A.

BACKGROUND OF THE PRESENT CONSTITUTION LAWYERS

LEAGUE V. AQUINO
FACTS: On February 25, 1986 (Proclamation No. 1, 2/25/86 [Prov’l
Gov’t]; Proc. No. 3, 3/25/86 [Provisional Const])
President Corazon Aquino issued Proclamation No. 1 announcing that
she and Vice President Laurel were taking power. On March 25, 1986,
proclamation No.3 was issued providing the basis of the Aquino
government assumption of power by stating that the "new government
was installed through a direct exercise of the power of the Filipino people
assisted by units of the New Armed Forces of the Philippines."
ISSUE: Whether or not the government of Corazon Aquino is legitimate.
HELD: Yes. The legitimacy of the Aquino government is not a justiciable
matter but belongs to the realm of politics where only the people are the
judge. The Court further held that: The people have accepted the Aquino
government which is in effective control of the entire country; It is not
merely a de facto government but in fact and law a de jure government;
and the community of nations has recognized the legitimacy of the new
government.
IN RE:BERMUDEZ
Facts: In a petition for declaratory relief with no respondents, petitioner

In a petition for declaratory relief impleading no respondents, petitioner, as a lawyer, quotes the
first paragraph of Section 5 (not Section 7 as erroneously stated) of Article XVIII of the proposed
1986 Constitution, which provides in full as follows:

Sec. 5. The six-year term of the incumbent President and Vice-President elected in the February
7, 1986 election is, for purposes of synchronization of elections, hereby extended to noon of
June 30, 1992.

Issue: Whether the aforecited article applies to the then-incumbent

President and VicePresident, or the previously elected President and
Vice-President.
Held: The petition was hereby dismissed outright for:
1. Lack of jurisdiction. Court has no jurisdiction over petition for
declaratory relief. Rules of Court states that it is the RTC (Regional Trial
Courts) who has the jurisdiction over petitions for declaratory relief. Also,
incumbent Presidents are immune from suit or from being brought to
court during the period of their incumbency and tenure.
2. Lack of cause of action on the part of petitioner. Petitioner had no
personality to use, and his allegation was manifestly gratuitous. The
legitimacy of the Aquino government was not a justiciable matter. It
belongs to the realm of politics where only the people of the Philippines
are the judge, and the people have made judgment.

B. Adoption and Effectivity of the Present Constitution

DE LEON V. ESGUERRA Facts: On May 17, 1982, petitioner Alfredo M.
De Leon was elected Barangay Captain together with the other
petitioners as Barangay Councilmen of Barangay Dolores, Muncipality of
Taytay, Province of Rizal in a Barangay election held under Batas
PambansaBlg. 222, otherwise known as Barangay Election Act of 1982.
On February 9, 1987, petitioner De Leon received a Memorandum
antedated December 1, 1986 but signed by respondent OIC Governor
Benjamin Esguerra on February 8, 1987 designating respondent
Florentino G. Magno as Barangay Captain of Barangay Dolores and the
other respondents as members of Barangay Council of the same
Barangay and Municipality.
Petitoners prayed to the Supreme Court that the subject Memoranda of
February 8, 1987 be declared null and void and that respondents be
prohibited by taking over their positions of Barangay Captain and
Barangay Councilmen.
Petitioners maintain that pursuant to Section 3 of the Barangay Election
Act of 1982 (BP Blg. 222), their terms of office shall be six years which
shall commence on June 7, 1988 and shall continue until their
successors shall have elected and shall have qualified. It was also their
position that with the ratification of the 1987 Philippine Constitution,
respondent OIC Governor no longer has the authority to replace them
and to designate their successors.
On the other hand, respondents contend that the terms of office of
elective and appointive officials were abolished and that petitioners
continued in office by virtue of Sec. 2, Art. 3 of the Provisional
Constitution and not because their term of six years had not yet expired;
and that the provision in the Barangay Election Act fixing the term of
office of Barangay officials to six years must be deemed to have been
repealed for being inconsistent with Sec. 2, Art. 3 of the Provisional
Constitution.
Issue: Whether or not the designation of respondents to replace
petitioners was validly made during the one-year period which ended on
Feb 25, 1987.
Ruling: Supreme Court declared that the Memoranda issued by
respondent OIC Gov on Feb 8, 1987 designating respondents as
Barangay Captain and Barangay Councilmen of Barangay Dolores,
Taytay, Rizal has no legal force and effect.
The 1987 Constitution was ratified in a plebiscite on Feb 2, 1987,
therefore, the Provisional Constitution must be deemed to have
superseded. Having become inoperative, respondent OIC Gov could no
longer rely on Sec 2, Art 3, thereof to designate respondents to the
elective positions occupied by petitioners.
Relevantly, Sec 8, Art 1 of the 1987 Constitution further provides in part:
"Sec. 8. The term of office of elective local officials, except barangay
officials, which shall be determined by law, shall be three years x xx."
Until the term of office of barangay officials has been determined by aw,
therefore, the term of office of 6 years provided for in the Barangay
Election Act of 1982 should still govern.
 Compare with the effectivity of Laws (Art. V, Provisional Const;
Sec. 27, Art. XVIII, 1987 Const; Proc. No. 58, 2/11/87)
TAÑADA VS. TUVERA FACTS: (E.O. No. 200, 6/18/87; Art. 2, Civil Code
of the Phils.)
Petitioners invoked the people's right to be informed on matters of
public concern, a right recognized in Section 6, Article IV of the 1973
Philippine Constitution, 1 as well as the principle that for laws to be valid
and enforceable, it must be published in the Official Gazette.
Petitioners seek a writ of mandamus to compel respondent public
officials to publish, and/or cause the publication in the Official Gazette of
various presidential decrees, letters of instructions, general orders,
proclamations, executive orders, letter of implementation and
administrative orders. Respondents contend that petitioners have no
legal personality or standing and that the publication in the Official
Gazette is not a requirement for the laws to be effective when the laws
themselves provide for their own effectivity dates.
ISSUE: Whether or not laws or statutes are required to be published in
the Official Gazette before it becomes valid and enforceable.
RULING: Yes, publication is necessary. Article 2 of the Civil Code does
not preclude the requirement of publication in the Official Gazette, even
if the law itself provides for the date of its effectivity.
Also, the clear object of Section 1 of Commonwealth Act 638 is to give
the general public adequate notice of the various laws which are to
regulate their actions and conduct as citizens.
The very first clause of above provision reads, “there shall be published
in the Official Gazette...” The word “shall” therein imposes upon
respondent officials an imperative duty. That duty must be enforced if the
constitutional right of the people to be informed on matter of public
concern is to be given substance and validity.
The publication of presidential issuances of public nature or of general
applicability is a requirement of due process. It is a rule of law that
before a person may be bound by law, he must first be officially and
specifically informed of its contents.
WHEREFORE, the Court hereby orders respondents to publish in the
Official Gazette all unpublished presidential issuances which are of
general application, and unless so published, they shall have no binding
force and effect.
SENATE V ERMITA
Facts: Assailed in this petition was the constitutionality of Executive
Order 464 issued by the President. Petitioners contend that the
President abused its power and prayed that said law be declared null
and void. EO 464 requires that heads of departments obtain the consent
of the President before they can validly appear before investigations
including the one conducted in the Senate. It also grants executive
privilege on all classified or confidential information between the
President and the public officers covered by the EO.
The Senate conducted an investigation and issued invitations to various
officials of the Executive department as resource speakers in a public
hearing on the North Rail project. Said public hearing was sparked by a
privilege speech of Sen. Enrile urging the Senate to investigate the
alleged overpricing and other unlawful provisions of the contract
covering the said project. The Senate Committee on National Defense
and Security likewise issued invitationsto officials of the AFP.
Executive Ermita sent a letter to the Senate requesting postponement of
the hearing. On the same day (Sept 28, 2005) the President issued EO
464. Despite this development, the investigation pushed through, with
only Col. Balutan and Brig. Gen. Gudani among all the AFP officials
invited attending. Both were subsequently relieved for defying the
President’s order. Issue: Whether or not E.O. 464 contravenes the power
of inquiry vested in Congress
Held: YES. EO 464 bars the appearance of executive officials before the
Congress, hence it deprives it of the information in possession of these
officials. The Congress power of inquiry is expressly recognized in Sec.
21 Article VI of the Constitution. This power is incidental to the legislative
function. 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 conditions which the legislation is intended to affect or
change; and when it does not possess the required information,
recourse must be had on others who possess it. This power is broad
enough to cover officials of the executive branch.The operation of the
government is a proper subject for investigation, as held in Arnault case.
Although the inquiry is in aid of legislation, there are still recognized
exemptions to the power of inquiry, which fall under the rubric of
‘executive privilege’. It is defined by Schwartz as “the power of the
government to withhold information from the public, the courts and the
Congress.” (e.g. state secret privilege, informer’s privilege, generic
privilege).
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. 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.
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.
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.
GARCILLANO vs. THE HOUSE OF REPRESENTATIVES, et.al G.R. No.
170338 December 23, 2008 FACTS: Tapes ostensibly containing a
wiretapped conversation purportedly between the President of the
Philippines and a high-ranking official of the Commission on Elections
(COMELEC) surfaced. The tapes, notoriously referred to as the "Hello
Garci" tapes, allegedly contained the President’s instructions to
COMELEC Commissioner VirgilioGarcillano to manipulate in her favor
results of the 2004 presidential elections. These recordings were to
become the subject of heated legislative hearings conducted separately
by committees of both Houses of Congress.
Interveners alleges violation of his right to due process considering that
he is summoned to attend the Senate hearings without being apprised
not only of his rights therein through the publication of the Senate Rules
of Procedure Governing Inquiries in Aid of Legislation, but also of the
intended legislation which underpins the investigation. He further
intervenes as a taxpayer bewailing the useless and wasteful expenditure
of public funds involved in the conduct of the questioned hearings.
The respondents in G.R. No. 179275 admit in their pleadings and even
on oral argument that the Senate Rules of Procedure Governing
Inquiries in Aid of Legislation had been published in newspapers of
general circulation only in 1995 and in 2006. With respect to the present
Senate of the 14th Congress, however, of which the term of half of its
members commenced on June 30, 2007, no effort was undertaken for
the publication of these rules when they first opened their session.
Respondents justify their non-observance of the constitutionally
mandated publication by arguing that the rules have never been
amended since 1995 and, despite that, they are published in booklet
form available to anyone for free, and accessible to the public at the
Senate’s internet web page. ISSUE: Whether or not publication of the
Rules of Procedures Governing Inquiries in Aid of Legislation through the
Senate’s website, satisfies the due process requirement of law.
HELD: The publication of the Rules of Procedure in the website of the
Senate, or in pamphlet form available at the Senate, is not sufficient
under the Tañada v. Tuvera ruling which requires publication either in the
Official Gazette or in a newspaper of general circulation. The Rules of
Procedure even provide that the rules "shall take effect seven (7) days
after publication in two (2) newspapers of general circulation," precluding
any other form of publication. Publication in accordance with Tañada is
mandatory to comply with the due process requirement because the
Rules of Procedure put a person’s liberty at risk. A person who violates
the Rules of Procedure could be arrested and detained by the Senate.
The invocation by the respondents of the provisions of R.A. No. 8792,
otherwise known as the Electronic Commerce Act of 2000, to support
their claim of valid publication through the internet is all the more
incorrect. R.A. 8792 considers an electronic data message or an
electronic document as the functional equivalent of a written document
only for evidentiary purposes. In other words, the law merely recognizes
the admissibility in evidence (for their being the original) of electronic
data messages and/or electronic documents. It does not make the
internet a medium for publishing laws, rules and regulations.
Given this discussion, the respondent Senate Committees, therefore,
could not, in violation of the Constitution, use its unpublished rules in the
legislative inquiry subject of these consolidated cases. The conduct of
inquiries in aid of legislation by the Senate has to be deferred until it
shall have caused the publication of the rules, because it can do so only
"in accordance with its duly published rules of procedure."
NERI V SENATE COMMITTEE
Facts: On April 21, 2007, the Department of Transportation and
Communication (DOTC) entered into a contract with Zhong Xing
Telecommunications Equipment (ZTE) for the supply of equipment and
services for the National Broadband Network (NBN) Project in the
amount of U.S. $ 329,481,290 (approximately P16 Billion Pesos). The
Project was to be financed by the People’s Republic of China. The
Senate passed various resolutions relative to the NBN deal. In the
September 18, 2007 hearing Jose de Venecia III testified that several
high executive officials and power brokers were using their influence to
push the approval of the NBN Project by the NEDA.
Neri, the head of NEDA, was then invited to testify before the Senate
Blue Ribbon. He appeared in one hearing wherein he was interrogated
for 11 hrs and during which he admitted that Abalos of COMELEC tried
to bribe him with P200M in exchange for his approval of the NBN project.
He further narrated that he informed President Arroyo about the bribery
attempt and that she instructed him not to accept the bribe.
However, when probed further on what they discussed about the NBN
Project, petitioner refused to answer, invoking “executive privilege”. In
particular, he refused to answer the questions on:
(a) whether or not President Arroyo followed up the NBN Project,
(b) whether or not she directed him to prioritize it, and
(c) whether or not she directed him to approve.
He later refused to attend the other hearings and Ermita sent a letter to
the senate averring that the communications between GMA and Neri are
privileged and that the jurisprudence laid down in Senate vsErmita be
applied. He was cited in contempt of respondent committees and an
order for his arrest and detention until such time that he would appear
and give his testimony.
Issue: Are the communications elicited by the subject three (3) questions
covered by executive privilege? Held: The communications are covered
by executive privilege.
The revocation of EO 464 (advised executive officials and employees to
follow and abide by the Constitution, existing laws and jurisprudence,
including, among others, the case of Senate v. Ermita when they are
invited to legislative inquiries in aid of legislation.), does not in any way
diminish the concept of executive privilege. This is because this concept
has Constitutional underpinnings.
The claim of executive privilege is highly recognized in cases where the
subject of inquiry relates to a power textually committed by the
Constitution to the President, such as the area of military and foreign
relations. Under our Constitution, the President is the repository of the
commander-in-chief, appointing, pardoning, and diplomatic powers.
Consistent with the doctrine of separation of powers, the information
relating to these powers may enjoy greater confidentiality than others.
Several jurisprudence cited provide the elements of presidential
communications privilege: 1) The protected communication must relate
to a “quintessential and non-delegable presidential power.”; 2) The
communication must be authored or “solicited and received” by a close
advisor of the President or the President himself. The judicial test is that
an advisor must be in “operational proximity” with the President. 3) The
presidential communications privilege remains a qualified privilege that
may be overcome by a showing of adequate need, such that the
information sought “likely contains important evidence” and by the
unavailability of the information elsewhere by an appropriate
investigating authority.
In the case at bar, Executive Secretary Ermita premised his claim of
executive privilege on the ground that the communications elicited by the
three (3) questions “fall under conversation and correspondence
between the President and public officials” necessary in “her executive
and policy decision-making process” and, that “the information sought to
be disclosed might impair our diplomatic as well as economic relations
with the People’s Republic of China.” Simply put, the bases are
presidential communications privilege and executive privilege on matters
relating to diplomacy or foreign relations.
Using the above elements, we are convinced that, indeed, the
communications elicited by the three (3) questions are covered by the
presidential communications privilege. First, the communications relate
to a “quintessential and non-delegable power” of the President, i.e. the
power to enter into an executive agreement with other countries. This
authority of the President to enter into executive agreements without the
concurrence of the Legislature has traditionally been recognized in
Philippine jurisprudence. Second, the communications are “received” by
a close advisor of the President. Under the “operational proximity” test,
petitioner can be considered a close advisor, being a member of
President Arroyo’s cabinet. And third, there is no adequate showing of a
compelling need that would justify the limitation of the privilege and of
the unavailability of the information elsewhere by an appropriate
investigating authority.
Respondent Committees further contend that the grant of petitioner’s
claim of executive privilege violates the constitutional provisions on the
right of the people to information on matters of public concern. We might
have agreed with such contention if petitioner did not appear before
them at all. But petitioner made himself available to them during the
September 26 hearing, where he was questioned for eleven (11) hours.
Not only that, he expressly manifested his willingness to answer more
questions from the Senators, with the exception only of those covered by
his claim of executive privilege.
The right to public information, like any other right, is subject to limitation.
Section 7 of Article III provides: The right of the people to information on
matters of public concern shall be recognized. Access to official records,
and to documents, and papers pertaining to official acts, transactions, or
decisions, as well as to government research data used as basis for
policy development, shall be afforded the citizen, subject to such
limitations as may be provided by law.
AQUILINO Q. PIMENTEL, JR., MANUEL B. VILLAR, JOKER P.
ARROYO, FRANCIS N. PANGILINAN, PIA S. CAYETANO, and ALAN
PETER S. CAYETANO, Petitioners,
vs.
SENATE COMMITTEE OF THE WHOLE represented by SENATE
PRESIDENT JUAN PONCE ENRILE (PRINTED)**
FERDINAND R. VILLANUEVA, PRESIDING JUDGE, MCTC,
COMPOSTELA-NEW BATAAN, COMPOSTELA VALLEY
PROVINCE, Petitioner, v. JUDICIAL AND BAR COUNCIL, Respondent.
Facts: The petitioner was appointed on September 18, 2012 as the
Presiding Judge of the Municipal Circuit Trial Court, Compostela-New
Bataan, Poblacion, Compostela Valley Province. He applied for the
vacant position of Presiding Judge in the following Regional Trial Courts
(RTCs): Tagum City; Davao City; and Prosperidad, Agusan Del Sur.
In a letter dated December 18, 2013, JBC's Office of Recruitment,
Selection and Nomination, informed the petitioner that he was not
included in the list of candidates for the said stations. On the same date,
the petitioner sent a letter, through electronic mail, seeking
reconsideration of his non-inclusion in the list of considered applicants
and protesting the inclusion of applicants who did not pass the
prejudicature examination.
The petitioner was informed by the JBC Executive Officer, through a
letter dated February 3, 2014, that his protest and reconsideration was
duly noted by the JBC en banc. However, its decision not to include his
name in the list of applicants was upheld due to the JBC's long-standing
policy of opening the chance for promotion to second-level courts to,
among others, incumbent judges who have served in their current
position for at least five years, and since the petitioner has been a judge
onlyfor more than a year, he was excluded from the list. This caused the
petitioner to take recourse to this Court.
In his petition, he argued that: (1) the Constitution already prescribed
the qualifications of an RTC judge, and the JBC could add no more; (2)
the JBC's fiveyear requirement violates the equal protection and due
process clauses of the Constitution; and (3) the JBC's five-year
requirement violates the constitutional provision on Social Justice and
Human Rights for Equal Opportunity of Employment. The petitioner also
asserted that the requirement of the Prejudicature Program mandated by
Section 10 of Republic Act (R.A.) No. 8557 should not be merely
directory and should be fully implemented. He further alleged that he has
all the qualifications for the position prescribed by the Constitution and
by Congress, since he has already complied with the requirement of 10
years of practice of law.
Issue: The crux of this petition is whether or not the policy of JBC
requiring five years of service as judges of first-level courts before they
can qualify as applicant to secondlevel courts is constitutional.
Ruling: As the constitutional body granted with the power of searching
for, screening, and selecting applicants relative to recommending
appointees to the Judiciary, the JBC has the authority to determine how
best to perform such constitutional mandate. Pursuant to this authority,
the JBC issues various policies setting forth the guidelines to be
observed in the evaluation of applicants, and formulates rules and
guidelines in order to ensure that the rules are updated to respond to
existing circumstances. Its discretion is freed from legislative, executive
or judicial intervention to ensure that the JBC is shielded from any
outside pressure and improper influence. Limiting qualified applicants in
this case to those judges with five years of experience was an exercise
of discretion by the JBC. The potential applicants, however, should have
been informed of the requirements to the judicial positions, so that they
could properly prepare for and comply with them. Hence, unless there
are good and compelling reasons to do so, the Court will refrain from
interfering with the exercise of JBC's powers, and will respect the
initiative and independence inherent in the latter.
(Gotesco, printed separately)
(Mun V Faustino)
(DENR V. ABAD