 22, 1981. Being such an awardee, Dr. Perez was granted by the Ministry of Health a two-step salary increase in accordance with the merit increase program as enunciated in Letter of Instructions (LOI) No. 562. Thereafter, the Ministry of Health requested the Sangguniang Panglunsod of San Pablo City, which is paying Dr. Perez’ salary in full to appropriate the amount corresponding to the merit increase in its current budget. For lack of legal basis, the Bureau of Local Government opposed the proposed merit increase because the provisions of LOI No. 562 apply only to officials/employees in the national government, and consequently, awardee Dr. Perez was not entitled thereto, since he is an employee of the local government as provided for in the charter of San Pablo City. This prompted Dr. Perez to request the Ministry of Health to make the corresponding allocation to issue a notice of salary adjustment effective January 1, 1981. The Minister of Justice, upon a query made by the Ministry of Health, in his Opinion No. 177, Series of 1981, dated November 20, 1981, acknowledged that the merit increase program applies only to the officials/employees of the national government but declared Dr. Perez as one such official or employee and concluded that the Ministry of Health should pay the merit increase to him. Relying on such opinion, the Ministry of Health issued to respondent Dr. Perez on December 1, 1981 a notice of salary adjustment which release of the amount was denied by the Office of the Budget and Management which insisted that the awardee is an employee of the local or city government who is not covered by the merit increase program. Dr. Perez made his appeal therefrom to the Ministry of Health who forwarded it, recommending favorable action thereon to the Office of the President of the Philippines. The latter referred the appeal to the Minister of the Budget who affirmed his earlier decision of disallowing the merit increase and reiterating the same reasons. A petition for mandamus to compel the Office of the Budget and Management to pay the merit increase was filed by Dr. Perez before the lower court which granted the aforementioned favorable decision, subject matter of the present petition for review on certiorari before Us by petitioners arguing that:

1.       The position of private respondent as the City Health Officer of San Pablo City is embraced in Sec. 7 of Pres. Decree (P.D.) No. 1136 which states among other things that the salary plan provided for in Sec. 8 of the same decree shall cover the City Officer, among other officials, whose salary shall be paid out of city funds and therefore a local government employee whose position does not appear in the list of national government employees defined under another law (P.D. 985).

2.       The constitution provides that no money shag be paid out of the Treasury except in pursuance of an appropriation made by law. Since there is no such appropriation, the Minister of the Budget cannot be compelled to release the amount for the payment of the merit salary increase because such allocation entails the exercise of judgment and discretion of the Minister of the Budget which cannot be controlled by mandamus.

3.       The decision declaring respondent Dr. Perez as an employee of the national government would have far reaching effects such that all other city health officers and local officials similarly situated would also be so entitled to an personal benefits given to national employee. Dr. Perez’s exemplary accomplishment which merited for him the grant to a two-step increase must yield to the overriding economic consideration of availability of funds which the government must set aside for the purpose.

We do not agree with the arguments set down by petitioners. Private respondent invites Our attention to the City Charter of San Pablo City (CA #5201, Sec. 87, May 7, 1940) more specifically, Art. IV thereof, which provides that the position of a City Health Officer is not included among the heads of the regular departments of the city but included among the national officials performing municipal functions under the direct control of the Health Minister and not the city mayor as provided for in Art. XIV of the same charter. Such principle is reiterated in the Decentralization Act of 1967 which shows that the appointing authority is the Health Minister and not the local officials. Petitioner Minister of the Budget admitted thru the testimony of its representative, Alice S. Torres, chief of the Compensation and Position Classification and a specialist thereon that the City Health Officer is under the administrative and technical supervision of the Ministry of Health (p. 69, tsn, June 16, 1983, p. 72, Rollo). Be it noted that, Section 7 of PD 1136 relied upon by petitioners provides that the basic salary of the City Health Officer is paid from city funds. However, the last paragraph of the same Sec. 7, excludes the city health officer from the classification of local government official as can be gathered from the phrase “… except those occupied by (a) officials whose compensation is fixed in the constitution, Presidential Decrees and other laws and (b) officials and employees who are under the direct supervision and control of the National Government or its agencies and who are paid wholly or partially from national funds.”

Provincial and city health officers are all considered national government officials irrespective of the source of funds of their salary because the preservation of health is a national service. Also their positions are partially funded by the national government. Some are receiving one-half of their salary from the national funds and the other one-half from local funds.

We cannot likewise ignore the opinions of the Ministry of Justice cited by private respondent to wit: 1) Opinion No. 26, Series of 1976 which categorically rules that “Officials and employees of provincial and city health offices render service as officials and employees of the Bureau of Health (Ministry of Health) and they are for that reason not local but national officials under the direct supervision and control of the Ministry of Health; 2) Opinion No. 177, Series of 1981, which is specific and definitive that the private respondent is a national government employee and the Ministry of Health should pay the merit increase awarded to him. In this 1981 opinion, it was explained in detail how the said funds corresponding to his merit increase could be legally disbursed contrary to the unfounded speculations expressed by the petitioners.

Lastly, there is no basis in petitioner’s allegations that they cannot be compelled by mandamus as the appropriation is not authorized by law and it is discretionary on the part of the Ministry of the Budget whether or not to allocate. Respondent Dr. Perez has been proven to be a national government official, hence covered by the merit promotion plan of the government more particularly the Health Ministry wherein private respondent is its lone beneficiary for the year 1980 in Region IV. It thus becomes the ministerial duty of the Budget Minister to approve the request for allotment. Having failed to do so, he could be compelled by mandamus.

20.        Section 30. No law shall be passed increasing the appellate jurisdiction of the Supreme Court as provided in the Constitution without its advice and concurrence.

TERESITA FABIAN VS. HONORABLE ANIANO DESIERTO, G.R. No. 129742, September 16, 1998)

Regalado, J.

Section 27 of RA 6770 or the Ombudsman Act of 1989 provides:

“In all administrative disciplinary cases, orders, directives or decisions of the Office of the Ombudsman may be appealed to the Supreme Court by filing a petition for Certiorari within 10 days from receipt of the written notice of the order, directive or decision or denial of the Motion for Reconsideration in accordance with Rule 45 of the Rules of Court”

Issue:

Is Section 27 of RA 6770 constitutional?

Held:

Section 27 of RA 6770 is unconstitutional since it increases the appellate jurisdiction of the Supreme Court without its advice and consent as provided under Section 30, Article VI of the 1987 Constitution. As explained in FIRST LEPANTO CERAMICS INC. VS. CA, 237 SCRA 519, the aforesaid constitutional provision “was intended to give the Supreme Court a measure of control over cases placed under its appellate jurisdiction. Otherwise, the enactment of legislation enlarging its appellate jurisdiction would unnecessarily burden the Court.”

Appeal of cases decided by the Office of the Ombudsman covered by Section 27 of RA 6770 shall be filed with the Court of Appeals.

Read:     MANUEL ALBA VS. PEREZ, G.R. No. 65917, Sept. 24, 1987

21.        Sections 32. The Congress, shall, as early as possible, provide for a system of initiative and referendum, and the exceptions therefrom, whereby the people can directly propose and enact laws or approve or reject any law or part thereof passed by the Congress or local legislative body after the registration of a petition therefore signed by at least 10% of the total number of registered voters, of which every legislative district must be represented by at least 3% of the registered voters thereof.

          Read again RA 6735 & SANTIAGO VS. COMELEC & PIRMA

Reference:

Political Law Reviewer by Atty. Larry D. Gacayan

College of Law, University of the Cordilleras

Baguio City

* “Those born before January 17, 1973, of Filipino mothers who elect Philippine citizenship upon reaching the age of majority.”

[1]     Annex “B,” id. at 52.

[2]     Annex “C,” id. at 53.

[3]     Francisco v. House of Representatives, G.R. No. 160261, November 10, 2003, 415 SCRA 44, 133.

[4]     G.R. No. 67752, April 10, 1989, 171 SCRA 657.

[5]     G.R. No. 78716, September 22, 1987 (res).

[6]     Rollo (G.R. No. 169777), p. 117.

[7]     Supra note 39 at 136.

[8]     87 Phil. 29 (1950).

[9]     Supra at 45, citing McGrain v. Daugherty 273 US 135, 47 S. Ct. 319, 71 L.Ed. 580, 50 A.L.R. 1 (1927).

[10]    Id. at 46.

[11]   G.R.  89914, Nov. 20, 1991, 203 SCRA 767.

[12]   Supra.

[13]    Supra note 82 at 189.

[14]   G.R. No. 74930, February 13, 1989, 170 SCRA 256.

[15][6]     Transcript of the September 26, 2007  Hearing of the respondent Committees,  pp.91-92.

[16][7]     Id., pp. 114-115.

[17][8]     Id., pp.  276-277.

[18][9]     See Letter dated January 30, 2008.

[19][10]   488  SCRA 1 (2006).

[20][11]   345 U.S. 1 (1953).

[21][12]     Section 7.   Prohibited Acts and Transactions. – In addition to acts and omissions of public officials and employees now prescribed in the Constitution and existing laws, the following shall constitute prohibited acts and transactions of any public official and employee and are hereby declared to be unlawful: x x x

(c)   Disclosure and/or misuse of confidential information. -

Public officials and employees shall not use or divulge, confidential or classified information officially known to them by reason of their office and not made available to the public, either:

(1)   To further their private interests, or give undue advantage to anyone; or

(2)   To prejudice the public interest.

[22][13]   SEC. 24. Disqualification by reason of privileged communication. – The following persons cannot testify as to matters learned in confidence in the following cases.(e) A public officer cannot be examined during his term of office or afterwards, as to communications made to him in official confidence, when the court finds that the public interest would suffer by disclosure.

[23][18]     Supra.

[24][19]     Ibid.

[25][20]     Ibid.

[26][21]              Arnault v. Nazareno, 87 Phil 32 (1950)

[27][22]              Senate v. Ermita, p. 58.

[28][23]    5  U.S. C. § 552

[29][24]              51 U.S. C. app.

[30][25]    433  Phil. 506  (2002).

[31][26]              G.R. No. 130716, December 9, 1998, (360 SCRA 132 ).

[32][27]   Supra.

[33][28]              CRS Report for Congress, Presidential Claims of Executive Privilege: History, Law,  Practice and Recent Developments at p. 2.

[34][29]              418 U.S. 683.

[35][30]    In Re: Sealed Case No. 96-3124, June 17, 1997.

[36][31]              Id.

[37][32]              CRS Report for Congress, Presidential Claims of Executive Privilege: History, Law,  Practice and Recent Developments at pp. 18-19.

[38][38]    360 Phil. 133 (1998).

[39][39]            Supra.

[40][40]              Section 18, Article VII.

[41][41]              Section 16, Article VII.

[42][42]              Section 19, Article VII.

[43][43]                       Section 20 and 21, Article VII.

[44][44]   CRS  Report for Congress, Presidential Claims of Executive Privilege: History, Law Practice and    Recent Developments,  supra..

[45][45]   Bernas, S.J., The 1987 Constitution of the Republic of the Philippines, A Commentary, 2003 Ed. p. 903.

[46][46]    159 U.S.  App. DC. 58, 487 F. 2d 700 (D.C. Cir. 1973).

[47][47]    U.S. v. Nixon, 418 U.S. 683 (1974)

[48][48]              Supra.

[49][50]    Citing Section 7, Article 3 of the Constitution.

[50][51]   Section 7.   Prohibited Acts and Transactions. – In addition to acts and omissions of public officials and employees now prescribed in the Constitution and existing laws, the following shall constitute prohibited acts and transactions of any public official and employee and are hereby declared to be unlawful: x x x

            ( c)   Disclosure and/or misuse of confidential information. – Public officials and employees shall not use or divulge, confidential or classified information officially known to them by reason of their office and not made available to the public, either:

(1) To further their private interests, or give undue advantage to anyone; or

(2) To prejudice the public interest.

[51][52]   Article 229.   Revelation of secrets by an officer. – Any public officer who shall reveal any secret known to him by reason of his official capacity, or shall wrongfully deliver papers or copies of papers of which he may have charge and which should not be published, shall suffer the penalties of prision correccional in its medium and maximum periods, perpetual special disqualification and a fine not exceeding 2,000 pesos if the revelation of such secrets or the delivery of such papers shall have caused serious damage to the public interest; otherwise, the penalties of prision correccional in its minimum period, temporary special disqualification and a fine not exceeding 500 pesos shall be imposed.

[52][53]   Section 3.   Corrupt practices of public officers. – In addition to acts or omissions of public officers already penalized by existing law, the following shall constitute corrupt practices of any public officer and are hereby declared to be unlawful:

(k)  Divulging valuable information of a confidential character, acquired by his office or by him on account of his official position to unauthorized persons, or releasing such information in advance of its authorized release date.

[53][54]         Sec. 24.   Disqualification by reason of privileged communications. – The following persons cannot testify as to matters learned in confidence in the following case: x x x

(a) A public officer cannot be examined during his term of office or afterwards, as to communications made to him in official confidence, when the court finds that the public interest would suffer by the disclosure.

[54][55]    In Chavez v. Public Estates Authority, supra., the Supreme Court recognized matters which the Court has long considered as confidential such as “information on military and diplomatic secrets, information affecting national security, and information on investigations of crimes by law enforcement agencies before the prosecution of the accused.” It also stated that “presidential conversations, correspondences, or discussions during close-door cabinet meetings which, like internal deliberations of the Supreme Court or other collegiate courts, or executive sessions of either House of Congress, are recognized as confidential.   Such information cannot be pried-open by a co-equal branch of government.

[55][56]   United States v. Reynolds, supra..

[56][57]   Unites States v. Article of Drug, 43 F.R.D. at 190.

[57][58]    Senate v. Ermita, supra., p. 63.

[58][59]    Id., citing U.S. v. Reynolds, 345 U.S. 1, 73 S. Ct. 528, 97 L. Ed. 727,  32 A.L. R. 2d 382 (1953).

[59][61]    Trancript of the January 30, 2008 proceedings, p. 29.

[60][63]              Rodriguez v. Judge Bonifacio, A.M. No. RTJ-99-1510, November 6, 2000,  344 SCRA 519.

[61][4]     Annex “E” of the Petition in G.R. No. 174318.

[62][6]     Annex “F” of the Petition in G.R. No. 174318.

[63][7]     Annex “G” of the Petition in G.R. No. 174318.

[64][13]    Annex “D” of the petition in G.R. No.  174318.

[65][15]    273 U.S. 135, 47 S. Ct. 319, 71 L. Ed. 580, 50 A.L.R. 1 (1927).

[66][16]    No. L- 3820, 87 Phil. 29 (1950).

[67][18]    Puno, Lecture on Legislative Investigations and the Right to Privacy, at p. 22.

[68][19]    Bernas S.J., The 1987 Constitution of the Republic of the Philippines, 2003 Ed. at p.737.

[69][20]    Bernas S.J., The 1987 Constitution of the Republic of the Philippines, 2003 Ed. at p.739.

[70][21]    G.R. No. 169777, April 20, 2006.

[71][22]    Watkins v. United States, 354 U.S. 178 (1957), pp. 194-195.

[72][23]    Senate v. Ermita, Id.

[73][24]    De Leon, De Leon, Jr. The Law on Public Officers and  Election Law, p. 2.

[74][25]    No. L-77663, April 12, 1988, 159 SCRA 558.

[75][26]    193 SCRA 282 (1991).

Political Law Part IV – Declaration of Principles and State Policies

Political Law Part IV – Declaration of Principles and State Policies

POLITICAL LAW PART IV

DECLARATION OF PRINCIPLES & STATE POLICIES

Section 1. The Philippines is a democratic and republican State. Sovereignty resides in the people and all government authority emanates from them.

a. The basic principles underlying the 1935, 1973 and 1987 Constitutions.

b.Manifestations of a republican state.

c.   Define “state”

COLLECTOR VS. CAMPOS RUEDA, 42 SCRA 23

d.   Elements of a state. Define each:

1. people

2. territory

3. sovereignty

4. government

e. Different meanings of the word “people” as used      in the constitution:

1. as inhabitants (Art. XIII, Sec. 1; Art. III, Sec. 2);

2. as citizens (Preamble; Art. II, Sec. 1 & 4; Art. III, Sec. 7);

3. as voters (Art. VII, Sec. 4)

f. Presidential & parliamentary forms of government

Read:

1.           FREE TELEPHONE WORKERS UNION VS. OPLE, 108 SCRA 757

The government of the Philippines under the 1973 Constitution is “essentially presidential with parliamentary features.”

2. LEGASPI VS. SEC. OF FINANCE, 115 SCRA 418

The form of government is “essentially parliamentary with presidential features.”

g. Two-fold function of the government

Read:

        1)BACANI VS. NACOCO, 100 Phil. 468 (Ministrant [merely directory] and Constituent [Mandatory] Functions)

       2)   ACCFA VS. CUGCO, 30 SCRA 649

Due to complexities of the changing society, the two-fold function of the government as classified by President Wilson is no longer relevant.

h. Parents Patriae

Read:

1)   GOVT. VS. MONTE DE PIEDAD, 35 Phil 738

          2)   CABANAS VS. PILAPIO, 58 SCRA 94

i.   De jure govt.? De facto govt.?

Read:

1. AQUINO VS. COMELEC, 62 SCRA 275 (on the de jure aspect)  

2. In Re: SATURNINO BERMUDEZ, 145 SCRA 160

A government formed as a result of a people’s revolution, is considered de jure if it is already accepted by the family of nations or other countries like the United States, Great Britain, Germany, Japan, and others.

3.           Estrada vs. Macapagal & Desierto, infra.

j. The three (3) kinds of de facto government?

Read: CO KIM CHAM VS. VALDEZ TAN KEH, 75 Phil. 113

There are several kinds of de facto governments.

a.           The first, or government de facto in a proper legal sense, is that government that gets possession and control of, or usurps, by force or by the voice of the majority, the rightful legal governments and maintains itself against the will of the latter, such as the government of England under the Commonwealth, first by Parliament and later by Cromwell as Protector.

b.           The second is that which is established and maintained by military forces who invade and occupy a territory of the enemy in the course of war, and which is denominated a government of paramount force, as the cases of Castine, in Maine, which was reduced to British possession in the war of 1812, and Tampico, Mexico, occupied during the war with Mexico, by the troops of the United States.

c.           And the third is that established as an independent government by the inhabitants of a country who rise in insurrection against the parent state of such as the government of the Southern Confederacy in revolt not concerned in the present case with the first kind, but only with the second and third kinds of de facto governments.

“But there is another description of government, called also by publicists a government de facto, but which might, perhaps, be more aptly denominated a government of paramount force. Its distinguishing characteristics are

(1), that its existence is maintained by active military power with the territories, and against the rightful authority of an established and lawful government; and

(2), that while it exists it necessarily be obeyed in civil matters by private citizens who, by acts of obedience rendered in submission to such force, do not become responsible, or wrongdoers, for those acts, though not warranted by the laws of the rightful government.

On the other hand, laws of a political nature or affecting political relations, such as, among others, the right of assembly, the right to bear arms, the freedom of the press, and the right to travel freely in the territory occupied, are considered as suspended or in abeyance during the military occupation. Although the local and civil administration of justice is suspended as a matter of course as soon as a country is militarily occupied, it is not usual for the invader to take the whole administration into his own hands. In practice, the local ordinary tribunals are authorized to continue administering justice; and judges and other judicial officers are kept in their posts if they accept the authority of the belligerent occupant or are required to continue in their positions under the supervision of the military or civil authorities appointed, by the Commander in Chief of the occupant. These principles and practice have the sanction of all publicists who have considered the subject, and have been asserted by the Supreme Court and applied by the President of the United States.

The doctrine upon this subject is thus summed up by Halleck, in his work on International Law (Vol. 2, p. 444): “The right of one belligerent to occupy and govern the territory of the enemy while in its military possession, is one of the incidents of war, and flows directly from the right to conquer. We, therefore, do not look to the Constitution or political institutions of the conqueror, for authority to establish a government for the territory of the enemy in his possession, during its military occupation, nor for the rules by which the powers of such government are regulated and limited. Such authority and such rules are derived directly from the laws war, as established by the usage of the of the world, and confirmed by the writings of publicists and decisions of courts  in fine, from the law of nations. . . . The municipal laws of a conquered territory, or the laws which regulate private rights, continue in force during military occupation, excepts so far as they are suspended or changed by the acts of conqueror. . . . He, nevertheless, has all the powers of a de facto government, and can at his pleasure either change the existing laws or make new ones.”

The governments by the Philippine Executive Commission and the Republic of the Philippines during the Japanese military occupation being de facto governments, it necessarily follows that the judicial acts and proceedings of the courts of justice of those governments, which are not of a political complexion, were good and valid, and, by virtue of the well-known principle of postliminy (postliminium) in international law, remained good and valid after the liberation or reoccupation of the Philippines by the American and Filipino forces under the leadership of General Douglas MacArthur. According to that well-known principle in international law, the fact that a territory which has been occupied by an enemy comes again into the power of its legitimate government of sovereignty, “does not, except in a very few cases, wipe out the effects of acts done by an invader, which for one reason or another it is within his competence to do. Thus judicial acts done under his control, when they are not of a political complexion, administrative acts so done, to the extent that they take effect during the continuance of his control, and the various acts done during the same time by private persons under the sanction of municipal law, remain good. Were it otherwise, the whole social life of a community would be paralyzed by an invasion; and as between the state and the individuals the evil would be scarcely less,  it would be hard for example that payment of taxes made under duress should be ignored, and it would be contrary to the general interest that the sentences passed upon criminals should be annulled by the disappearance of the intrusive government .” (Hall, International Law, 7th ed., p. 518.) And when the occupation and the abandonment have been each an incident of the same war as in the present case, postliminy applies, even though the occupant has acted as conqueror and for the time substituted his own sovereignty as the Japanese intended to do apparently in granting independence to the Philippines and establishing the so-called Republic of the Philippines. (Taylor, International Law, p. 615.)

l.   Sovereignty:

1. legal

2. political

m.   The doctrine of sovereignty as auto-limitation?

Read:

1. REAGAN VS. COMMISIONER OF INTERNAL      REVENUE, 30 SCRA 968

“By the Agreement, it should be noted, the Philippine Government merely consents that the United States exercise jurisdiction in certain cases. The consent was given purely as a matter of comity, courtesy, or expediency. The Philippine Government has not abdicated its sovereignty over the bases as part of the Philippine territory or divested itself completely of jurisdiction over offenses committed therein. Under the terms of the treaty, the United States Government has prior or preferential but not exclusive jurisdiction of such offenses. The Philippine Government retains not only jurisdictional rights not granted, but also all such ceded rights as the United States Military authorities for reasons of their own decline to make use of. The first proposition is implied from the fact of Philippine sovereignty over the bases; the second from the express provisions of the treaty.”    “Nothing is better settled than that the Philippines being independent and sovereign, its authority may be exercised over its entire domain. There is no portion thereof that is beyond its power. Within its limits, its decrees are supreme, its commands paramount. Its laws govern therein, and everyone to whom it applies must submit to its terms. That is the extent of its jurisdiction, both territorial and personal. Necessarily, likewise, it has to be exclusive. If it were not thus, there is a diminution of sovereignty.”  Then came this paragraph dealing with the principle of auto-limitation: “It is to be admitted any state may, by its consent, express or implied, submit to a restriction of its sovereign rights. There may thus be a curtailment of what otherwise is a power plenary in character. That is the concept of sovereignty as auto-limitation, which, in the succinct language of Jellinek, “is the property of a state-force due to which it has the exclusive capacity of legal self-determination and self-restriction.” A state then, if it chooses to, may refrain from the exercise of what otherwise is illimitable competence.”  The opinion was at pains to point out though that even then, there is at the most diminution of jurisdictional rights, not its disappearance.

               2.  PEOPLE VS. GOZO, 53 SCRA 476

               3.   COMMISSIONER VS. ROBERTSON, 143 SCRA 397

2. Section 2. The Philippines renounces war as an instrument of national police, adopts the generally accepted principles of international law as part of the law of the land and adheres to the policy of peace, equality, justice, freedom, cooperation, and amity among all nations.

a. difference between aggressive & defensive war

b. Read:

1)           MEJOFF VS. DIRECTOR OF PRISONS, 90 Phil. 70

The Philippines adopts the Universal Declaration of Human Rights since it is a generally accepted principle of international law. As such, it should be applied to illegal aliens like the petitioner so that it would be a violation of the said international law to detain him for an unreasonable length of time since no vessel from his country is willing to take him.

“The meaning of “reasonable time” depends upon the circumstances, specially the difficulties of obtaining a passport, the availability of transportation, the diplomatic arrangements concerned and the efforts displayed to send the deportee away. Considering that this Government desires to expel the alien, and does not relish keeping him at the people’s expense, we must presume it is making efforts to carry out the decree of exclusion by the highest officer of the land. On top of this presumption assurances were made during the oral argument that the Government is really trying to expedite the expulsion of this petitioner. On the other hand, the record fails to show how long he has been under confinement since the last time he was apprehended. Neither does he indicate neglected opportunities to send him abroad. And unless it is shown that the deportee is being indefinitely imprisoned under the pretense of awaiting a chance for deportation 3 or unless the Government admits that it can not deport him  or unless the detainee is being held for too long a period our courts will not interfere.

2)            KURODA VS. JALANDONI, 83 Phil 171

Petitioner argues that respondent Military Commission has no Jurisdiction to try petitioner for acts committed in violation of the Hague Convention on Rules and Regulations covering Land Warfare and the Geneva Convention because the Philippines is not a signatory to the first and signed the second only in 1947. It cannot be denied that the rules and regulation of the Hague and Geneva conventions form, part of and are wholly based on the generally accepted principals of international law. In facts these rules and principles were accepted by the two belligerent nation the United State and Japan who were signatories to the two Convention, Such rule and principles therefore form part of the law of our nation even if the Philippines was not a signatory to the conventions embodying them for our Constitution has been deliberately general and extensive in its scope and is not confined to the recognition of rule and principle of international law as continued inn treaties to which our government may have been or shall be a signatory.

Furthermore when the crimes charged against petitioner were allegedly committed the Philippines was under the sovereignty of United States and thus we were equally bound together with the United States and with Japan to the right and obligation contained in the treaties between the belligerent countries. These rights and obligation were not erased by our assumption of full sovereignty. If at all our emergency as a free state entitles us to enforce the right on our own of trying and punishing those who committed crimes against crimes against our people. In this connection it is well to remember what we have said in the case of Laurel vs. Misa (76 Phil., 372):

3)           SALONGA VS. HERMOSO, 97 SCRA 121

4)           AGUSTIN VS. EDU,  88 SCRA 195

The Geneva Convention on Road Signs and Signals, is also considered part of the law of the Philippines since the same is a generally accepted principle of international law in accordance with the Incorporation clause of the Constitution.

5)           REYES VS. BAGATSING,125 SCRA 553

Respondent Mayor posed the issue of the applicability of Ordinance No. 7295 of the City of Manila prohibiting the holding or staging of rallies or demonstrations within a radius of five hundred (500) feet from any foreign mission or chancery and for other purposes. It is to be admitted that it finds support In the previously quoted Article 22 of the Vienna Convention on Diplomatic Relations. There was no showing, however, that the distance between the chancery and the embassy gate is less than 500 feet. Even if it could be shown that such a condition is satisfied. it does not follow that respondent Mayor could legally act the way he did. The validity of his denial of the permit sought could still be challenged. It could be argued that a case of unconstitutional application of such ordinance to the exercise of the right of peaceable assembly presents itself. As in this case there was no proof that the distance is less than 500 feet, the need to pass on that issue was obviated, Should it come, then the qualification and observation of Justices Makasiar and Plana certainly cannot be summarily brushed aside. The high estate accorded the rights to free speech and peaceable assembly demands nothing less.

Without saying that the Ordinance is obnoxious per se to the constitution, it cannot be validly invoked whenever its application would collide with a constitutionally guaranteed right such as freedom of assembly and/or expression, as in the case at bar, regardless of whether the chancery of any foreign embassy is beyond or within 500 feet from the situs of the rally or demonstration.

3. Section 3. Civilian authority is, at all times supreme over the military. The armed forces of the Philippines is the protector of the people and the State. Its goal is to secure the sovereignty of the State and the integrity of the national territory.

See also:

Art. VII, Sec. 18

Art. XVI, Sec. 5 (2)

Art. XVI, Sec. 5 (4)

4. 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 and military service.

Read:

1.           PEOPLE VS. LAGMAN, 66 Phil. 13

“The appellant’s argument that he does not want to join the armed forces because “he does not want to kill or be killed” and that “he has no military inclination” is not acceptable because it is his obligation to join the armed forces in connection with the “defense of the State” provision of the Constitution.

2. PEOPLE VS. MANAYAO, 78 Phil. 721

3. PD1706, August 8, 1980

4. Exec. Order No. 264

 5.  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.

6.  Section 6. The separation of church and State shall be inviolable.

Read:

1)   PAMIL VS. TELERON, 86 SCRA 413

     2)   GERMAN VS. BARANGAN, 135 SCRA 514

(NOTE: Read the dissenting opinions in    both cases)

3) Other provisions:

Other provisions on church & state:

1.           ART. III, Sec. 5. No law shall be made respecting an establishment of religion, or prohibiting the free exercise thereof. The free exercise and enjoyment of religious profession and worship, without discrimination or preference, shall forever be allowed. NO RELIGIOUS TEST SHALL BE REQUIRED FOR THE EXERCISE OF CIVIL OR POLITICAL RIGHTS.

2.           ART. VI, Sec. 28 (3). Charitable institutions, churches, mosques, non-profit cemeteries…actually, directly and exclusively used for religious, charitable, or educational purposes shall be exempt from taxation.

3.           ART. VI, Sec. 29 .(2). No public money or property shall be appropriated, applied, paid, for the benefit, directly or indirectly, for the use, benefit, or support of any sect, church, denomination or religion, except when such priest, minister.. is assigned to the armed forces, or to any penal institution, or government orphanage or leprosarium.

4.           ART. IX, C, 2(5). Religious denominations and sects shall not be registered…as political parties. (NOTE: Religious organizations are also prohibited ion connection with sectoral representatives under Art. VI)

5.            ART. XIV, Sec. 3(3). At the option in writing by parents, religion shall be allowed to be taught to their children in elementary and high schools within the regular class hours by instructors designated or approved by religious authorities to which said children belong, without additional cost to the government.

7.           Sections 7.  The State shall pursue an independent foreign policy. In its relations with other states the paramount consideration shall be  national sovereignty, territorial integrity, national interest, and the right to self-determination,

8.           Section 8. The Philippines, consistent with the national interest, adopts and pursues a policy of freedom from nuclear  weapons in its territory.

1.           meaning of “nuclear-free” Philippines;

2.            Art. XVIII, Secs. 4 & 25

9.           Sections 9. The State shall promote a just and dynamic social order that will ensure the prosperity and independence of the nation and free the people from poverty through policies that provide adequate social services, promote full employment, a rising standard of living, and an improved quality of life for all..

10.         The state shall promote social justice in all phases of national development.

11.        The state values the dignity of every human person and guarantees full respect for human rights.

a. Read together with entire provisions of Article XIII

12.         9.  Section 12. The State recognizes the sanctity of family life and shall protect and strengthen the family as a basic autonomous social institution. It shall equally protect the life of the mother and the life of the unborn from conception. The natural and primary right and duty of parents in the rearing of the youth for civil efficiency and the development of moral character shall receive the support the support of the government.

NOTE: Father Bernas opines that this provision does not take a stand on divorce. As such, a Divorce Law to be passed by Congress may or may not be unconstitutional. But definitely, a law allowing  abortion ,  other than therapeutic, is unconstitutional.

1. Read together with the entire provisions of Article XV.

2.   Read:

a)           GINSBERG VS. NEW YORK, 390 US 629 (1969)

A law prohibiting the sale of “girlie magazines” [bold?) is constitutional and does not violate the above provision. This is so because parents could buy said magazines for their children if they believe the same is already suitable to the understanding of their child. This is in accordance with this provision which states that the parents have the “natural and primary right in rearing their child for civic efficiency…”

b)   MEYER VS. NEBRASKA, 260 US 260 (1922)

c)  PIERCE  VS. SOCIETY OF SISTERS, 268 US   510 (1925)

A law requiring small kids to be enrolled in public schools only is unconstitutional since it interferes with the right of parents in rearing their children. They have the right to choose which school is best suited for the development of their children without interference from the State.

d)   PACU VS. SECRETARY OF EDUCATION, 97 Phil. 806

e)   CABANAS VS. PILAPIL, 58 SCRA 94

10.  Section 13. The State recognizes the vital role of the youth in nation-building and shall promote and protect their physical, moral, spiritual, intellectual, and social well being. It shall inculcate in the youth patriotism and nationalism, and encourage their involvement in public and civic affairs.

Read:

1)  PD 684

2)  PD 935

3)  PD 1102

4)  PD 603; see the objectives of the law

11.        Sections 14. The State recognizes the role of women in nation building, and shall ensure the fundamental equality before the law of men and women.

12.        Section 15. The State shall protect and promote the right to health of the people and instill health consciousness among them.

13.        Section 16. The State shall protect and advance the right of the people to a balanced and healthful ecology in accord with the rhythm and harmony of nature.

14.        Section 17. The State shall give priority to education, science and technology, arts, culture, and sports to foster patriotism and nationalism, accelerate social progress, and promote human liberation and development. 

1)   Read together with Article XIV

Read :

VILLEGAS VS. SUBIDO, 109 SCRA 1

OPOSA VS. FACTORAN, July 30, 1993;

In a broader sense, this petition bears upon the right of Filipinos to a balanced and healthful ecology which the petitioners dramatically associate with the twin concepts of "inter-generational responsibility" and "inter-generational justice." Specifically, it touches on the issue of whether the said petitioners have a cause of action to "prevent the misappropriation or impairment" of Philippine rainforests and "arrest the unabated hemorrhage of the country's vital life support systems and continued rape of Mother Earth."

The minors-petitioners have the personality to sue since the case deals with the timber licensing agreements entered into by the government which if not stopped would be prejudicial to their future. This is so because the DENR holds  in trust for the benefit of plaintiff minors and succeeding generations the natural resources of the country. The subject matter of the complaint is of common and general interest not just to several, but to all citizens of the Philippines. Consequently, since the parties are so numerous, it, becomes impracticable, if not totally impossible, to bring all of them before the court. We likewise declare that the plaintiffs therein are numerous and representative enough to ensure the full protection of all concerned interests. Hence, all the requisites for the filing of a valid class suit under Section 12, Rule 3 of the Revised Rules of Court are present both in the said civil case and in the instant petition, the latter being but an incident to the former.

Their personality to sue in behalf of the succeeding generations can only be based on the concept of intergenerational responsibility insofar as the right to a balanced and healthful ecology is concerned. Such a right, as hereinafter expounded, considers the "rhythm and harmony of nature." Nature means the created world in its entirety. 9 Such rhythm and harmony indispensably include, inter alia, the judicious disposition, utilization, management, renewal and conservation of the country's forest, mineral, land, waters, fisheries, wildlife, off-shore areas and other natural resources to the end that their exploration, development and utilization be equitably accessible to the present as well as future generations.  Needless to say, every generation has a responsibility to the next to preserve that rhythm and harmony for the full enjoyment of a balanced and healthful ecology. Put a little differently, the minors' assertion of their right to a sound environment constitutes, at the same time, the performance of their obligation to ensure the protection of that right for the generations to come.

The complaint focuses on one specific fundamental legal right  the right to a balanced and healthful ecology which, for the first time in our nation's constitutional history, is solemnly incorporated in the fundamental law. Section 16, Article II of the 1987 Constitution explicitly provides:

Sec. 16.    The State shall protect and advance the right of the people to a balanced and healthful ecology in accord with the rhythm and harmony of nature.

This right unites with the right to health which is provided for in the preceding section of the same article:

Sec. 15.    The State shall protect and promote the right to health of the people and instill health consciousness among them.

While the right to a balanced and healthful ecology is to be found under the Declaration of Principles and State Policies and not under the Bill of Rights, it does not follow that it is less important than any of the civil and political rights enumerated in the latter. Such a right belongs to a different category of rights altogether for it concerns nothing less than self-preservation and self-perpetuation  aptly and fittingly stressed by the petitioners  the advancement of which may even be said to predate all governments and constitutions. As a matter of fact, these basic rights need not even be written in the Constitution for they are assumed to exist from the inception of humankind. If they are now explicitly mentioned in the fundamental charter, it is because of the well-founded fear of its framers that unless the rights to a balanced and healthful ecology and to health are mandated as state policies by the Constitution itself, thereby highlighting their continuing importance and imposing upon the state a solemn obligation to preserve the first and protect and advance the second, the day would not be too far when all else would be lost not only for the present generation, but also for those to come  generations which stand to inherit nothing but parched earth incapable of sustaining life.

The right to a balanced and healthful ecology carries with it the correlative duty to refrain from impairing the environment.

As a matter of logic, by finding petitioners' cause of action as anchored on a legal right comprised in the constitutional statements above noted, the Court is in effect saying that Section 15 (and Section 16) of Article II of the Constitution are self-executing and judicially enforceable even in their present form. The implications of this doctrine will have to be explored in future cases; those implications are too large and far-reaching in nature even to be hinted at here.

13.      Section 18.  The State affirms labor as a primary social economic force. It shall protect the rights of workers and promote their welfare.

1)   Read together with Section 3, Article XIII, 1987 Constitution.

2) Compare it with Section 9, Article II, 1973 Constitution.

3) Read:

a. VICTORIANO VS. ELIZALDE POPE WORKERS   UNION, 59 SCRA 54

The right to religion prevails over contractual or legal rights. As such, an Iglesia Ni Kristo member may refuse to join a Union and despite the fact that there is a closed shop agreement in the establishment where he was employed, his employment could not be validly terminated for his non-membership in the majority union therein.

13.  Section 19. The State shall develop a self-reliant and independent national economy effectively controlled by Filipinos.

See Art. XII

14.      Section 20. The State recognizes the indispensable role of the private sector, encourages private enterprise, and provides incentives to needed investments.

a.   Do we practice the free enterprise system in the Philippines or is it the welfare state concept? Distinguish the two.

b.   Read:     ACCFA VS. CUGCO, 30 SCRA 649 (Note: Read the separate opinion of former Chief Justice ENRIQUE FERNANDO only)

The Philippines never practiced the free enterprise system. It is the welfare-state concept which is being followed as shown by the constitutional provision on agrarian reform, housing, protection to labor… (NOTE, however, that the 1987 Constitution have provisions which provide for  “free enterprise)

PHILIPPINE COCONUT DESICCATORS VS. PHILIPPINE COCONUT AUTHORITY, 286 SCRA 109

Mendoza, J.

The Philippine Constitutions, starting from the 1935 document, HAVE REPUDIATED  laissez faire  (or the doctrine of free enterprise) as an economic principle, and although the present Constitution enshrines free enterprise as a policy, it nevertheless reserves to the government the power to intervene whenever necessary to promote the general welfare.

As such, free enterprise does not call for the removal of “protective regulations” for the benefit of the general public. This is so because under Art. XII, Sections 6 and 9, it is very clear that the  government reserves the power to intervene whenever necessary to promote the general welfare and when the public interest so requires.

15.  Section 21. The State shall promote comprehensive rural development and agrarian reform.

a. Read together with Secs. 4-10, Article XIII of the 1987 Constitution

b. Read PD 27 - as to the extent of land reform under the MARCOS regime

c. Read RA 3844 & 6389, as amended - THE CODE OF AGRARIAN REFORMS OF THE PHILIPPINES (Read the policy of the state on this matter)

d .Read the COMPREHENSIVE AGRARIAN REFORM PROGRAM LAW, RA No. 6657 as signed into law by the President on June 7, 1988.

e. Read:

Association of Small Landowners vs. Hon. Secretary of Agrarian Reform, July 14, 1989

16.  Sections 22.  The State recognizes and promotes the right of indigenous cultural communities within the framework of national unity and development.

To be discussed later with Art. X, Secs. 15-     21.

Other provisions on indigenous cultural communities:

1. Art. VI, Sec. 5(2)

2. Art. X, Secs. 15 - 21

3. Art. XII, Sec. 5

4. Art. XIII, Sec. 6

5. Art. XIV, Sec. 17

6. Art. XVI, Sec. 12

17. Section 23. The State shall encourage non-governmental, community based, or sectoral organizations that promote the welfare of the nation.

17-a. Section 24. The State recognizes the vital role of communication and information in nation-building.

18.  Section 25. The State shall ensure the autonomy of local governments.

a. Define "autonomy"

b. See Art. X

Read  the 1991  New Local Government Code and enumerate its provisions evidencing "autonomy" to local government units.

19.  Section 26. The State guarantee equal access to opportunities for public service, and prohibit political dynasties as may be defined by law.

20.  Section 27. The State shall maintain honesty and integrity in the public service and take positive and effective measures against graft and corruption.

To be discussed under Article XI.

a. Please see RA 3019, The Anti-Graft and Corrupt Practices Act, as amended by RA 3047, PD 77 and BP 195..

b. PD 749, July 18, 1975, which grants immunity from prosecution to givers of bribes and other gifts and to their accomplices in bribery other than graft cases against public officers.

c. RA 1379.  Forfeiture in favor of the State any property found to have been illegally acquired by a public officer or employee.

21.        Section 28. Subject to reasonable conditions prescribed by law, the State adopts and implements a policy of public  disclosure of all its transactions involving public interest.

Power of Congress to conduct inquiries in aid of legislation;  Public disclosure of government transactions

  CAMILO L. SABIO vs. GORDON, G.R. No. 174340,  October 17, 2006, 504 SCRA 704

Sandoval-Gutierrez, J.

The Facts:

On February 20, 2006, Senator Miriam Defensor Santiago introduced Philippine Senate Resolution No. 455 (Senate Res. No. 455),^[1][4] “directing an inquiry in aid of legislation on the anomalous losses incurred by the Philippines Overseas Telecommunications Corporation (POTC),  Philippine Communications Satellite Corporation (PHILCOMSAT), and PHILCOMSAT Holdings Corporation (PHC) due to the alleged improprieties in their operations by their respective Board of Directors.”    The pertinent portions of the Resolution read:

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

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

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

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

On May 8, 2006, Chief of Staff  Rio C. Inocencio, under the authority of Senator Richard J. Gordon, wrote Chairman Camilo L. Sabio of the PCGG, one of the herein petitioners, inviting him to be one of the resource persons in the public meeting jointly conducted by the Committee on Government Corporations and Public Enterprises and Committee on Public Services.  The purpose of the public meeting was to deliberate on Senate Res. No. 455.^[2][6]

On May 9, 2006, Chairman Sabio declined the invitation because of prior commitment.^[3][7]At the same time, he invoked Section 4(b) of           E.O. No. 1 earlier quoted.

On August 10, 2006, Senator Gordon issued a Subpoena Ad Testificandum,^[4][8] approved by Senate President Manuel Villar, requiring Chairman Sabio and PCGG Commissioners Ricardo Abcede, Nicasio Conti, Tereso Javier and Narciso Nario to appear in the public hearing scheduled on August 23, 2006 and testify on what they know relative to the matters specified in Senate Res. No. 455.   All were disregarded by the petitioners.

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

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

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

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

I S S U E:

Is  Section 4(b) of E.O. No. 1  repealed by the 1987 Constitution? Is its implementation wherein the petitioners are exempt from appearing in investigations involving their transactions violates Section 28, Art. II of the Constitution?

Section 4(b) of E.O. No.1,  which limits the power of legislative inquiry by exempting all PCGG members or staff from testifying in any judicial, legislative or administrative proceeding provides:

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

The Congress’ power of inquiry has been recognized in foreign jurisdictions long before it reached our shores through McGrain v. Daugherty,^[5][15] cited in Arnault v. Nazareno.^[6][16]  In those earlier days, American courts considered the power of inquiry as inherent in the power to legislate.

In Arnault, the Supreme Court adhered to a similar theory.  Citing McGrain, it recognized that the power of inquiry is “an essential and appropriate auxiliary to the legislative function,” thus:

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

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

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

The provision presupposes that since an incumbent of a public office is invested with certain powers and charged with certain duties pertinent to sovereignty, the powers so delegated to the officer are held in trust for the people and are to be exercised in behalf of the government or of all citizens who may need the intervention of the officers. Such trust extends to all matters within the range of duties pertaining to the office. In other words, public officers are but the servants of the people, and not their rulers.^[7][24] 

Section 4(b), being in the nature of an immunity, is inconsistent with the principle of public accountability.   It places the PCGG members and staff beyond the reach of courts, Congress and other administrative bodies.  Instead of encouraging public accountability, the same provision only institutionalizes irresponsibility and non-accountability.  InPresidential Commission on Good Government v. Peña,^[8][25] Justice Florentino P. Feliciano characterized as “obiter” the portion of the majority opinion barring, on the basis of Sections 4(a) and (b) of E.O. No. 1, a civil case for damages filed against the PCGG and its Commissioners. He eloquently opined:

The above underscored portions are, it is respectfully submitted, clearly obiter. It is important to make clear that the Court is not here interpreting, much less upholding as valid and constitutional, the literal terms of Section 4 (a), (b) of Executive Order No.1.If Section 4 (a) were given its literal import as immunizing the PCGG or any member thereof from civil liability “for anything done or omitted in the discharge of the task contemplated by this Order,” the constitutionality of Section 4 (a) would, in my submission, be open to most serious doubt. For so viewed, Section 4 (a) would institutionalize the irresponsibility and non-accountability of members and staff of the PCGG, a notion that is clearly repugnant to both the 1973 and 1987 Constitution and a privileged status not claimed by any other official of the Republic under the 1987 Constitution. x  x  x.

x    x   x

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

Said provision of EO No. 1 violates Section 28, Art. II of the Constitution which mandates  that “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.”

Read together with Section 7, Article III and Sec. 20, Art. VI of the 1987 Constitution.

Political Law Part III: Article I – The National Territory

Political Law Part III: Article I – The National Territory

POLITICAL LAW PART III

ARTICLE I – THE NATIONAL TERRITORY

Section 1. The national territory comprises the Philippine Archipelago, with all the islands and waters embraced therein, and all other territories over which the Philippines has sovereignty or jurisdiction, consisting of its terrestrial, fluvial, and aerial domains, including its territorial sea, the seabed, the subsoil, the insular shelves, and other submarine areas. The waters around, between and connecting the islands of the archipelago, regardless of their breadth and dimensions, form part of the internal waters of the Philippines.

1.   What is the most significant change in this Article, compared with those of the 1935 and 1973 Constitutions?

2.  What is the archipelago theory or archipelagic doctrine?

3.  Methods used in fixing the baseline from which the territorial belt is measured:

a. The normal baseline method

b. The straight baseline method

4.   Read: The Law of the Sea: Its major implications to the Philippines, by Justice Jorge R. Coquia, p. 31, Philippine Law Gazette, Vol. 8, No.1.

5.   R.A. 3046

R.A. 5446

6.   Definitions:

a. Territorial sea

b. Internal or inland waters

c. high seas or international seas

d. sea-bed

e. sub-soil

f. Insular shelves

g. other submarine areas

7.  Reason and effect of having an Article on the National Territory.

8. Read:

1)  Presidential Decree No. 1596 – June 11,    1978 (Making the Kalayaan Island Group [Freedomland] as part of the Philippine Territory)

2)  Presidential Decree No. 1599 – June 11,  1978 (Declaring the Exclusive Economic Zone of the Philippines which is 200 nautical miles from its baseline)

Political Law Part II – Preamble

Political Law Part II – Preamble

POLITICAL LAW PART II

PREAMBLE

     1. Purpose and Effect of a Preamble.

WE, the sovereign Filipino people, imploring the aid of Almighty God, in order to build a just and humane society and establish a Government that shall embody our ideals and aspirations, promote the common good, conserve and develop our patrimony, and secure to ourselves and our posterity the blessings of independence and democracy under the rule of law and a regime of truth, justice, freedom, love, equality, and peace, do ordain and promulgate this Constitution.

     2. AGLIPAY VS. RUIZ, 64 Phil. 201

It is almost trite to say now that in this country we enjoy both religious and civil freedom. All the officers of the Government, from the highest to the lowest, in taking their oath to support and defend the constitution, bind themselves to recognize and respect the constitutional guarantee of religious freedom, with its inherent limitations and recognized implications. It should be stated that what is guaranteed by our Constitution is religious liberty, not mere religious toleration.

Religious freedom, however, as a constitutional mandate is not inhibition of profound reverence for religion and is not denial of its influence in human affairs. Religion as a profession of faith to an active power that binds and elevates man to his Creator is recognized. And, in so far as it instills into the minds the purest principles of morality, its influence is deeply felt and highly appreciated. When the Filipino people, in the preamble of their Constitution, implored “the aid of Divine Providence, in order to establish a government that shall embody their ideals, conserve and develop the patrimony of the nation, promote the general welfare, and secure to themselves and their posterity the blessings of independence under a regime of justice, liberty and democracy,” they thereby manifested reliance upon Him who guides the destinies of men and nations. The elevating influence of religion in human society is recognized here as elsewhere. In fact, certain general concessions are indiscriminately accorded to religious sects and denominations.