GR NO 180046 REVIEW CENTER ASSOC. OF THE PHILIPPINES vs EXECUTIVE SEC.

ERMITA

CARPIO, J.:
The Case
 
         Before the Court is a petition for prohibition and mandamus assailing Executive Order No. 566
(EO 566)[1]  and Commission on Higher Education (CHED) Memorandum Order No. 30, series of
2007 (RIRR).[2]
 
The Antecedent Facts
 
         On 11 and 12 June 2006, the Professional Regulation Commission (PRC) conducted the
Nursing Board Examinations nationwide.  In June 2006, licensure applicants wrote the PRC to report
that handwritten copies of two sets of examinations were circulated  during the examination period
among the examinees reviewing at the R.A. Gapuz Review Center and Inress Review
Center.  George Cordero, Inress Review Center’s President, was then the incumbent President of
the Philippine Nurses Association.  The examinees were provided with a list of 500 questions and
answers in two of the examinations’ five subjects, particularly Tests III (Psychiatric Nursing) and V
(Medical-Surgical Nursing). The PRC later admitted the leakage and traced it to two Board of
Nursing members.[3]  On 19 June 2006, the PRC released the results of the Nursing Board
Examinations.  On 18 August 2006, the Court of Appeals restrained the PRC from proceeding with
the oath-taking of the   successful examinees set on 22 August 2006.
 
         Consequently, President Gloria Macapagal-Arroyo (President Arroyo) replaced all the
members of the PRC’s Board of Nursing.  President Arroyo also ordered the examinees to re-take
the Nursing Board Examinations.
 
         On 8 September 2006, President Arroyo issued EO 566 which authorized the CHED to
supervise the establishment and operation of all review centers and similar entities in the
Philippines.
 
         On 3 November 2006, the CHED, through its then Chairman Carlito S. Puno (Chairman Puno),
approved CHED Memorandum Order No. 49, series of 2006 (IRR).[4]
 
         In a letter dated 24 November 2006, [5] the Review Center Association of the Philippines
(petitioner), an organization of independent review centers, asked the CHED to “amend, if not
withdraw” the IRR arguing, among other things, that giving permits to operate a review center to
Higher Education Institutions (HEIs) or consortia of HEIs and professional organizations will
effectively abolish independent review centers.
 
         In a letter dated 3 January 2007,[6] Chairman Puno wrote petitioner, through its President Jose
Antonio Fudolig (Fudolig), that to suspend the implementation of the IRR would be inconsistent with
the mandate of EO 566.  Chairman Puno wrote that the IRR was presented to the stakeholders
during a consultation process prior to its finalization and publication on 13 November
2006.  Chairman Puno also wrote that petitioner’s comments and suggestions would be considered
in the event of revisions to the IRR.
 
         In view of petitioner’s continuing request to suspend and re-evaluate the IRR, Chairman Puno,
in a letter dated 9 February 2007,[7] invited  petitioner’s representatives to a dialogue on 14 March
2007.  In accordance with what was agreed upon during the dialogue, petitioner submitted to the
CHED its position paper on the IRR.  Petitioner also requested the CHED to confirm in writing
Chairman Puno’s statements during the dialogue, particularly on lowering of the registration fee
from P400,000 to P20,000 and the requirement for reviewers to have five years’ teaching experience
instead of five years’ administrative experience.  Petitioner likewise requested for a categorical
answer to their request for the suspension of the IRR.  The CHED did not reply to the letter.
 
         On 7 May 2007, the CHED approved the RIRR.  On 22 August 2007, petitioner filed before the
CHED a Petition to Clarify/Amend Revised Implementing Rules and Regulations[8] praying for a
ruling:
 
1. Amending the RIRR by excluding independent review centers from the coverage
of the CHED;
 
2. Clarifying the meaning of the requirement for existing review centers to tie-up or be
integrated with HEIs, consortium or HEIs and PRC-recognized professional
associations with recognized programs, or in the alternative, to convert into schools;
and
 
3. Revising the rules to make it conform with Republic Act No. 7722 (RA 7722)
[9]
 limiting the CHED’s coverage to public and private institutions of higher education
as well as degree-granting programs in post-secondary educational institutions.
 
         On 8 October 2007, the CHED issued Resolution No. 718-2007[10] referring petitioner’s request
to exclude independent review centers from CHED’s supervision and regulation to the Office of the
President as the matter requires the amendment of EO 566.  In a letter dated 17 October 2007,
[11]
 then CHED Chairman Romulo L. Neri (Chairman Neri) wrote petitioner regarding its petition to be
excluded from the coverage of the CHED in the RIRR.  Chairman Neri stated:
 
         While it may be true that regulation of review centers is not one of the
mandates of CHED under Republic Act 7722, however, on September 8, 2006, Her
Excellency, President Gloria Macapagal-Arroyo, issued Executive Order No. 566
directing the Commission on Higher Education to regulate the establishment and
operation of review centers and similar entities in the entire country.
 
            With the issuance of the aforesaid Executive Order, the CHED now is the
agency that is mandated to regulate the establishment and operation of all review
centers as provided for under Section 4 of the Executive Order which provides
that “No review center or similar entities shall be established and/or operate
review classes without the favorable expressed indorsement of the CHED and
without the issuance of the necessary permits or authorizations to conduct
review classes.  x x x”
 
            To exclude the operation of independent review centers from the
coverage of CHED would clearly contradict the intention of the said Executive
Order No. 566.
 
            Considering that the requests requires the amendment of Executive Order
No. 566, the Commission, during its 305th Commission Meeting, resolved that the
said request be directly referred to the Office of the President for appropriate action.
 
            As to the request to clarify what is meant by tie-up/be integrated with an HEI,
as required under the Revised Implementing Rules and Regulations, tie-up/be
integrated simply means, to be in partner with an HEI. [12] (Boldfacing and
underscoring in the original)
 
         On 26 October 2007, petitioner filed a petition for Prohibition and Mandamus before this Court
praying for the annulment of the RIRR, the  declaration of EO 566 as invalid and unconstitutional,
and the prohibition against CHED from implementing the RIRR.
 
         Dr. Freddie T. Bernal, Director III, Officer-In-Charge, Office of the Director IV of CHED, sent a
letter[13] to the President of Northcap Review Center, Inc., a member of petitioner, that it had until 27
November 2007 to comply with the RIRR.
 
         On 15 February 2008,[14] PIMSAT Colleges (respondent-intervenor) filed a Motion For Leave to
Intervene and To Admit Comment-in-Intervention and a Comment-in-Intervention praying for the
dismissal of the petition.  Respondent-intervenor alleges that the Office of the President and the
CHED did not commit any act of grave abuse of discretion in issuing EO 566 and the
RIRR.  Respondent-intervenor alleges that the requirements of the RIRR are reasonable,  doable,
and are not designed to deprive existing review centers of their review business.  The Court granted
the Motion for Leave to Intervene and to Admit Comment-in-Intervention in its 11 March 2008
Resolution.[15] 
 
         On 23 April 2008, a Motion for Leave of Court for Intervention In Support of the Petition and a
Petition In Intervention were filed by CPA Review School of the Philippines, Inc. (CPAR),
Professional Review and Training Center, Inc. (PRTC), ReSA Review School, Inc. (ReSA), CRC-
ACE Review School, Inc. (CRC-ACE), all independent CPA review centers  operating in Manila
(collectively, petitioners-intervenors).  Petitioners-intervenors pray for the declaration of EO 566
and  the RIRR as invalid on the ground that both constitute an unconstitutional exercise of legislative
power.  The Court granted the intervention in its 29 April 2008 Resolution.[16]
 
         On 21 May 2008, the CHED issued CHED Memorandum Order     No. 21, Series of 2008
(CMO 21, s. 2008)[17] extending the deadline  for six months from 27 May 2008 for all existing
independent review centers to tie-up or be integrated with HEIs in accordance with the RIRR.
 
         In its 25 November 2008 Resolution, this Court resolved to require the parties to observe the
status quo prevailing before the issuance of EO 566, the RIRR, and CMO 21, s. 2008.   
 
 
The Assailed Executive Order and the RIRR
 
         Executive Order No. 566 states in full:
 
EXECUTIVE ORDER NO. 566
 
DIRECTING THE COMMISSION ON HIGHER EDUCATION TO REGULATE THE
ESTABLISHMENT AND OPERATION OF REVIEW CENTERS AND SIMILAR
ENTITIES
 
            WHEREAS, the State is mandated to protect the right of all citizens to quality
education at all levels and shall take appropriate steps to make education accessible
to all, pursuant to Section 1, Article XIV of the 1987 Constitution;
 
            WHEREAS, the State has the obligation to ensure and promote quality
education through the proper supervision and regulation of the licensure
examinations given through the various Boards of Examiners under the Professional
Regulation Commission;
 
            WHEREAS, the lack of regulatory framework for the establishment and
operation of review centers and similar entities, as shown in recent events, have
adverse consequences and affect public interest and welfare;
 
            WHEREAS, the overriding necessity to protect the public against substandard
review centers and unethical practices committed by some review centers demand
that a regulatory framework for the establishment and operation of review centers
and similar entities be immediately instituted;
 
            WHEREAS, Republic Act No. 7722, otherwise known as the Higher Education
Act of 1994, created the Commission on Higher Education, which is best equipped to
carry out the provisions pertaining to the regulation of the establishment and
operation of review centers and similar entities.
 
            NOW, THEREFORE, I, GLORIA MACAPAGAL-ARROYO, the President of
the Republic of the Philippines, by virtue of the powers vested in me by law, do
hereby order:
 
            SECTION 1.  Establishment of a System of Regulation for Review Centers
and Similar Entities.  The Commission on Higher Education (CHED), in consultation
with other concerned government agencies, is hereby directed to formulate a
framework for the regulation of review centers and similar entities, including but not
limited to the development and institutionalization of policies, standards, guidelines
for the establishment, operation and accreditation of review centers and similar
entities; maintenance of a mechanism to monitor the adequacy, transparency and
propriety of their operations; and reporting mechanisms to review performance and
ethical practice.
 
            SEC. 2. Coordination and Support.  The Professional Regulation Commission
(PRC), Technical Skills Development Authority (TESDA), Securities and
Exchange  Commission (SEC), the various Boards of Examiners under the PRC, as
well as other concerned non-government organizations life professional societies,
and various government agencies, such as the Department of Justice (DOJ),
National Bureau of Investigation (NBI), Office of the Solicitor General (OSG), and
others that may be tapped later, shall provide the necessary assistance and technical
support to the CHED in the successful operationalization of the System of Regulation
envisioned by this Executive Order.
 
            SEC. 3.  Permanent Office and Staff.  To ensure the effective implementation
of the System of Regulation, the CHED shall organize a permanent office under its
supervision to be headed by an official with the rank of Director and to be composed
of highly competent individuals with expertise in educational assessment, evaluation
and testing; policies and standards development, monitoring, legal and enforcement;
and statistics as well as curriculum and instructional materials development.  The
CHED shall submit the staffing pattern and budgetary requirements to the
Department of Budget and Management (DBM) for approval.
 
            SEC. 4.  Indorsement Requirement.  No review center or similar entities shall
be established and/or operate review classes without the favorable expressed
indorsement of the CHED and without the issuance of the necessary permits or
authorizations to conduct review classes.  After due consultation with the
stakeholders, the concerned review centers and similar entities shall be given a
reasonable period, at the discretion of the CHED, to comply with the policies and
 standards, within a period not exceeding three (3) years, after due publication of this
Executive Order.  The CHED shall see to it that the System of Regulation including
the implementing  mechanisms, policies, guidelines and other necessary procedures
and documentation for the effective implementation of the System, are completed
within sixty days (60) upon effectivity of this Executive Order.
 
            SEC. 5.  Funding.  The initial amount necessary for the development and
implementation of the System of Regulation shall be sourced from the CHED Higher
Education Development Fund (HEDF), subject to the usual government accounting
and auditing practices, or from any applicable funding source identified by the
DBM.  For the succeeding fiscal year, such amounts as may be necessary for the
budgetary requirement of implementing the System of Regulation and the provisions
of this Executive Order shall be provided for in the annual General Appropriations Act
in the budget of the CHED. Whenever necessary, the CHED may tap its
Development Funds as supplemental source of funding for the effective
implementation of the regulatory system.  In this connection, the CHED is hereby
authorized to create special accounts in the HEDF exclusively for the purpose of
implementing the provisions of this Executive Order.
 
 
            SEC. 6.  Review and Reporting.  The CHED shall provide for the periodic
review performance of  review centers and similar entities and shall make a report to
the Office of the President of the results of such review, evaluation and monitoring.
 
            SEC. 7. Separability.  Any portion or provision of this Executive Order that
may be declared unconstitutional shall not have the effect of nullifying other
provisions hereof, as long as such remaining provisions can still subsist and be given
effect in their entirely.
 
            SEC. 8. Repeal.  All rules and regulations, other issuances or parts thereof,
which are inconsistent with this Executive Order, are hereby repealed or modified
accordingly.
 
            SEC. 9. Effectivity. This Executive Order shall take effect immediately upon its
publication in a national newspaper of general circulation.
 
            DONE in the City of Manila, this 8th day of September, in the year of Our Lord,
Two Thousand and Six.
 
                                               (Sgd.) Gloria Macapagal-Arroyo
 
By the President:
 
(Sgd.) Eduardo R. Ermita
     Executive Secretary
        
 
         The pertinent provisions of the RIRR affecting independent review centers are as follows:
 
Rule VII
IMPLEMENTING GUIDELINES AND PROCEDURES
 
 Section 1. Authority to Establish and Operate – Only CHED recognized, accredited
and reputable HEIs may be authorized to establish and operate review center/course
by the CHED upon full compliance with the conditions and requirements provided
herein and in other pertinent laws, rules and regulations.  In addition, a consortium or
consortia of qualified schools and/or entities may establish and operate review
centers or conduct review classes upon compliance with the provisions of these
Rules.
 
Rule XIV
TRANSITORY PROVISIONS
 
Section 1. Review centers that are existing upon the approval of Executive Order No.
566 shall be given a grace period of up to one (1) year, to tie-up/be integrated with
existing HEIs[,] consortium of HEIs and PRC recognized Professional Associations
with recognized programs under the conditions set forth in this Order and upon
mutually acceptable covenants by the contracting parties.  In the alternative, they may
convert as a school and apply for the course covered by the review subject to rules
and regulations of the CHED and the SEC with respect to the establishment of
schools.  In the meantime, no permit shall be issued if there is non-compliance with
these conditions or non-compliance with the requirements set forth in these rules.
 
Section 2.  Only after full compliance with the requirements shall a Permit be given by
the CHED to review centers contemplated under this Rule.
 
Section 3.  Failure of existing review centers to fully comply with the above shall bar
them from existing as review centers and they shall be deemed as operating illegally
as such.  In addition, appropriate administrative and legal proceedings shall be
commence[d] against the erring entities that continue to operate and appropriate
sanctions shall be imposed after due process.
 
 
The Issues
 
         The issues raised in this case are the following:
 
1. Whether EO 566 is an unconstitutional exercise by the Executive of legislative
power as it expands the CHED’s jurisdiction; and
 
2. Whether the RIRR is an invalid exercise of the Executive’s rule-making power.
 
 
The Ruling of this Court
 
         The petition has merit.
 
 
Violation of Judicial Hierarchy      
 
         The Office of the Solicitor General (OSG) prays for the dismissal of the petition.  Among other
grounds, the OSG alleges that petitioner violated the rule on judicial hierarchy in filing the petition
directly with this Court.
 
         This Court’s original jurisdiction to issue a writ of certiorari, prohibition, mandamus, quo
warranto, habeas corpus, and injunction is not exclusive but is concurrent with the Regional Trial
Courts and the Court of Appeals in certain cases.[18]  The Court has explained:
 
         This concurrence of jurisdiction is not, however, to be taken as according to
parties seeking any of the writs an absolute, unrestrained freedom of choice of the
court to which application therefor will be directed.  There is after all a hierarchy of
courts.  That hierarchy is determinative of the venue of appeals, and also serves as a
general determinant of the appropriate forum for petitions for the extraordinary
writs.  A becoming regard of that judicial hierarchy most certainly indicates that
petitions for the issuance of extraordinary writs against first level (“inferior”) courts
should be filed with the Regional Trial Court, and those against the latter, with the
Court of Appeals.  A direct invocation of the Supreme Court’s original jurisdiction to
issue these writs should be allowed only when there are special and important
reasons therefor, clearly and specifically set out in the petition.  This is [an]
established policy.  It is a policy necessary to prevent inordinate demands upon the
Court’s time and attention which are better devoted to those matters within its
exclusive jurisdiction, and to prevent further over-crowding of the Court’s docket.[19]    
 
         The Court has further explained:
 
         The propensity of litigants and lawyers to disregard the hierarchy of courts in
our judicial system by seeking relief directly from this Court must be put to a halt for
two reasons:  (1) it would be an imposition upon the precious time of this Court; and
(2) it would cause an inevitable and resultant delay, intended or otherwise, in the
adjudication of cases, which in some instances had to be remanded or referred to
the lower court as the proper forum under the rules of procedure, or as better
equipped to resolve the issues because this Court is not a trier of facts.[20]
 
 
         The rule, however, is not absolute, as when exceptional and compelling circumstances justify
the exercise of this Court of its primary jurisdiction.  In this case, petitioner alleges that EO 566
expands the coverage of RA 7722 and in doing so, the Executive Department usurps the legislative
powers of Congress.  The issue in this case is not only the validity of the RIRR.  Otherwise, the
proper remedy of petitioner and petitioners-intervenors would have been an ordinary action for the
nullification of the RIRR before the Regional Trial Court. [21]  The alleged violation of the Constitution
by the Executive Department when it issued EO 566 justifies the exercise by the Court of its primary
jurisdiction over the case.  The Court is not precluded from brushing aside technicalities and taking
cognizance of an action due to its importance to the public and in keeping with its duty to determine
whether the other branches of the Government have kept themselves within the limits of the
Constitution.[22]
 
OSG’s Technical Objections
 
         The OSG alleges that the petition should be dismissed because the verification and
certification of non-forum shopping were signed only by Fudolig without the express authority of any
board resolution or power of attorney.  However, the records show that Fudolig was authorized
under Board Resolution No. 3, series of 2007 [23] to file a petition before this Court on behalf of
petitioner and to execute any and all documents necessary to implement the resolution.
 
         The OSG also alleges that the petition should be dismissed for violation of the 2004 Rules on
Notarial Practice because Fudolig only presented his community tax certificate as competent proof
of identity before the notary public.  The Court would have required Fudolig to comply with the 2004
Rules on Notarial Practice except that Fudolig already presented his Philippine passport before the
notary public when petitioner submitted its reply to the OSG’s comment. 
        
EO 566 Expands the Coverage of RA 7722
 
         The OSG alleges that Section 3 of RA 7722 should be read in conjunction with Section 8,
enumerating the CHED’s powers and functions.  In particular, the OSG alleges that the CHED has
the power under paragraphs (e) and (n) of Section 8 to:
 
         (e) monitor and evaluate the performance of programs and institutions of higher
learning for appropriate incentives as well as the imposition of sanctions such as, but
not limited to, diminution or withdrawal of subsidy, recommendation on the
downgrading or withdrawal of accreditation, program termination or school closure;
 
            (n) promulgate such rules and regulations and exercise such other powers
and functions as may be necessary to carry out effectively the purpose and
objectives of this Act[.]
 
         The OSG justifies its stand by claiming that the term “programs x x x of higher learning” is
broad enough to include programs offered by review centers.
 
         We do not agree.
 
         Section 3 of RA 7722 provides:
 
         Sec. 3.  Creation of Commission on Higher Education. - In pursuance of the
abovementioned policies, the Commission on Higher Education is hereby created,
hereinafter referred to as the Commission.
 
            The Commission shall be independent and separate from the Department of
Education, Culture and Sports (DECS), and attached to the Office of the President
for administrative purposes only.  Its coverage shall be both public and private
institutions of higher education as well as degree-granting programs in all
post-secondary educational institutions, public and private. (Emphasis
supplied)
 
 
         Neither RA 7722 nor CHED Order No. 3, series of 1994 (Implementing Rules of RA 7722)
[24]
 defines an institution of higher learning or a program of higher learning.
 
         “Higher education,” however, is defined as “education beyond the secondary level”[25] or
“education provided by a college or university.” [26]  Under the “plain meaning” or verba legis rule in
statutory construction, if the statute is clear, plain, and free from ambiguity, it must be given its literal
meaning and applied without interpretation. [27]  The legislature is presumed to know the meaning of
the words, to have used words advisedly, and to have expressed its intent by use of such words as
are found in the statute.[28] Hence, the term “higher education” should be taken in its ordinary sense
and should be read and interpreted together with the phrase “degree-granting programs in all post-
secondary educational institutions, public and private.”    Higher education should be taken to mean
tertiary education or that which grants a degree after its completion.
 
 
         Further, Articles 6 and 7 of the Implementing Rules provide:
 
          Article 6.  Scope of Application.  - The coverage of the Commission shall be
both public and private institutions of higher education as well as degree granting
programs in all post-secondary educational institutions, public and private.
 
           These Rules shall apply to all public and private educational institutions
offering tertiary degree programs.
 
           The establishment, conversion, or elevation of degree-granting
institutions shall be within the responsibility of the Commission.
 
           Article 7. Jurisdiction. - Jurisdiction over institutions of higher learning primarily
offering tertiary degree programs shall belong to the Commission. (Emphasis
supplied)
 
 
         Clearly, HEIs refer to degree-granting institutions, or those offering tertiary degree or post-
secondary programs.  In fact, Republic Act No. 8292   or the Higher Education Modernization Act of
1997 covers chartered state universities and colleges.  State universities and colleges primarily offer
degree courses and programs.
 
         Sections 1 and 8, Rule IV of the RIRR define a review center and similar entities as follows:
 
         Section 1. REVIEW CENTER. - refers to a center operated and owned by a
duly authorized entity pursuant to these Rules intending to offer to the public and/or
to specialized groups whether for a fee or for free a program or course of study that
is intended to refresh and enhance the knowledge and competencies and skills of
reviewees obtained in the formal school setting in preparation for the licensure
examinations given by the Professional Regulations Commission (PRC).  The term
review center as understood in these rules shall also embrace the operation or
conduct of review classes or courses provided by individuals whether for a fee or not
in preparation for the licensure examinations given by the Professional Regulations
Commission.         
 
xxx
 
           Section 8.  SIMILAR ENTITIES – the term refer to other review centers
providing review or tutorial services in areas not covered by licensure examinations
given by the Professional Regulations Commission including but not limited to
college entrance examinations, Civil Service examinations, tutorial services in
specific fields like English, Mathematics and the like.
 
         The same Rule defines a review course as follows:
 
         Section 3.  REVIEW COURSE – refers to the set of non-degree instructional
program of study and/or instructional materials/module, offered by a school with a
recognized course/program requiring licensure examination, that are intended merely
to refresh and enhance the knowledge or competencies and skills of reviewees.
 
 
         The scopes of EO 566 and the RIRR clearly expand the CHED’s coverage under RA
7722.  The CHED’s coverage under RA 7722 is limited to public and private institutions of higher
education and degree-granting programs in all public and private post-secondary educational
institutions.  EO 566 directed the CHED to formulate a framework for the regulation of review
centers and similar entities.
 
         The definition of a review center under EO 566 shows that it refers to one which offers “a
program or course of study that is intended to refresh and enhance the knowledge or
competencies and skills of reviewees obtained in the formal school setting in preparation for
the licensure examinations” given by the PRC.  It also covers the operation or conduct of review
classes or courses provided by individuals whether for a fee or not in preparation for the licensure
examinations given by the PRC.
 
         A review center is not an institution of higher learning as contemplated by RA 7722.  It does not
offer a degree-granting program that would put it under the jurisdiction of the CHED.    A review
course is only intended to “refresh and enhance the knowledge or competencies and skills of
reviewees.”  A reviewee is not even required to enroll in a review center or to take a review course
prior to taking an examination given by the PRC.  Even if a reviewee enrolls in a review center,
attendance in a review course is not mandatory. The reviewee is not required to attend each review
class.   He is not required to take or pass an examination, and neither is he given a grade.  He is
also not required to submit any thesis or dissertation.  Thus, programs given by review centers could
not be considered “programs x x x of higher learning” that would put them under the jurisdiction of
the CHED.   
 
         Further, the “similar entities” in EO 566 cover centers providing “review or tutorial services” in
areas not covered by licensure examinations given by the PRC, which include, although not limited
to, college entrance examinations, Civil Services examinations, and tutorial services.  These review
and tutorial services hardly qualify as programs of higher learning. 
 
Usurpation of Legislative Power
 
         The OSG argues that President Arroyo was merely exercising her executive power to ensure
that the laws are faithfully executed.  The OSG further argues that President Arroyo was exercising
her residual powers under Executive Order No. 292 (EO 292), [29] particularly Section 20, Title I of
Book III, thus:
 
         Section 20.  Residual Powers. - Unless Congress provides otherwise, the
President shall exercise such other powers and functions vested in the
President which are provided for under the laws and which are not specifically
enumerated above, or which are not delegated by the President in accordance with
law. (Emphasis supplied)
 
         Section 20, Title I of Book III of EO 292 speaks of other powers vested in the President under
the law.[30]  The exercise of the President’s residual powers under this provision requires legislation,
[31]
 as the provision clearly states that the exercise of the President’s other powers and functions  has
to be “provided for under the law.”  There is no law granting the President the power to amend the
functions of the CHED.  The President may not amend RA 7722 through an Executive Order without
a prior legislation granting her such power. 
 
         The President has no inherent or delegated legislative power to amend the functions of the
CHED under RA 7722.  Legislative power is the authority to make laws and to alter or repeal them,
[32]
 and this power is vested with the Congress under Section 1, Article VI of the 1987 Constitution
which states:
 
          Section 1.  The legislative power shall be vested in the Congress of the
Philippines which shall consist of a Senate and a House of Representatives, except
to the extent reserved to the people by the provision on initiative and referendum.
 
 
         In Ople v. Torres,[33] the Court declared void, as a usurpation of legislative power,
Administrative Order No. 308 (AO 308) issued by the President to create a national identification
system.  AO 308 mandates the adoption of a national identification system even in the absence of
an enabling legislation.  The Court distinguished between Legislative and Executive powers, as
follows:
 
         The line that delineates Legislative and Executive power is not
indistinct.  Legislative power is “the authority, under the Constitution, to make laws,
and to alter and repeal them.”  The Constitution, as the will of the people in their
original, sovereign and unlimited capacity, has vested this power in the Congress of
the Philippines.  The grant of legislative power to Congress is broad, general and
comprehensive.  The legislative body possesses plenary power for all purposes of
civil government.  Any power, deemed to be legislative by usage and tradition, is
necessarily possessed by Congress, unless the Constitution has lodged it
elsewhere.  In fine, except as limited by the Constitution, either expressly or impliedly,
legislative power embraces all subjects and extends to matters of general concern or
common interest.
 
            While Congress is vested with the power to enact laws, the President
executes the laws.  The executive power is vested in the President.  It is generally
defined as the power to enforce and administer laws.  It is the power of carrying the
laws into practical operation and enforcing their due observance.
 
            As head of the Executive Department, the President is the Chief
Executive.  He represents the government as a whole and sees to it that all laws are
enforced by the officials and employees of his department.  He has control over the
executive department, bureaus and offices.  This means that he has the authority to
assume directly the functions of the executive department, bureau and office, or
interfere with the discretion of its officials.  Corollary to the power of control, the
President also has the duty of supervising the enforcement of laws for the
maintenance of general peace and public order. Thus, he is granted administrative
power over bureaus and offices under his control to enable him to discharge his
duties effectively.
 
            Administrative power is concerned with the work of applying policies and
enforcing orders as determined by proper governmental organs.  It enables the
President to fix a uniform standard of administrative efficiency and check the official
conduct of his agents.  To this end, he can issue administrative orders, rules and
regulations.
 
            x x x.  An administrative order is:
 
           “Sec. 3.  Administrative Orders. - Acts of the President which relate to
particular aspects of governmental operation in pursuance of his duties as
administrative head shall be promulgated in administrative orders.” 
 
            An administrative order is an ordinance issued by the President which relates
to specific aspects in the administrative operation of government.  It must be in
 harmony with the law and should be for the sole purpose of implementing the law and
carrying out the legislative policy.    x x x.[34]
 
 
         Just like AO 308 in Ople v. Torres,  EO 566 in this case is not supported by any enabling
law.  The Court further stated in Ople:
         x x x.  As well stated by Fisher: “x x x  Many regulations however, bear directly
on the public.  It is here that administrative legislation must be restricted in its scope
and application. Regulations are not supposed to be a substitute for the general
policy-making that Congress enacts in the form of a public law.  Although
administrative regulations are entitled to respect, the authority to prescribe rules and
regulations is not an independent source of power to make laws.”[35]
 
 
         Since EO 566 is an invalid exercise of legislative power, the RIRR is also an invalid exercise of
the CHED’s quasi-legislative power. 
 
         Administrative agencies exercise their quasi-legislative or rule-making power through the
promulgation of rules and regulations.[36]  The CHED may only exercise its rule-making power within
the confines of its jurisdiction under RA 7722.  The RIRR covers review centers and similar entities
which are neither institutions of higher education nor institutions offering degree-granting programs. 
 
  Exercise of Police Power
 
         Police power to prescribe regulations to promote the health, morals, education, good order or
safety, and the general welfare of the people flows from the recognition thatsalus populi est suprema
lex – the welfare of the people is the supreme law.[37]  Police power primarily rests with the legislature
although it may be exercised by the President and administrative boards by virtue of a valid
delegation.[38]  Here,  no delegation of police power exists under RA 7722 authorizing the President
to regulate the operations of non-degree granting review centers.
 
 
Republic Act No. 8981 is Not the Appropriate Law
 
         It is argued that the President of the Philippines has adequate powers under the law to
regulate review centers  and this could have been done under an existing validly delegated authority,
and that the appropriate law is Republic Act No. 8981[39] (RA 8981).  Under Section 5 of RA 8981,
the PRC is mandated to “establish and maintain a high standard of admission to the practice of all
professions and at all times ensure and safeguard the integrity of all licensure
examinations.”  Section 7 of RA 8981 further states that the PRC shall adopt “measures to preserve
the integrity and inviolability of licensure examinations.”
 
         There is no doubt that a principal mandate of the PRC is to preserve the integrity of licensure
examinations.  The PRC has the power to adopt measures to preserve the integrity and inviolability
of licensure examinations.  However, this power should properly be interpreted to refer to the
conduct of the examinations.  The enumeration of PRC’s powers under Section 7(e) includes
among others, the fixing of dates and places of the examinations and the appointment of supervisors
and watchers.  The power to preserve the integrity and inviolability of licensure examinations should
be read together with these functions.  These powers of the PRC have nothing to do at all with
the regulation of review centers.
 
         The PRC has the power to investigate any of the members of the Professional Regulatory
Boards (PRB) for “commission of any irregularities in the licensure examinations which taint or
impugn the  integrity and authenticity of the results of the said examinations.”[40]  This is an
administrative power which the PRC exercises over members of the PRB.  However, this power has
nothing to do with the regulation of review centers.  The PRC has the power to bar PRB members
from conducting review classes in review centers.  However, to interpret this power to extend to
the power to regulate review centers is clearly an unwarranted interpretation of RA 8981.  The
PRC may prohibit the members of the PRB from conducting review classes at review centers
because the PRC has administrative supervision over the members of the PRB.  However, such
power does not extend to the regulation of  review centers.     
 
         Section 7(y) of RA 8981 giving the PRC the power to perform “such other functions and duties
as may be necessary to carry out the provisions” of RA 8981 does not extend to the regulation of
review centers.  There is absolutely nothing in RA 8981 that mentions regulation by the PRC of
review centers. 
 
         The Court cannot likewise interpret the fact that RA 8981 penalizes “any person who
manipulates or rigs licensure examination results, secretly informs or makes known licensure
examination questions prior to the conduct of the examination or tampers with the grades in the
professional licensure examinations”[41] as a grant of power to regulate review centers.  The provision
simply provides for the penalties for manipulation and other corrupt practices in the conduct of the
professional examinations. 
 
         The assailed EO 566 seeks to regulate not only review centers but also “similar entities.”  The
questioned CHED RIRR defines “similar entities” as referring to “other review centers providing
review or tutorial services in areas not covered by licensure examinations given by the PRC
including but not limited to college entrance examinations, Civil Service examinations, tutorial
services in specific fields like English, Mathematics and the like.”[42]  The PRC has no mandate to
supervise review centers that give courses or lectures intended to prepare examinees for licensure
examinations given by the PRC.  It is like the Court regulating bar review centers just because the
Court conducts the bar examinations.  Similarly, the PRC has no mandate to regulate similar
entities whose reviewees will not even take any licensure examination given by the PRC.    
 
         WHEREFORE, we GRANT the petition and the petition-in-
intervention.  We DECLARE Executive Order No. 566 and Commission on Higher Education
Memorandum Order No. 30, series of 2007 VOID for being unconstitutional.
 
         SO ORDERED.

GR NO 179579 COMMISSIONER OF CUSTOMS vs HYPERMIX

SERENO, J.:

Before us is a Petition for Review under Rule 45, [1] assailing the Decision[2] and the
Resolution[3] of the Court of Appeals (CA), which nullified the Customs Memorandum Order (CMO)
No. 27-2003[4] on the tariff classification of wheat issued by petitioner Commissioner of Customs.

The antecedent facts are as follows:

On 7 November 2003, petitioner Commissioner of Customs issued CMO 27-2003. Under the
Memorandum, for tariff purposes, wheat was classified according to the following: (1) importer or
consignee; (2) country of origin; and (3) port of discharge.[5] The regulation provided an exclusive list
of corporations, ports of discharge, commodity descriptions and countries of origin. Depending on
these factors, wheat would be classified either as food grade or feed grade. The corresponding tariff
for food grade wheat was 3%, for feed grade, 7%.

CMO 27-2003 further provided for the proper procedure for protest or Valuation and
Classification Review Committee (VCRC) cases. Under this procedure, the release of the articles
that were the subject of protest required the importer to post a cash bond to cover the tariff
differential.[6]

A month after the issuance of CMO 27-2003, on 19 December 2003, respondent filed a
Petition for Declaratory Relief[7] with the Regional Trial Court (RTC) of Las Piñas City. It anticipated
the implementation of the regulation on its imported and perishable Chinese milling wheat in transit
from China.[8] Respondent contended that CMO 27-2003 was issued without following the mandate
of the Revised Administrative Code on public participation, prior notice, and publication or
registration with the University of the Philippines Law Center.

Respondent also alleged that the regulation summarily adjudged it to be a feed grade
supplier without the benefit of prior assessment and examination; thus, despite having imported food
grade wheat, it would be subjected to the 7% tariff upon the arrival of the shipment, forcing them to
pay 133% more than was proper.

Furthermore, respondent claimed that the equal protection clause of the Constitution was
violated when the regulation treated non-flour millers differently from flour millers for no reason at all.

Lastly, respondent asserted that the retroactive application of the regulation was confiscatory
in nature.

On 19 January 2004, the RTC issued a Temporary Restraining Order (TRO) effective for
twenty (20) days from notice.[9]

Petitioners thereafter filed a Motion to Dismiss.[10] They alleged that: (1) the RTC did not have
jurisdiction over the subject matter of the case, because respondent was asking for a judicial
determination of the classification of wheat; (2) an action for declaratory relief was improper; (3)
CMO 27-2003 was an internal administrative rule and not legislative in nature; and (4) the claims of
respondent were speculative and premature, because the Bureau of Customs (BOC) had yet to
examine respondent’s products. They likewise opposed the application for a writ of preliminary
injunction on the ground that they had not inflicted any injury through the issuance of the regulation;
and that the action would be contrary to the rule that administrative issuances are assumed valid
until declared otherwise.

On 28 February 2005, the parties agreed that the matters raised in the application for
preliminary injunction and the Motion to Dismiss would just be resolved together in the main case.
Thus, on 10 March 2005, the RTC rendered its Decision[11] without having to resolve the application
for preliminary injunction and the Motion to Dismiss.

The trial court ruled in favor of respondent, to wit:

WHEREFORE, in view of the foregoing, the Petition is GRANTED and the

subject Customs Memorandum Order 27-2003 is declared INVALID and OF NO
FORCE AND EFFECT. Respondents Commissioner of Customs, the District
Collector of Subic or anyone acting in their behalf are to immediately cease and
desist from enforcing the said Customs Memorandum Order 27-2003.

SO ORDERED.[12]
 
 
The RTC held that it had jurisdiction over the subject matter, given that the issue raised by
respondent concerned the quasi-legislative powers of petitioners. It likewise stated that a petition for
declaratory relief was the proper remedy, and that respondent was the proper party to file it. The
court considered that respondent was a regular importer, and that the latter would be subjected to
the application of the regulation in future transactions.

With regard to the validity of the regulation, the trial court found that petitioners had not
followed the basic requirements of hearing and publication in the issuance of CMO 27-2003. It
likewise held that petitioners had “substituted the quasi-judicial determination of the commodity by a
quasi-legislative predetermination.”[13] The lower court pointed out that a classification based on
importers and ports of discharge were violative of the due process rights of respondent.

Dissatisfied with the Decision of the lower court, petitioners appealed to the CA, raising the
same allegations in defense of CMO 27-2003.[14] The appellate court, however, dismissed the
appeal. It held that, since the regulation affected substantial rights of petitioners and other importers,
petitioners should have observed the requirements of notice, hearing and publication.

Hence, this Petition.

Petitioners raise the following issues for the consideration of this Court:

I.       THE COURT OF APPEALS DECIDED A QUESTION OF SUBSTANCE

WHICH IS NOT IN ACCORD WITH THE LAW AND PREVAILING
JURISPRUDENCE.

II.    THE COURT OF APPEALS GRAVELY ERRED IN DECLARING THAT THE

TRIAL COURT HAS JURISDICTION OVER THE CASE.

The Petition has no merit.

We shall first discuss the propriety of an action for declaratory relief.

 Rule 63, Section 1 provides:

Who may file petition. – Any person interested under a deed, will, contract or
other written instrument, or whose rights are affected by a statute, executive order or
regulation, ordinance, or any other governmental regulation may, before breach or
violation thereof, bring an action in the appropriate Regional Trial Court to determine
any question of construction or validity arising, and for a declaration of his rights or
duties, thereunder.

The requirements of an action for declaratory relief are as follows: (1) there must be a
justiciable controversy; (2) the controversy must be between persons whose interests are adverse;
(3) the party seeking declaratory relief must have a legal interest in the controversy; and (4) the
issue involved must be ripe for judicial determination. [15] We find that the Petition filed by respondent
before the lower court meets these requirements.

First, the subject of the controversy is the constitutionality of CMO 27-2003 issued by
petitioner Commissioner of Customs. In Smart Communications v. NTC,[16] we held:

 
The determination of whether a specific rule or set of rules issued by an
administrative agency contravenes the law or the constitution is within the jurisdiction
of the regular courts.  Indeed, the Constitution vests the power of judicial review
or the power to declare a law, treaty, international or executive agreement,
presidential decree, order, instruction, ordinance, or regulation in the courts,
including the regional trial courts.  This is within the scope of judicial power,
which includes the authority of the courts to determine in an appropriate
action the validity of the acts of the political departments.  Judicial power
includes the duty of the courts of justice to settle actual controversies involving rights
which are legally demandable and enforceable, and to determine whether or not
there has been a grave abuse of discretion amounting to lack or excess of
jurisdiction on the part of any branch or instrumentality of the Government.
(Emphasis supplied)
 

Meanwhile, in Misamis Oriental Association of Coco Traders, Inc. v. Department of Finance

Secretary,[17] we said:

xxx [A] legislative rule is in the nature of subordinate legislation, designed to

implement a primary legislation by providing the details thereof. xxx      

          In addition such rule must be published. On the other hand, interpretative rules
are designed to provide guidelines to the law which the administrative agency is in
charge of enforcing.
Accordingly, in considering a legislative rule a court is free to make
three inquiries: (i) whether the rule is within the delegated authority of the
administrative agency; (ii) whether it is reasonable; and (iii) whether it was
issued pursuant to proper procedure.  But the court is not free to substitute its
judgment as to the desirability or wisdom of the rule for the legislative body, by its
delegation of administrative judgment, has committed those questions to
administrative judgments and not to judicial judgments.  In the case of an
 interpretative rule, the inquiry is not into the validity but into the correctness or
propriety of the rule.  As a matter of power a court, when confronted with an
interpretative rule, is free to (i) give the force of law to the rule; (ii) go to the opposite
extreme and substitute its judgment; or (iii) give some intermediate degree of
authoritative weight to the interpretative rule. (Emphasis supplied)
 
Second, the controversy is between two parties that have adverse interests. Petitioners are
summarily imposing a tariff rate that respondent is refusing to pay.

Third, it is clear that respondent has a legal and substantive interest in the implementation of
CMO 27-2003. Respondent has adequately shown that, as a regular importer of wheat, on 14
August 2003, it has actually made shipments of wheat from China to Subic. The shipment was set to
arrive in December 2003. Upon its arrival, it would be subjected to the conditions of CMO 27-2003.
The regulation calls for the imposition of different tariff rates, depending on the factors enumerated
therein. Thus, respondent alleged that it would be made to pay the 7% tariff applied to feed grade
wheat, instead of the 3% tariff on food grade wheat.  In addition, respondent would have to go
through the procedure under CMO 27-2003, which would undoubtedly toll its time and resources.
The lower court correctly pointed out as follows:

xxx As noted above, the fact that petitioner is precisely into the business of
importing wheat, each and every importation will be subjected to constant
disputes which will result into (sic)delays in the delivery, setting aside of funds
as cash bond required in the CMO as well as the resulting expenses thereof. It
is easy to see that business uncertainty will be a constant occurrence for
petitioner. That the sums involved are not minimal is shown by the
discussions during the hearings conducted as well as in the pleadings filed. It
may be that the petitioner can later on get a refund but such has been foreclosed
because the Collector of Customs and the Commissioner of Customs are bound by
their own CMO. Petitioner cannot get its refund with the said agency. We believe and
so find that Petitioner has presented such a stake in the outcome of this controversy
as to vest it with standing to file this petition.[18] (Emphasis supplied)

 
Finally, the issue raised by respondent is ripe for judicial determination, because litigation is
inevitable[19] for the simple and uncontroverted reason that respondent is not included in the
enumeration of flour millers classified as food grade wheat importers. Thus, as the trial court stated,
it would have to file a protest case each time it imports food grade wheat and be subjected to the 7%
tariff.

It is therefore clear that a petition for declaratory relief is the right remedy given the
circumstances of the case.

Considering that the questioned regulation would affect the substantive rights of respondent
as explained above, it therefore follows that petitioners should have applied the pertinent provisions
of Book VII, Chapter 2 of the Revised Administrative Code, to wit:
 Section 3. Filing. – (1) Every agency shall file with the University of the
Philippines Law Center three (3) certified copies of every rule adopted by it. Rules in
force on the date of effectivity of this Code which are not filed within three (3) months
from that date shall not thereafter be the bases of any sanction against any party of
persons.

xxx                                          xxx                                          xxx

Section 9. Public Participation. - (1) If not otherwise required by law, an

agency shall, as far as practicable, publish or circulate notices of proposed rules and
afford interested parties the opportunity to submit their views prior to the adoption of
any rule.
(2) In the fixing of rates, no rule or final order shall be valid unless the
proposed rates shall have been published in a newspaper of general circulation at
least two (2) weeks before the first hearing thereon.
(3) In case of opposition, the rules on contested cases shall be observed.
 

When an administrative rule is merely interpretative in nature, its applicability needs nothing
further than its bare issuance, for it gives no real consequence more than what the law itself has
already prescribed. When, on the other hand, the administrative rule goes beyond merely providing
for the means that can facilitate or render least cumbersome the implementation of the law but
substantially increases the burden of those governed, it behooves the agency to accord at least to
those directly affected a chance to be heard, and thereafter to be duly informed, before that new
issuance is given the force and effect of law.[20]

Likewise, in Tañada v. Tuvera,[21] we held:

The clear object of the above-quoted provision is to give the general

public adequate notice of the various laws which are to regulate their actions
and conduct as citizens. Without such notice and publication, there would be no
basis for the application of the maxim “ignorantia legis non excusat.” It would be the
height of injustice to punish or otherwise burden a citizen for the
transgression of a law of which he had no notice whatsoever, not even a
constructive one.
 
Perhaps at no time since the establishment of the Philippine Republic has the
publication of laws taken so vital significance that at this time when the people have
bestowed upon the President a power heretofore enjoyed solely by the legislature.
While the people are kept abreast by the mass media of the debates and
deliberations in the Batasan Pambansa – and for the diligent ones, ready access to
the legislative records – no such publicity accompanies the law-making process of
the President. Thus, without publication, the people have no means of knowing
what presidential decrees have actually been promulgated, much less a
definite way of informing themselves of the specific contents and texts of such
decrees. (Emphasis supplied)
 

Because petitioners failed to follow the requirements enumerated by the Revised

Administrative Code, the assailed regulation must be struck down.
 Going now to the content of CMO 27-3003, we likewise hold that it is unconstitutional for
being violative of the equal protection clause of the Constitution.

The equal protection clause means that no person or class of persons shall be deprived of
the same protection of laws enjoyed by other persons or other classes in the same place in like
circumstances. Thus, the guarantee of the equal protection of laws is not violated if there is a
reasonable classification.  For a classification to be reasonable, it must be shown that (1) it rests on
substantial distinctions; (2) it is germane to the purpose of the law; (3) it is not limited to existing
conditions only; and (4) it applies equally to all members of the same class.[22]

Unfortunately, CMO 27-2003 does not meet these requirements. We do not see how the
quality of wheat is affected by who imports it, where it is discharged, or which country it came from.

Thus, on the one hand, even if other millers excluded from CMO 27-2003 have imported
food grade wheat, the product would still be declared as feed grade wheat, a classification
subjecting them to 7% tariff. On the other hand, even if the importers listed under CMO 27-2003
have imported feed grade wheat, they would only be made to pay 3% tariff, thus depriving the state
of the taxes due. The regulation, therefore, does not become disadvantageous to respondent only,
but even to the state.

It is also not clear how the regulation intends to “monitor more closely wheat importations
and thus prevent their misclassification.” A careful study of CMO 27-2003 shows that it not only fails
to achieve this end, but results in the opposite. The application of the regulation forecloses the
possibility that other corporations that are excluded from the list import food grade wheat; at the
same time, it creates an assumption that those who meet the criteria do not import feed grade
wheat. In the first case, importers are unnecessarily burdened to prove the classification of their
wheat imports; while in the second, the state carries that burden.

Petitioner Commissioner of Customs also went beyond his powers when the regulation
limited the customs officer’s duties mandated by Section 1403 of the Tariff and Customs Law, as
amended. The law provides:

Section 1403. – Duties of Customs Officer Tasked to Examine, Classify, and

Appraise Imported Articles. – The customs officer tasked to examine, classify, and
appraise imported articlesshall determine whether the packages designated for
examination and their contents are in accordance with the declaration in the
entry, invoice and other pertinent documents and shall make return in such a
manner as to indicate whether the articles have been truly and correctly
declared in the entry as regard their quantity, measurement, weight, and tariff
classification and not imported contrary to law. He shall submit samples to the
laboratory for analysis when feasible to do so and when such analysis is necessary
for the proper classification, appraisal, and/or admission into the Philippines of
imported articles.
 Likewise, the customs officer shall determine the unit of quantity in
which they are usually bought and sold, and appraise the imported articles in
accordance with Section 201 of this Code.

Failure on the part of the customs officer to comply with his duties shall
subject him to the penalties prescribed under Section 3604 of this Code.

          The provision mandates that the customs officer must first assess and determine the
classification of the imported article before tariff may be imposed. Unfortunately, CMO 23-2007 has
already classified the article even before the customs officer had the chance to examine it. In effect,
petitioner Commissioner of Customs diminished the powers granted by the Tariff and Customs Code
with regard to wheat importation when it no longer required the customs officer’s prior examination
and assessment of the proper classification of the wheat.  

It is well-settled that rules and regulations, which are the product of a delegated power to
create new and additional legal provisions that have the effect of law, should be within the scope of
the statutory authority granted by the legislature to the administrative agency. It is required that the
regulation be germane to the objects and purposes of the law; and that it be not in contradiction to,
but in conformity with, the standards prescribed by law.[23]     

In summary, petitioners violated respondent’s right to due process in the issuance of CMO
27-2003 when they failed to observe the requirements under the Revised Administrative Code.
Petitioners likewise violated respondent’s right to equal protection of laws when they provided for an
unreasonable classification in the application of the regulation. Finally, petitioner Commissioner of
Customs went beyond his powers of delegated authority when the regulation limited the powers of
the customs officer to examine and assess imported articles.

WHEREFORE, in view of the foregoing, the Petition is DENIED.

          SO ORDERED.

G.R. No. 166715             August 14, 2008

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

ALCANTARA, ED VINCENT S. ALBANO, ROMEO R. ROBISO, RENE B. GOROSPE and EDWIN
R. SANDOVAL, petitioners, 
vs.
HON. CESAR V. PURISIMA, in his capacity as Secretary of Finance, HON. GUILLERMO L.
PARAYNO, JR., in his capacity as Commissioner of the Bureau of Internal Revenue, and
HON. ALBERTO D. LINA, in his Capacity as Commissioner of Bureau of
Customs, respondents.

DECISION
CORONA, J.:

This petition for prohibition1 seeks to prevent respondents from implementing and enforcing Republic
Act (RA) 93352 (Attrition Act of 2005).

RA 9335 was enacted to optimize the revenue-generation capability and collection of the Bureau of
Internal Revenue (BIR) and the Bureau of Customs (BOC). The law intends to encourage BIR and
BOC officials and employees to exceed their revenue targets by providing a system of rewards and
sanctions through the creation of a Rewards and Incentives Fund (Fund) and a Revenue
Performance Evaluation Board (Board).3 It covers all officials and employees of the BIR and the
BOC with at least six months of service, regardless of employment status.4

The Fund is sourced from the collection of the BIR and the BOC in excess of their revenue targets
for the year, as determined by the Development Budget and Coordinating Committee (DBCC). Any
incentive or reward is taken from the fund and allocated to the BIR and the BOC in proportion to their
contribution in the excess collection of the targeted amount of tax revenue.5

The Boards in the BIR and the BOC are composed of the Secretary of the Department of Finance
(DOF) or his/her Undersecretary, the Secretary of the Department of Budget and Management
(DBM) or his/her Undersecretary, the Director General of the National Economic Development
Authority (NEDA) or his/her Deputy Director General, the Commissioners of the BIR and the BOC or
their Deputy Commissioners, two representatives from the rank-and-file employees and a
representative from the officials nominated by their recognized organization.6

Each Board has the duty to (1) prescribe the rules and guidelines for the allocation, distribution and
release of the Fund; (2) set criteria and procedures for removing from the service officials and
employees whose revenue collection falls short of the target; (3) terminate personnel in accordance
with the criteria adopted by the Board; (4) prescribe a system for performance evaluation; (5)
perform other functions, including the issuance of rules and regulations and (6) submit an annual
report to Congress.7

The DOF, DBM, NEDA, BIR, BOC and the Civil Service Commission (CSC) were tasked to
promulgate and issue the implementing rules and regulations of RA 9335,8 to be approved by a Joint
Congressional Oversight Committee created for such purpose.9

Petitioners, invoking their right as taxpayers filed this petition challenging the constitutionality of RA
9335, a tax reform legislation. They contend that, by establishing a system of rewards and
incentives, the law "transform[s] the officials and employees of the BIR and the BOC into
mercenaries and bounty hunters" as they will do their best only in consideration of such rewards.
Thus, the system of rewards and incentives invites corruption and undermines the constitutionally
mandated duty of these officials and employees to serve the people with utmost responsibility,
integrity, loyalty and efficiency.

Petitioners also claim that limiting the scope of the system of rewards and incentives only to officials
and employees of the BIR and the BOC violates the constitutional guarantee of equal protection.
There is no valid basis for classification or distinction as to why such a system should not apply to
officials and employees of all other government agencies.

In addition, petitioners assert that the law unduly delegates the power to fix revenue targets to the
President as it lacks a sufficient standard on that matter. While Section 7(b) and (c) of RA 9335
provides that BIR and BOC officials may be dismissed from the service if their revenue collections
fall short of the target by at least 7.5%, the law does not, however, fix the revenue targets to be
achieved. Instead, the fixing of revenue targets has been delegated to the President without
sufficient standards. It will therefore be easy for the President to fix an unrealistic and unattainable
target in order to dismiss BIR or BOC personnel.

Finally, petitioners assail the creation of a congressional oversight committee on the ground that it
violates the doctrine of separation of powers. While the legislative function is deemed accomplished
and completed upon the enactment and approval of the law, the creation of the congressional
oversight committee permits legislative participation in the implementation and enforcement of the
law.

In their comment, respondents, through the Office of the Solicitor General, question the petition for
being premature as there is no actual case or controversy yet. Petitioners have not asserted any
right or claim that will necessitate the exercise of this Court’s jurisdiction. Nevertheless, respondents
acknowledge that public policy requires the resolution of the constitutional issues involved in this
case. They assert that the allegation that the reward system will breed mercenaries is mere
speculation and does not suffice to invalidate the law. Seen in conjunction with the declared
objective of RA 9335, the law validly classifies the BIR and the BOC because the functions they
perform are distinct from those of the other government agencies and instrumentalities. Moreover,
the law provides a sufficient standard that will guide the executive in the implementation of its
provisions. Lastly, the creation of the congressional oversight committee under the law enhances,
rather than violates, separation of powers. It ensures the fulfillment of the legislative policy and
serves as a check to any over-accumulation of power on the part of the executive and the
implementing agencies.

After a careful consideration of the conflicting contentions of the parties, the Court finds that
petitioners have failed to overcome the presumption of constitutionality in favor of RA 9335, except
as shall hereafter be discussed.

Actual Case And Ripeness

An actual case or controversy involves a conflict of legal rights, an assertion of opposite legal claims
susceptible of judicial adjudication.10 A closely related requirement is ripeness, that is, the question
must be ripe for adjudication. And a constitutional question is ripe for adjudication when the
governmental act being challenged has a direct adverse effect on the individual challenging
it.11 Thus, to be ripe for judicial adjudication, the petitioner must show a personal stake in the
outcome of the case or an injury to himself that can be redressed by a favorable decision of the
Court.12

In this case, aside from the general claim that the dispute has ripened into a judicial controversy by
the mere enactment of the law even without any further overt act,13 petitioners fail either to assert
any specific and concrete legal claim or to demonstrate any direct adverse effect of the law on them.
They are unable to show a personal stake in the outcome of this case or an injury to themselves. On
this account, their petition is procedurally infirm.

This notwithstanding, public interest requires the resolution of the constitutional issues raised by
petitioners. The grave nature of their allegations tends to cast a cloud on the presumption of
constitutionality in favor of the law. And where an action of the legislative branch is alleged to have
infringed the Constitution, it becomes not only the right but in fact the duty of the judiciary to settle
the dispute.14

Accountability of 
Public Officers
Section 1, Article 11 of the Constitution states:

Sec. 1. Public office is a public trust. Public officers and employees must at all times be
accountable to the people, serve them with utmost responsibility, integrity, loyalty, and
efficiency, act with patriotism, and justice, and lead modest lives.

Public office is a public trust. It must be discharged by its holder not for his own personal gain but for
the benefit of the public for whom he holds it in trust. By demanding accountability and service with
responsibility, integrity, loyalty, efficiency, patriotism and justice, all government officials and
employees have the duty to be responsive to the needs of the people they are called upon to serve.

Public officers enjoy the presumption of regularity in the performance of their duties. This
presumption necessarily obtains in favor of BIR and BOC officials and employees. RA 9335
operates on the basis thereof and reinforces it by providing a system of rewards and sanctions for
the purpose of encouraging the officials and employees of the BIR and the BOC to exceed their
revenue targets and optimize their revenue-generation capability and collection.15

The presumption is disputable but proof to the contrary is required to rebut it. It cannot be overturned
by mere conjecture or denied in advance (as petitioners would have the Court do) specially in this
case where it is an underlying principle to advance a declared public policy.

Petitioners’ claim that the implementation of RA 9335 will turn BIR and BOC officials and employees
into "bounty hunters and mercenaries" is not only without any factual and legal basis; it is also purely
speculative.

A law enacted by Congress enjoys the strong presumption of constitutionality. To justify its
nullification, there must be a clear and unequivocal breach of the Constitution, not a doubtful and
equivocal one.16 To invalidate RA 9335 based on petitioners’ baseless supposition is an affront to the
wisdom not only of the legislature that passed it but also of the executive which approved it.

Public service is its own reward. Nevertheless, public officers may by law be rewarded for exemplary
and exceptional performance. A system of incentives for exceeding the set expectations of a public
office is not anathema to the concept of public accountability. In fact, it recognizes and reinforces
dedication to duty, industry, efficiency and loyalty to public service of deserving government
personnel.

In United States v. Matthews,17 the U.S. Supreme Court validated a law which awards to officers of
the customs as well as other parties an amount not exceeding one-half of the net proceeds of
forfeitures in violation of the laws against smuggling. Citing Dorsheimer v. United States,18 the U.S.
Supreme Court said:

The offer of a portion of such penalties to the collectors is to stimulate and reward their zeal
and industry in detecting fraudulent attempts to evade payment of duties and taxes.

In the same vein, employees of the BIR and the BOC may by law be entitled to a reward when, as a
consequence of their zeal in the enforcement of tax and customs laws, they exceed their revenue
targets. In addition, RA 9335 establishes safeguards to ensure that the reward will not be claimed if
it will be either the fruit of "bounty hunting or mercenary activity" or the product of the irregular
performance of official duties. One of these precautionary measures is embodied in Section 8 of the
law:
 SEC. 8. Liability of Officials, Examiners and Employees of the BIR and the BOC. – The
officials, examiners, and employees of the [BIR] and the [BOC] who violate this Act or who
are guilty of negligence, abuses or acts of malfeasance or misfeasance or fail to exercise
extraordinary diligence in the performance of their duties shall be held liable for any loss or
injury suffered by any business establishment or taxpayer as a result of such violation,
negligence, abuse, malfeasance, misfeasance or failure to exercise extraordinary diligence.

Equal Protection

Equality guaranteed under the equal protection clause is equality under the same conditions and
among persons similarly situated; it is equality among equals, not similarity of treatment of persons
who are classified based on substantial differences in relation to the object to be
accomplished.19 When things or persons are different in fact or circumstance, they may be treated in
law differently. In Victoriano v. Elizalde Rope Workers’ Union,20 this Court declared:

The guaranty of equal protection of the laws is not a guaranty of equality in the application of
the laws upon all citizens of the [S]tate. It is not, therefore, a requirement, in order to avoid
the constitutional prohibition against inequality, that every man, woman and child should be
affected alike by a statute. Equality of operation of statutes does not mean indiscriminate
operation on persons merely as such, but on persons according to the circumstances
surrounding them. It guarantees equality, not identity of rights. The Constitution does not
require that things which are different in fact be treated in law as though they were the
same. The equal protection clause does not forbid discrimination as to things that are
different. It does not prohibit legislation which is limited either in the object to which it
is directed or by the territory within which it is to operate.

The equal protection of the laws clause of the Constitution allows classification. Classification
in law, as in the other departments of knowledge or practice, is the grouping of things in
speculation or practice because they agree with one another in certain particulars. A law is
not invalid because of simple inequality. The very idea of classification is that of inequality,
so that it goes without saying that the mere fact of inequality in no manner determines the
matter of constitutionality. All that is required of a valid classification is that it be
reasonable, which means that the classification should be based on substantial
distinctions which make for real differences, that it must be germane to the purpose of
the law; that it must not be limited to existing conditions only; and that it must apply
equally to each member of the class. This Court has held that the standard is satisfied if
the classification or distinction is based on a reasonable foundation or rational basis
and is not palpably arbitrary.

In the exercise of its power to make classifications for the purpose of enacting laws over
matters within its jurisdiction, the state is recognized as enjoying a wide range of discretion. It
is not necessary that the classification be based on scientific or marked differences of things
or in their relation. Neither is it necessary that the classification be made with mathematical
nicety. Hence, legislative classification may in many cases properly rest on narrow
distinctions, for the equal protection guaranty does not preclude the legislature from
recognizing degrees of evil or harm, and legislation is addressed to evils as they may
appear.21 (emphasis supplied)

The equal protection clause recognizes a valid classification, that is, a classification that has a
reasonable foundation or rational basis and not arbitrary.22 With respect to RA 9335, its expressed
public policy is the optimization of the revenue-generation capability and collection of the BIR and
the BOC.23 Since the subject of the law is the revenue- generation capability and collection of the
BIR and the BOC, the incentives and/or sanctions provided in the law should logically pertain to the
said agencies. Moreover, the law concerns only the BIR and the BOC because they have the
common distinct primary function of generating revenues for the national government through the
collection of taxes, customs duties, fees and charges.

The BIR performs the following functions:

Sec. 18. The Bureau of Internal Revenue. – The Bureau of Internal Revenue, which shall be
headed by and subject to the supervision and control of the Commissioner of Internal
Revenue, who shall be appointed by the President upon the recommendation of the
Secretary [of the DOF], shall have the following functions:

(1) Assess and collect all taxes, fees and charges and account for all revenues
collected;

(2) Exercise duly delegated police powers for the proper performance of its functions and
duties;

(3) Prevent and prosecute tax evasions and all other illegal economic activities;

(4) Exercise supervision and control over its constituent and subordinate units; and

(5) Perform such other functions as may be provided by law.24

xxx       xxx       xxx (emphasis supplied)

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

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

(1) Collect custom duties, taxes and the corresponding fees, charges and penalties;

(2) Account for all customs revenues collected;

(3) Exercise police authority for the enforcement of tariff and customs laws;

(4) Prevent and suppress smuggling, pilferage and all other economic frauds within all ports
of entry;

(5) Supervise and control exports, imports, foreign mails and the clearance of vessels and
aircrafts in all ports of entry;

(6) Administer all legal requirements that are appropriate;

(7) Prevent and prosecute smuggling and other illegal activities in all ports under its
jurisdiction;
 (8) Exercise supervision and control over its constituent units;

(9) Perform such other functions as may be provided by law.25

xxx       xxx       xxx (emphasis supplied)

Both the BIR and the BOC are bureaus under the DOF. They principally perform the special function
of being the instrumentalities through which the State exercises one of its great inherent functions –
taxation. Indubitably, such substantial distinction is germane and intimately related to the purpose of
the law. Hence, the classification and treatment accorded to the BIR and the BOC under RA 9335
fully satisfy the demands of equal protection.

Undue Delegation

Two tests determine the validity of delegation of legislative power: (1) the completeness test and (2)
the sufficient standard test. A law is complete when it sets forth therein the policy to be executed,
carried out or implemented by the delegate.26 It lays down a sufficient standard when it provides
adequate guidelines or limitations in the law to map out the boundaries of the delegate’s authority
and prevent the delegation from running riot.27 To be sufficient, the standard must specify the limits
of the delegate’s authority, announce the legislative policy and identify the conditions under which it
is to be implemented.28

RA 9335 adequately states the policy and standards to guide the President in fixing revenue targets
and the implementing agencies in carrying out the provisions of the law. Section 2 spells out the
policy of the law:

SEC. 2. Declaration of Policy. – It is the policy of the State to optimize the revenue-
generation capability and collection of the Bureau of Internal Revenue (BIR) and the Bureau
of Customs (BOC) by providing for a system of rewards and sanctions through the creation
of a Rewards and Incentives Fund and a Revenue Performance Evaluation Board in the
above agencies for the purpose of encouraging their officials and employees to exceed their
revenue targets.

Section 4 "canalized within banks that keep it from overflowing"29 the delegated power to the
President to fix revenue targets:

SEC. 4. Rewards and Incentives Fund. – A Rewards and Incentives Fund, hereinafter
referred to as the Fund, is hereby created, to be sourced from the collection of the BIR and
the BOC in excess of their respective revenue targets of the year, as determined by the
Development Budget and Coordinating Committee (DBCC), in the following percentages:

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

Excess the Revenue Targets Accrue to the Fund
30% or below – 15%
More than 30% – 15% of the first 30% plus 20% of the
remaining excess

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

xxx       xxx       xxx (emphasis supplied)

Revenue targets are based on the original estimated revenue collection expected respectively of the
BIR and the BOC for a given fiscal year as approved by the DBCC and stated in the BESF submitted
by the President to Congress.30 Thus, the determination of revenue targets does not rest solely on
the President as it also undergoes the scrutiny of the DBCC.

On the other hand, Section 7 specifies the limits of the Board’s authority and identifies the conditions
under which officials and employees whose revenue collection falls short of the target by at least
7.5% may be removed from the service:

SEC. 7. Powers and Functions of the Board. – The Board in the agency shall have the
following powers and functions:

xxx       xxx       xxx

(b) To set the criteria and procedures for removing from service officials and employees
whose revenue collection falls short of the target by at least seven and a half percent
(7.5%), with due consideration of all relevant factors affecting the level of collection as
provided in the rules and regulations promulgated under this Act, subject to civil service
laws, rules and regulations and compliance with substantive and procedural due
process: Provided, That the following exemptions shall apply:

1. Where the district or area of responsibility is newly-created, not exceeding two

years in operation, as has no historical record of collection performance that can be
used as basis for evaluation; and

2. Where the revenue or customs official or employee is a recent transferee in the

middle of the period under consideration unless the transfer was due to
nonperformance of revenue targets or potential nonperformance of revenue targets:
Provided, however, That when the district or area of responsibility covered by
revenue or customs officials or employees has suffered from economic difficulties
brought about by natural calamities or force majeure or economic causes as may be
determined by the Board, termination shall be considered only after careful and
proper review by the Board.

(c) To terminate personnel in accordance with the criteria adopted in the preceding
paragraph: Provided, That such decision shall be immediately executory: Provided, further,
That the application of the criteria for the separation of an official or employee from
service under this Act shall be without prejudice to the application of other relevant
laws on accountability of public officers and employees, such as the Code of Conduct
and Ethical Standards of Public Officers and Employees and the Anti-Graft and
Corrupt Practices Act;
 xxx       xxx       xxx (emphasis supplied)

Clearly, RA 9335 in no way violates the security of tenure of officials and employees of the BIR and
the BOC. The guarantee of security of tenure only means that an employee cannot be dismissed
from the service for causes other than those provided by law and only after due process is accorded
the employee.31 In the case of RA 9335, it lays down a reasonable yardstick for removal (when the
revenue collection falls short of the target by at least 7.5%) with due consideration of all relevant
factors affecting the level of collection. This standard is analogous to inefficiency and incompetence
in the performance of official duties, a ground for disciplinary action under civil service laws.32 The
action for removal is also subject to civil service laws, rules and regulations and compliance with
substantive and procedural due process.

At any rate, this Court has recognized the following as sufficient standards: "public interest," "justice
and equity," "public convenience and welfare" and "simplicity, economy and welfare."33 In this case,
the declared policy of optimization of the revenue-generation capability and collection of the BIR and
the BOC is infused with public interest.

Separation Of Powers

Section 12 of RA 9335 provides:

SEC. 12. Joint Congressional Oversight Committee. – There is hereby created a Joint

Congressional Oversight Committee composed of seven Members from the Senate and
seven Members from the House of Representatives. The Members from the Senate shall be
appointed by the Senate President, with at least two senators representing the minority. The
Members from the House of Representatives shall be appointed by the Speaker with at least
two members representing the minority. After the Oversight Committee will have approved
the implementing rules and regulations (IRR) it shall thereafter become functus officio and
therefore cease to exist.

The Joint Congressional Oversight Committee in RA 9335 was created for the purpose of approving
the implementing rules and regulations (IRR) formulated by the DOF, DBM, NEDA, BIR, BOC and
CSC. On May 22, 2006, it approved the said IRR. From then on, it became functus officio and
ceased to exist. Hence, the issue of its alleged encroachment on the executive function of
implementing and enforcing the law may be considered moot and academic.

This notwithstanding, this might be as good a time as any for the Court to confront the issue of the
constitutionality of the Joint Congressional Oversight Committee created under RA 9335 (or other
similar laws for that matter).

The scholarly discourse of Mr. Justice (now Chief Justice) Puno on the concept of congressional
oversight in Macalintal v. Commission on Elections34 is illuminating:

Concept and bases of congressional oversight

Broadly defined, the power of oversight embraces all activities undertaken by Congress

to enhance its understanding of and influence over the implementation of legislation it
has enacted. Clearly, oversight concerns post-enactment measures undertaken by
Congress: (a) to monitor bureaucratic compliance with program objectives, (b) to
determine whether agencies are properly administered, (c) to eliminate executive
waste and dishonesty, (d) to prevent executive usurpation of legislative authority, and
(d) to assess executive conformity with the congressional perception of public
interest.

The power of oversight has been held to be intrinsic in the grant of legislative power itself
and integral to the checks and balances inherent in a democratic system of government. x x
xxxxxxx

Over the years, Congress has invoked its oversight power with increased frequency to check
the perceived "exponential accumulation of power" by the executive branch. By the
beginning of the 20th century, Congress has delegated an enormous amount of legislative
authority to the executive branch and the administrative agencies. Congress, thus, uses its
oversight power to make sure that the administrative agencies perform their functions within
the authority delegated to them. x x x x x x x x x

Categories of congressional oversight functions

The acts done by Congress purportedly in the exercise of its oversight powers may be
divided intothree categories, namely: scrutiny, investigation and supervision.

a. Scrutiny

Congressional scrutiny implies a lesser intensity and continuity of attention to

administrative operations. Its primary purpose is to determine economy and
efficiency of the operation of government activities. In the exercise of legislative
scrutiny, Congress may request information and report from the other branches of
government. It can give recommendations or pass resolutions for consideration of
the agency involved.

xxx       xxx       xxx

b. Congressional investigation

While congressional scrutiny is regarded as a passive process of looking at the facts

that are readily available, congressional investigation involves a more intense
digging of facts. The power of Congress to conduct investigation is recognized by the
1987 Constitution under section 21, Article VI, xxx       xxx       xxx

c. Legislative supervision

The third and most encompassing form by which Congress exercises its oversight power is
thru legislative supervision. "Supervision" connotes a continuing and informed awareness on
the part of a congressional committee regarding executive operations in a given
administrative area. While both congressional scrutiny and investigation involve inquiry
into past executive branch actions in order to influence future executive branch
performance, congressional supervision allows Congress to scrutinize the exercise of
delegated law-making authority, and permits Congress to retain part of that delegated
authority.

Congress exercises supervision over the executive agencies through its veto power. It
typically utilizes veto provisions when granting the President or an executive agency the
power to promulgate regulations with the force of law. These provisions require the
President or an agency to present the proposed regulations to Congress, which retains a
"right" to approve or disapprove any regulation before it takes effect. Such legislative veto
provisions usually provide that a proposed regulation will become a law after the expiration
of a certain period of time, only if Congress does not affirmatively disapprove of the
regulation in the meantime. Less frequently, the statute provides that a proposed regulation
will become law if Congress affirmatively approves it.

Supporters of legislative veto stress that it is necessary to maintain the balance of power

between the legislative and the executive branches of government as it offers lawmakers a
way to delegate vast power to the executive branch or to independent agencies while
retaining the option to cancel particular exercise of such power without having to pass new
legislation or to repeal existing law. They contend that this arrangement promotes
democratic accountability as it provides legislative check on the activities of unelected
administrative agencies. One proponent thus explains:

It is too late to debate the merits of this delegation policy: the policy is too deeply
embedded in our law and practice. It suffices to say that the complexities of modern
government have often led Congress-whether by actual or perceived necessity- to
legislate by declaring broad policy goals and general statutory standards, leaving the
choice of policy options to the discretion of an executive officer. Congress articulates
legislative aims, but leaves their implementation to the judgment of parties who may
or may not have participated in or agreed with the development of those aims.
Consequently, absent safeguards, in many instances the reverse of our constitutional
scheme could be effected: Congress proposes, the Executive disposes. One
safeguard, of course, is the legislative power to enact new legislation or to change
existing law. But without some means of overseeing post enactment activities of the
executive branch, Congress would be unable to determine whether its policies have
been implemented in accordance with legislative intent and thus whether legislative
intervention is appropriate.

Its opponents, however, criticize the legislative veto as undue encroachment upon the

executive prerogatives. They urge that any post-enactment measures undertaken by
the legislative branch should be limited to scrutiny and investigation; any measure
beyond that would undermine the separation of powers guaranteed by the
Constitution. They contend that legislative veto constitutes an impermissible evasion of the
President’s veto authority and intrusion into the powers vested in the executive or judicial
branches of government. Proponents counter that legislative veto enhances separation of
powers as it prevents the executive branch and independent agencies from accumulating too
much power. They submit that reporting requirements and congressional committee
investigations allow Congress to scrutinize only the exercise of delegated law-making
authority. They do not allow Congress to review executive proposals before they take effect
and they do not afford the opportunity for ongoing and binding expressions of congressional
intent. In contrast, legislative veto permits Congress to participate prospectively in the
approval or disapproval of "subordinate law" or those enacted by the executive branch
pursuant to a delegation of authority by Congress. They further argue that legislative veto "is
a necessary response by Congress to the accretion of policy control by forces outside its
chambers." In an era of delegated authority, they point out that legislative veto "is the most
efficient means Congress has yet devised to retain control over the evolution and
implementation of its policy as declared by statute."

In Immigration and Naturalization Service v. Chadha, the U.S. Supreme Court resolved the
validity of legislative veto provisions. The case arose from the order of the immigration
 judge suspending the deportation of Chadha pursuant to § 244(c)(1) of the Immigration and
Nationality Act. The United States House of Representatives passed a resolution vetoing the
suspension pursuant to § 244(c)(2) authorizing either House of Congress, by resolution, to
invalidate the decision of the executive branch to allow a particular deportable alien to
remain in the United States. The immigration judge reopened the deportation proceedings to
implement the House order and the alien was ordered deported. The Board of Immigration
Appeals dismissed the alien’s appeal, holding that it had no power to declare
unconstitutional an act of Congress. The United States Court of Appeals for Ninth Circuit
held that the House was without constitutional authority to order the alien’s deportation and
that § 244(c)(2) violated the constitutional doctrine on separation of powers.

On appeal, the U.S. Supreme Court declared § 244(c)(2) unconstitutional. But the Court
shied away from the issue of separation of powers and instead held that the provision
violates the presentment clause and bicameralism. It held that the one-house veto was
essentially legislative in purpose and effect. As such, it is subject to the procedures set out in
Article I of the Constitution requiring the passage by a majority of both Houses and
presentment to the President. x x x x x x x x x

Two weeks after the Chadha decision, the Court upheld, in memorandum decision, two lower
court decisions invalidating the legislative veto provisions in the Natural Gas Policy Act of
1978 and the Federal Trade Commission Improvement Act of 1980. Following this
precedence, lower courts invalidated statutes containing legislative veto provisions although
some of these provisions required the approval of both Houses of Congress and thus met
the bicameralism requirement of Article I. Indeed, some of these veto provisions were not
even exercised.35 (emphasis supplied)

In Macalintal, given the concept and configuration of the power of congressional oversight and
considering the nature and powers of a constitutional body like the Commission on Elections, the
Court struck down the provision in RA 9189 (The Overseas Absentee Voting Act of 2003) creating a
Joint Congressional Committee. The committee was tasked not only to monitor and evaluate the
implementation of the said law but also to review, revise, amend and approve the IRR promulgated
by the Commission on Elections. The Court held that these functions infringed on the constitutional
independence of the Commission on Elections.36

With this backdrop, it is clear that congressional oversight is not unconstitutional per se, meaning, it
neither necessarily constitutes an encroachment on the executive power to implement laws nor
undermines the constitutional separation of powers. Rather, it is integral to the checks and balances
inherent in a democratic system of government. It may in fact even enhance the separation of
powers as it prevents the over-accumulation of power in the executive branch.

However, to forestall the danger of congressional encroachment "beyond the legislative sphere," the
Constitution imposes two basic and related constraints on Congress.37 It may not vest itself, any of
its committees or its members with either executive or judicial power.38 And, when it exercises its
legislative power, it must follow the "single, finely wrought and exhaustively considered, procedures"
specified under the Constitution,39 including the procedure for enactment of laws and presentment.

Thus, any post-enactment congressional measure such as this should be limited to scrutiny and
investigation. In particular, congressional oversight must be confined to the following:

(1) scrutiny based primarily on Congress’ power of appropriation and the budget hearings
conducted in connection with it, its power to ask heads of departments to appear before and
 be heard by either of its Houses on any matter pertaining to their departments and its power
of confirmation40 and

(2) investigation and monitoring41 of the implementation of laws pursuant to the power of
Congress to conduct inquiries in aid of legislation.42

Any action or step beyond that will undermine the separation of powers guaranteed by the
Constitution. Legislative vetoes fall in this class.

Legislative veto is a statutory provision requiring the President or an administrative agency to

present the proposed implementing rules and regulations of a law to Congress which, by itself or
through a committee formed by it, retains a "right" or "power" to approve or disapprove such
regulations before they take effect. As such, a legislative veto in the form of a congressional
oversight committee is in the form of an inward-turning delegation designed to attach a
congressional leash (other than through scrutiny and investigation) to an agency to which Congress
has by law initially delegated broad powers.43It radically changes the design or structure of the
Constitution’s diagram of power as it entrusts to Congress a direct role in enforcing, applying or
implementing its own laws.44

Congress has two options when enacting legislation to define national policy within the broad
horizons of its legislative competence.45 It can itself formulate the details or it can assign to the
executive branch the responsibility for making necessary managerial decisions in conformity with
those standards.46 In the latter case, the law must be complete in all its essential terms and
conditions when it leaves the hands of the legislature.47 Thus, what is left for the executive branch or
the concerned administrative agency when it formulates rules and regulations implementing the law
is to fill up details (supplementary rule-making) or ascertain facts necessary to bring the law into
actual operation (contingent rule-making).48

Administrative regulations enacted by administrative agencies to implement and interpret the law
which they are entrusted to enforce have the force of law and are entitled to respect.49 Such rules
and regulations partake of the nature of a statute50 and are just as binding as if they have been
written in the statute itself. As such, they have the force and effect of law and enjoy the presumption
of constitutionality and legality until they are set aside with finality in an appropriate case by a
competent court.51 Congress, in the guise of assuming the role of an overseer, may not pass upon
their legality by subjecting them to its stamp of approval without disturbing the calculated balance of
powers established by the Constitution. In exercising discretion to approve or disapprove the IRR
based on a determination of whether or not they conformed with the provisions of RA 9335,
Congress arrogated judicial power unto itself, a power exclusively vested in this Court by the
Constitution.

Considered Opinion of 

Mr. Justice Dante O. Tinga

Moreover, the requirement that the implementing rules of a law be subjected to approval by
Congress as a condition for their effectivity violates the cardinal constitutional principles of
bicameralism and the rule on presentment.52

Section 1, Article VI of the Constitution states:

Section 1. The legislative power shall be vested in the Congress of the Philippines
which shall consist of a Senate and a House of Representatives, except to the extent
reserved to the people by the provision on initiative and referendum. (emphasis supplied)
Legislative power (or the power to propose, enact, amend and repeal laws)53 is vested in Congress
which consists of two chambers, the Senate and the House of Representatives. A valid exercise of
legislative power requires the act of both chambers. Corrollarily, it can be exercised neither solely by
one of the two chambers nor by a committee of either or both chambers. Thus, assuming the validity
of a legislative veto, both a single-chamber legislative veto and a congressional committee
legislative veto are invalid.

Additionally, Section 27(1), Article VI of the Constitution provides:

Section 27. (1) Every bill passed by the Congress shall, before it becomes a law, be
presented to the President. If he approves the same, he shall sign it, otherwise, he shall
veto it and return the same with his objections to the House where it originated, which shall
enter the objections at large in its Journal and proceed to reconsider it. If, after such
reconsideration, two-thirds of all the Members of such House shall agree to pass the bill, it
shall be sent, together with the objections, to the other House by which it shall likewise be
reconsidered, and if approved by two-thirds of all the Members of that House, it shall become
a law. In all such cases, the votes of each House shall be determined by yeas or nays, and
the names of the members voting for or against shall be entered in its Journal. The President
shall communicate his veto of any bill to the House where it originated within thirty days after
the date of receipt thereof; otherwise, it shall become a law as if he had signed it. (emphasis
supplied)

Every bill passed by Congress must be presented to the President for approval or veto. In the
absence of presentment to the President, no bill passed by Congress can become a law. In this
sense, law-making under the Constitution is a joint act of the Legislature and of the Executive.
Assuming that legislative veto is a valid legislative act with the force of law, it cannot take effect
without such presentment even if approved by both chambers of Congress.

In sum, two steps are required before a bill becomes a law. First, it must be approved by both
Houses of Congress.54 Second, it must be presented to and approved by the President.55 As
summarized by Justice Isagani Cruz56 and Fr. Joaquin G. Bernas, S.J.57, the following is the
procedure for the approval of bills:

A bill is introduced by any member of the House of Representatives or the Senate except for
some measures that must originate only in the former chamber.

The first reading involves only a reading of the number and title of the measure and its
referral by the Senate President or the Speaker to the proper committee for study.

The bill may be "killed" in the committee or it may be recommended for approval, with or
without amendments, sometimes after public hearings are first held thereon. If there are
other bills of the same nature or purpose, they may all be consolidated into one bill under
common authorship or as a committee bill.

Once reported out, the bill shall be calendared for second reading. It is at this stage that the
bill is read in its entirety, scrutinized, debated upon and amended when desired. The second
reading is the most important stage in the passage of a bill.

The bill as approved on second reading is printed in its final form and copies thereof are
distributed at least three days before the third reading. On the third reading, the members
merely register their votes and explain them if they are allowed by the rules. No further
debate is allowed.
 Once the bill passes third reading, it is sent to the other chamber, where it will also undergo
the three readings. If there are differences between the versions approved by the two
chambers, a conference committee58 representing both Houses will draft a compromise
measure that if ratified by the Senate and the House of Representatives will then be
submitted to the President for his consideration.

The bill is enrolled when printed as finally approved by the Congress, thereafter
authenticated with the signatures of the Senate President, the Speaker, and the Secretaries
of their respective chambers…59

The President’s role in law-making.

The final step is submission to the President for approval. Once approved, it takes effect as
law after the required publication.60

Where Congress delegates the formulation of rules to implement the law it has enacted pursuant to
sufficient standards established in the said law, the law must be complete in all its essential terms
and conditions when it leaves the hands of the legislature. And it may be deemed to have left the
hands of the legislature when it becomes effective because it is only upon effectivity of the statute
that legal rights and obligations become available to those entitled by the language of the statute.
Subject to the indispensable requisite of publication under the due process clause,61 the
determination as to when a law takes effect is wholly the prerogative of Congress.62 As such, it is
only upon its effectivity that a law may be executed and the executive branch acquires the duties
and powers to execute the said law. Before that point, the role of the executive branch, particularly of
the President, is limited to approving or vetoing the law.63

From the moment the law becomes effective, any provision of law that empowers Congress or any
of its members to play any role in the implementation or enforcement of the law violates the principle
of separation of powers and is thus unconstitutional. Under this principle, a provision that requires
Congress or its members to approve the implementing rules of a law after it has already taken effect
shall be unconstitutional, as is a provision that allows Congress or its members to overturn any
directive or ruling made by the members of the executive branch charged with the implementation of
the law.

Following this rationale, Section 12 of RA 9335 should be struck down as unconstitutional. While
there may be similar provisions of other laws that may be invalidated for failure to pass this standard,
the Court refrains from invalidating them wholesale but will do so at the proper time when an
appropriate case assailing those provisions is brought before us.64

The next question to be resolved is: what is the effect of the unconstitutionality of Section 12 of RA
9335 on the other provisions of the law? Will it render the entire law unconstitutional? No.

Section 13 of RA 9335 provides:

SEC. 13. Separability Clause. – If any provision of this Act is declared invalid by a competent
court, the remainder of this Act or any provision not affected by such declaration of invalidity
shall remain in force and effect.

In Tatad v. Secretary of the Department of Energy,65 the Court laid down the following rules:
 The general rule is that where part of a statute is void as repugnant to the Constitution, while
another part is valid, the valid portion, if separable from the invalid, may stand and be
enforced. The presence of a separability clause in a statute creates the presumption that the
legislature intended separability, rather than complete nullity of the statute. To justify this
result, the valid portion must be so far independent of the invalid portion that it is fair to
presume that the legislature would have enacted it by itself if it had supposed that it could
not constitutionally enact the other. Enough must remain to make a complete, intelligible and
valid statute, which carries out the legislative intent. x x x

The exception to the general rule is that when the parts of a statute are so mutually
dependent and connected, as conditions, considerations, inducements, or compensations for
each other, as to warrant a belief that the legislature intended them as a whole, the nullity of
one part will vitiate the rest. In making the parts of the statute dependent, conditional, or
connected with one another, the legislature intended the statute to be carried out as a whole
and would not have enacted it if one part is void, in which case if some parts are
unconstitutional, all the other provisions thus dependent, conditional, or connected must fall
with them.

The separability clause of RA 9335 reveals the intention of the legislature to isolate and detach any
invalid provision from the other provisions so that the latter may continue in force and effect. The
valid portions can stand independently of the invalid section. Without Section 12, the remaining
provisions still constitute a complete, intelligible and valid law which carries out the legislative intent
to optimize the revenue-generation capability and collection of the BIR and the BOC by providing for
a system of rewards and sanctions through the Rewards and Incentives Fund and a Revenue
Performance Evaluation Board.

To be effective, administrative rules and regulations must be published in full if their purpose is to
enforce or implement existing law pursuant to a valid delegation. The IRR of RA 9335 were
published on May 30, 2006 in two newspapers of general circulation66 and became effective 15 days
thereafter.67 Until and unless the contrary is shown, the IRR are presumed valid and effective even
without the approval of the Joint Congressional Oversight Committee.

WHEREFORE, the petition is hereby PARTIALLY GRANTED. Section 12 of RA 9335 creating a

Joint Congressional Oversight Committee to approve the implementing rules and regulations of the
law is declared UNCONSTITUTIONAL and therefore NULL and VOID. The constitutionality of the
remaining provisions of RA 9335 is UPHELD. Pursuant to Section 13 of RA 9335, the rest of the
provisions remain in force and effect.

SO ORDERED.

G.R. No. 169777*             April 20, 2006

SENATE OF THE PHILIPPINES, represented by FRANKLIN M. DRILON, in his capacity as

Senate President, JUAN M. FLAVIER, in his capacity as Senate President Pro Tempore,
FRANCIS N. PANGILINAN, in his capacity as Majority Leader, AQUILINO Q. PIMENTEL, JR., in
his capacity as Minority Leader, SENATORS RODOLFO G. BIAZON, "COMPANERA" PIA S.
CAYETANO, JINGGOY EJERCITO ESTRADA, LUISA "LOI" EJERCITO ESTRADA, JUAN
PONCE ENRILE, RICHARD J. GORDON, PANFILO M. LACSON, ALFREDO S.LIM, M. A.
MADRIGAL, SERGIO OSMENA III, RALPH G. RECTO, and MAR ROXAS,Petitioners, 
vs.
EDUARDO R. ERMITA, in his capacity as Executive Secretary and alter-ego of President
Gloria Macapagal-Arroyo, and anyone acting in his stead and in behalf of the President of the
Philippines,Respondents.

CARPIO MORALES, J.:

A transparent government is one of the hallmarks of a truly republican state. Even in the early history
of republican thought, however, it has been recognized that the head of government may keep
certain information confidential in pursuit of the public interest. Explaining the reason for vesting
executive power in only one magistrate, a distinguished delegate to the U.S. Constitutional
Convention said: "Decision, activity, secrecy, and dispatch will generally characterize the
proceedings of one man, in a much more eminent degree than the proceedings of any greater
number; and in proportion as the number is increased, these qualities will be diminished."1

History has been witness, however, to the fact that the power to withhold information lends itself to
abuse, hence, the necessity to guard it zealously.

The present consolidated petitions for certiorari and prohibition proffer that the President has abused
such power by issuing Executive Order No. 464 (E.O. 464) last September 28, 2005. They thus pray
for its declaration as null and void for being unconstitutional.

In resolving the controversy, this Court shall proceed with the recognition that the issuance under
review has come from a co-equal branch of government, which thus entitles it to a strong
presumption of constitutionality. Once the challenged order is found to be indeed violative of the
Constitution, it is duty-bound to declare it so. For the Constitution, being the highest expression of
the sovereign will of the Filipino people, must prevail over any issuance of the government that
contravenes its mandates.

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

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

The Senate Committee on National Defense and Security likewise issued invitations2 dated
September 22, 2005 to the following officials of the AFP: the Commanding General of the Philippine
Army, Lt. Gen. Hermogenes C. Esperon; Inspector General of the AFP Vice Admiral Mateo M.
Mayuga; Deputy Chief of Staff for Intelligence of the AFP Rear Admiral Tirso R. Danga; Chief of the
Intelligence Service of the AFP Brig. Gen. Marlu Q. Quevedo; Assistant Superintendent of the
Philippine Military Academy (PMA) Brig. Gen. Francisco V. Gudani; and Assistant Commandant,
Corps of Cadets of the PMA, Col. Alexander F. Balutan, for them to attend as resource persons in a
public hearing scheduled on September 28, 2005 on the following: (1) Privilege Speech of Senator
Aquilino Q. Pimentel Jr., delivered on June 6, 2005 entitled "Bunye has Provided Smoking Gun or
has Opened a Can of Worms that Show Massive Electoral Fraud in the Presidential Election of May
2005"; (2) Privilege Speech of Senator Jinggoy E. Estrada delivered on July 26, 2005 entitled "The
Philippines as the Wire-Tapping Capital of the World"; (3) Privilege Speech of Senator Rodolfo
Biazon delivered on August 1, 2005 entitled "Clear and Present Danger"; (4) Senate Resolution No.
285 filed by Senator Maria Ana Consuelo Madrigal – Resolution Directing the Committee on National
Defense and Security to Conduct an Inquiry, in Aid of Legislation, and in the National Interest, on the
Role of the Military in the So-called "Gloriagate Scandal"; and (5) Senate Resolution No. 295 filed by
Senator Biazon – Resolution Directing the Committee on National Defense and Security to Conduct
an Inquiry, in Aid of Legislation, on the Wire-Tapping of the President of the Philippines.

Also invited to the above-said hearing scheduled on September 28 2005 was the AFP Chief of Staff,
General Generoso S. Senga who, by letter3 dated September 27, 2005, requested for its
postponement "due to a pressing operational situation that demands [his utmost personal attention"
while "some of the invited AFP officers are currently attending to other urgent operational matters."

On September 28, 2005, Senate President Franklin M. Drilon received from Executive Secretary
Eduardo R. Ermita a letter4 dated September 27, 2005 "respectfully request[ing] for the
postponement of the hearing [regarding the NorthRail project] to which various officials of the
Executive Department have been invited" in order to "afford said officials ample time and opportunity
to study and prepare for the various issues so that they may better enlighten the Senate Committee
on its investigation."

Senate President Drilon, however, wrote5 Executive Secretary Ermita that the Senators "are unable
to accede to [his request]" as it "was sent belatedly" and "[a]ll preparations and arrangements as well
as notices to all resource persons were completed [the previous] week."

Senate President Drilon likewise received on September 28, 2005 a letter6 from the President of the
North Luzon Railways Corporation Jose L. Cortes, Jr. requesting that the hearing on the NorthRail
project be postponed or cancelled until a copy of the report of the UP Law Center on the contract
agreements relative to the project had been secured.

On September 28, 2005, the President issued E.O. 464, "Ensuring Observance of the Principle of
Separation of Powers, Adherence to the Rule on Executive Privilege and Respect for the Rights of
Public Officials Appearing in Legislative Inquiries in Aid of Legislation Under the Constitution, and
For Other Purposes,"7 which, pursuant to Section 6 thereof, took effect immediately. The salient
provisions of the Order are as follows:

SECTION 1. Appearance by Heads of Departments Before Congress. – In accordance with Article

VI, Section 22 of the Constitution and to implement the Constitutional provisions on the separation of
powers between co-equal branches of the government, all heads of departments of the Executive
Branch of the government shall secure the consent of the President prior to appearing before either
House of Congress.

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

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

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

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

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

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

Discussion in close-door Cabinet meetings (Chavez v. Presidential Commission on Good

Government, G.R. No. 130716, 9 December 1998);

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

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

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

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

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

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

Such other officers as may be determined by the President.

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

Also on September 28, 2005, Senate President Drilon received from Executive Secretary Ermita a
copy of E.O. 464, and another letter8 informing him "that officials of the Executive Department invited
to appear at the meeting [regarding the NorthRail project] will not be able to attend the same without
the consent of the President, pursuant to [E.O. 464]" and that "said officials have not secured the
required consent from the President." On even date which was also the scheduled date of the
hearing on the alleged wiretapping, Gen. Senga sent a letter9 to Senator Biazon, Chairperson of the
Committee on National Defense and Security, informing him "that per instruction of [President
Arroyo], thru the Secretary of National Defense, no officer of the [AFP] is authorized to appear
before any Senate or Congressional hearings without seeking a written approval from the President"
and "that no approval has been granted by the President to any AFP officer to appear before the
public hearing of the Senate Committee on National Defense and Security scheduled [on] 28
September 2005."

Despite the communications received from Executive Secretary Ermita and Gen. Senga, the
investigation scheduled by the Committee on National Defense and Security pushed through, with
only Col. Balutan and Brig. Gen. Gudani among all the AFP officials invited attending.

For defying President Arroyo’s order barring military personnel from testifying before legislative
inquiries without her approval, Brig. Gen. Gudani and Col. Balutan were relieved from their military
posts and were made to face court martial proceedings.

As to the NorthRail project hearing scheduled on September 29, 2005, Executive Secretary Ermita,
citing E.O. 464, sent letter of regrets, in response to the invitations sent to the following government
officials: Light Railway Transit Authority Administrator Melquiades Robles, Metro Rail Transit
Authority Administrator Roberto Lastimoso, Department of Justice (DOJ) Chief State Counsel
Ricardo V. Perez, then Presidential Legal Counsel Merceditas Gutierrez, Department of
Transportation and Communication (DOTC) Undersecretary Guiling Mamonding, DOTC Secretary
Leandro Mendoza, Philippine National Railways General Manager Jose Serase II, Monetary Board
Member Juanita Amatong, Bases Conversion Development Authority Chairperson Gen. Narciso
Abaya and Secretary Romulo L. Neri.10 NorthRail President Cortes sent personal regrets likewise
citing E.O. 464.11

On October 3, 2005, three petitions, docketed as G.R. Nos. 169659, 169660, and 169667, for
certiorari and prohibition, were filed before this Court challenging the constitutionality of E.O. 464.

In G.R. No. 169659, petitioners party-list Bayan Muna, House of Representatives Members Satur
Ocampo, Crispin Beltran, Rafael Mariano, Liza Maza, Joel Virador and Teodoro Casino, Courage,
an organization of government employees, and Counsels for the Defense of Liberties (CODAL), a
group of lawyers dedicated to the promotion of justice, democracy and peace, all claiming to have
standing to file the suit because of the transcendental importance of the issues they posed, pray, in
their petition that E.O. 464 be declared null and void for being unconstitutional; that respondent
Executive Secretary Ermita, in his capacity as Executive Secretary and alter-ego of President
Arroyo, be prohibited from imposing, and threatening to impose sanctions on officials who appear
before Congress due to congressional summons. Additionally, petitioners claim that E.O. 464
infringes on their rights and impedes them from fulfilling their respective obligations. Thus, Bayan
Muna alleges that E.O. 464 infringes on its right as a political party entitled to participate in
governance; Satur Ocampo, et al. allege that E.O. 464 infringes on their rights and duties as
members of Congress to conduct investigation in aid of legislation and conduct oversight functions in
the implementation of laws; Courage alleges that the tenure of its members in public office is
predicated on, and threatened by, their submission to the requirements of E.O. 464 should they be
summoned by Congress; and CODAL alleges that its members have a sworn duty to uphold the rule
of law, and their rights to information and to transparent governance are threatened by the
imposition of E.O. 464.

In G.R. No. 169660, petitioner Francisco I. Chavez, claiming that his constitutional rights as a citizen,
taxpayer and law practitioner, are affected by the enforcement of E.O. 464, prays in his petition that
E.O. 464 be declared null and void for being unconstitutional.

In G.R. No. 169667, petitioner Alternative Law Groups, Inc.12 (ALG), alleging that as a coalition of 17
legal resource non-governmental organizations engaged in developmental lawyering and work with
the poor and marginalized sectors in different parts of the country, and as an organization of citizens
of the Philippines and a part of the general public, it has legal standing to institute the petition to
enforce its constitutional right to information on matters of public concern, a right which was denied
to the public by E.O. 464,13 prays, that said order be declared null and void for being unconstitutional
and that respondent Executive Secretary Ermita be ordered to cease from implementing it.

On October 11, 2005, Petitioner Senate of the Philippines, alleging that it has a vital interest in the
resolution of the issue of the validity of E.O. 464 for it stands to suffer imminent and material injury,
as it has already sustained the same with its continued enforcement since it directly interferes with
and impedes the valid exercise of the Senate’s powers and functions and conceals information of
great public interest and concern, filed its petition for certiorari and prohibition, docketed as G.R. No.
169777 and prays that E.O. 464 be declared unconstitutional.

On October 14, 2005, PDP-Laban, a registered political party with members duly elected into the
Philippine Senate and House of Representatives, filed a similar petition for certiorari and prohibition,
docketed as G.R. No. 169834, alleging that it is affected by the challenged E.O. 464 because it
hampers its legislative agenda to be implemented through its members in Congress, particularly in
the conduct of inquiries in aid of legislation and transcendental issues need to be resolved to avert a
constitutional crisis between the executive and legislative branches of the government.

Meanwhile, by letter14 dated February 6, 2006, Senator Biazon reiterated his invitation to Gen.
Senga for him and other military officers to attend the hearing on the alleged wiretapping scheduled
on February 10, 2005. Gen. Senga replied, however, by letter15 dated February 8, 2006, that
"[p]ursuant to Executive Order No. 464, th[e] Headquarters requested for a clearance from the
President to allow [them] to appear before the public hearing" and that "they will attend once [their]
request is approved by the President." As none of those invited appeared, the hearing on February
10, 2006 was cancelled.16

In another investigation conducted jointly by the Senate Committee on Agriculture and Food and the
Blue Ribbon Committee on the alleged mismanagement and use of the fertilizer fund under the
Ginintuang Masaganang Ani program of the Department of Agriculture (DA), several Cabinet officials
were invited to the hearings scheduled on October 5 and 26, November 24 and December 12, 2005
but most of them failed to attend, DA Undersecretary Belinda Gonzales, DA Assistant Secretary
Felix Jose Montes, Fertilizer and Pesticide Authority Executive Director Norlito R. Gicana,17 and
those from the Department of Budget and Management18 having invoked E.O. 464.

In the budget hearings set by the Senate on February 8 and 13, 2006, Press Secretary and
Presidential Spokesperson Ignacio R. Bunye,19 DOJ Secretary Raul M. Gonzalez20 and Department
of Interior and Local Government Undersecretary Marius P. Corpus21 communicated their inability to
attend due to lack of appropriate clearance from the President pursuant to E.O. 464. During the
February 13, 2005 budget hearing, however, Secretary Bunye was allowed to attend by Executive
Secretary Ermita.

On February 13, 2006, Jose Anselmo I. Cadiz and the incumbent members of the Board of
Governors of the Integrated Bar of the Philippines, as taxpayers, and the Integrated Bar of the
Philippines as the official organization of all Philippine lawyers, all invoking their constitutional right to
be informed on matters of public interest, filed their petition for certiorari and prohibition, docketed as
G.R. No. 171246, and pray that E.O. 464 be declared null and void.

All the petitions pray for the issuance of a Temporary Restraining Order enjoining respondents from
implementing, enforcing, and observing E.O. 464.
In the oral arguments on the petitions conducted on February 21, 2006, the following substantive
issues were ventilated: (1) whether respondents committed grave abuse of discretion in
implementing E.O. 464 prior to its publication in the Official Gazette or in a newspaper of general
circulation; and (2) whether E.O. 464 violates the following provisions of the Constitution: Art. II, Sec.
28, Art. III, Sec. 4, Art. III, Sec. 7, Art. IV. Sec. 1, Art. VI, Sec. 21, Art. VI, Sec. 22, Art. XI, Sec. 1, and
Art. XIII, Sec. 16. The procedural issue of whether there is an actual case or controversy that calls
for judicial review was not taken up; instead, the parties were instructed to discuss it in their
respective memoranda.

After the conclusion of the oral arguments, the parties were directed to submit their respective
memoranda, paying particular attention to the following propositions: (1) that E.O. 464 is, on its face,
unconstitutional; and (2) assuming that it is not, it is unconstitutional as applied in four instances,
namely: (a) the so called Fertilizer scam; (b) the NorthRail investigation (c) the Wiretapping activity
of the ISAFP; and (d) the investigation on the Venable contract.22

Petitioners in G.R. No. 16966023 and G.R. No. 16977724 filed their memoranda on March 7, 2006,
while those in G.R. No. 16966725 and G.R. No. 16983426 filed theirs the next day or on March 8,
2006. Petitioners in G.R. No. 171246 did not file any memorandum.

Petitioners Bayan Muna et al. in G.R. No. 169659, after their motion for extension to file
memorandum27 was granted, subsequently filed a manifestation28 dated March 14, 2006 that it would
no longer file its memorandum in the interest of having the issues resolved soonest, prompting this
Court to issue a Resolution reprimanding them.29

Petitioners submit that E.O. 464 violates the following constitutional provisions:

Art. VI, Sec. 2130

Art. VI, Sec. 2231

Art. VI, Sec. 132

Art. XI, Sec. 133

Art. III, Sec. 734

Art. III, Sec. 435

Art. XIII, Sec. 16 36

Art. II, Sec. 2837

Respondents Executive Secretary Ermita et al., on the other hand, pray in their consolidated
memorandum38 on March 13, 2006 for the dismissal of the petitions for lack of merit.

The Court synthesizes the issues to be resolved as follows:

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

2. Whether E.O. 464 violates the right of the people to information on matters of public
concern; and
 3. Whether respondents have committed grave abuse of discretion when they implemented
E.O. 464 prior to its publication in a newspaper of general circulation.

Essential requisites for judicial review

Before proceeding to resolve the issue of the constitutionality of E.O. 464, ascertainment of whether
the requisites for a valid exercise of the 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.39

Except with respect to the requisites of standing and existence of an actual case or controversy
where the disagreement between the parties lies, discussion of the rest of the requisites shall be
omitted.

Standing

Respondents, through the Solicitor General, assert that the allegations in G.R. Nos. 169659, 169660
and 169667 make it clear that they, adverting to the non-appearance of several officials of the
executive department in the investigations called by the different committees of the Senate, were
brought to vindicate the constitutional duty of the Senate or its different committees to conduct
inquiry in aid of legislation or in the exercise of its oversight functions. They maintain that
Representatives Ocampo et al. have not shown any specific prerogative, power, and privilege of the
House of Representatives which had been effectively impaired by E.O. 464, there being no mention
of any investigation called by the House of Representatives or any of its committees which was
aborted due to the implementation of E.O. 464.

As for Bayan Muna’s alleged interest as a party-list representing the marginalized and
underrepresented, and that of the other petitioner groups and individuals who profess to have
standing as advocates and defenders of the Constitution, respondents contend that such interest
falls short of that required to confer standing on them as parties "injured-in-fact."40

Respecting petitioner Chavez, respondents contend that Chavez may not claim an interest as a
taxpayer for the implementation of E.O. 464 does not involve the exercise of taxing or spending
power.41

With regard to the petition filed by the Senate, respondents argue that in the absence of a personal
or direct injury by reason of the issuance of E.O. 464, the Senate and its individual members are not
the proper parties to assail the constitutionality of E.O. 464.

Invoking this Court’s ruling in National Economic Protectionism Association v. Ongpin42 and

Valmonte v. Philippine Charity Sweepstakes Office,43 respondents assert that to be considered a
proper party, one must have a personal and substantial interest in the case, such that he has
sustained or will sustain direct injury due to the enforcement of E.O. 464.44
That the Senate of the Philippines has a fundamental right essential not only for intelligent public
decision-making in a democratic system, but more especially for sound legislation45 is not disputed.
E.O. 464, however, allegedly stifles the ability of the members of Congress to access information
that is crucial to law-making.46 Verily, the Senate, including its individual members, has a substantial
and direct interest over the outcome of the controversy and is the proper party to assail the
constitutionality of E.O. 464. Indeed, legislators have standing to maintain inviolate the prerogative,
powers and privileges vested by the Constitution in their office and are allowed to sue to question
the validity of any official action which they claim infringes their prerogatives as legislators.47

In the same vein, party-list representatives Satur Ocampo (Bayan Muna), Teodoro Casino (Bayan
Muna), Joel Virador (Bayan Muna), Crispin Beltran (Anakpawis), Rafael Mariano (Anakpawis), and
Liza Maza (Gabriela) are allowed to sue to question the constitutionality of E.O. 464, the absence of
any claim that an investigation called by the House of Representatives or any of its committees was
aborted due to the implementation of E.O. 464 notwithstanding, it being sufficient that a claim is
made that E.O. 464 infringes on their constitutional rights and duties as members of Congress to
conduct investigation in aid of legislation and conduct oversight functions in the implementation of
laws.

The national political party, Bayan Muna, likewise meets the standing requirement as it obtained
three seats in the House of Representatives in the 2004 elections and is, therefore, entitled to
participate in the legislative process consonant with the declared policy underlying the party list
system of affording citizens belonging to marginalized and underrepresented sectors, organizations
and parties who lack well-defined political constituencies to contribute to the formulation and
enactment of legislation that will benefit the nation.48

As Bayan Muna and Representatives Ocampo et al. have the standing to file their petitions, passing
on the standing of their co-petitioners Courage and Codal is rendered unnecessary.49

In filing their respective petitions, Chavez, the ALG which claims to be an organization of citizens,
and the incumbent members of the IBP Board of Governors and the IBP in behalf of its lawyer
members,50 invoke their constitutional right to information on matters of public concern, asserting that
the right to information, curtailed and violated by E.O. 464, is essential to the effective exercise of
other constitutional rights51 and to the maintenance of the balance of power among the three
branches of the government through the principle of checks and balances.52

It is well-settled that when suing as a citizen, the interest of the petitioner in assailing the
constitutionality of laws, presidential decrees, orders, and other regulations, must be direct and
personal. In Franciso v. House of Representatives,53 this Court held that when the proceeding
involves the assertion of a public right, the mere fact that he is a citizen satisfies the requirement of
personal interest.

As for petitioner PDP-Laban, it asseverates that it is clothed with legal standing in view of the
transcendental issues raised in its petition which this Court needs to resolve in order to avert a
constitutional crisis. For it to be accorded standing on the ground of transcendental importance,
however, it must establish (1) the character of the funds (that it is public) or other assets involved in
the case, (2) the presence of a clear case of disregard of a constitutional or statutory prohibition by
the public respondent agency or instrumentality of the government, and (3) the lack of any party with
a more direct and specific interest in raising the questions being raised.54 The first and last
determinants not being present as no public funds or assets are involved and petitioners in G.R.
Nos. 169777 and 169659 have direct and specific interests in the resolution of the controversy,
petitioner PDP-Laban is bereft of standing to file its petition. Its allegation that E.O. 464 hampers its
legislative agenda is vague and uncertain, and at best is only a "generalized interest" which it shares
with the rest of the political parties. Concrete injury, whether actual or threatened, is that
indispensable element of a dispute which serves in part to cast it in a form traditionally capable of
judicial resolution.55 In fine, PDP-Laban’s alleged interest as a political party does not suffice to
clothe it with legal standing.

Actual Case or Controversy

Petitioners assert that an actual case exists, they citing the absence of the executive officials invited
by the Senate to its hearings after the issuance of E.O. 464, particularly those on the NorthRail
project and the wiretapping controversy.

Respondents counter that there is no case or controversy, there being no showing that President
Arroyo has actually withheld her consent or prohibited the appearance of the invited officials.56 These
officials, they claim, merely communicated to the Senate that they have not yet secured the consent
of the President, not that the President prohibited their attendance.57 Specifically with regard to the
AFP officers who did not attend the hearing on September 28, 2005, respondents claim that the
instruction not to attend without the President’s consent was based on its role as Commander-in-
Chief of the Armed Forces, not on E.O. 464.

Respondents thus conclude that the petitions merely rest on an unfounded apprehension that the
President will abuse its power of preventing the appearance of officials before Congress, and that
such apprehension is not sufficient for challenging the validity of E.O. 464.

The Court finds respondents’ assertion that the President has not withheld her consent or prohibited
the appearance of the officials concerned immaterial in determining the existence of an actual case
or controversy insofar as E.O. 464 is concerned. For E.O. 464 does not require either a deliberate
withholding of consent or an express prohibition issuing from the President in order to bar officials
from appearing before Congress.

As the implementation of the challenged order has already resulted in the absence of officials invited
to the hearings of petitioner Senate of the Philippines, it would make no sense to wait for any further
event before considering the present case ripe for adjudication. Indeed, it would be sheer
abandonment of duty if this Court would now refrain from passing on the constitutionality of E.O.
464.

Constitutionality of E.O. 464

E.O. 464, to the extent that it bars the appearance of executive officials before Congress, deprives
Congress of the information in the possession of these officials. To resolve the question of whether
such withholding of information violates the Constitution, consideration of the general power of
Congress to obtain information, otherwise known as the power of inquiry, is in order.

The power of inquiry

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

SECTION 21. The Senate or the House of Representatives or any of its respective committees may
conduct inquiries in aid of legislation in accordance with its duly published rules of procedure. The
rights of persons appearing in or affected by such inquiries shall be respected. (Underscoring
supplied)
This provision is worded exactly as Section 8 of Article VIII of the 1973 Constitution except that, in
the latter, it vests the power of inquiry in the unicameral legislature established therein – the
Batasang Pambansa – and its committees.

The 1935 Constitution did not contain a similar provision. Nonetheless, in Arnault v. Nazareno,58 a
case decided in 1950 under that Constitution, the Court already recognized that the power of inquiry
is inherent in the power to legislate.

Arnault involved a Senate investigation of the reportedly anomalous purchase of the Buenavista and
Tambobong Estates by the Rural Progress Administration. Arnault, who was considered a leading
witness in the controversy, was called to testify thereon by the Senate. On account of his refusal to
answer the questions of the senators on an important point, he was, by resolution of the Senate,
detained for contempt. Upholding the 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.59 . . . (Emphasis and underscoring supplied)

That this power of inquiry is broad enough to cover officials of the executive branch may be deduced
from the same case. The power of inquiry, the Court therein ruled, is co-extensive with the power to
legislate.60 The matters which may be a proper subject of legislation and those which may be a
proper subject of investigation are one. It follows that the operation of government, being a legitimate
subject for legislation, is a proper subject for investigation.

Thus, the Court found that the Senate investigation of the government transaction involved in Arnault
was a proper exercise of the power of inquiry. Besides being related to the expenditure of public
funds of which Congress is the guardian, the transaction, the Court held, "also involved government
agencies created by Congress and officers whose positions it is within the power of Congress to
regulate or even abolish."

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

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

As evidenced by the American experience during the so-called "McCarthy era," however, the right of
Congress to conduct inquiries in aid of legislation is, in theory, no less susceptible to abuse than
executive or judicial power. It may thus be subjected to judicial review pursuant to the Court’s
certiorari powers under Section 1, Article VIII of the Constitution.
For one, as noted in Bengzon v. Senate Blue Ribbon Committee,61 the inquiry itself might not
properly be in aid of legislation, and thus beyond the constitutional power of Congress. Such inquiry
could not usurp judicial functions. Parenthetically, one possible way for Congress to avoid such a
result as occurred in Bengzon is to indicate in its invitations to the public officials concerned, or to
any person for that matter, the possible needed statute which prompted the need for the inquiry.
Given such statement in its invitations, along with the usual indication of the subject of inquiry and
the questions relative to and in furtherance thereof, there would be less room for speculation on the
part of the person invited on whether the inquiry is in aid of legislation.

Section 21, Article VI likewise establishes crucial safeguards that proscribe the legislative power of
inquiry. The provision requires that the inquiry be done in accordance with the Senate or 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.

These abuses are, of course, remediable before the courts, upon the proper suit filed by the persons
affected, even if they belong to the executive branch. Nonetheless, there may be exceptional
circumstances, none appearing to obtain at present, wherein a clear pattern of abuse of the
legislative power of inquiry might be established, resulting in palpable violations of the rights
guaranteed to members of the executive department under the Bill of Rights. In such instances,
depending on the particulars of each case, attempts by the Executive Branch to forestall these
abuses may be accorded judicial sanction.

Even where the inquiry is in aid of legislation, there are still recognized exemptions to the power of
inquiry, which exemptions fall under the rubric of "executive privilege." Since this term figures
prominently in the challenged order, it being mentioned in its provisions, its preambular
clauses,62 and in its very title, a discussion of executive privilege is crucial for determining the
constitutionality of E.O. 464.

Executive privilege

The phrase "executive privilege" is not new in this jurisdiction. It has been used even prior to the
promulgation of the 1986 Constitution.63 Being of American origin, it is best understood in light of
how it has been defined and used in the legal literature of the United States.

Schwartz defines executive privilege as "the power of the Government to withhold information from
the public, the courts, and the Congress."64 Similarly, Rozell defines it as "the right of the President
and high-level executive branch officers to withhold information from Congress, the courts, and
ultimately the public."65

Executive privilege is, nonetheless, not a clear or unitary concept. 66 It has encompassed claims of
varying kinds.67 Tribe, in fact, comments that while it is customary to employ the phrase "executive
privilege," it may be more accurate to speak of executive privileges "since presidential refusals to
furnish information may be actuated by any of at least three distinct kinds of considerations, and may
be asserted, with differing degrees of success, in the context of either judicial or legislative
investigations."

One variety of the privilege, Tribe explains, is the state secrets privilege invoked by U.S. Presidents,
beginning with Washington, on the ground that the information is of such nature that its disclosure
would subvert crucial military or diplomatic objectives. Another variety is the informer’s privilege, or
the privilege of the Government not to disclose the identity of persons who furnish information of
violations of law to officers charged with the enforcement of that law. Finally, a generic privilege for
internal deliberations has been said to attach to intragovernmental documents reflecting advisory
opinions, recommendations and deliberations comprising part of a process by which governmental
decisions and policies are formulated. 68

Tribe’s comment is supported by the ruling in In re Sealed Case, thus:

Since the beginnings of our nation, executive officials have claimed a variety of privileges to resist
disclosure of information the confidentiality of which they felt was crucial to fulfillment of the unique
role and responsibilities of the executive branch of our government. Courts ruled early that the
executive had a right to withhold documents that might reveal military or state secrets. The courts
have also granted the executive a right to withhold the identity of government informers in some
circumstances and a qualified right to withhold information related to pending investigations. x x
x"69 (Emphasis and underscoring supplied)

The entry in Black’s Law Dictionary on "executive privilege" is similarly instructive regarding the
scope of the doctrine.

This privilege, based on the constitutional doctrine of separation of powers, exempts the executive
from disclosure requirements applicable to the ordinary citizen or organization where such
exemption is necessary to the discharge of highly important executive responsibilities involved in
maintaining governmental operations, and extends not only to military and diplomatic secrets but
also to documents integral to an appropriate exercise of the executive’ domestic decisional and
policy making functions, that is, those documents reflecting the frank expression necessary in intra-
governmental advisory and deliberative communications.70 (Emphasis and underscoring supplied)

That a type of information is recognized as privileged does not, however, necessarily mean that it
would be considered privileged in all instances. For in determining the validity of a claim of privilege,
the question that must be asked is not only whether the requested information falls within one of the
traditional privileges, but also whether that privilege should be honored in a given procedural
setting.71

The leading case on executive privilege in the United States is U.S. v. Nixon, 72 decided in 1974. In
issue in that case was the validity of President Nixon’s claim of executive privilege against a
subpoena issued by a district court requiring the production of certain tapes and documents relating
to the Watergate investigations. The claim of privilege was based on the President’s general interest
in the confidentiality of his conversations and correspondence. The U.S. Court held that while there
is no explicit reference to a privilege of confidentiality in the U.S. Constitution, it is constitutionally
based to the extent that it relates to the effective discharge of a President’s powers. The Court,
nonetheless, rejected the President’s claim of privilege, ruling that the privilege must be balanced
against the public interest in the fair administration of criminal justice. Notably, the Court was careful
to clarify that it was not there addressing the issue of claims of privilege in a civil litigation or against
congressional demands for information.

Cases in the U.S. which involve claims of executive privilege against Congress are rare.73 Despite
frequent assertion of the privilege to deny information to Congress, beginning with President
Washington’s refusal to turn over treaty negotiation records to the House of Representatives, the
U.S. Supreme Court has never adjudicated the issue.74 However, the U.S. Court of Appeals for the
District of Columbia Circuit, in a case decided earlier in the same year as Nixon, recognized the
President’s privilege over his conversations against a congressional subpoena.75 Anticipating the
balancing approach adopted by the U.S. Supreme Court in Nixon, the Court of Appeals weighed the
public interest protected by the claim of privilege against the interest that would be served by
disclosure to the Committee. Ruling that the balance favored the President, the Court declined to
enforce the subpoena. 76

In this jurisdiction, the doctrine of executive privilege was recognized by this Court in Almonte v.
Vasquez.77Almonte used the term in reference to the same privilege subject of Nixon. It quoted the
following portion of the Nixon decision which explains the basis for the privilege:

"The expectation of a President to the confidentiality of his conversations and correspondences, like
the claim of confidentiality of judicial deliberations, for example, has all the values to which we
accord deference for the privacy of all citizens and, added to those values, is the necessity for
protection of the public interest in candid, objective, and even blunt or harsh opinions in Presidential
decision-making. A President and those who assist him must be free to explore alternatives in the
process of shaping policies and making decisions and to do so in a way many would be unwilling to
express except privately. These are the considerations justifying a presumptive privilege for
Presidential communications. The privilege is fundamental to the operation of government and
inextricably rooted in the separation of powers under the Constitution x x x " (Emphasis and
underscoring supplied)

Almonte involved a subpoena duces tecum issued by the Ombudsman against the therein
petitioners. It did not involve, as expressly stated in the decision, the right of the people to
information.78 Nonetheless, the Court recognized that there are certain types of information which the
government may withhold from the public, thus acknowledging, in substance if not in name, that
executive privilege may be claimed against citizens’ demands for information.

In Chavez v. PCGG,79 the Court held that this jurisdiction recognizes the common law holding that
there is a "governmental privilege against public disclosure with respect to state secrets regarding
military, diplomatic and other national security matters."80 The same case held that closed-door
Cabinet meetings are also a recognized limitation on the right to information.

Similarly, in Chavez v. Public Estates Authority,81 the Court ruled that the right to information does
not extend to matters recognized as "privileged information under the separation of powers,"82 by
which the Court meant Presidential conversations, correspondences, and discussions in closed-door
Cabinet meetings. It also held that information on military and diplomatic secrets and those affecting
national security, and information on investigations of crimes by law enforcement agencies before
the prosecution of the accused were exempted from the right to information.

From the above discussion on the meaning and scope of executive privilege, both in the United
States and in this jurisdiction, a clear principle emerges. Executive privilege, whether asserted
against Congress, the courts, or the public, is recognized only in relation to certain types of
information of a sensitive character. While executive privilege is a constitutional concept, a claim
thereof may be valid or not depending on the ground invoked to justify it and the context in which it is
made. Noticeably absent is any recognition that executive officials are exempt from the duty to
disclose information by the mere fact of being executive officials. Indeed, the extraordinary character
of the exemptions indicates that the presumption inclines heavily against executive secrecy and in
favor of disclosure.

Validity of Section 1

Section 1 is similar to Section 3 in that both require the officials covered by them to secure the
consent of the President prior to appearing before Congress. There are significant differences
between the two provisions, however, which constrain this Court to discuss the validity of these
provisions separately.
Section 1 specifically applies to department heads. It does not, unlike Section 3, require a prior
determination by any official whether they are covered by E.O. 464. The President herself has,
through the challenged order, made the determination that they are. Further, unlike also Section 3,
the coverage of department heads under Section 1 is not made to depend on the department heads’
possession of any information which might be covered by executive privilege. In fact, in marked
contrast to Section 3 vis-à-vis Section 2, there is no reference to executive privilege at all. Rather,
the required prior consent under Section 1 is grounded on Article VI, Section 22 of the Constitution
on what has been referred to as the question hour.

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

Determining the validity of Section 1 thus requires an examination of the meaning of Section 22 of
Article VI. Section 22 which provides for the question hour must be interpreted vis-à-vis Section 21
which provides for the power of either House of Congress to "conduct inquiries in aid of legislation."
As the following excerpt of the deliberations of the Constitutional Commission shows, the framers
were aware that these two provisions involved distinct functions of Congress.

MR. MAAMBONG. x x x When we amended Section 20 [now Section 22 on the Question Hour]
yesterday, I noticed that members of the Cabinet cannot be compelled anymore to appear before the
House of Representatives or before the Senate. I have a particular problem in this regard, Madam
President, because in our experience in the Regular Batasang Pambansa – as the Gentleman
himself has experienced in the interim Batasang Pambansa – one of the most competent inputs that
we can put in our committee deliberations, either in aid of legislation or in congressional
investigations, is the testimonies of Cabinet ministers. We usually invite them, but if they do not
come and it is a congressional investigation, we usually issue subpoenas.

I want to be clarified on a statement made by Commissioner Suarez when he said that the fact that
the Cabinet ministers may refuse to come to the House of Representatives or the Senate [when
requested under Section 22] does not mean that they need not come when they are invited or
subpoenaed by the committee of either House when it comes to inquiries in aid of legislation or
congressional investigation. According to Commissioner Suarez, that is allowed and their presence
can be had under Section 21. Does the gentleman confirm this, Madam President?

MR. DAVIDE. We confirm that, Madam President, because Section 20 refers only to what was
originally the Question Hour, whereas, Section 21 would refer specifically to inquiries in aid of
legislation, under which anybody for that matter, may be summoned and if he refuses, he can be
held in contempt of the House.83 (Emphasis and underscoring supplied)

A distinction was thus made between inquiries in aid of legislation and the question hour. While
attendance was meant to be discretionary in the question hour, it was compulsory in inquiries in aid
of legislation. The reference to Commissioner Suarez bears noting, he being one of the proponents
of the amendment to make the appearance of department heads discretionary in the question hour.

So clearly was this distinction conveyed to the members of the Commission that the Committee on
Style, precisely in recognition of this distinction, later moved the provision on question hour from its
original position as Section 20 in the original draft down to Section 31, far from the provision on
inquiries in aid of legislation. This gave rise to the following exchange during the deliberations:

MR. GUINGONA. [speaking in his capacity as Chairman of the Committee on Style] We now go, Mr.
Presiding Officer, to the Article on Legislative and may I request the chairperson of the Legislative
Department, Commissioner Davide, to give his reaction.

THE PRESIDING OFFICER (Mr. Jamir). Commissioner Davide is recognized.|avvphi|.net

MR. DAVIDE. Thank you, Mr. Presiding Officer. I have only one reaction to the Question Hour. I
propose that instead of putting it as Section 31, it should follow Legislative Inquiries.

THE PRESIDING OFFICER. What does the committee say?

MR. GUINGONA. I ask Commissioner Maambong to reply, Mr. Presiding Officer.

MR. MAAMBONG. Actually, we considered that previously when we sequenced this but we
reasoned that in Section 21, which is Legislative Inquiry, it is actually a power of Congress in terms
of its own lawmaking; whereas, a Question Hour is not actually a power in terms of its own
lawmaking power because in Legislative Inquiry, it is in aid of legislation. And so we put Question
Hour as Section 31. I hope Commissioner Davide will consider this.

MR. DAVIDE. The Question Hour is closely related with the legislative power, and it is precisely as a
complement to or a supplement of the Legislative Inquiry. The appearance of the members of
Cabinet would be very, very essential not only in the application of check and balance but also, in
effect, in aid of legislation.

MR. MAAMBONG. After conferring with the committee, we find merit in the suggestion of
Commissioner Davide. In other words, we are accepting that and so this Section 31 would now
become Section 22. Would it be, Commissioner Davide?

MR. DAVIDE. Yes.84 (Emphasis and underscoring supplied)

Consistent with their statements earlier in the deliberations, Commissioners Davide and Maambong
proceeded from the same assumption that these provisions pertained to two different functions of
the legislature. Both Commissioners understood that the power to conduct inquiries in aid of
legislation is different from the power to conduct inquiries during the question hour. Commissioner
Davide’s only concern was that the two provisions on these distinct powers be placed closely
together, they being complementary to each other. Neither Commissioner considered them as
identical functions of Congress.

The foregoing opinion was not the two Commissioners’ alone. From the above-quoted exchange,
Commissioner Maambong’s committee – the Committee on Style – shared the view that the two
provisions reflected distinct functions of Congress. Commissioner Davide, on the other hand, was
speaking in his capacity as Chairman of the Committee on the Legislative Department. His views
may thus be presumed as representing that of his Committee.

In the context of a parliamentary system of government, the "question hour" has a definite meaning.
It is a period of confrontation initiated by Parliament to hold the Prime Minister and the other
ministers accountable for their acts and the operation of the government,85 corresponding to what is
known in Britain as the question period. There was a specific provision for a question hour in the
1973 Constitution86 which made the appearance of ministers mandatory. The same perfectly
conformed to the parliamentary system established by that Constitution, where the ministers are also
members of the legislature and are directly accountable to it.

An essential feature of the parliamentary system of government is the immediate accountability of

the Prime Minister and the Cabinet to the National Assembly. They shall be responsible to the
National Assembly for the program of government and shall determine the guidelines of national
policy. Unlike in the presidential system where the tenure of office of all elected officials cannot be
terminated before their term expired, the Prime Minister and the Cabinet remain in office only as long
as they enjoy the confidence of the National Assembly. The moment this confidence is lost the Prime
Minister and the Cabinet may be changed.87

The framers of the 1987 Constitution removed the mandatory nature of such appearance during the
question hour in the present Constitution so as to conform more fully to a system of separation of
powers.88 To that extent, the question hour, as it is presently understood in this jurisdiction, departs
from the question period of the parliamentary system. That department heads may not be required to
appear in a question hour does not, however, mean that the legislature is rendered powerless to
elicit information from them in all circumstances. In fact, in light of the absence of a mandatory
question period, the need to enforce Congress’ right to executive information in the performance of
its legislative function becomes more imperative. As Schwartz observes:

Indeed, if the separation of powers has anything to tell us on the subject under discussion, it is that
the Congress has the right to obtain information from any source – even from officials of
departments and agencies in the executive branch. In the United States there is, unlike the situation
which prevails in a parliamentary system such as that in Britain, a clear separation between the
legislative and executive branches. It is this very separation that makes the congressional right to
obtain information from the executive so essential, if the functions of the Congress as the elected
representatives of the people are adequately to be carried out. The absence of close rapport
between the legislative and executive branches in this country, comparable to those which exist
under a parliamentary system, and the nonexistence in the Congress of an institution such as the
British question period have perforce made reliance by the Congress upon its right to obtain
information from the executive essential, if it is intelligently to perform its legislative tasks. Unless the
Congress possesses the right to obtain executive information, its power of oversight of
administration in a system such as ours becomes a power devoid of most of its practical content,
since it depends for its effectiveness solely upon information parceled out ex gratia by the
executive.89 (Emphasis and underscoring supplied)

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

When Congress merely seeks to be informed on how department heads are implementing the
statutes which it has issued, its right to such information is not as imperative as that of the President
to whom, as Chief Executive, such department heads must give a report of their performance as a
matter of duty. In such instances, Section 22, in keeping with the separation of powers, states that
Congress may only request their appearance. Nonetheless, when the inquiry in which Congress
requires their appearance is "in aid of legislation" under Section 21, the appearance is mandatory for
the same reasons stated in Arnault.90
In fine, the oversight function of Congress may be facilitated by compulsory process only to the
extent that it is performed in pursuit of legislation. This is consistent with the intent discerned from
the deliberations of the Constitutional Commission.

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

When Congress exercises its power of inquiry, the only way for department heads to exempt
themselves therefrom is by a valid claim of privilege. They are not exempt by the mere fact that they
are department heads. Only one executive official may be exempted from this power — the
President on whom executive power is vested, hence, beyond the reach of Congress except through
the power of impeachment. It is based on her being the highest official of the executive branch, and
the due respect accorded to a co-equal branch of government which is sanctioned by a long-
standing custom.

By the same token, members of the Supreme Court are also exempt from this power of inquiry.
Unlike the Presidency, judicial power is vested in a collegial body; hence, each member thereof is
exempt on the basis not only of separation of powers but also on the fiscal autonomy and the
constitutional independence of the judiciary. This point is not in dispute, as even counsel for the
Senate, Sen. Joker Arroyo, admitted it during the oral argument upon interpellation of the Chief
Justice.

Having established the proper interpretation of Section 22, Article VI of the Constitution, the Court
now proceeds to pass on the constitutionality of Section 1 of E.O. 464.

Section 1, in view of its specific reference to Section 22 of Article VI of the Constitution and the
absence of any reference to inquiries in aid of legislation, must be construed as limited in its
application to appearances of department heads in the question hour contemplated in the provision
of said Section 22 of Article VI. The reading is dictated by the basic rule of construction that
issuances must be interpreted, as much as possible, in a way that will render it constitutional.

The requirement then to secure presidential consent under Section 1, limited as it is only to
appearances in the question hour, is valid on its face. For under Section 22, Article VI of the
Constitution, the appearance of department heads in the question hour is discretionary on their part.

Section 1 cannot, however, be applied to appearances of department heads in inquiries in aid of

legislation. Congress is not bound in such instances to respect the refusal of the department head to
appear in such inquiry, unless a valid claim of privilege is subsequently made, either by the
President herself or by the Executive Secretary.

Validity of Sections 2 and 3

Section 3 of E.O. 464 requires all the public officials enumerated in Section 2(b) to secure the
consent of the President prior to appearing before either house of Congress. The enumeration is
broad. It covers all senior officials of executive departments, all officers of the AFP and the PNP, and
all senior national security officials who, in the judgment of the heads of offices designated in the
same section (i.e. department heads, Chief of Staff of the AFP, Chief of the PNP, and the National
Security Adviser), are "covered by the executive privilege."
The enumeration also includes such other officers as may be determined by the President. Given
the title of Section 2 — "Nature, Scope and Coverage of Executive Privilege" —, it is evident that
under the rule of ejusdem generis, the determination by the President under this provision is
intended to be based on a similar finding of coverage under executive privilege.

En passant, the Court notes that Section 2(b) of E.O. 464 virtually states that executive privilege
actually covers persons. Such is a misuse of the doctrine. Executive privilege, as discussed above,
is properly invoked in relation to specific categories of information and not to categories of persons.

In light, however, of Sec 2(a) of E.O. 464 which deals with the nature, scope and coverage of
executive privilege, the reference to persons being "covered by the executive privilege" may be read
as an abbreviated way of saying that the person is in possession of information which is, in the
judgment of the head of office concerned, privileged as defined in Section 2(a). The Court shall thus
proceed on the assumption that this is the intention of the challenged order.

Upon a determination by the designated head of office or by the President that an official is "covered
by the executive privilege," such official is subjected to the requirement that he first secure the
consent of the President prior to appearing before Congress. This requirement effectively bars the
appearance of the official concerned unless the same is permitted by the President. The proviso
allowing the President to give its consent means nothing more than that the President may reverse a
prohibition which already exists by virtue of E.O. 464.

Thus, underlying this requirement of prior consent is the determination by a head of office,
authorized by the President under E.O. 464, or by the President herself, that such official is in
possession of information that is covered by executive privilege. This determination then becomes
the basis for the official’s not showing up in the legislative investigation.

In view thereof, whenever an official invokes E.O. 464 to justify his failure to be present, such
invocation must be construed as a declaration to Congress that the President, or a head of office
authorized by the President, has determined that the requested information is privileged, and that
the President has not reversed such determination. Such declaration, however, even without
mentioning the term "executive privilege," amounts to an implied claim that the information is being
withheld by the executive branch, by authority of the President, on the basis of executive privilege.
Verily, there is an implied claim of privilege.

The letter dated September 28, 2005 of respondent Executive Secretary Ermita to Senate President
Drilon illustrates the implied nature of the claim of privilege authorized by E.O. 464. It reads:

In connection with the inquiry to be conducted by the Committee of the Whole regarding the Northrail
Project of the North Luzon Railways Corporation on 29 September 2005 at 10:00 a.m., please be
informed that officials of the Executive Department invited to appear at the meeting will not be able
to attend the same without the consent of the President, pursuant to Executive Order No. 464 (s.
2005), entitled "Ensuring Observance Of The Principle Of Separation Of Powers, Adherence To The
Rule On Executive Privilege And Respect For The Rights Of Public Officials Appearing In Legislative
Inquiries In Aid Of Legislation Under The Constitution, And For Other Purposes". Said officials have
not secured the required consent from the President. (Underscoring supplied)

The letter does not explicitly invoke executive privilege or that the matter on which these officials are
being requested to be resource persons falls under the recognized grounds of the privilege to justify
their absence. Nor does it expressly state that in view of the lack of consent from the President
under E.O. 464, they cannot attend the hearing.
Significant premises in this letter, however, are left unstated, deliberately or not. The letter assumes
that the invited officials are covered by E.O. 464. As explained earlier, however, to be covered by the
order means that a determination has been made, by the designated head of office or the President,
that the invited official possesses information that is covered by executive privilege. Thus, although it
is not stated in the letter that such determination has been made, the same must be deemed
implied. Respecting the statement that the invited officials have not secured the consent of the
President, it only means that the President has not reversed the standing prohibition against their
appearance before Congress.

Inevitably, Executive Secretary Ermita’s letter leads to the conclusion that the executive branch,
either through the President or the heads of offices authorized under E.O. 464, has made a
determination that the information required by the Senate is privileged, and that, at the time of
writing, there has been no contrary pronouncement from the President. In fine, an implied claim of
privilege has been made by the executive.

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

There is no claim by PEA that the information demanded by petitioner is privileged information
rooted in the separation of powers. The information does not cover Presidential conversations,
correspondences, or discussions during closed-door Cabinet meetings which, like internal-
deliberations of the Supreme Court and other collegiate courts, or executive sessions of either house
of Congress, are recognized as confidential. This kind of information cannot be pried open by a co-
equal branch of government. A frank exchange of exploratory ideas and assessments, free from the
glare of publicity and pressure by interested parties, is essential to protect the independence of
decision-making of those tasked to exercise Presidential, Legislative and Judicial power. This is not
the situation in the instant case.91 (Emphasis and underscoring supplied)

Section 3 of E.O. 464, therefore, cannot be dismissed outright as invalid by the mere fact that it
sanctions claims of executive privilege. This Court must look further and assess the claim of
privilege authorized by the Order to determine whether it is valid.

While the validity of claims of privilege must be assessed on a case to case basis, examining the
ground invoked therefor and the particular circumstances surrounding it, there is, in an implied claim
of privilege, a defect that renders it invalid per se. By its very nature, and as demonstrated by the
letter of respondent Executive Secretary quoted above, the implied claim authorized by Section 3 of
E.O. 464 is not accompanied by any specific allegation of the basis thereof (e.g., whether the
information demanded involves military or diplomatic secrets, closed-door Cabinet meetings, etc.).
While Section 2(a) enumerates the types of information that are covered by the privilege under the
challenged order, Congress is left to speculate as to which among them is being referred to by the
executive. The enumeration is not even intended to be comprehensive, but a mere statement of
what is included in the phrase "confidential or classified information between the President and the
public officers covered by this executive order."

Certainly, Congress has the right to know why the executive considers the requested information
privileged. It does not suffice to merely declare that the President, or an authorized head of office,
has determined that it is so, and that the President has not overturned that determination. Such
declaration leaves Congress in the dark on how the requested information could be classified as
privileged. That the message is couched in terms that, on first impression, do not seem like a claim
of privilege only makes it more pernicious. It threatens to make Congress doubly blind to the
question of why the executive branch is not providing it with the information that it has requested.

A claim of privilege, being a claim of exemption from an obligation to disclose information, must,
therefore, be clearly asserted. As U.S. v. Reynolds teaches:

The privilege belongs to the government and must be asserted by it; it can neither be claimed nor
waived by a private party. It is not to be lightly invoked. There must be a formal claim of privilege,
lodged by the head of the department which has control over the matter, after actual personal
consideration by that officer. The court itself must determine whether the circumstances are
appropriate for the claim of privilege, and yet do so without forcing a disclosure of the very thing the
privilege is designed to protect.92 (Underscoring supplied)

Absent then a statement of the specific basis of a claim of executive privilege, there is no way of
determining whether it falls under one of the traditional privileges, or whether, given the
circumstances in which it is made, it should be respected.93 These, in substance, were the same
criteria in assessing the claim of privilege asserted against the Ombudsman in Almonte v.
Vasquez94 and, more in point, against a committee of the Senate in Senate Select Committee on
Presidential Campaign Activities v. Nixon.95

A.O. Smith v. Federal Trade Commission is enlightening:

[T]he lack of specificity renders an assessment of the potential harm resulting from disclosure
impossible, thereby preventing the Court from balancing such harm against plaintiffs’ needs to
determine whether to override any claims of privilege.96 (Underscoring supplied)

And so is U.S. v. Article of Drug:97

On the present state of the record, this Court is not called upon to perform this balancing operation.
In stating its objection to claimant’s interrogatories, government asserts, and nothing more, that the
disclosures sought by claimant would inhibit the free expression of opinion that non-disclosure is
designed to protect. The government has not shown – nor even alleged – that those who evaluated
claimant’s product were involved in internal policymaking, generally, or in this particular instance.
Privilege cannot be set up by an unsupported claim. The facts upon which the privilege is based
must be established. To find these interrogatories objectionable, this Court would have to assume
that the evaluation and classification of claimant’s products was a matter of internal policy
formulation, an assumption in which this Court is unwilling to indulge sua sponte.98 (Emphasis and
underscoring supplied)

Mobil Oil Corp. v. Department of Energy99 similarly emphasizes that "an agency must provide
‘precise and certain’ reasons for preserving the confidentiality of requested information."

Black v. Sheraton Corp. of America100 amplifies, thus:

A formal and proper claim of executive privilege requires a specific designation and description of
the documents within its scope as well as precise and certain reasons for preserving their
confidentiality. Without this specificity, it is impossible for a court to analyze the claim short of
disclosure of the very thing sought to be protected. As the affidavit now stands, the Court has little
more than its sua sponte speculation with which to weigh the applicability of the claim. An improperly
asserted claim of privilege is no claim of privilege. Therefore, despite the fact that a claim was made
by the proper executive as Reynolds requires, the Court can not recognize the claim in the instant
case because it is legally insufficient to allow the Court to make a just and reasonable determination
as to its applicability. To recognize such a broad claim in which the Defendant has given no precise
or compelling reasons to shield these documents from outside scrutiny, would make a farce of the
whole procedure.101 (Emphasis and underscoring supplied)

Due respect for a co-equal branch of government, moreover, demands no less than a claim of
privilege clearly stating the grounds therefor. Apropos is the following ruling in McPhaul v. U.S:102

We think the Court’s decision in United States v. Bryan, 339 U.S. 323, 70 S. Ct. 724, is highly
relevant to these questions. For it is as true here as it was there, that ‘if (petitioner) had legitimate
reasons for failing to produce the records of the association, a decent respect for the House of
Representatives, by whose authority the subpoenas issued, would have required that (he) state (his)
reasons for noncompliance upon the return of the writ. Such a statement would have given the
Subcommittee an opportunity to avoid the blocking of its inquiry by taking other appropriate steps to
obtain the records. ‘To deny the Committee the opportunity to consider the objection or remedy is in
itself a contempt of its authority and an obstruction of its processes. His failure to make any such
statement was "a patent evasion of the duty of one summoned to produce papers before a
congressional committee[, and] cannot be condoned." (Emphasis and underscoring supplied;
citations omitted)

Upon the other hand, Congress must not require the executive to state the reasons for the claim with
such particularity as to compel disclosure of the information which the privilege is meant to
protect.103 A useful analogy in determining the requisite degree of particularity would be the privilege
against self-incrimination. Thus, Hoffman v. U.S.104 declares:

The witness is not exonerated from answering merely because he declares that in so doing he would
incriminate himself – his say-so does not of itself establish the hazard of incrimination. It is for the
court to say whether his silence is justified, and to require him to answer if ‘it clearly appears to the
court that he is mistaken.’ However, if the witness, upon interposing his claim, were required to
prove the hazard in the sense in which a claim is usually required to be established in court, he
would be compelled to surrender the very protection which the privilege is designed to guarantee. To
sustain the privilege, it need only be evident from the implications of the question, in the setting in
which it is asked, that a responsive answer to the question or an explanation of why it cannot be
answered might be dangerous because injurious disclosure could result." x x x (Emphasis and
underscoring supplied)

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

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

No infirmity, however, can be imputed to Section 2(a) as it merely provides guidelines, binding only
on the heads of office mentioned in Section 2(b), on what is covered by executive privilege. It does
not purport to be conclusive on the other branches of government. It may thus be construed as a
mere expression of opinion by the President regarding the nature and scope of executive privilege.

Petitioners, however, assert as another ground for invalidating the challenged order the alleged
unlawful delegation of authority to the heads of offices in Section 2(b). Petitioner Senate of the
Philippines, in particular, cites the case of the United States where, so it claims, only the President
can assert executive privilege to withhold information from Congress.

Section 2(b) in relation to Section 3 virtually provides that, once the head of office determines that a
certain information is privileged, such determination is presumed to bear the President’s authority
and has the effect of prohibiting the official from appearing before Congress, subject only to the
express pronouncement of the President that it is allowing the appearance of such official. These
provisions thus allow the President to authorize claims of privilege by mere silence.

Such presumptive authorization, however, is contrary to the exceptional nature of the privilege.
Executive privilege, as already discussed, is recognized with respect to information the confidential
nature of which is crucial to the fulfillment of the unique role and responsibilities of the executive
branch,105 or in those instances where exemption from disclosure is necessary to the discharge of
highly important executive responsibilities.106 The doctrine of executive privilege is thus premised on
the fact that certain informations must, as a matter of necessity, be kept confidential in pursuit of the
public interest. The privilege being, by definition, an exemption from the obligation to disclose
information, in this case to Congress, the necessity must be of such high degree as to outweigh the
public interest in enforcing that obligation in a particular case.

In light of this highly exceptional nature of the privilege, the Court finds it essential to limit to the
President the power to invoke the privilege. She may of course authorize the Executive Secretary to
invoke the privilege on her behalf, in which case the Executive Secretary must state that the
authority is "By order of the President," which means that he personally consulted with her. The
privilege being an extraordinary power, it must be wielded only by the highest official in the executive
hierarchy. In other words, the President may not authorize her subordinates to exercise such power.
There is even less reason to uphold such authorization in the instant case where the authorization is
not explicit but by mere silence. Section 3, in relation to Section 2(b), is further invalid on this score.

It follows, therefore, that when an official is being summoned by Congress on a matter which, in his
own judgment, might be covered by executive privilege, he must be afforded reasonable time to
inform the President or the Executive Secretary of the possible need for invoking the privilege. This
is necessary in order to provide the President or the Executive Secretary with fair opportunity to
consider whether the matter indeed calls for a claim of executive privilege. If, after the lapse of that
reasonable time, neither the President nor the Executive Secretary invokes the privilege, Congress
is no longer bound to respect the failure of the official to appear before Congress and may then opt
to avail of the necessary legal means to compel his appearance.

The Court notes that one of the expressed purposes for requiring officials to secure the consent of
the President under Section 3 of E.O. 464 is to ensure "respect for the rights of public officials
appearing in inquiries in aid of legislation." That such rights must indeed be respected by Congress
is an echo from Article VI Section 21 of the Constitution mandating that "[t]he rights of persons
appearing in or affected by such inquiries shall be respected."

In light of the above discussion of Section 3, it is clear that it is essentially an authorization for
implied claims of executive privilege, for which reason it must be invalidated. That such authorization
is partly motivated by the need to ensure respect for such officials does not change the infirm nature
of the authorization itself.

Right to Information

E.O 464 is concerned only with the demands of Congress for the appearance of executive officials in
the hearings conducted by it, and not with the demands of citizens for information pursuant to their
right to information on matters of public concern. Petitioners are not amiss in claiming, however, that
what is involved in the present controversy is not merely the legislative power of inquiry, but the right
of the people to information.

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

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

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

It is in the interest of the State that the channels for free political discussion be maintained to the end
that the government may perceive and be responsive to the 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.107(Emphasis and underscoring supplied)

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

Implementation of E.O. 464 prior to its publication

While E.O. 464 applies only to officials of the executive branch, it does not follow that the same is
exempt from the need for publication. On the need for publishing even those statutes that do not
directly apply to people in general, Tañada v. Tuvera states:

The term "laws" should refer to all laws and not only to those of general application, for strictly
speaking all laws relate to the people in general albeit there are some that do not apply to them
directly. An example is a law granting citizenship to a particular individual, like a relative of President
Marcos who was decreed instant naturalization. It surely cannot be said that such a law does not
affect the public although it unquestionably does not apply directly to all the people. The subject of
such law is a matter of public interest which any member of the body politic may question in the
political forums or, if he is a proper party, even in courts of justice.108 (Emphasis and underscoring
supplied)

Although the above statement was made in reference to statutes, logic dictates that the challenged
order must be covered by the publication requirement. As explained above, E.O. 464 has a direct
effect on the right of the people to information on matters of public concern. It is, therefore, a matter
of public interest which members of the body politic may question before this Court. Due process
thus requires that the people should have been apprised of this issuance before it was implemented.
Conclusion

Congress undoubtedly has a right to information from the executive branch whenever it is sought in
aid of legislation. If the executive branch withholds such information on the ground that it is
privileged, it must so assert it and state the reason therefor and why it must be respected.

The infirm provisions of E.O. 464, however, allow the executive branch to evade congressional
requests for information without need of clearly asserting a right to do so and/or proffering its
reasons therefor. By the mere expedient of invoking said provisions, the power of Congress to
conduct inquiries in aid of legislation is frustrated. That is impermissible. For

[w]hat republican theory did accomplish…was to reverse the old presumption in favor of secrecy,
based on the divine right of kings and nobles, and replace it with a presumption in favor of publicity,
based on the doctrine of popular sovereignty. (Underscoring supplied)109

Resort to any means then by which officials of the executive branch could refuse to divulge
information cannot be presumed valid. Otherwise, we shall not have merely nullified the power of our
legislature to inquire into the operations of government, but we shall have given up something of
much greater value – our right as a people to take part in government.

WHEREFORE, the petitions are PARTLY GRANTED. Sections 2(b) and 3 of Executive Order No.
464 (series of 2005), "Ensuring Observance of the Principle of Separation of Powers, Adherence to
the Rule on Executive

Privilege and Respect for the Rights of Public Officials Appearing in Legislative Inquiries in Aid of
Legislation Under the Constitution, and For Other Purposes," are declared VOID. Sections 1 and
2(a) are, however, VALID.

SO ORDERED.

GR NO 170165 FRANCISCO GUDANI vs GENEROSO SENGA

TINGA, J.:
 
          A most dangerous general proposition is foisted on the Court —
that  soldiers  who  defy  orders  of  their  superior officers are exempt
 
 
from the strictures of military law and discipline if such defiance is predicated on an act otherwise
valid under civilian law. Obedience and deference to the military chain of command and the
President as commander-in-chief are the cornerstones of a professional military in the firm cusp of
civilian control. These values of obedience and deference expected of military officers are content-
neutral, beyond the sway of the officer’s own sense of what is prudent or rash, or more elementally,
of right or wrong. A self-righteous military invites itself as the scoundrel’s activist solution to the “ills”
of participatory democracy.
 
Petitioners seek the annulment of a directive from President Gloria Macapagal-
[1]
Arroyo  enjoining them and other military officers from testifying before Congress without the
President’s consent. Petitioners also pray for injunctive relief against a pending preliminary
investigation against them, in preparation for possible court-martial proceedings, initiated within the
military justice system in connection with petitioners’ violation of the aforementioned directive.
 
The Court is cognizant that petitioners, in their defense, invoke weighty constitutional
principles that center on fundamental freedoms enshrined  in  the  Bill  of Rights. Although these
concerns will not be
addressed  to the satisfaction of petitioners, the Court recognizes these values as of paramount
importance to our civil society, even if not determinative of the resolution of this petition. Had the
relevant issue before us been the right of the Senate to compel the testimony of petitioners, the
constitutional questions raised by them would have come to fore. Such a scenario could have very
well been presented to the Court in such manner, without the petitioners having had to violate a
direct order from their commanding officer. Instead, the Court has to resolve whether petitioners may
be subjected to military discipline on account of their defiance of a direct order of the AFP Chief of
Staff. 
 
The solicited writs of certiorari and prohibition do not avail; the petition must be denied.
 
I.
 
          The petitioners are high-ranking officers of the Armed Forces of the Philippines (AFP). Both
petitioners, Brigadier General Francisco Gudani (Gen. Gudani) and Lieutenant Colonel Alexander
Balutan (Col. Balutan), belonged to the Philippine Marines. At the time of the subject incidents, both
Gen. Gudani and Col. Balutan were assigned to the Philippine Military Academy (PMA)
in Baguio City, the former as the PMA Assistant Superintendent, and the latter as the Assistant
Commandant of Cadets.[2]
 
 
 
          On 22 September 2005, Senator Rodolfo Biazon (Sen. Biazon) invited several senior officers
of the AFP to appear at a public hearing before the Senate Committee on National Defense and
Security (Senate Committee) scheduled on 28 September 2005. The hearing was scheduled after
topics concerning the conduct of the 2004 elections emerged in the public eye, particularly
allegations of massive cheating and the surfacing of copies of an audio excerpt purportedly of a
phone conversation between President Gloria Macapagal Arroyo and an official of the Commission
on Elections (COMELEC) widely reputed as then COMELEC Commissioner Virgilio Garcillano. At
the time of the 2004 elections, Gen. Gudani had been designated as commander, and Col. Balutan
a member, of “Joint Task Force Ranao” by the AFP Southern Command. “Joint Task Force Ranao”
was tasked with the maintenance of peace and order during the 2004 elections in the provinces of
Lanao del Norte and Lanao del Sur.[3] `
 
          Gen. Gudani, Col. Balutan, and AFP Chief of Staff Lieutenant General Generoso Senga (Gen.
Senga) were among the several AFP officers who received a letter invitation from Sen. Biazon to
attend the 28 September 2005 hearing. On 23 September 2005, Gen. Senga replied through a letter
to Sen. Biazon that he would be unable to attend the hearing due to a previous commitment
in Brunei, but he nonetheless “directed other officers from the AFP who were invited to attend the
hearing.”[4]
 
          On 26 September 2005, the Office of the Chief of Staff of the AFP issued a Memorandum
addressed to the Superintendent of the PMA Gen. Cristolito P. Baloing (Gen. Baloing). It was signed
by Lt. Col. Hernando DCA Iriberri in behalf of Gen. Senga. [5] Noting that Gen. Gudani and Col.
Balutan had been invited to attend the Senate Committee hearing on 28 September 2005, the
Memorandum directed the two officers to attend the hearing. [6] Conformably, Gen. Gudani and Col.
Balutan filed their respective requests for travel authority addressed to the PMA Superintendent.
 
          On 27 September 2005, Gen. Senga wrote a letter to Sen. Biazon, requesting the
postponement of the hearing scheduled for the following day, since the AFP Chief of Staff was
himself unable to attend said hearing, and that some of the invited officers also could not attend as
they were “attending to other urgent operational matters.” By this time, both Gen. Gudani and Col.
Balutan had already departed Baguio for Manila to attend the hearing.
 
          Then on the evening of 27 September 2005, at around 10:10 p.m., a message was
transmitted to the PMA Superintendent from the office of Gen. Senga, stating as follows:
 
PER INSTRUCTION OF HER EXCELLENCY PGMA, NO AFP PERSONNEL
SHALL APPEAR BEFORE ANY CONGRESSIONAL OR SENATE HEARING
WITHOUT HER APPROVAL. INFORM BGEN FRANCISCO F GUDANI AFP AND
LTC ALEXANDER BALUTAN PA (GSC) ACCORDINGLY.[7]
 
 
 
 
            The following day, Gen. Senga sent another letter to Sen. Biazon, this time informing the
senator that “no approval has been granted by the President to any AFP officer to appear” before the
hearing scheduled on that day. Nonetheless, both Gen. Gudani and Col. Balutan were present as
the hearing started, and they both testified as to the conduct of the 2004 elections.
 
          The Office of the Solicitor General (OSG), representing the respondents before this Court, has
offered additional information surrounding the testimony of Gen. Gudani and Col. Balutan. The OSG
manifests that the couriers of the AFP Command Center had attempted to deliver the radio message
to Gen. Gudani’s residence in a subdivision inParañaque City late in the night of 27 September
2005, but they were not permitted entry by the subdivision guards. The next day, 28 September
2005, shortly before the start of the hearing, a copy of Gen. Senga’s letter to Sen. Biazon sent
earlier that day was handed at the Senate by Commodore Amable B. Tolentino of the AFP Office for
Legislative Affairs to Gen. Gudani, who replied that he already had a copy.  Further, Gen. Senga
called Commodore Tolentino on the latter’s cell phone and asked to talk to Gen. Gudani, but Gen.
Gudani refused. In response, Gen. Senga instructed Commodore Tolentino to inform Gen. Gudani
that “it was an order,” yet Gen. Gudani still refused to take Gen. Senga’s call.[8]
 
          A few hours after Gen. Gudani and Col. Balutan had concluded their testimony, the office of
Gen. Senga issued a statement which noted that the two had appeared before the Senate
Committee “in spite of the fact that a guidance has been given that a Presidential approval should be
sought prior to such an appearance;” that such directive was “in keeping with the time[-]honored
principle of the Chain of Command;” and that the two officers “disobeyed a legal order, in violation of
A[rticles of] W[ar] 65 (Willfully Disobeying Superior Officer), hence they will be subjected to General
Court Martial proceedings x x x” Both Gen. Gudani and Col. Balutan were likewise relieved of their
assignments then.[9]
 
          On the very day of the hearing, 28 September 2005, President Gloria-Macapagal-Arroyo
issued Executive Order No. 464 (E.O. 464). The OSG notes that the E.O. “enjoined officials of the
executive department including the military establishment from appearing in any legislative inquiry
without her approval.”[10] This Court subsequently ruled on the constitutionality of the said executive
order in Senate v. Ermita.[11] The relevance of E.O. 464 and Senate to the present petition shall be
discussed forthwith.
 
          In the meantime, on 30 September 2005, petitioners were directed by General Senga, through
Col. Henry A. Galarpe of the AFP Provost Marshal General, to appear before the Office of the
Provost Marshal General (OPMG) on 3 October 2005 for investigation. During their appearance
before Col. Galarpe, both petitioners invoked their right to remain silent.[12] The following day, Gen.
Gudani was compulsorily retired from military service, having reached the age of 56.[13]
 
In an Investigation Report dated 6 October 2005, the OPMG recommended that petitioners
be charged with violation of Article of War 65, on willfully disobeying a superior officer, in relation to
Article of War 97, on conduct prejudicial to the good order and military discipline. [14] As
recommended, the case was referred to a Pre-Trial Investigation Officer (PTIO) preparatory to trial
by the General Court Martial (GCM).[15] Consequently, on 24 October 2005, petitioners were
separately served with Orders respectively addressed to them and signed by respondent Col. Gilbert
Jose C. Roa, the Pre-Trial Investigating Officer of the PTIO. The Orders directed petitioners to
appear in person before Col. Roa at the Pre-Trial Investigation of the Charges for violation of Articles
65[16] and 97[17] of Commonwealth Act No. 408,[18] and to submit their counter-affidavits and affidavits
of witnesses at the Office of the Judge Advocate General. [19] The Orders were accompanied by
respective charge sheets against petitioners, accusing them of violating Articles of War 65 and 97.
 
It was from these premises that the present petition for certiorari and prohibition was filed,
particularly seeking that (1) the order of President Arroyo coursed through Gen. Senga preventing
petitioners from testifying before Congress without her prior approval be declared unconstitutional;
(2) the charges stated in the charge sheets against petitioners be quashed; and (3) Gen. Senga,
Col. Galarpe, Col. Roa, and their successors-in-interest or persons acting for and on their behalf or
orders, be permanently enjoined from proceeding against petitioners, as a consequence of their
having testified before the Senate on 28 September 2005.[20]
 
          Petitioners characterize the directive from President Arroyo requiring her prior approval before
any AFP personnel appear before Congress as a “gag order,” which violates the principle of
separation of powers in government as it interferes with the investigation of the Senate Committee
conducted in aid of legislation. They also equate the “gag order” with culpable violation of the
Constitution, particularly in relation to the public’s constitutional right to information and transparency
in matters of public concern. Plaintively, petitioners claim that “the Filipino people have every right to
hear the [petitioners’] testimonies,” and even if the “gag order” were unconstitutional, it still was
tantamount to  “the crime of obstruction of justice.”  Petitioners further argue that there was no law
prohibiting them from testifying before the Senate, and in fact, they were appearing in obeisance to
the authority of Congress to conduct inquiries in aid of legislation.
 
          Finally, it is stressed in the petition that Gen. Gudani was no longer subject to military
jurisdiction on account of his compulsory retirement on 4 October 2005. It is pointed out that Article
2, Title I of the Articles of War defines persons subject to military law as “all officers and soldiers in
the active service” of the AFP.
 
II.
 
          We first proceed to define the proper litigable issues. Notably, the guilt or innocence of
petitioners in violating Articles 65 and 97 of the Articles of War is not an issue before this Court,
especially considering that per records, petitioners have not yet been subjected to court martial
proceedings. Owing to the absence of such proceedings, the correct inquiry should be limited to
whether respondents could properly initiate such proceedings preparatory to a formal court-martial,
such as the aforementioned preliminary investigation, on the basis of petitioners’ acts surrounding
their testimony before the Senate on 28 September 2005. Yet this Court, consistent with the
principle that it is not a trier of facts at first instance, [21] is averse to making any authoritative findings
of fact, for that function is first for the court-martial court to fulfill.
 
          Thus, we limit ourselves to those facts that are not controverted before the Court, having been
commonly alleged by petitioners and the OSG (for respondents). Petitioners were called by the
Senate Committee to testify in its 28 September 2005 hearing. Petitioners attended such hearing
and testified before the Committee, despite the fact that the day before, there was an order from
Gen. Senga (which in turn was sourced “per instruction” from President Arroyo) prohibiting them
from testifying without the prior approval of the President. Petitioners do not precisely admit before
this Court that they had learned of such order prior to their testimony, although the OSG asserts that
at the very least, Gen. Gudani already knew of such order before he testified. [22] Yet while this fact
may be ultimately material in the court-martial proceedings, it is not determinative of this petition,
which as stated earlier, does not proffer as an issue whether petitioners are guilty of violating the
Articles of War.
 
          What the Court has to consider though is whether the violation of the aforementioned order of
Gen. Senga, which emanated from the President, could lead to any investigation for court-martial of
petitioners. It has to be acknowledged as a general principle [23] that AFP personnel of whatever rank
are liable under military law for violating a direct order of an officer superior in rank. Whether
petitioners did violate such an order is not for the Court to decide, but it will be necessary to assume,
for the purposes of this petition, that petitioners did so.
 
III.
 
          Preliminarily, we must discuss the effect of E.O. 464 and the Court’s ruling in Senate on the
present petition. Notably, it is not alleged that petitioners were in any way called to task for
violating E.O. 464, but instead, they were charged for violating the direct order of Gen. Senga
not to appear before the Senate Committee, an order that stands independent of the
executive order. Distinctions are called for, since Section 2(b) of E.O. 464 listed “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,” as among those public officials required in
Section 3 of E.O. 464 “to secure prior consent of the President prior to appearing before either
House of Congress.” The Court in Senate declared both Section 2(b) and Section 3 void, [24] and the
impression may have been left following Senate that it settled as doctrine, that the President is
prohibited from requiring military personnel from attending congressional hearings without having
first secured prior presidential consent. That impression is wrong.
 
          Senate turned on the nature of executive privilege, a presidential prerogative which is
encumbered by significant limitations. Insofar as E.O. 464 compelled officials of the executive
branch to seek prior presidential approval before appearing before Congress, the notion of executive
control also comes into consideration.[25] However, the ability of the President to require a military
official to secure prior consent before appearing before Congress pertains to a wholly different and
independent specie of presidential authority—the commander-in-chief powers of the President. By
tradition and jurisprudence, the commander-in-chief powers of the President are not encumbered by
the same degree of restriction as that which may attach to executive privilege or executive control.
 
          During the deliberations in Senate, the Court was very well aware of the pendency of this
petition as well as the issues raised herein. The decision in Senate was rendered with the comfort
that the nullification of portions of E.O. 464 would bear no impact on the present petition since
petitioners herein were not called to task for violating the executive order. Moreover, the Court was
then cognizant that Senate and this case would ultimately hinge on disparate legal issues.
Relevantly, Senate purposely did not touch upon or rule on the faculty of the President, under the
aegis of the commander-in-chief powers[26] to require military officials from securing prior consent
before appearing before Congress. The pertinent factors in considering that question are markedly
outside of those which did become relevant in adjudicating the issues raised in Senate. It is in this
petition that those factors come into play.
 
          At this point, we wish to dispose of another peripheral issue before we strike at the heart of the
matter. General Gudani argues that he can no longer fall within the jurisdiction of the court-martial,
considering his retirement last 4 October 2005. He cites Article 2, Title I of Commonwealth Act No.
408, which defines persons subject to military law as, among others, “all officers and soldiers in the
active service of the [AFP],” and points out that he is no longer in the active service.
 
This point was settled against Gen. Gudani’s position in Abadilla v. Ramos,[27] where the
Court declared that an officer whose name was dropped from the roll of officers cannot be
considered to be outside the jurisdiction of military authorities when military justice proceedings were
initiated against him before the termination of his service.  Once jurisdiction has been acquired over
the officer, it continues until his case is terminated.  Thus, the Court held:
  
The military authorities had jurisdiction over the person of Colonel Abadilla at
the time of the alleged offenses. This jurisdiction having been vested in the military
authorities, it is retained up to the end of the proceedings against Colonel Abadilla.
Well-settled is the rule that jurisdiction once acquired is not lost upon the instance of
the parties but continues until the case is terminated.[28]
 
 
          Citing Colonel Winthrop’s treatise on Military Law, the Court further stated:
 
 
We have gone through the treatise of Colonel Winthrop and We find the
following passage which goes against the contention of the petitioners, viz —
 
3.  Offenders in general — Attaching of jurisdiction. It has
further been held, and is now settled law, in regard to military
offenders in general, that if the military jurisdiction has once
duly attached to them previous to the date of the termination of their
legal period of service, they may be brought to trial by court-martial
after that date, their discharge being meanwhile withheld. This
principle has mostly been applied to cases where the offense was
committed just prior to the end of the term. In such cases the
interests of discipline clearly forbid that the offender should go
unpunished. It is held therefore that if before the day on which his
service legally terminates and his right to a discharge is
complete, proceedings with a view to trial are commenced
against him — as by arrest or the service of charges, — the
military jurisdiction will fully attach and once attached may be
continued by a trial by court-martial ordered and held after the
end of the term of the enlistment of the accused x x x [29]
 
          Thus, military jurisdiction has fully attached to Gen. Gudani inasmuch as both the acts
complained of and the initiation of the proceedings against him occurred before he compulsorily
retired on 4 October 2005.  We see no reason to unsettle the Abadilla doctrine. The OSG also points
out that under Section 28 of Presidential Decree No. 1638, as amended, “[a]n officer or enlisted man
carried in the retired list [of the Armed Forces of the Philippines] shall be subject to the Articles of
War x x x”[30] To this citation, petitioners do not offer any response, and in fact have excluded the
matter of Gen. Gudani’s retirement as an issue in their subsequent memorandum.
 
IV.
 
          We now turn to the central issues.
 
Petitioners wish to see annulled the “gag order” that required them to secure presidential
consent prior to their appearance before the Senate, claiming that it violates the constitutional right
to information and transparency in matters of public concern; or if not, is tantamount at least to the
criminal acts of obstruction of justice and grave coercion. However, the proper perspective from
which to consider this issue entails the examination of the basis and authority of the President to
issue such an order in the first place to members of the AFP and the determination of whether such
an order is subject to any limitations.
 
          The vitality of the tenet that the President is the commander-in-chief of the Armed Forces is
most crucial to the democratic way of life, to civilian supremacy over the military, and to the general
stability of our representative system of government. The Constitution reposes final authority, control
and supervision of the AFP to the President, a civilian who is not a member of the armed forces, and
whose duties as commander-in-chief represent only a part of the organic duties imposed upon the
office, the other functions being clearly civil in nature. [31] Civilian supremacy over the military also
countermands the notion that the military may bypass civilian authorities, such as civil courts, on
matters such as conducting warrantless searches and seizures.[32]
 
          Pursuant to the maintenance of civilian supremacy over the military, the Constitution has
allocated specific roles to the legislative and executive branches of government in relation to military
affairs. Military appropriations, as with all other appropriations, are determined by Congress, as is
the power to declare the existence of a state of war. [33]Congress is also empowered to revoke a
proclamation of martial law or the suspension of the writ of habeas corpus.[34] The approval of the
Commission on Appointments is also required before the President can promote military officers
from the rank of colonel or naval captain.[35]  Otherwise, on the particulars of civilian dominance and
administration over the military, the Constitution is silent, except for  the  commander-in-
chief  clause  which  is  fertile  in meaning and
implication as to whatever inherent martial authority the President may possess.[36]
 
The commander-in-chief provision in the Constitution is denominated as Section 18, Article
VII, which begins with the simple declaration that “[t]he President shall be the Commander-in-Chief
of all armed forces of the Philippines x x x” [37] Outside explicit constitutional limitations, such as those
found in Section 5, Article XVI, the commander-in-chief clause vests on the President, as
commander-in-chief, absolute authority over the persons and actions of the members of the armed
forces. Such authority includes the ability of the President to restrict the travel, movement and
speech of military officers, activities which may otherwise be sanctioned under civilian law. 
 
Reference to Kapunan, Jr. v. De Villa [38] is useful in this regard. Lt. Col. Kapunan was
ordered confined under “house arrest” by then Chief of Staff (later President) Gen. Fidel Ramos.
Kapunan was also ordered, as a condition for his house arrest, that he may not issue any press
statements or give any press conference during his period of detention. The Court unanimously
upheld such restrictions, noting:
 
 
 [T]he Court is of the view that such is justified by the requirements of military
discipline. It cannot be gainsaid that certain liberties of persons in the military
service, including the freedom of speech, may be circumscribed by rules of
military discipline. Thus, to a certain degree, individual rights may be curtailed,
because the effectiveness of the military in fulfilling its duties under the law
depends to a large extent on the maintenance of discipline within its ranks.
Hence, lawful orders must be followed without question and rules must be
faithfully complied with, irrespective of a soldier's personal views on the
matter. It is from this viewpoint that the restrictions imposed on petitioner Kapunan,
an officer in the AFP, have to be considered.[39]
 
            Any good soldier, or indeed any ROTC cadet, can attest to the fact that the military way of life
circumscribes several of the cherished freedoms of civilian life. It is part and parcel of the military
package.  Those who cannot abide by these limitations normally do not pursue a military career and
instead find satisfaction in other fields; and in fact many of those discharged from the service are
inspired in their later careers precisely by their rebellion against the regimentation of military life.
Inability or unwillingness to cope with military discipline is not a stain on character, for the military
mode is a highly idiosyncratic path which persons are not generally conscripted into, but volunteer
themselves to be part of. But for those who do make the choice to be a soldier, significant
concessions to personal freedoms are expected. After all, if need be, the men and women of the
armed forces may be commanded upon to die for country, even against their personal inclinations.
 
          It may be so that military culture is a remnant of a less democratic era, yet it has been fully
integrated into the democratic system of governance. The constitutional role of the armed forces is
as protector of the people and of the State. [40] Towards this end, the military must insist upon a
respect for duty and a discipline without counterpart in civilian life.[41] The laws and traditions
governing that discipline have a long history; but they are founded on unique military exigencies as
powerful now as in the past.[42] In the end, it must be borne in mind that the armed forces has a
distinct subculture with unique needs, a specialized society separate from civilian society. [43]  In the
elegant prose of the eminent British military historian, John Keegan:
 
[Warriors who fight wars have] values and skills [which] are not those of
politicians and diplomats.  They are those of a world apart, a very ancient world,
which exists in parallel with the everyday world but does not belong to it. Both worlds
change over time, and the warrior world adopts in step to the civilian.  It follows it,
 however, at a distance.  The distance can never be closed, for the culture of the
warrior can never be that of civilization itself….[44]
 
         
          Critical to military discipline is obeisance to the military chain of command. Willful
disobedience of a superior officer is punishable by court-martial under Article 65 of the Articles of
War.[45] “An individual soldier is not free to ignore the lawful orders or duties assigned by his
immediate superiors. For there would be an end of all discipline if the seaman and marines on board
a ship of war [or soldiers deployed in the field], on a distant service, were permitted to
act  upon  their  own  opinion  of  their  rights [or  their opinion of the
 
President’s intent], and to throw off the authority of the commander whenever they supposed it to
be unlawfully exercised.”[46]
 
          Further traditional restrictions on members of the armed forces are those imposed on free
speech and mobility. Kapunan is ample precedent in justifying that a soldier may be restrained by a
superior officer from speaking out on certain matters. As a general rule, the discretion of a military
officer to restrain the speech of  a soldier under his/her command will be accorded deference, with
minimal regard if at all to the reason for such restraint. It is integral to military discipline that the
soldier’s speech be with the consent and approval of the military commander.
 
          The necessity of upholding the ability to restrain speech becomes even more imperative if the
soldier desires to speak freely on political matters. The Constitution requires that “[t]he armed forces
shall be insulated from partisan politics,” and that ‘[n]o member of the military shall engage directly
or indirectly in any partisan political activity, except to vote.”[47] Certainly, no constitutional provision
or military indoctrination will eliminate a soldier’s ability to form a personal political opinion, yet it is
vital that such opinions be kept out of the public eye. For one, political belief is a potential source of
discord among people, and a military torn by political strife is incapable of fulfilling its constitutional
function as protectors of the people and of the State. For another, it is ruinous to military discipline to
foment an atmosphere that promotes an active dislike of or dissent against the President, the
commander-in-chief of the armed forces. Soldiers are constitutionally obliged to obey a President
they may dislike or distrust. This fundamental principle averts the country from going the way of
banana republics.
 
          Parenthetically, it must be said that the Court is well aware that our country’s recent past is
marked by regime changes wherein active military dissent from the chain of command formed a key,
though not exclusive, element. The Court is not blind to history, yet it is a judge not of history but of
the Constitution. The Constitution, and indeed our modern democratic order, frown in no uncertain
terms on a politicized military, informed as they are on the trauma of absolute martial rule. Our
history might imply that a political military is part of the natural order, but this view cannot be affirmed
by the legal order. The evolutionary path of our young democracy necessitates a reorientation from
this view, reliant as our socio-political culture has become on it. At the same time, evolution
mandates a similar demand that our system of governance be more responsive to the needs and
aspirations of the citizenry, so as to avoid an environment vulnerable to a military apparatus able at
will to exert an undue influence in our polity.
 
          Of possibly less gravitas, but of equal importance, is the principle that mobility of travel is
another necessary restriction on members of the military. A soldier cannot leave his/her post without
the consent of the commanding officer. The reasons are self-evident. The commanding officer has to
be aware at all times of the location of the troops under command, so as to be able to appropriately
respond to any exigencies. For the same reason, commanding officers have to be able to restrict the
movement or travel of their soldiers, if in their judgment, their presence at place of call of duty is
necessary. At times, this may lead to unsentimental, painful consequences, such as a soldier being
denied permission to witness the birth of his first-born, or to attend the funeral of a parent. Yet again,
military life calls for considerable personal sacrifices during the period of conscription, wherein the
higher duty is not to self but to country.
 
          Indeed, the military practice is to require a soldier to obtain permission from the commanding
officer before he/she may leave his destination. A soldier who goes from the properly appointed
place of duty or absents from his/her command, guard, quarters, station, or camp without proper
leave is subject to punishment by court-martial.[48]  It is even clear from the record that petitioners
had actually requested for travel authority from the PMA in Baguio City to Manila, to attend the
Senate Hearing.[49] Even petitioners are well aware that it was necessary for them to obtain
permission from their superiors before they could travel to Manila to attend the Senate Hearing.
 
          It is clear that the basic position of petitioners impinges on these fundamental principles we
have discussed. They seek to be exempted from military justice for having traveled to the Senate to
testify before the Senate Committee against the express orders of Gen. Senga, the AFP Chief of
Staff. If petitioners’ position is affirmed, a considerable exception would be carved from the
unimpeachable right of military officers to restrict the speech and movement of their juniors. The
ruinous consequences to the chain of command and military discipline simply cannot warrant the
Court’s imprimatur on petitioner’s position.
 
 
V.
 
          Still, it would be highly myopic on our part to resolve the issue solely on generalities
surrounding military discipline. After all, petitioners seek to impress on us that their acts are justified
as they were responding to an invitation from the Philippine Senate, a component of the legislative
branch of government. At the same time, the order for them not to testify ultimately came from the
President, the head of the executive branch of government and the commander-in-chief of the
armed forces.
 
          Thus, we have to consider the question: may the President prevent a member of the armed
forces from testifying before a legislative inquiry? We hold that the President has constitutional
authority to do so, by virtue of her power as commander-in-chief, and that as a consequence a
military officer who defies such injunction is liable under military justice. At the same time, we also
hold that any chamber of Congress which seeks the appearance before it of a military officer against
the consent of the President has adequate remedies under law to compel such attendance. Any
military official whom Congress summons to testify before it may be compelled to do so by the
President. If the President is not so inclined, the President may be commanded by judicial order to
compel the attendance of the military officer. Final judicial orders have the force of the law of the
land which the President has the duty to faithfully execute.[50]
 
          Explication of these principles is in order.          
 
 
          As earlier noted, we ruled in Senate that the President may not issue a blanket requirement of
prior consent on executive officials summoned by the legislature to attend a congressional hearing.
In doing so, the Court recognized the considerable limitations on executive privilege, and affirmed
that the privilege must be formally invoked on specified grounds. However, the ability of the
President to prevent military officers from testifying before Congress does not turn on
executive privilege, but on the Chief Executive’s power as commander-in-chief to control the
actions and speech of members of the armed forces. The President’s prerogatives as
commander-in-chief are not hampered by the same limitations as in executive privilege.
 
          Our ruling that the President could, as a general rule, require military officers to seek
presidential approval before appearing before Congress is based foremost on the notion that a
contrary rule unduly diminishes the prerogatives of the President as commander-in-chief. Congress
holds significant control over the armed forces in matters such as budget appropriations and the
approval of higher-rank promotions,[51] yet it is on the President that the Constitution vests the title as
commander-in-chief and all the prerogatives and functions appertaining to the position. Again, the
exigencies of military discipline and the chain of command mandate that the President’s ability to
control the individual members of the armed forces be accorded the utmost respect. Where a military
officer is torn between obeying the President and obeying the Senate, the Court will without
hesitation affirm that the officer has to choose the President. After all, the Constitution prescribes
that it is the President, and not the Senate, who is the commander-in-chief of the armed forces.[52]
 
 
          At the same time, the refusal of the President to allow members of the military to appear
before Congress is still subject to judicial relief. The Constitution itself recognizes as one of the
legislature’s functions is the conduct of inquiries in aid of legislation. [53] Inasmuch as it is ill-advised
for Congress to interfere with the President’s power as commander-in-chief, it is similarly detrimental
for the President to unduly interfere with Congress’s right to conduct legislative inquiries. The
impasse did not come to pass in this petition, since petitioners testified anyway despite the
presidential prohibition. Yet the Court is aware that with its pronouncement today that the President
has the right to require prior consent from members of the armed forces, the clash may soon loom or
actualize.
 
          We believe and hold that our constitutional and legal order sanctions a modality by which
members of the military may be compelled to attend legislative inquiries even if the President desires
otherwise, a modality which does not offend the Chief Executive’s prerogatives as commander-in-
chief. The remedy lies with the courts.
 
The fact that the executive branch is an equal, coordinate branch of government to the
legislative creates a wrinkle to any basic rule that persons summoned to testify before Congress
must do so. There is considerable interplay between the legislative and executive branches,
informed by due deference and respect as to their various constitutional functions. Reciprocal
courtesy idealizes this relationship; hence, it is only as a last resort that one branch seeks to compel
the other to a particular mode of behavior. The judiciary, the third coordinate branch of government,
does not enjoy a similar dynamic with either the legislative or executive branches. Whatever
weakness inheres on judicial power due to its inability to originate national policies and legislation,
such is balanced by the fact that it is the branch empowered by the Constitution to compel
obeisance to its rulings by the other branches of government.
 
As evidenced by Arnault v. Nazareno[54] and Bengzon v. Senate Blue Ribbon Committee,
[55]
 among others, the Court has not shirked from reviewing the exercise by Congress of its power of
legislative inquiry.[56] Arnault recognized that the legislative power of inquiry and the process to
enforce it, “is an essential and appropriate auxiliary to the legislative function.” [57] On the other
hand, Bengzon acknowledged that the power of both houses of Congress to conduct inquiries in aid
of legislation is not “absolute or unlimited”, and its exercise is circumscribed by Section 21, Article VI
of the Constitution.[58] From these premises, the Court enjoined the Senate Blue Ribbon Committee
from requiring the petitioners in Bengzon from testifying and producing evidence before the
committee, holding that the inquiry in question did not involve any intended legislation. 
 
          Senate affirmed both the Arnault and Bengzon rulings. It elucidated on the constitutional
scope and limitations on the constitutional power of congressional inquiry. Thus:
 
          As discussed in Arnault, the power of inquiry, “with process to enforce it,” is
grounded on the necessity of information in the legislative process. If the information
possessed by executive officials on the operation of their offices is necessary for
wise legislation on that subject, by parity of reasoning, Congress has the right to that
information and the power to compel the disclosure thereof.
 
            As evidenced by the American experience during the so-called “McCarthy
era”, however, the right of Congress to conduct inquirites in aid of legislation is, in
theory, no less susceptible to abuse than executive or judicial power. It may thus be
subjected to judicial review pursuant to the Court’s certiorari powers under Section 1,
Article VIII of the Constitution.
 
            For one, as noted in Bengzon v. Senate Blue Ribbon Committee, 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 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 critical 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.
 
            These abuses are, of course, remediable before the courts, upon the proper
suit filed by the persons affected, even if they belong to the executive branch.
Nonetheless, there may be exceptional circumstances… wherein a clear pattern of
abuse of the legislative power of inquiry might be established, resulting in palpable
violations of the rights guaranteed to members of the executive department under the
Bill of Rights. In such instances, depending on the particulars of each case, attempts
by the Executive Branch to forestall these abuses may be accorded judicial
sanction[59].
 
          In Senate, the Court ruled that the President could not impose a blanket prohibition barring
executive officials from testifying before Congress without the President’s consent notwithstanding
the invocation of executive privilege to justify such prohibition. The Court did not rule that the power
to conduct legislative inquiry ipso facto superseded the claim of executive privilege, acknowledging
instead  that the viability of executive privilege stood on a case to case basis. Should neither branch
yield to the other branch’s assertion, the constitutional recourse is to the courts, as the final arbiter if
the dispute. It is only the courts that can compel, with conclusiveness, attendance or non-attendance
in legislative inquiries.
 
Following these principles, it is clear that if the President or the Chief of Staff refuses to allow
a member of the AFP to appear before Congress, the legislative body seeking such testimony may
seek judicial relief to compel the attendance. Such judicial action should be directed at the heads of
the executive branch or the armed forces, the persons who wield authority and control over the
actions of the officers concerned. The legislative purpose of such testimony, as well as any defenses
against the same — whether grounded on executive privilege, national security or similar concerns
— would be accorded due judicial evaluation. All the constitutional considerations pertinent to either
branch of government may be raised, assessed, and ultimately weighed against each other. And
once the courts speak with finality, both branches of government have no option but to comply with
the decision of the courts, whether the effect of the decision is to their liking or disfavor. 
 
Courts are empowered, under the constitutional principle of judicial review, to arbitrate
disputes between the legislative and executive branches of government on the proper constitutional
parameters of power.[60] This is the fair and workable solution implicit in the constitutional allocation
of powers among the three branches of government. The judicial filter helps assure that the
particularities of each case would ultimately govern, rather than any overarching principle unduly
inclined towards one branch of government at the expense of the other. The procedure may not
move as expeditiously as some may desire, yet it ensures thorough deliberation of all relevant and
cognizable issues before one branch is compelled to yield to the other.  Moreover, judicial review
does not preclude the legislative and executive branches from negotiating a mutually acceptable
solution to the impasse. After all, the two branches, exercising as they do functions and
responsibilities that are political in nature, are free to smooth over the thorns in their relationship with
a salve of their own choosing.
 
And if emphasis be needed, if the courts so rule, the duty falls on the shoulders of the
President, as commander-in-chief, to authorize the appearance of the military officers before
Congress. Even if the President has earlier  disagreed with the  notion of officers appearing
before the legislature to testify, the Chief Executive is nonetheless obliged to comply with the
final orders of the courts.
 
Petitioners have presented several issues relating to the tenability or wisdom of the
President’s order on them and other military officers not to testify before Congress without the
President’s consent. Yet these issues ultimately detract from the main point — that they testified
before the Senate despite an order from their commanding officer and their commander-in-chief for
them not to do so,[61] in contravention of the traditions of military discipline which we affirm today. The
issues raised by petitioners could have very well been raised and properly adjudicated if the proper
procedure was observed. Petitioners could have been appropriately allowed to testify before the
Senate without having to countermand their Commander-in-chief and superior officer under the
setup we have prescribed.
 
We consider the other issues raised by petitioners unnecessary to the resolution of this
petition.
 
          Petitioners may have been of the honest belief that they were defying a direct order of their
Commander-in-Chief and Commanding General in obeisance to a paramount idea formed within
their consciences, which could not be lightly ignored. Still, the Court, in turn, is guided by the
superlative principle that is the Constitution, the embodiment of the national conscience. The
Constitution simply does not permit the infraction which petitioners have allegedly committed, and
moreover, provides for an orderly manner by which the same result could have been achieved
without offending constitutional principles.
 
          WHEREFORE, the petition is DENIED. No pronouncement as to costs.
 
SO ORDERED.

Ma. Merceditas N. Gutierrez vs. The House Of Representatives Committee On Justice, et.al.

G.R. No. 193459, February 15, 2011
Carpio, Morales, J.:

Doctrine: x x x We ought to be guided by the doctrine of stare decisis et non quieta movere. As
pointed out in Francisco, the impeachment proceeding is not initiated “when the House deliberates
on the resolution passed on to it by the Committee, because something prior to that has already
been done. The action of the House is already a further step in the proceeding, not its initiation or
beginning. Rather, the proceeding is initiated or begins, when a verified complaint is filed and
referred to the Committee on Justice for action. This is the initiating step which triggers the series of
steps that follow.”
Facts: On July 22, 2010, private respondents Risa Hontiveros-Baraquel, et.al. (Baraquel group) filed
an impeachment complaint against petitioner. On August 3, 2010, private respondents Renato
Reyes et.al. (Reyes group) filed another impeachment complaint. Both impeachment complaints
were endorsed by different Party-List Representatives.
On August 10, 2010, House Majority Leader Neptali Gonzales II, as chairperson of the Committee
on Rules, instructed the Deputy Secretary General for Operations to include the two complaints in
the Order of Business, which was complied with by their inclusion in the Order of Business for the
following day.
On August 11, 2010 at 4:47 p.m., during its plenary session, the House of Representatives
simultaneously referred both complaints to public respondent.
After hearing, public respondent, by Resolution of September 1, 2010, found both complaints
sufficient in form, which complaints it considered to have been referred to it at exactly the same time.
Meanwhile, the Rules of Procedure in Impeachment Proceedings of the 15th Congress was
published on September 2, 2010.
On September 6, 2010, petitioner tried to file a motion to reconsider the September 1, 2010
Resolution of public respondent. Public respondent refused to accept the motion, however, for
prematurity; instead, it advised petitioner to await the notice for her to file an answer to the
complaints, drawing petitioner to furnish copies of her motion to each of the 55 members of public
respondent.
After hearing, public respondent, by Resolution of September 7, 2010, found the two complaints,
which both allege culpable violation of the Constitution and betrayal of public trust, sufficient in
substance. The determination of the sufficiency of substance of the complaints by public respondent,
which assumed hypothetically the truth of their allegations, hinged on the issue of whether valid
judgment to impeach could be rendered thereon. Petitioner was served also on September 7, 2010 a
notice directing her to file an answer to the complaints within 10 days.

Issue: When is impeachment deemed initiated? (Does the present impeachment complaint violate
the one-year bar rule under the Constitution?)

Held: The one-year bar rule. Article XI, Section 3, paragraph (5) of the Constitution reads: “No
impeachment proceedings shall be initiated against the same official more than once within a period
of one year.”
Petitioner reckons the start of the one-year bar from the filing of the first impeachment complaint
against her on July 22, 2010 or four days before the opening on July 26, 2010 of the 15th Congress.
She posits that within one year from July 22, 2010, no second impeachment complaint may be
accepted and referred to public respondent.
Following petitioner’s line of reasoning, the verification of the complaint or the endorsement by a
member of the House – steps done prior to the filing – would already initiate the impeachment
proceedings.
Contrary to petitioner’s emphasis on impeachment complaint, what the Constitution mentions is
impeachment “proceedings.” Her reliance on the singular tense of the word “complaint” to denote the
limit prescribed by the Constitution goes against the basic rule of statutory construction that a word
covers its enlarged and plural sense.
The Court, of course, does not downplay the importance of an impeachment complaint, for it is the
matchstick that kindles the candle of impeachment proceedings. The filing of an impeachment
complaint is like the lighting of a matchstick. Lighting the matchstick alone, however, cannot light up
the candle, unless the lighted matchstick reaches or torches the candle wick. Referring the complaint
to the proper committee ignites the impeachment proceeding. With a simultaneous referral of
multiple complaints filed, more than one lighted matchsticks light the candle at the same time. What
is important is that there should only be ONE CANDLE that is kindled in a year, such that once the
candle starts burning, subsequent matchsticks can no longer rekindle the candle.
Under the Rules of the House, a motion to refer is not among those motions that shall be decided
without debate, but any debate thereon is only made subject to the five-minute rule. Moreover, it is
common parliamentary practice that a motion to refer a matter or question to a committee may be
debated upon, not as to the merits thereof, but only as to the propriety of the referral. With respect to
complaints for impeachment, the House has the discretion not to refer a subsequent impeachment
complaint to the Committee on Justice where official records and further debate show that an
impeachment complaint filed against the same impeachable officer has already been referred to the
said committee and the one year period has not yet expired, lest it becomes instrumental in
perpetrating a constitutionally prohibited second impeachment proceeding. Far from being
mechanical, before the referral stage, a period of deliberation is afforded the House, as the
Constitution, in fact, grants a maximum of three session days within which to make the proper
referral.
As mentioned, one limitation imposed on the House in initiating an impeachment proceeding deals
with deadlines. The Constitution states that “[a] verified complaint for impeachment may be filed by
any Member of the House of Representatives or by any citizen upon a resolution or endorsement by
any Member thereof, which shall be included in the Order of Business within ten session days, and
referred to the proper Committee within three session days thereafter.”

x x x We ought to be guided by the doctrine of stare decisis et non quieta movere. As pointed out in
Francisco, the impeachment proceeding is not initiated “when the House deliberates on the
resolution passed on to it by the Committee, because something prior to that has already been done.
The action of the House is already a further step in the proceeding, not its initiation or beginning.
Rather, the proceeding is initiated or begins, when a verified complaint is filed and referred to the
Committee on Justice for action. This is the initiating step which triggers the series of steps that
follow.”

Allowing an expansive construction of the term “initiate” beyond the act of referral allows the
unmitigated influx of successive complaints, each having their own respective 60-session-day period
of disposition from referral. Worse, the Committee shall conduct overlapping hearings until and
unless the disposition of one of the complaints ends with the affirmance of a resolution for
impeachment or the overriding[ of a contrary resolution (as espoused by public respondent), or the
House transmits the Articles of Impeachment (as advocated by the Reyes group), or the Committee
on Justice concludes its first report to the House plenary regardless of the recommendation (as
posited by respondent-intervenor). Each of these scenarios runs roughshod the very purpose behind
the constitutionally imposed one-year bar. Opening the floodgates too loosely would disrupt the
series of steps operating in unison under one proceeding.

G.R. No. 105371 November 11, 1993

THE PHILIPPINE JUDGES ASSOCIATION, duly rep. by its President, BERNARDO P.

ABESAMIS, Vice-President for Legal Affairs, MARIANO M. UMALI, Director for Pasig, Makati,
and Pasay, Metro Manila, ALFREDO C. FLORES, and Chairman of the Committee on Legal
Aid, JESUS G. BERSAMIRA, Presiding Judges of the Regional Trial Court, Branch 85, Quezon
City and Branches 160, 167 and 166, Pasig, Metro Manila, respectively: the NATIONAL
CONFEDERATION OF THE JUDGES ASSOCIATION OF THE PHILIPPINES, composed of the
METROPOLITAN TRIAL COURT JUDGES ASSOCIATION rep. by its President. REINATO
QUILALA of the MUNICIPAL TRIAL CIRCUIT COURT, Manila; THE MUNICIPAL JUDGES
LEAGUE OF THE PHILIPPINES rep. by its President, TOMAS G. TALAVERA; by themselves
and in behalf of all the Judges of the Regional Trial and Shari'a Courts, Metropolitan Trial
Courts and Municipal Courts throughout the Country, petitioners, 
vs.
HON. PETE PRADO, in his capacity as Secretary of the Department of Transportation and
Communications, JORGE V. SARMIENTO, in his capacity as Postmaster General, and the
PHILIPPINE POSTAL CORP., respondents.

CRUZ, J.:

The basic issue raised in this petition is the independence of the Judiciary. It is asserted by the
petitioners that this hallmark of republicanism is impaired by the statute and circular they are here
challenging. The Supreme Court is itself affected by these measures and is thus an interested party
that should ordinarily not also be a judge at the same time. Under our system of government,
however, it cannot inhibit itself and must rule upon the challenge, because no other office has the
authority to do so. We shall therefore act upon this matter not with officiousness but in the discharge
of an unavoidable duty and, as always, with detachment and fairness.

The main target of this petition is Section 35 of R.A. No. 7354 as implemented by the Philippine
Postal Corporation through its Circular No.
92-28. These measures withdraw the franking privilege from the Supreme Court, the Court of
Appeals, the Regional Trial Courts, the Metropolitan Trial Courts, the Municipal Trial Courts, and the
Land Registration Commission and its Registers of Deeds, along with certain other government
offices.

The petitioners are members of the lower courts who feel that their official functions as judges will be
prejudiced by the above-named measures. The National Land Registration Authority has taken
common cause with them insofar as its own activities, such as sending of requisite notices in
registration cases, affect judicial proceedings. On its motion, it has been allowed to intervene.

The petition assails the constitutionality of R.A. No. 7354 on the grounds that: (1) its title embraces
more than one subject and does not express its purposes; (2) it did not pass the required readings in
both Houses of Congress and printed copies of the bill in its final form were not distributed among
the members before its passage; and (3) it is discriminatory and encroaches on the independence of
the Judiciary.

We approach these issues with one important principle in mind, to wit, the presumption of the
constitutionality of statutes. The theory is that as the joint act of the Legislature and the Executive,
every statute is supposed to have first been carefully studied and determined to be constitutional
before it was finally enacted. Hence, unless it is clearly shown that it is constitutionally flawed, the
attack against its validity must be rejected and the law itself upheld. To doubt is to sustain.

We consider first the objection based on Article VI, Sec. 26(l), of the Constitution providing that
"Every bill passed by the Congress shall embrace only one subject which shall be expressed in the
title thereof."

The purposes of this rule are: (1) to prevent hodge-podge or "log-rolling" legislation; (2) to prevent
surprise or fraud upon the legislature by means of provisions in bills of which the title gives no
intimation, and which might therefore be overlooked and carelessly and unintentionally adopted; and
(3) to fairly apprise the people, through such publication of legislative proceedings as is usually
made, of the subject of legislation that is being considered, in order that they may have opportunity
of being heard thereon, by petition or otherwise, if they shall so desire. 1

It is the submission of the petitioners that Section 35 of R.A. No. 7354 which withdrew the franking
privilege from the Judiciary is not expressed in the title of the law, nor does it reflect its purposes.

R.A. No. 7354 is entitled "An Act Creating the Philippine Postal Corporation, Defining its Powers,
Functions and Responsibilities, Providing for Regulation of the Industry and for Other Purposes
Connected Therewith."

The objectives of the law are enumerated in Section 3, which provides:

The State shall pursue the following objectives of a nationwide postal system:
 a) to enable the economical and speedy transfer of mail and other postal matters,
from sender to addressee, with full recognition of their privacy or confidentiality;

b) to promote international interchange, cooperation and understanding through the

unhampered flow or exchange of postal matters between nations;

c) to cause or effect a wide range of postal services to cater to different users and
changing needs, including but not limited to, philately, transfer of monies and
valuables, and the like;

d) to ensure that sufficient revenues are generated by and within the industry to
finance the overall cost of providing the varied range of postal delivery and
messengerial services as well as the expansion and continuous upgrading of service
standards by the same.

Sec. 35 of R.A. No. 7354, which is the principal target of the petition, reads as follows:

Sec. 35. Repealing Clause. — All acts, decrees, orders, executive orders,
instructions, rules and regulations or parts thereof inconsistent with the provisions of
this Act are repealed or modified accordingly.

All franking privileges authorized by law are hereby repealed, except those provided
for under Commonwealth Act No. 265, Republic Acts Numbered 69, 180, 1414, 2087
and 5059. The Corporation may continue the franking privilege under Circular No. 35
dated October 24, 1977 and that of the Vice President, under such arrangements
and conditions as may obviate abuse or unauthorized use thereof.

The petitioners' contention is untenable. We do not agree that the title of the challenged act violates
the Constitution.

The title of the bill is not required to be an index to the body of the act, or to be as comprehensive as
to cover every single detail of the measure. It has been held that if the title fairly indicates the
general subject, and reasonably covers all the provisions of the act, and is not calculated to mislead
the legislature or the people, there is sufficient compliance with the constitutional requirement. 2

To require every end and means necessary for the accomplishment of the general objectives of the
statute to be expressed in its title would not only be unreasonable but would actually render
legislation impossible. 3 As has been correctly explained:

The details of a legislative act need not be specifically stated in its title, but matter
germane to the subject as expressed in the title, and adopted to the accomplishment
of the object in view, may properly be included in the act. Thus, it is proper to create
in the same act the machinery by which the act is to be enforced, to prescribe the
penalties for its infraction, and to remove obstacles in the way of its execution. If
such matters are properly connected with the subject as expressed in the title, it is
unnecessary that they should also have special mention in the title (Southern Pac.
Co. v. Bartine, 170 Fed. 725).

This is particularly true of the repealing clause, on which Cooley writes: "The repeal of a statute on a
given subject is properly connected with the subject matter of a new statute on the same subject;
and therefore a repealing section in the new statute is valid, notwithstanding that the title is silent on
the subject. It would be difficult to conceive of a matter more germane to an act and to the object to
be accomplished thereby than the repeal of previous legislations connected therewith." 4

The reason is that where a statute repeals a former law, such repeal is the effect and not the subject
of the statute; and it is the subject, not the effect of a law, which is required to be briefly expressed in
its title. 5 As observed in one case, 6 if the title of an act embraces only one subject, we apprehend it was
never claimed that every other act which repeals it or alters by implication must be mentioned in the title
of the new act. Any such rule would be neither within the reason of the Constitution, nor practicable.

We are convinced that the withdrawal of the franking privilege from some agencies is germane to the
accomplishment of the principal objective of R.A. No. 7354, which is the creation of a more efficient
and effective postal service system. Our ruling is that, by virtue of its nature as a repealing clause,
Section 35 did not have to be expressly included in the title of the said law.

II

The petitioners maintain that the second paragraph of Sec. 35 covering the repeal of the franking
privilege from the petitioners and this Court under E.O. 207, PD 1882 and PD 26 was not included in
the original version of Senate Bill No. 720 or House Bill No. 4200. As this paragraph appeared only
in the Conference Committee Report, its addition, violates Article VI, Sec. 26(2) of the Constitution,
reading as follows:

(2) No bill passed by either House shall become a law unless it has passed three
readings on separate days, and printed copies thereof in its final form have been
distributed to its Members three days before its passage, except when the President
certifies to the necessity of its immediate enactment to meet a public calamity or
emergency. Upon the last reading of a bill, no amendment thereto shall be allowed,
and the vote thereon shall be taken immediately thereafter, and
the yeasand nays entered in the Journal.

The petitioners also invoke Sec. 74 of the Rules of the House of Representatives, requiring that
amendment to any bill when the House and the Senate shall have differences thereon may be
settled by a conference committee of both chambers. They stress that Sec. 35 was never a subject
of any disagreement between both Houses and so the second paragraph could not have been
validly added as an amendment.

These argument are unacceptable.

While it is true that a conference committee is the mechanism for compromising differences between
the Senate and the House, it is not limited in its jurisdiction to this question. Its broader function is
described thus:

A conference committee may, deal generally with the subject matter or it may be
limited to resolving the precise differences between the two houses. Even where the
conference committee is not by rule limited in its jurisdiction, legislative custom
severely limits the freedom with which new subject matter can be inserted into the
conference bill. But occasionally a conference committee produces unexpected
results, results beyond its mandate, These excursions occur even where the rules
impose strict limitations on conference committee jurisdiction. This is symptomatic of
the authoritarian power of conference committee (Davies, Legislative Law and
Process: In a Nutshell, 1986 Ed., p.81).
It is a matter of record that the conference Committee Report on the bill in question was returned to
and duly approved by both the Senate and the House of Representatives. Thereafter, the bill was
enrolled with its certification by Senate President Neptali A. Gonzales and Speaker Ramon V. Mitra
of the House of Representatives as having been duly passed by both Houses of Congress. It was
then presented to and approved by President Corazon C. Aquino on April 3, 1992.

Under the doctrine of separation powers, the Court may not inquire beyond the certification of the
approval of a bill from the presiding officers of Congress. Casco Philippine Chemical Co. v.
Gimenez 7 laid down the rule that the enrolled bill, is conclusive upon the Judiciary (except in matters that
have to be entered in the journals like the  yeas and  nayson the final reading of the
bill). 8 The journals are themselves also binding on the Supreme Court, as we held in the old (but still
valid) case of U.S. vs. Pons, 9 where we explained the reason thus:

To inquire into the veracity of the journals of the Philippine legislature when they are,
as we have said, clear and explicit, would be to violate both the, letter and spirit of
the organic laws by which the Philippine Government was brought into existence, to
invade a coordinate and independent department of the Government, and to interfere
with the legitimate powers and functions, of the Legislature.

Applying these principles, we shall decline to look into the petitioners' charges that an amendment
was made upon the last reading of the bill that eventually became R.A. No. 7354 and that copies
thereof in its final form were not distributed among the members of each House. Both the enrolled
bill and the legislative journals certify that the measure was duly enacted i.e., in accordance with
Article VI, Sec. 26(2) of the Constitution. We are bound by such official assurances from a
coordinate department of the government, to which we owe, at the very least, a becoming courtesy.

III

The third and most serious challenge of the petitioners is based on the equal protection clause.

It is alleged that R.A. No. 7354 is discriminatory because while withdrawing the franking privilege
from the Judiciary, it retains the same for the President of the Philippines, the Vice President of the
Philippines; Senators and Members of the House of Representatives, the Commission on Elections;
former Presidents of the Philippines; the National Census and Statistics Office; and the general
public in the filing of complaints against public offices and officers. 10

The respondents counter that there is no discrimination because the law is based on a valid
classification in accordance with the equal protection clause. In fact, the franking privilege has been
withdrawn not only from the Judiciary but also the Office of Adult Education, the Institute of National
Language; the Telecommunications Office; the Philippine Deposit Insurance Corporation; the
National Historical Commission; the Armed Forces of the Philippines; the Armed Forces of the
Philippines Ladies Steering Committee; the City and Provincial Prosecutors; the Tanodbayan (Office
of Special Prosecutor); the Kabataang Barangay; the Commission on the Filipino Language; the
Provincial and City Assessors; and the National Council for the Welfare of Disabled Persons. 11

The equal protection of the laws is embraced in the concept of due process, as every unfair
discrimination offends the requirements of justice and fair play. It has nonetheless been embodied in
a separate clause in Article III Sec. 1., of the Constitution to provide for a more, specific guaranty
against any form of undue favoritism or hostility from the government. Arbitrariness in general may
be challenged on the basis of the due process clause. But if the particular act assailed partakes of
an unwarranted partiality or prejudice, the sharper weapon to cut it down is the equal protection
clause.
According to a long line of decisions, equal protection simply requires that all persons or things
similarly situated should be treated alike, both as to rights conferred and responsibilities
imposed, 12 Similar subjects, in other words, should not be treated differently, so as to give undue favor to
some and unjustly discriminate against others.

The equal protection clause does not require the universal application of the laws on all persons or
things without distinction. This might in fact sometimes result in unequal protection, as where, for
example, a law prohibiting mature books to all persons, regardless of age, would benefit the morals
of the youth but violate the liberty of adults. What the clause requires is equality among equals as
determined according to a valid classification. By classification is meant the grouping of persons or
things similar to each other in certain particulars and different from all others in these same
particulars. 13

What is the reason for the grant of the franking privilege in the first place? Is the franking privilege
extended to the President of the Philippines or the Commission on Elections or to former Presidents
of the Philippines purely as acourtesy from the lawmaking body? Is it offered because of
the importance or status of the grantee or because of its need for the privilege? Or have the
grantees been chosen pell-mell, as it were, without any basis at all for the selection?

We reject outright the last conjecture as there is no doubt that the statute as a whole was carefully
deliberated upon, by the political departments before it was finally enacted. There is reason to
suspect, however, that not enough care or attention was given to its repealing clause, resulting in the
unwitting withdrawal of the franking privilege from the Judiciary.

We also do not believe that the basis of the classification was mere courtesy, for it is unimaginable
that the political departments would have intended this serious slight to the Judiciary as the third of
the major and equal departments the government. The same observations are made if the
importance or status of the grantee was the criterion used for the extension of the franking privilege,
which is enjoyed by the National Census and Statistics Office and even some private individuals but
not the courts of justice.

In our view, the only acceptable reason for the grant of the franking privilege was the
perceived need of the grantee for the accommodation, which would justify a waiver of substantial
revenue by the Corporation in the interest of providing for a smoother flow of communication
between the government and the people.

Assuming that basis, we cannot understand why, of all the departments of the government, it is the
Judiciary, that has been denied the franking privilege. There is no question that if there is any major
branch of the government that needs the privilege, it is the Judicial Department, as the respondents
themselves point out. Curiously, the respondents would justify the distinction on the basis precisely
of this need and, on this basis, deny the Judiciary the franking privilege while extending it to others
less deserving.

In their Comment, the respondents point out that available data from the Postal Service Office show
that from January 1988 to June 1992, the total volume of frank mails amounted to P90,424,175.00.
Of this amount, frank mails from the Judiciary and other agencies whose functions include the
service of judicial processes, such as the intervenor, the Department of Justice and the Office of the
Ombudsman, amounted to P86,481,759. Frank mails coming fromthe Judiciary amounted to
P73,574,864.00, and those coming from the petitioners reached the total amount of P60,991,431.00.
The respondents' conclusion is that because of this considerable volume of mail from the Judiciary,
the franking privilege must be withdrawn from it.
The argument is self-defeating. The respondents are in effect saying that the franking privilege
should be extended only to those who do not need it very much, if at all, (like the widows of former
Presidents) but not to those who need it badly (especially the courts of justice). It is like saying that a
person may be allowed cosmetic surgery although it is not really necessary but not an operation that
can save his life.

If the problem of the respondents is the loss of revenues from the franking privilege, the remedy, it
seems to us, is to withdraw it altogether from all agencies of government, including those who do not
need it. The problem is not solved by retaining it for some and withdrawing it from others, especially
where there is no substantial distinction between those favored, which may or may not need it at all,
and the Judiciary, which definitely needs it. The problem is not solved by violating the Constitution.

In lumping the Judiciary with the other offices from which the franking privilege has been withdrawn,
Section 35 has placed the courts of justice in a category to which it does not belong. If it recognizes
the need of the President of the Philippines and the members of Congress for the franking privilege,
there is no reason why it should not recognize a similar and in fact greater need on the part of the
Judiciary for such privilege. While we may appreciate the withdrawal of the franking privilege from
the Armed Forces of the Philippines Ladies Steering Committee, we fail to understand why the
Supreme Court should be similarly treated as that Committee. And while we may concede the need
of the National Census and Statistics Office for the franking privilege, we are intrigued that a similar
if not greater need is not recognized in the courts of justice.

(On second thought, there does not seem to be any justifiable need for withdrawing the privilege
from the Armed Forces of the Philippines Ladies Steering Committee, which, like former Presidents
of the Philippines or their widows, does not send as much frank mail as the Judiciary.)

It is worth observing that the Philippine Postal Corporation, as a government-controlled corporation,

was created and is expected to operate for the purpose of promoting the public service. While it may
have been established primarily for private gain, it cannot excuse itself from performing certain
functions for the benefit of the public in exchange for the franchise extended to it by the government
and the many advantages it enjoys under its charter.14 Among the services it should be prepared to
extend is free carriage of mail for certain offices of the government that need the franking privilege in the
discharge of their own public functions.

We also note that under Section 9 of the law, the Corporation is capitalized at P10 billion pesos,
55% of which is supplied by the Government, and that it derives substantial revenues from the
sources enumerated in Section 10, on top of the exemptions it enjoys. It is not likely that the
retention of the franking privilege of the Judiciary will cripple the Corporation.

At this time when the Judiciary is being faulted for the delay in the administration of justice, the
withdrawal from it of the franking privilege can only further deepen this serious problem. The volume
of judicial mail, as emphasized by the respondents themselves, should stress the dependence of the
courts of justice on the postal service for communicating with lawyers and litigants as part of the
judicial process. The Judiciary has the lowest appropriation in the national budget compared to the
Legislative and Executive Departments; of the P309 billion budgeted for 1993, only .84%, or less
than 1%, is alloted for the judiciary. It should not be hard to imagine the increased difficulties of our
courts if they have to affix a purchased stamp to every process they send in the discharge of their
judicial functions.

We are unable to agree with the respondents that Section 35 of R.A. No. 7354 represents a valid
exercise of discretion by the Legislature under the police power. On the contrary, we find its
repealing clause to be a discriminatory provision that denies the Judiciary the equal protection of the
laws guaranteed for all persons or things similarly situated. The distinction made by the law is
superficial. It is not based on substantial distinctions that make real differences between the
Judiciary and the grantees of the franking privilege.

This is not a question of wisdom or power into which the Judiciary may not intrude. It is a matter of
arbitrariness that this Court has the duty and power to correct.

IV

In sum, we sustain R.A. No. 7354 against the attack that its subject is not expressed in its title and
that it was not passed in accordance with the prescribed procedure. However, we annul Section 35
of the law as violative of Article 3, Sec. 1, of the Constitution providing that no person shall "be
deprived of the equal protection of laws."

We arrive at these conclusions with a full awareness of the criticism it is certain to provoke. While
ruling against the discrimination in this case, we may ourselves be accused of similar discrimination
through the exercise of our ultimate power in our own favor. This is inevitable. Criticism of judicial
conduct, however undeserved, is a fact of life in the political system that we are prepared to accept..
As judges, we cannot debate with our detractors. We can only decide the cases before us as law
imposes on us the duty to be fair and our own conscience gives us the light to be right.

ACCORDINGLY, the petition is partially GRANTED and Section 35 of R.A. No. 7354 is declared
UNCONSTITUTIONAL. Circular No. 92-28 is SET ASIDE insofar as it withdraws the franking
privilege from the Supreme Court, the Court of Appeals, the Regional trail Courts, the Municipal trial
Courts, and the National Land Registration Authority and its Register of Deeds to all of which offices
the said privilege shall be RESTORED. The temporary restraining order dated June 2, 1992, is
made permanent.

SO ORDERED.