ATTY. ROMULO B.

MACALINTAL, Petitioner, v. COMMISSION ON ELECTIONS, HON. ALBERTO ROMULO, in

his official capacity as Executive Secretary, and HON. EMILIA T. BONCODIN, Secretary of the
Department of Budget and Management, Respondents.

DECISION

Before the Court is a petition for certiorari and prohibition filed by Romulo B. Macalintal, a member of the Philippine
Bar, seeking a declaration that certain provisions of Republic Act No. 9189 (The Overseas Absentee Voting Act of
2003) suffer from constitutional infirmity. Claiming that he has actual and material legal interest in the subject
matter of this case in seeing to it that public funds are properly and lawfully used and appropriated, petitioner filed
the instant petition as a taxpayer and as a lawyer.

ISSUES:
1. Whether or not Section 5(d) of Republic Act No. 9189 violates the residency requirement in Section 1 of
Article V of the Constitution.

2. Whether or not Section 18.5 of the same law violates the constitutional mandate under Section 4, Article
VII of the Constitution that the winning candidates for President and the Vice-President shall be
proclaimed as winners by Congress.

3. Whether or not Congress may, through the Joint Congressional Oversight Committee created in Section
25 of Rep. Act No. 9189, exercise the power to review, revise, amend, and approve the Implementing
Rules and Regulations that the Commission on Elections, promulgate without violating the independence
of the COMELEC under Section 1, Article IX-A of the Constitution.

HELD:
(1) No. Section 5 of RA No. 9189 enumerates those who are disqualified voting under this Act.
It disqualifies an immigrant or a permanent resident who is recognized as such in the host country.

However, an exception is provided i.e. unless he/she executes, upon registration, an affidavit prepared for the
purpose by the Commission declaring that he/she shall resume actual physical permanent residence in the
Philippines not later than 3 years from approval of registration. Such affidavit shall also state that he/she has not
applied for citizenship in another country. Failure to return shall be cause for the removal of the name of the
immigrant or permanent resident from the National Registry of Absentee Voters and his/her permanent
disqualification to vote in absentia.

Petitioner claims that this is violative of the residency requirement in Section 1 Article V of the Constitution which
requires the voter must be a resident in the Philippines for at least one yr, and a resident in the place where he
proposes to vote for at least 6 months immediately preceding an election.

However, OSG held that ruling in said case does not hold water at present, and that the Court may have to discard
that particular ruling. Panacea of the controversy:

Affidavit for without it, the presumption of abandonment of Phil domicile shall remain. The qualified Filipino abroad
who executed an affidavit is deemed to have retained his domicile in the Philippines and presumed not to have lost
his domicile by his physical absence from this country.

Section 5 of RA No. 9189 does not only require the promise to resume actual physical permanent residence in the
Philippines not later than 3 years after approval of registration but it also requires the Filipino abroad, WON he is a
green card holder, a temporary visitor or even on business trip, must declare that he/she has not applied for
citizenship in another country. Thus, he/she must return to the Philippines otherwise consequences will be met
according to RA No. 9189.

Although there is a possibility that the Filipino will not return after he has exercised his right to vote, the Court is
not in a position to rule on the wisdom of the law or to repeal or modify it if such law is found to be impractical.

However, it can be said that the Congress itself was conscious of this probability and provided for deterrence which
is that the Filipino who fails to return as promised stands to lose his right of suffrage. Accordingly, the votes he
cast shall not be invalidated because he was qualified to vote on the date of the elections.

Expressum facit cessare tacitum: where a law sets down plainly its whole meaning, the Court is prevented from
making it mean what the Court pleases. In fine, considering that underlying intent of the Constitution, as is evident
in its statutory construction and intent of the framers, which is to grant Filipino immigrants and permanent
residents abroad the unquestionable right to exercise the right of suffrage (Section 1 Article V) the Court finds that
Section 5 of RA No. 9189 is not constitutionally defective.

2) Yes. Congress should not have allowed COMELEC to usurp a power that constitutionally belongs to it. The
canvassing of the votes and the proclamation of the winning candidates for President and Vice President
for the entire nation must remain in the hands of Congress as its duty and power under Section 4 of
Article VII of the Constitution. COMELEC has the authority to proclaim the winning candidates only for
Senators and Party-list Reps.

3) No. By vesting itself with the powers to approve, review, amend and revise the Implementing Rules &
Regulations for RA No. 9189, Congress went beyond the scope of its constitutional authority. Congress
trampled upon the constitutional mandate of independence of the COMELEC. Under such a situation, the
Court is left with no option but to withdraw from its usual silence in declaring a provision of law
unconstitutional

R.A. No. 9189, entitled, "An Act Providing for A System of Overseas Absentee Voting by Qualified Citizens of the
Philippines Abroad, Appropriating Funds Therefore, and for Other Purposes," appropriates funds under Section 29
thereof which provides that a supplemental budget on the General Appropriations Act of the year of its enactment
into law shall provide for the necessary amount to carry out its provisions. Taxpayers, such as herein petitioner,
have the right to restrain officials from wasting public funds through the enforcement of an unconstitutional
statute. 2 The Court has held that they may assail the validity of a law appropriating public funds 3 because
expenditure of public funds by an officer of the State for the purpose of executing an unconstitutional act
constitutes a misapplication of such funds.

The challenged provision of law involves a public right that affects a great number of citizens. The Court has
adopted the policy of taking jurisdiction over cases whenever the petitioner has seriously and convincingly
presented an issue of transcendental significance to the Filipino people.

This has been explicitly pronounced in Kapatiran ng mga Naglilingkod sa Pamahalaan ng Pilipinas, Inc. v. Tan,
where the Court held: Objections to taxpayers’ suit for lack of sufficient personality standing, or interest are,
however, in the main procedural matters. Considering the importance to the public of the cases at bar, and in
keeping with the Court’s duty, under the 1987 Constitution, to determine whether or not the other branches of
government have kept themselves within the limits of the Constitution and the laws and that they have not abused
the discretion given to them, the Court has brushed aside technicalities of procedure and has taken cognizance of
these petitions.

Indeed, in this case, the Court may set aside procedural rules as the constitutional right of suffrage of a
considerable number of Filipinos is involved.

The question of propriety of the instant petition which may appear to be visited by the vice of prematurity as there
are no ongoing proceedings in any tribunal, board or before a government official exercising judicial, quasi-judicial
or ministerial functions as required by Rule 65 of the Rules of Court, dims in light of the importance of the
constitutional issues raised by the petitioner.

In Tañada v. Angara, the Court held: In seeking to nullify an act of the Philippine Senate on the ground that it
contravenes the Constitution, the petition no doubt raises a justiciable controversy. Where an action of the
legislative branch is seriously alleged to have infringed the Constitution, it becomes not only the right but in fact
the duty of the judiciary to settle the dispute. "The question thus posed is judicial rather than political. The duty (to
adjudicate) remains to assure that the supremacy of the Constitution is upheld." Once a "controversy as to the
application or interpretation of constitutional provision is raised before this Court (as in the instant case), it
becomes a legal issue which the Court is bound by constitutional mandate to decide." cralaw virtua1aw library

In another case of paramount impact to the Filipino people, it has been expressed that it is illogical to await the
adverse consequences of the law in order to consider the controversy actual and ripe for judicial resolution. In yet
another case, the Court said that:

despite the inhibitions pressing upon the Court when confronted with constitutional issues, it will not hesitate to
declare a law or act invalid when it is convinced that this must be done. In arriving at this conclusion, its only
criterion will be the Constitution and God as its conscience gives it in the light to probe its meaning and discover its
purpose. Personal motives and political considerations are irrelevancies that cannot influence its decisions.
Blandishment is as ineffectual as intimidation, for all the awesome power of the Congress and Executive, the Court
will not hesitate "to make the hammer fall heavily," where the acts of these departments, or of any official, betray
the people’s will as expressed in the Constitution
The need to consider the constitutional issues raised before the Court is further buttressed by the fact that it is now
more than fifteen years since the ratification of the 1987 Constitution requiring Congress to provide a system for
absentee voting by qualified Filipinos abroad. Thus, strong reasons of public policy demand that the Court resolves
the instant petition 10 and determine whether Congress has acted within the limits of the Constitution or if it had
gravely abused the discretion entrusted to it.

The petitioner raises three principal questions:rtual 1aw library

A. Does Section 5(d) of Rep. Act No. 9189 allowing the registration of voters who are immigrants or permanent
residents in other countries by their mere act of executing an affidavit expressing their intention to return to the
Philippines, violate the residency requirement in Section 1 of Article V of the Constitution?

B. Does Section 18.5 of the same law empowering the COMELEC to proclaim the winning candidates for national
offices and party list representatives including the President and the Vice-President violate the constitutional
mandate under Section 4, Article VII of the Constitution that the winning candidates for President and the Vice-
President shall be proclaimed as winners by Congress?

C. May Congress, through the Joint Congressional Oversight Committee created in Section 25 of Rep. Act No. 9189,
exercise the power to review, revise, amend, and approve the Implementing Rules and Regulations that the
Commission on Elections shall promulgate without violating the independence of the COMELEC under Section 1,
Article IX-A of the Constitution?

The Court will resolve the questions in seriatim.

A. Does Section 5(d) of Rep. Act No. 9189 violate Section 1, Article V of the 1987 Constitution of the Republic of
the Philippines?

Section 5(d) provides:

Sec. 5. Disqualifications. — The following shall be disqualified from voting under this Act

d) An immigrant or a permanent resident who is recognized as such in the host country, unless he/she executes,
upon registration, an affidavit prepared for the purpose by the Commission declaring that he/she shall resume
actual physical permanent residence in the Philippines not later than three (3) years from approval of his/her
registration under this Act. Such affidavit shall also state that he/she has not applied for citizenship in another
country. Failure to return shall be cause for the removal of the name of the immigrant or permanent resident from
the National Registry of Absentee Voters and his/her permanent disqualification to vote in absentia.

Petitioner posits that Section 5(d) is unconstitutional because it violates Section 1, Article V of the 1987
Constitution which requires that the voter must be a resident in the Philippines for at least one year and in the
place where he proposes to vote for at least six months immediately preceding an election. Petitioner cites the
ruling of the Court in Caasi v. Court of Appeals 12 to support his claim. In that case, the Court held that a "green
card" holder immigrant to the United States is deemed to have abandoned his domicile and residence in the
Philippines.

Petitioner further argues that Section 1, Article V of the Constitution does not allow provisional registration or a
promise by a voter to perform a condition to be qualified to vote in a political exercise; 13 that the legislature
should not be allowed to circumvent the requirement of the Constitution on the right of suffrage by providing a
condition thereon which in effect amends or alters the aforesaid residence requirement to qualify a Filipino abroad
to vote. 14 He claims that the right of suffrage should not be granted to anyone who, on the date of the election,
does not possess the qualifications provided for by Section 1, Article V of the Constitution.

Respondent COMELEC refrained from commenting on this issue.

In compliance with the Resolution of the Court, the Solicitor General filed his comment for all public respondents.
He contraposes that the constitutional challenge to Section 5(d) must fail because of the absence of clear and
unmistakable showing that said provision of law is repugnant to the Constitution. He stresses: All laws are
presumed to be constitutional; by the doctrine of separation of powers, a department of government owes a
becoming respect for the acts of the other two departments; all laws are presumed to have adhered to
constitutional limitations; the legislature intended to enact a valid, sensible, and just law.
In addition, the Solicitor General points out that Section 1, Article V of the Constitution is a verbatim reproduction
of those provided for in the 1935 and the 1973 Constitutions. Thus, he cites Co v. Electoral Tribunal of the House
of Representatives wherein the Court held that the term "residence" has been understood to be synonymous with
"domicile" under both Constitutions. He further argues that a person can have only one "domicile" but he can have
two residences, one permanent (the domicile) and the other temporary; and that the definition and meaning given
to the term residence likewise applies to absentee voters.

Invoking Romualdez-Marcos v. COMELEC which reiterates the Court’s ruling in Faypon v. Quirino, the Solicitor
General maintains that Filipinos who are immigrants or permanent residents abroad may have in fact never
abandoned their Philippine domicile.

Taking issue with the petitioner’s contention that "green card" holders are considered to have abandoned their
Philippine domicile, the Solicitor General suggests that the Court may have to discard its ruling in Caasi v. Court of
Appeals 21 in so far as it relates to immigrants and permanent residents in foreign countries who have executed
and submitted their affidavits conformably with Section 5(d) of R.A. No. 9189. He maintains that through the
execution of the requisite affidavits, the Congress of the Philippines with the concurrence of the President of the
Republic had in fact given these immigrants and permanent residents the opportunity, pursuant to Section 2,
Article V of the Constitution, to manifest that they had in fact never abandoned their Philippine domicile; that
indubitably, they would have formally and categorically expressed the requisite intentions, i.e., "animus manendi"
and "animus revertendi;" that Filipino immigrants and permanent residents abroad possess the unquestionable
right to exercise the right of suffrage under Section 1, Article V of the Constitution upon approval of their
registration, conformably with R.A. No. 9189. 22

The seed of the present controversy is the interpretation that is given to the phrase, "qualified citizens of the
Philippines abroad" as it appears in R.A. No. 9189, to wit: virtual 1aw library

SEC. 2. Declaration of Policy. — It is the prime duty of the State to provide a system of honest and orderly
overseas absentee voting that upholds the secrecy and sanctity of the ballot. Towards this end, the State ensures
equal opportunity to all qualified citizens of the Philippines abroad in the exercise of this fundamental right.

SEC. 3. Definition of Terms. — For purposes of this Act: virtu1aw library

a) "Absentee Voting" refers to the process by which qualified citizens of the Philippines abroad, exercise their right
to vote;

f) "Overseas Absentee Voter" refers to a citizen of the Philippines who is qualified to register and vote
under this Act, not otherwise disqualified by law, who is abroad on the day of elections.

SEC. 4. Coverage. — All citizens of the Philippines abroad, who are not otherwise disqualified by law, at least
eighteen (18) years of age on the day of elections, may vote for president, vice-president, senators and party-list
representatives. (Emphasis supplied)

in relation to Sections 1 and 2, Article V of the Constitution which read:chanrob1es virtual 1aw library

SEC. 1. Suffrage may be exercised by all citizens of the Philippines not otherwise disqualified by law, who are at
least eighteen years of age, and who shall have resided in the Philippines for at least one year and in the place
wherein they propose to vote for at least six months immediately preceding the election. No literacy, property, or
other substantive requirement shall be imposed on the exercise of suffrage.

SEC. 2. The Congress shall provide a system for securing the secrecy and sanctity of the ballot as well as a system
for absentee voting by qualified Filipinos abroad.

. . . (Emphasis supplied)

Section 1, Article V of the Constitution specifically provides that suffrage may be exercised by (1) all citizens of the
Philippines, (2) not otherwise disqualified by law, (3) at least eighteen years of age, (4) who are residents in the
Philippines for at least one year and in the place where they propose to vote for at least six months immediately
preceding the election. Under Section 5(d) of R.A. No. 9189, one of those disqualified from voting is an immigrant
or permanent resident who is recognized as such in the host country unless he/she executes an affidavit declaring
that he/she shall resume actual physical permanent residence in the Philippines not later than three years from
approval of his/her registration under said Act.

Petitioner questions the rightness of the mere act of execution of an affidavit to qualify the Filipinos abroad who are
immigrants or permanent residents, to vote. He focuses solely on Section 1, Article V of the Constitution in
ascribing constitutional infirmity to Section 5(d) of R.A. No. 9189, totally ignoring the provisions of Section 2
empowering Congress to provide a system for absentee voting by qualified Filipinos abroad.

A simple, cursory reading of Section 5(d) of R.A. No. 9189 may indeed give the impression that it contravenes
Section 1, Article V of the Constitution. Filipino immigrants and permanent residents overseas are perceived as
having left and abandoned the Philippines to live permanently in their host countries and therefore, a provision in
the law enfranchising those who do not possess the residency requirement of the Constitution by the mere act of
executing an affidavit expressing their intent to return to the Philippines within a given period, risks a declaration
of unconstitutionality. However, the risk is more apparent than real.

The Constitution is the fundamental and paramount law of the nation to which all other laws must conform and in
accordance with which all private rights must be determined and all public authority administered. Laws that do not
conform to the Constitution shall be stricken down for being unconstitutional.chanrob1es virtua1 1aw 1ibrary

Generally, however, all laws are presumed to be constitutional. In Peralta v. COMELEC, the Court said:

An act of the legislature, approved by the executive, is presumed to be within constitutional limitations. The
responsibility of upholding the Constitution rests not on the courts alone but on the legislature as well. The
question of the validity of every statute is first determined by the legislative department of the government itself.

Thus, presumption of constitutionality of a law must be overcome convincingly:

To declare a law unconstitutional, the repugnancy of that law to the Constitution must be clear and unequivocal,
for even if a law is aimed at the attainment of some public good, no infringement of constitutional rights is allowed.
To strike down a law there must be a clear showing that what the fundamental law condemns or prohibits, the
statute allows it to be done.

As the essence of R.A. No. 9189 is to enfranchise overseas qualified Filipinos, it behooves the Court to take a
holistic view of the pertinent provisions of both the Constitution and R.A. No. 9189. It is a basic rule in
constitutional construction that the Constitution should be construed as a whole.

In Chiongbian v. De Leon, 26 the Court held that a constitutional provision should function to the full extent of its
substance and its terms, not by itself alone, but in conjunction with all other provisions of that great document.
Constitutional provisions are mandatory in character unless, either by express statement or by necessary
implication, a different intention is manifest. The intent of the Constitution may be drawn primarily from the
language of the document itself. Should it be ambiguous, the Court may consider the intent of its framers through
their debates in the constitutional convention.

R.A. No. 9189 was enacted in obeisance to the mandate of the first paragraph of Section 2, Article V of the
Constitution that Congress shall provide a system for voting by qualified Filipinos abroad. It must be stressed that
Section 2 does not provide for the parameters of the exercise of legislative authority in enacting said law. Hence, in
the absence of restrictions, Congress is presumed to have duly exercised its function as defined in Article VI (The
Legislative Department) of the Constitution.

To put matters in their right perspective, it is necessary to dwell first on the significance of absentee voting. The
concept of absentee voting is relatively new. It is viewed thus:chanrob1es virtual 1aw library

The method of absentee voting has been said to be completely separable and distinct from the regular system of
voting, and to be a new and different manner of voting from that previously known, and an exception to the
customary and usual manner of voting. The right of absentee and disabled voters to cast their ballots at an election
is purely statutory; absentee voting was unknown to, and not recognized at, the common law.

Absentee voting is an outgrowth of modern social and economic conditions devised to accommodate those engaged
in military or civil life whose duties make it impracticable for them to attend their polling places on the day of
election, and the privilege of absentee voting may flow from constitutional provisions or be conferred by statutes,
existing in some jurisdictions, which provide in varying terms for the casting and reception of ballots by soldiers
and sailors or other qualified voters absent on election day from the district or precinct of their residence.

Such statutes are regarded as conferring a privilege and not a right, or an absolute right. When the legislature
chooses to grant the right by statute, it must operate with equality among all the class to which it is granted; but
statutes of this nature may be limited in their application to particular types of elections. The statutes should be
construed in the light of any constitutional provisions affecting registration and elections, and with due regard to
their texts prior to amendment and to predecessor statutes and the decisions thereunder; they should also be
construed in the light of the circumstances under which they were enacted; and so as to carry out the objects
thereof, if this can be done without doing violence to their provisions and mandates. Further, in passing on statutes
regulating absentee voting, the court should look to the whole and every part of the election laws, the intent of the
entire plan, and reasons and spirit of their adoption, and try to give effect to every portion thereof.
Ordinarily, an absentee is not a resident and vice versa; a person cannot be at the same time, both a resident and
an absentee. However, under our election laws and the countless pronouncements of the Court pertaining to
elections, an absentee remains attached to his residence in the Philippines as residence is considered synonymous
with domicile.

In Romualdez-Marcos, 31 the Court enunciated:chanrob1es virtual 1aw library

Article 50 of the Civil Code decrees that" [f]or the exercise of civil rights and the fulfillment of civil obligations, the
domicile of natural persons is their place of habitual residence." In Ong v. Republic, this court took the concept of
domicile to mean an individual’s "permanent home," "a place to which, whenever absent for business or for
pleasure, one intends to return, and depends on facts and circumstances in the sense that they disclose intent."
Based on the foregoing, domicile includes the twin elements of "the fact of residing or physical presence in a fixed
place" and animus manendi, or the intention of returning there permanently.

Residence, in its ordinary conception, implies the factual relationship of an individual to a certain place. It is the
physical presence of a person in a given area, community or country.

The essential distinction between residence and domicile in law is that residence involves the intent to leave when
the purpose for which the resident has taken up his abode ends. One may seek a place for purposes such as
pleasure, business, or health. If a person’s intent be to remain, it becomes his domicile; if his intent is to leave as
soon as his purpose is established it is residence. It is thus, quite perfectly normal for an individual to have
different residences in various places. However, a person can only have a single domicile, unless, for various
reasons, he successfully abandons his domicile in favor of another domicile of choice.
In Uytengsu v. Republic, we laid this distinction quite clearly:

"There is a difference between domicile and residence.’

Residence’ is used to indicate a place of abode, whether permanent or temporary; ‘domicile’ denotes a fixed
permanent residence to which, when absent, one has the intention of returning. A man may have a residence in
one place and a domicile in another. Residence is not domicile, but domicile is residence coupled with the intention
to remain for an unlimited time. A man can have but one domicile for the same purpose at any time, but he may
have numerous places of residence. His place of residence is generally his place of domicile, but it is not by any
means necessarily so since no length of residence without intention of remaining will constitute domicile."virtua1aw
library

For political purposes the concepts of residence and domicile are dictated by the peculiar criteria of political laws.
As these concepts have evolved in our election law, what has clearly and unequivocally emerged is the fact that
residence for election purposes is used synonymously with domicile. (Emphasis supplied)

Aware of the domiciliary legal tie that links an overseas Filipino to his residence in this country, the framers of the
Constitution considered the circumstances that impelled them to require Congress to establish a system for
overseas absentee voting, thus:

With respect to Section 1, it is not clear whether the right of suffrage, which here has a residential restriction, is
not denied to citizens temporarily residing or working abroad. Based on the statistics of several government
agencies, there ought to be about two million such Filipinos at this time. Commissioner Bernas had earlier pointed
out that these provisions are really lifted from the two previous Constitutions of 1935 and 1973, with the exception
of the last paragraph. They could not therefore have foreseen at that time the phenomenon now described as the
Filipino labor force explosion overseas.

According to government data, there are now about 600,000 contract workers and employees, and although the
major portions of these expatriate communities of workers are to be found in the Middle East, they are scattered in
177 countries in the world.

In a previous hearing of the Committee on Constitutional Commissions and Agencies, the Chairman of the
Commission on Elections, Ramon Felipe, said that there was no insuperable obstacle to making effective the right
of suffrage for Filipinos overseas. Those who have adhered to their Filipino citizenship notwithstanding strong
temptations are exposed to embrace a more convenient foreign citizenship. And those who on their own or under
pressure of economic necessity here, find that they have to detach themselves from their families to work in other
countries with definite tenures of employment. Many of them are on contract employment for one, two, or three
years. They have no intention of changing their residence on a permanent basis, but are technically disqualified
from exercising the right of suffrage in their countries of destination by the residential requirement in Section 1
which says:chanrob1es virtual 1aw library
Suffrage shall be exercised by all citizens of the Philippines not otherwise disqualified by law, who are eighteen
years of age or over, and who shall have resided in the Philippines for at least one year and in the place wherein
they propose to vote for at least six months preceding the election.

I, therefore, ask the Committee whether at the proper time they might entertain an amendment that will make this
exercise of the right to vote abroad for Filipino citizens an effective, rather than merely a nominal right under this
proposed Constitution.

Certainly, the Committee will consider that. But more than just saying that, I would like to make a comment on the
meaning of "residence" in the Constitution because I think it is a concept that has been discussed in various
decisions of the Supreme Court, particularly in the case of Faypon v. Quirino, a 1954 case which dealt precisely
with the meaning of "residence" in the Election Law. Allow me to quote:chanrob1es virtual 1aw library

A citizen may leave the place of his birth to look for greener pastures, as the saying goes, to improve his lot and
that, of course, includes study in other places, practice of his avocation, reengaging in business. When an election
is to be held, the citizen who left his birthplace to improve his lot may decide to return to his native town, to cast
his ballot, but for professional or business reasons, or for any other reason, he may not absent himself from the
place of his professional or business activities.

So, they are here registered as voters as he has the qualifications to be one, and is not willing to give up or lose
the opportunity to choose the officials who are to run the government especially in national elections. Despite such
registration, the animus revertendi to his home, to his domicile or residence of origin has not forsaken him.

This may be the explanation why the registration of a voter in a place other than his residence of origin has not
been deemed sufficient to consider abandonment or loss of such residence of origin.

In other words, "residence" in this provision refers to two residence qualifications:

"residence" in the Philippines and

"residence" in the place where he will vote. As far as residence in the Philippines is concerned, the word
"residence" means domicile, but as far as residence in the place where he will actually cast his ballot is concerned,
the meaning seems to be different. He could have a domicile somewhere else and yet he is a resident of a place for
six months and he is allowed to vote there. So that there may be serious constitutional obstacles to absentee
voting, unless the vote of the person who is absent is a vote which will be considered as cast in the place of his
domicile.

Kuroda vs. Jalandoni, March 26,1949

In support of his case petitioner tenders the following principal arguments.

First. - "That Executive Order No. 68 is illegal on the ground that it violates not only the provision of our
constitutional law but also our local laws to say nothing of the fact (that) the Philippines is not a signatory nor an
adherent to the Hague Convention on Rules and Regulations covering Land Warfare and therefore petitioners is
charged of 'crimes' not based on law, national and international." Hence petitioner argues - "That in view off the
fact that this commission has been empanelled by virtue of an unconstitutional law an illegal order this commission
is without jurisdiction to try herein petitioner.

Second. - That the participation in the prosecution of the case against petitioner before the Commission in behalf
of the United State of America of attorneys Melville Hussey and Robert Port who are not attorneys authorized by
the Supreme Court to practice law in the Philippines is a diminution of our personality as an independent state and
their appointment as prosecutor are a violation of our Constitution for the reason that they are not qualified to
practice law in the Philippines.

Third. - That Attorneys Hussey and Port have no personality as prosecution the United State not being a party in
interest in the case.
 Executive Order No. 68, establishing a National War Crimes Office prescribing rule and regulation governing the
trial of accused war criminals, was issued by the President of the Philippines on the 29th days of July, 1947 This
Court holds that this order is valid and constitutional. Article 2 of our Constitution provides in its section 3, that -

The Philippines renounces war as an instrument of national policy and adopts the generally accepted principles of
international law as part of the of the nation.

In accordance with the generally accepted principle of international law of the present day including the Hague
Convention the Geneva Convention and significant precedents of international jurisprudence established by the
United Nation all those person military or civilian who have been guilty of planning preparing or waging a war of
aggression and of the commission of crimes and offenses consequential and incidental thereto in violation of the
laws and customs of war, of humanity and civilization are held accountable therefore. Consequently in the
promulgation and enforcement of Execution Order No. 68 the President of the Philippines has acted in conformity
with the generally accepted and policies of international law which are part of the our Constitution.

The promulgation of said executive order is an exercise by the President of his power as Commander in chief of all
our armed forces as upheld by this Court in the case of Yamashita vs. Styer (L-129, 42 Off. Gaz., 664) 1 when we
said ;

War is not ended simply because hostilities have ceased. After cessation of armed hostilities incident of war may
remain pending which should be disposed of as in time of war. An importance incident to a conduct of war is the
adoption of measure by the military command not only to repel and defeat the enemies but to seize and subject to
disciplinary measure those enemies who in their attempt to thwart or impede our military effort have violated the
law of war.

(Ex parte Quirin 317 U.S., 1; 63 Sup. Ct., 2.) Indeed the power to create a military commission for the trial and
punishment of war criminals is an aspect of waging war. And in the language of a writer a military commission has
jurisdiction so long as a technical state of war continues. This includes the period of an armistice or military
occupation up to the effective of a treaty of peace and may extend beyond by treaty agreement. (Cowles Trial of
War Criminals by Military Tribunals, America Bar Association Journal June, 1944.)

Consequently, the President as Commander in Chief is fully empowered to consummate this unfinished
aspect of war namely the trial and punishment of war criminal through the issuance and enforcement
of Executive Order No. 68.

Petitioner argues that respondent Military Commission has no Jurisdiction to try petitioner for acts committed in
violation of the Hague Convention and the Geneva Convention because the Philippines is not a signatory to the first
and signed the second only in 1947.

It cannot be denied that the rules and regulation of the Hague and Geneva conventions form, part of and are
wholly based on the generally accepted principals of international law. In facts these rules and principles were
accepted by the two belligerent nation the United State and Japan who were signatories to the two Convention,
Such rule and principles therefore form part of the law of our nation even if the Philippines was not a signatory to
the conventions embodying them for our Constitution has been deliberately general and extensive in its scope and
is not confined to the recognition of rule and principle of international law as continued inn treaties to which our
government may have been or shall be a signatory.

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

The change of our form government from Commonwealth to Republic does not affect the prosecution of those
charged with the crime of treason committed during then Commonwealth because it is an offense against the same
sovereign people.
By the same token war crimes committed against our people and our government while we were a Commonwealth
are triable and punishable by our present Republic.

Petitioner challenges the participation of two American attorneys namely Melville S. Hussey and Robert Port in the
prosecution of his case on the ground that said attorney's are not qualified to practice law in Philippines in
accordance with our Rules of court and the appointment of said attorneys as prosecutors is violative of our national
sovereignty.

In the first place respondent Military Commission is a special military tribunal governed by a special law and not by
the Rules of court which govern ordinary civil court. It has already been shown that Executive Order No. 68 which
provides for the organization of such military commission is a valid and constitutional law. There is nothing in said
executive order which requires that counsel appearing before said commission must be attorneys qualified to
practice law in the Philippines in accordance with the Rules of Court. In facts it is common in military tribunals that
counsel for the parties are usually military personnel who are neither attorneys nor even possessed of legal
training.

Secondly the appointment of the two American attorneys is not violative of our nation sovereignty. It is only fair
and proper that United States, which has submitted the vindication of crimes against her government and her
people to a tribunal of our nation should be allowed representation in the trial of those very crimes. If there has
been any relinquishment of sovereignty it has not been by our government but by the United State Government
which has yielded to us

Alleging that the United State is not a party in interest in the case petitioner challenges the personality of attorneys
Hussey and Port as prosecutors. It is of common knowledge that the United State and its people have been equally
if not more greatly aggrieved by the crimes with which petitioner stands charged before the Military Commission. It
can be considered a privilege for our Republic that a leader nation should submit the vindication of the honor of its
citizens and its government to a military tribunal of our country.

The Military Commission having been convened by virtue of a valid law with jurisdiction over the crimes charged
which fall under the provisions of Executive Order No. 68, and having said petitioner in its custody, this Court will
not interfere with the due process of such Military commission.

For all the foregoing the petition is denied with costs de oficio.

Ichong vs. Hernandez

attacked the constitutionality of the Act, contending that: (1) it denies to alien residents the equal protection of the
laws and deprives of their liberty and property without due process of law; (2) the subject of the Act is not
expressed or comprehended in the title thereof; and (3) the Act violates international and treaty obligations of the
Republic of the Philippines.

Facts: Petitioner, for and in his own behalf and on behalf of other alien residents corporations and partnerships
adversely affected by the provisions of Republic Act. No. 1180, “An Act to Regulate the Retail Business,” filed to
obtain a judicial declaration that said Act is unconstitutional contending that: (1) it denies to alien residents the
equal protection of the laws and deprives of their liberty and property without due process of law; (2) the subject
of the Act is not expressed or comprehended in the title thereof; (3) the Act violates international and treaty
obligations of the Republic of the Philippines; (4) the provisions of the Act against the transmission by aliens of
their retail business thru hereditary succession, and those requiring 100% Filipino capitalization for a corporation or
entity to entitle it to engage in the retail business, violate the spirit of Sections 1 and 5, Article XIII and Section 8
of Article XIV of the Constitution.

ISSUES: (1) Whether the conditions which the disputed law purports to remedy really or actually exist;

(2) Whether the law was enacted in interest of national economic survival and security;

(3) Does the law deny the equal protection of the laws and the due process of law?;

(4) Do the facts and circumstances justify the enactment?;

(5) Whether there was a defect in the title of the law; (6) Whether there was a violation of international treaties
and obligations
HELD: The Court held that the disputed law was enacted to remedy a real actual threat and danger to national
economy posed by alien dominance and control of the retail business and free citizens and country from dominance
and control.

The enactment clearly falls within the scope of the police power of the State, thru which and by which it protects its
own personality and insures its security and future.

The law does not violate the equal protection clause of the Constitution because sufficient grounds exist for the
distinction between alien and citizen in the exercise of the occupation regulated, nor the due process of law clause,
because the law is prospective in operation and recognizes the privilege of aliens already engaged in the
occupation and reasonably protects their privilege. The wisdom and efficacy of the law to carry out its objectives
appear to be plainly evident as a matter of fact it seems not only appropriate but actually necessary and that in
any case such matter falls within the prerogative of the Legislature, with whose power and discretion the Judicial
department of the Government may not interfere.

The provisions of the law are clearly embraced in the title, and this suffers from no duplicity and has not misled the
legislators or the segment of the population affected. Lastly, it cannot be said to be void for supposed conflict with
treaty obligations because no treaty has actually been entered into on the subject and the police power may not be
curtailed or surrendered by any treaty or any other conventional agreement. Hence, the petition was denied, with
costs against petitioner.

Issue: Whether RA 1180 denies to alien residents the equal protection of the laws and deprives of their
liberty and property without due process of law

Held: No. The equal protection of the law clause is against undue favor and individual or class privilege, as well as
hostile discrimination or the oppression of inequality. It is not intended to prohibit legislation, which is limited
either in the object to which it is directed or by territory within which is to operate. It does not demand absolute
equality among residents; it merely requires that all persons Shall be treated alike, under like circumstances and
conditions both as to privileges conferred and liabilities enforced. The equal protection clause is not infringed by
legislation which applies only to those persons falling within a specified class, if it applies alike to all persons within
such class, and reasonable grounds exists for making a distinction between those who fall within such class and
those who do not. (2 Cooley, Constitutional Limitations, 824-825.)

The due process clause has to do with the reasonableness of legislation enacted in pursuance of the police power.
Is there public interest, a public purpose; is public welfare involved?

Is the Act reasonably necessary for the accomplishment of the legislature’s purpose; is it not unreasonable,
arbitrary or oppressive? Is there sufficient foundation or reason in connection with the matter involved; or has
there not been a capricious use of the legislative power? Can the aims conceived be achieved by the means used,
or is it not merely an unjustified interference with private interest? These are the questions that we ask when the
due process test is applied. The conflict, therefore, between police power and the guarantees of due process and
equal protection of the laws is more apparent than real. Properly related, the power and the guarantees are
supposed to coexist. The balancing is the essence or, shall it be said, the indispensable means for the attainment
of legitimate aspirations of any democratic society.

There can be no absolute power, whoever exercise it, for that would be tyranny. Yet there can neither be absolute
liberty, for that would mean license and anarchy. So the State can deprive persons of life, liberty and property,
provided there is due process of law; and persons may be classified into classes and groups, provided everyone is
given the equal protection of the law. The test or standard, as always, is reason. The police power legislation must
be firmly grounded on public interest and welfare, and a reasonable relation must exist between purposes and
means. And if distinction and classification has been made, there must be a reasonable basis for said distinction.

The law does not violate the equal protection clause of the Constitution because sufficient grounds exist for the
distinction between alien and citizen in the exercise of the occupation regulated, nor the due process of law clause,
because the law is prospective in operation and recognizes the privilege of aliens already engaged in the
occupation and reasonably protects their privilege; that the wisdom and efficacy of the law to carry out its
objectives appear to us to be plainly evident as a matter of fact it seems not only appropriate but actually
necessary and that in any case such matter falls within the prerogative of the Legislature, with whose power and
discretion the Judicial department of the Government may not interfere; that the provisions of the law are clearly
embraced

in the title, and this suffers from no duplicity and has not misled the legislators or the segment of the population
affected; and that it cannot be said to be void for supposed conflict with treaty obligations because no treaty has
actually been entered into on the subject and the police power may not be curtailed or surrendered by any treaty
or any other conventional agreement.

1. CONSTITUTIONAL LAW; POLICE POWER; NATURE AND SCOPE. — Police power is far-reaching in scope, and it is
almost impossible to limit its sweep. It derives its existence from the very existence of the State itself, and does
not need to be expressed or defined in its scope. It is said to be co-extensive with self - protection and survival,
and as such it is the most positive and active of all governmental processes, the most essential, insistent and
illimitable. Especially is it so under a modern democratic framework where the demands of society and of nations
have multiplied to almost unimaginable proportions; the field and scope of police power has become almost
boundless, just as the fields of public interest and public welfare have become almost all-embracing and have
transcended human foresight.

2. ID.; GUARANTEES IN SECTION I, ARTICLE III OF THE CONSTITUTION; UNIVERSALITY OF APPLICATION. — The
constitutional guarantees in Section I, Article III, of the Constitution, which embody the essence of individual
liberty and freedom in democracies, are not limited to citizens alone but are admittedly universal in their
application, without regard to any differences of race, of color, or of nationality (Yiek Wo v. Hopkins, 30 L. ed.,
220, 226).

3. ID.; LAW DEPRIVATION OF LIFE, LIBERTY OR PROPERTY; TEST OR STANDARD. — The conflict between police
power and the guarantees of due process and equal protection of the laws is more apparent than real. Properly
related, the power and the guarantees are supposed to coexist. The balancing is the essence, or the indispensable
means for the attainment of legitimate aspirations of any democratic society. There can be no absolute power,
whoever exercises it, for that would be tyranny. Yet there can neither be absolute liberty, for that would mean
license and anarchy. So the State can deprive persons of life, liberty or property, provided there is due process of
law; and persons may be classified into classes and groups, provided everyone is given the equal protection of the
law. The test or standard, as always, is reason. The police power legislation must be firmly grounded on public
interest and welfare, and a reasonable relation must exist between purposes and means. And if disctinction or
classification has been made, there must be a reasonable basis for said distinction.

4. ID.; EQUAL PROTECTION OF THE LAW CLAUSE; WHEN NOT DEEMED INFRINGED BY LEGISLATION. — The equal
protection of the law clause is against undue favor and individual or class privilege, as well as hostile discrimination
or the oppression of inequality. It is not intended to prohibit legislation, which is limited either in the object to
which it is directed or by territory within which it is to operate. It does not demand absolute equality among
residents; it merely requires that all persons shall be treated alike, under like circumstances and conditions both as
to privileges conferred and liabilities enforced. The equal protection clause is not infringed by legislation which
applies only to those persons falling within a specified class, if it applies alike to all persons within such class, and
reasonable grounds exist for making a distinction between those who fall within such class and those who do not (2
Cooley, Constitutional Limitations, 824-825).

5. ID.; ID.; LEGISLATIVE POWER TO MAKE DISTINCTION AND CLASSIFICATION AMONG PERSONS; CITIZENSHIP
AS GROUND FOR CLASSIFICATION. — The Power of the legislature to make distinctions and classifications among
persons is not curtailed or denied by the equal protection of the laws clause. The legislative power admits of a wide
scope of discretion, and a law can be violative of the constitutional limitation only when the classification is without
reasonable basis. Citizenship is a legal and valid ground for classification.

6. ID.; ID.; NATIONALIZATION OF RETAIL TRADE; CLASSIFICATION IN REPUBLIC ACT NO. 1180 ACTUAL, REAL
AND REASONABLE. — The classification in the law of retail traders into nationals and aliens is actual, real and
reasonable. All persons of one class are treated alike, and it cannot be said that the classification is patently
unreasonable and unfounded. Hence, it is the duty of this Court to declare that the legislature acted within its
legitimate prerogative and it cannot declare that the act transcends the limits of equal protection established by
the Constitution.
7. ID.; ID.; ID.; ID.; TEST OF REASONABLENESS. — The law in question is deemed absolutely necessary to bring
about the desired legislative objective, i.e., to free the national economy from alien control and dominance. It is
not necessarily unreasonable because it affects private rights and privileges (II Am. Jur., pp. 1080-1081). The test
of reasonableness of a law is the appropriateness or adequacy under all circumstances of the means adopted to
carry out its purpose into effect. Judged by this test, the disputed legislation, which is not merely reasonable but
actually necessary, must be considered not to have infringed the constitutional limitation of reasonableness.

8. ID.; ID.; ID.; ID.; ID.; REPUBLIC ACT NO. 1180 TOLERANT AND REASONABLE. — A cursory study of the
provisions of the law immediately reveals how tolerant and reasonable the Legislature has been. The law is made
prospective and recognizes the right and privilege of those already engaged in the occupation to continue therein
during the rest of their lives; and similar recognition of the right to continue is accorded associations of aliens. The
right or privilege is denied only to persons upon conviction of certain offenses.

9. ID.; ID.; ID.; ATTAINMENT OF LEGISLATIVE ASPIRATIONS OF A PEOPLE NOT BEYOND THE LIMITS OF
LEGISLATIVE AUTHORITY. — If political independence is a legitimate aspiration of a people, then economic
independence is none of less legitimate. Freedom and liberty are not real and positive if the people are subject to
the economic control and domination of others, especially if not of their own race or country. The removal and
eradication of the shackles of foreign economic control and domination is one of the noblest motives that a national
legislature may pursue. It is impossible to conceive that legislation that seeks to bring it about can infringe the
constitutional limitation of due process. The attainment of a legitimate aspiration of a people can never be beyond
the limits of legislative authority.

10. ID.; ID.; ID.; NATIONALISTIC TENDENCY MANIFESTED IN THE CONSTITUTION. — Nationalistic tendency is
manifested in various provisions of the Constitution. The nationalization of the retail trade is only a continuance of
the nationalistic protective policy laid down as a primary objective of the Constitution. It cannot therefore be said
that a law imbued with the same purpose and spirit underlying many of the provisions of the Constitution is
unreasonable, invalid or unconstitutional.

11. ID.; LEGISLATIVE DEPARTMENT; EXERCISE OF LEGISLATIVE DISCRETION NOT SUBJECT TO JUDICIAL
REVIEW. — The exercise of legislative discretion is not subject to judicial review. The Court will not inquire into the
motives of the Legislature, nor pass upon general matters of legislative judgment. The Legislature is primarily the
judge of the necessity of an enactment or of any of its provisions, and every presumption is in favor of its validity,
and though the Court may hold views inconsistent with the wisdom of the law, it may not annul the legislation if
not palpably in excess of the legislative power.

12. ID.; TITLES OF BILLS; PROHIBITION AGAINST DUPLICITY; PRESENCE OF DUPLICITY NOT SHOWN IN TITLE OR
PROVISIONS OF REPUBLIC ACT NO. 1180. — What Section 21(1) of Article VI of the Constitution prohibits is
duplicity, that is, if its title completely fails to apprise the legislators or the public of the nature, scope and
consequences of the law or its operation (I Sutherland, Statutory Construction, Sec. 1707, p. 297). A cursory
consideration of the title and the provisions of the bill fails to show the presence of duplicity. It is true that the
term "regulate" does not and may not readily and at first glance convey the idea of "nationalization" and
"prohibition", which terms express the two main purposes and objectives of the law. But "regulate" is a broader
term than either prohibition or nationalization. Both of these have always been included within the term
"regulation."

13. ID.; ID.; ID.; ID.; USE OF GENERAL TERMS IN TITLE OF BILL. — The general rule is for the use of general
terms in the title of a bill; the title need not be an index to the entire contents of the law (I Sutherland, Statutory
Construction, Sec. 4803, p. 345). The above rule was followed when the title of the Act in question adopted the
more general term "regulate" instead of "nationalize" or "prohibit."
14. ID.; ID.; ID.; ID.; PURPOSE OF CONSTITUTIONAL DIRECTIVE REGARDING SUBJECT OF A BILL. — One purpose
of the constitutional directive that the subject of a bill should be embraced in its title is to apprise the legislators of
the purposes, the nature and scope of its provisions, and prevent the enactment into law of matters which have
not received the notice, action and study of the legislators or of the public. In case at bar it cannot be claimed that
the legislators have not been apprised of the nature of the law, especially the nationalization and prohibition
provisions. The legislators took active interest in the discussion of the law, and a great many of the persons
affected by the prohibition in the law conducted a campaign against its approval. It cannot be claimed, therefore,
that the reasons for declaring the law invalid ever existed.

15. ID.; INTERNATIONAL TREATIES AND OBLIGATIONS NOT VIOLATED BY REPUBLIC ACT No. 1180; TREATIES
SUBJECT TO QUALIFICATION OR AMENDMENT BY SUBSEQUENT LAW. — The law does not violate international
treaties and obligations. The United Nations Charter imposes no strict or legal obligations regarding the rights and
freedom of their subjects (Jans Kelsen, The Law of the United Nations, 1951 ed., pp. 29-32), and the Declaration of
Human Rights contains nothing more than a mere recommendation, or a common standard of achievement for all
peoples and all nations. The Treaty of Amity between the Republic of the Philippines and the Republic of China of
April 18, 1947 guarantees equality of treatment to the Chinese nationals "upon the same terms as the nationals of
any other country." But the nationals of China are not discriminated against because nationals of all other
countries, except those of the United States, who are granted special rights by the Constitution, are all Prohibited
from engaging in the retail trade. But even supposing that the law infringes upon the said treaty, the treaty is
always subject to qualification or amendment by a subsequent law (U.S. v. Thompson, 258, Fed. 257, 260), and
the same may never curtail or restrict the scope of the police power of the State (Palston v. Pennsylvania 58 L. ed.,
539)

Resuming what we have set forth above we hold that the disputed law was enacted to remedy a real actual threat
and danger to national economy posed by alien dominance and control of the retail business and free citizens and
country from such dominance and control; that the enactment clearly falls within the scope of the police power of
the State, thru which and by which it protects its own personality and insures its security and future; that the law
does not violate the equal protection clause of the Constitution because sufficient grounds exist for the distinction
between alien and citizen in the exercise of the occupation regulated, nor the due process of law clause, because
the law is prospective in operation and recognizes the privilege of aliens already engaged in the occupation and
reasonably protects their privilege; that the wisdom and efficacy of the law to carry out its objectives appear to us
to be plainly evident as a matter of fact it seems not only appropriate but actually necessary and that in any case
such matter falls within the prerogative of the Legislature, with whose power and discretion the Judicial department
of the Government may not interfere; that the provisions of the law are clearly embraced in the title, and this
suffers from no duplicity and has not misled the legislators or the segment of the population affected; and that it
cannot be said to be void for supposed conflict with treaty obligations because no treaty has actually been entered
into on the subject and the police power may not be curtailed or surrendered by any treaty or any other
conventional agreement.

Some members of the Court are of the opinion that the radical effects of the law could have been made less harsh
in its impact on the aliens. Thus it is stated that more time should have been given in the law for the liquidation of
existing businesses when the time comes for them to close. Our legal duty, however, is merely to determine if the
law falls within the scope of legislative authority and does not transcend the limitations of due process and equal
protection guaranteed in the Constitution. Remedies against the harshness of the law should be addressed to the
Legislature; they are beyond our power and jurisdiction.

The petition is hereby denied, with costs against petitioner.

Gonzales vs. Hechanova 9 SCRA 230

This is an original action for prohibition with preliminary injunction.

It is not disputed that on September 22, 1963, respondent Executive Secretary authorized
the importation of 67,000 tons of foreign rice to be purchased from private sources, and
created a rice procurement committee composed of the other respondents herein1 for the
implementation of said proposed importation.
Thereupon, or September 25, 1963, herein petitioner, Ramon A. Gonzales , a rice planter,
and president of the Iloilo Palay and Corn Planters Association, whose members are,
likewise, engaged in the production of rice and corn filed the petition herein, averring that,
in making or attempting to make said importation of foreign rice, the aforementioned
respondents "are acting without jurisdiction or in excess of jurisdiction",

because Republic Act No. 3452 which allegedly repeals or amends Republic Act No. 220
explicitly prohibits the importation of rice and corn "the Rice and Corn Administration or any
other government agency;"

that petitioner has no other plain, speedy and adequate remedy in the ordinary course of
law; and that a preliminary injunction is necessary for the preservation of the rights of the
parties during the pendency this case and to prevent the judgment therein from coming
ineffectual. Petitioner prayed, therefore, that said petition be given due course; that a writ
of preliminary injunction be forthwith issued restraining respondent their agents or
representatives from implementing the decision of the Executive Secretary to import the
aforementioned foreign rice; and that, after due hearing, judgment be rendered making said
injunction permanent.

Forthwith, respondents were required to file their answer to the petition which they did, and
petitioner's pray for a writ of preliminary injunction was set for hearing at which both
parties appeared and argued orally. Moreover, a memorandum was filed, shortly thereafter,
by the respondents. Considering, later on, that the resolution said incident may require
some pronouncements that would be more appropriate in a decision on the merits of the
case, the same was set for hearing on the merits thereafter. The parties, however, waived
the right to argue orally, although counsel for respondents filed their memoranda.

I. Sufficiency of petitioner's interest.

Respondents maintain that the status of petitioner as a rice planter does not give him
sufficient interest to file the petition herein and secure the relief therein prayed for. We find
no merit in this pretense. Apart from prohibiting the importation of rice and corn "by the
Rice and Corn Administration or any other government agency"

Republic Act No. 3452 declares, in Section 1 thereof, that "the policy of the Government" is
to "engage in the purchase of these basic foods directly from those tenants, farmers,
growers, producers and landowners in the Philippines who wish to dispose of their products
at a price that will afford them a fair and just return for their labor and capital
investment. ... ." Pursuant to this provision, petitioner, as a planter with a rice land of
substantial proportion, 2 is entitled to a chance to sell to the Government the rice it now
seeks to buy abroad. Moreover, since the purchase of said commodity will have to be
effected with public funds mainly raised by taxation, and as a rice producer and landowner
petitioner must necessarily be a taxpayer, it follows that he has sufficient personality and
interest to seek judicial assistance with a view to restraining what he believes to be an
attempt to unlawfully disburse said funds.
II. Exhaustion of administrative remedies.

Respondents assail petitioner's right to the reliefs prayed for because he "has not exhausted
all administrative remedies available to him before coming to court". We have already held,
however, that the principle requiring the previous exhaustion of administrative remedies is
not applicable where the question in dispute is purely a legal one",or where the
controverted act is "patently illegal" or was performed without jurisdiction or in excess of
jurisdiction, or where the respondent is a department secretary, whose acts as an alter-ego
of the President bear the implied or assumed approval of the latter, unless actually
disapproved by him, or where there are circumstances indicating the urgency of judicial
intervention. The case at bar fails under each one of the foregoing exceptions to the general
rule. Respondents' contention is, therefore, untenable.

III. Merits of petitioner's cause of action.

Respondents question the sufficiency of petitioner's cause of action upon the theory that the
proposed importation in question is not governed by Republic Acts Nos. 2207 and 3452, but
was authorized by the President as Commander-in-Chief "for military stock pile purposes" in
the exercise of his alleged authority under Section 2 of Commonwealth Act No. 1; that in
cases of necessity, the President "or his subordinates may take such preventive measure for
the restoration of good order and maintenance of peace"; and that, as Commander-in-Chief
of our armed forces, "the President ... is duty-bound to prepare for the challenge of threats
of war or emergency without waiting for any special authority".

Regardless of whether Republic Act No. 3452 repeals Republic Act No. 2207, as contended
by petitioner herein - on which our view need not be expressed —

we are unanimously of the opinion - assuming that said Republic Act No. 2207 is still in
force — that the two Acts are applicable to the proposed importation in question because
the language of said laws is such as to include within the purview thereof all importations of
rice and corn into the Philippines".

Pursuant to Republic Act No. 2207, "it shall be unlawful for any person, association,
corporation or government agency to import rice and corn into any point in the Philippines",
although, by way of exception, it adds, that "the President of the Philippines may authorize
the importation of these commodities through any government agency that he may
designate", is the conditions prescribed in Section 2 of said Act are present. Similarly,
Republic Act No. 3452 explicitly enjoins "the Rice and Corn Administration or any
government agency" from importing rice and corn.

Respondents allege, however, that said provisions of Republic Act Nos. 2207 and 3452,
prohibiting the importation of rice and corn by any "government agency", do not apply to
importations "made by the Government itself", because the latter is not a "government
agency". This theory is devoid of merit. The Department of National Defense and the Armed
Forces of the Philippines, as well as respondents herein, and each and every officer and
employee of our Government, our government agencies and/or agents. The applicability of
said laws even to importations by the Government as such, becomes more apparent when
we consider that:

1. The importation permitted in Republic Act No. 2207 is to be authorized by the "President
of the Philippines" and, hence, by or on behalf of the Government of the Philippines;

2. Immediately after enjoining the Rice and Corn administration and any other government
agency from importing rice and corn, Section 10 of Republic Act No. 3452 adds "that the
importation of rice and corn is left to private parties upon payment of the corresponding
taxes", thus indicating that only "private parties" may import rice under its provisions; and

4. Aside from prescribing a fine not exceeding P10,000.00 and imprisonment of not
more than five (5) years for those who shall violate any provision of Republic Act No.
3452 or any rule and regulation promulgated pursuant thereto, Section 15 of said
Act provides that "if the offender is a public official and/or employees", he shall be
subject to the additional penalty specified therein.

A public official is an officer of the Government itself, as distinguished from officers or

employees of instrumentalities of the Government.

Hence, the duly authorized acts of the former are those of the Government, unlike those
of a government instrumentality which may have a personality of its own, distinct and
separate from that of the Government, as such. The provisions of Republic Act No. 2207
are, in this respect, even more explicit. Section 3 thereof provides a similar additional
penalty for any "officer or employee of the Government" who "violates, abets or
tolerates the violation of any provision" of said Act. Hence, the intent to apply the same
to transactions made by the very government is patent.

Indeed, the restrictions imposed in said Republic Acts are merely additional to those
prescribed in Commonwealth Act No. 138, entitled "An Act to give native products and
domestic entities the preference in the purchase of articles for the Government." Pursuant
to Section 1 thereof:

The Purchase and Equipment Division of the Government of the Philippines and other
officers and employees of the municipal and provincial governments and the Government of
the Philippines and of chartered cities, boards, commissions, bureaus, departments, offices,
agencies, branches, and bodies of any description, including government-owned companies,
authorized to requisition, purchase, or contract or make disbursements for articles,
materials, and supplies for public use, public buildings, or public works shall give preference
to materials ... produced ... in the Philippines or in the United States, and to domestic
entities, subject to the conditions hereinbelow specified. (Emphasis supplied.)
Under this provision, in all purchases by the Government, including those made by and/or
for the armed forces, preference shall be given to materials produced in the Philippines. The
importation involved in the case at bar violates this general policy of our Government, aside
from the provisions of Republic Acts Nos. 2207 and 3452.

The attempt to justify the proposed importation by invoking reasons of national security —
predicated upon the "worsening situation in Laos and Vietnam", and "the recent tension
created by the Malaysia problem" - and the alleged powers of the President as Commander-
in-Chief of all armed forces in the Philippines, under Section 2 of the National Defense Act
(Commonwealth Act No. 1), overlooks the fact that the protection of local planters of rice
and corn in a manner that would foster and accelerate self-sufficiency in the local production
of said commodities constitutes a factor that is vital to our ability to meet possible national
emergency. Even if the intent in importing goods in anticipation of such emergency were to
bolster up that ability, the latter would, instead, be impaired if the importation were so
made as to discourage our farmers from engaging in the production of rice.

Besides, the stockpiling of rice and corn for purpose of national security and/or national
emergency is within the purview of Republic Act No. 3452. Section 3 thereof expressly
authorizes the Rice and Corn Administration "to accumulate stocks as a national reserve in
such quantities as it may deem proper and necessary to meet any contingencies".
Moreover, it ordains that "the buffer stocks held as a national reserve ... be deposited by
the administration throughout the country under the proper dispersal plans ... and may be
released only upon the occurrence of calamities or emergencies ...". (Emphasis applied.)

Again, the provisions of Section 2 of Commonwealth Act No. 1, upon which respondents rely
so much, are not self-executory. They merely outline the general objectives of said
legislation. The means for the attainment of those objectives are subject to congressional
legislation. Thus, the conditions under which the services of citizens, as indicated in said
Section 2, may be availed of, are provided for in Sections 3, 4 and 51 to 88 of said
Commonwealth Act No. 1. Similarly, Section 5 thereof specifies the manner in which
resources necessary for our national defense may be secured by the Government of the
Philippines, but only "during a national mobilization",9 which does not exist. Inferentially,
therefore, in the absence of a national mobilization, said resources shall be produced in such
manner as Congress may by other laws provide from time to time. Insofar as rice and corn
are concerned, Republic Acts Nos. 2207 and 3452, and Commonwealth Act No. 138 are such
laws.

Respondents cite Corwin in support of their pretense, but in vain. An examination of the
work cited10 shows that Corwin referred to the powers of the President during "war time"11
or when he has placed the country or a part thereof under "martial law".12 Since neither
condition obtains in the case at bar, said work merely proves that respondents' theory, if
accepted, would, in effect, place the Philippines under martial law, without a declaration of
the Executive to that effect. What is worse, it would keep us perpetually under martial law.
It has been suggested that even if the proposed importation violated Republic Acts Nos.
2207 and 3452, it should, nevertheless, be permitted because "it redounds to the benefit of
the people". Salus populi est suprema lex, it is said.

If there were a local shortage of rice, the argument might have some value. But the
respondents, as officials of this Government, have expressly affirmed again and again that
there is no rice shortage. And the importation is avowedly for stockpile of the Army — not
the civilian population.

But let us follow the respondents' trend of thought. It has a more serious implication that
appears on the surface. It implies that if an executive officer believes that compliance with a
certain statute will not benefit the people, he is at liberty to disregard it. That idea must be
rejected - we still live under a rule of law.

And then, "the people" are either producers or consumers. Now — as respondents explicitly
admit — Republic Acts Nos. 2207 and 3452 were approved by the Legislature for the benefit
of producers and consumers, i.e., the people, it must follow that the welfare of the people
lies precisely in the compliance with said Acts.

It is not for respondent executive officers now to set their own opinions against that of the
Legislature, and adopt means or ways to set those Acts at naught. Anyway, those laws
permit importation — but under certain conditions, which have not been, and should be
complied with.

IV. The contracts with Vietnam and Burma —

It is lastly contended that the Government of the Philippines has already entered into two
(2) contracts for the Purchase of rice, one with the Republic of Vietnam, and another with
the Government of Burma; that these contracts constitute valid executive agreements
under international law; that such agreements became binding effective upon the signing
thereof by representatives the parties thereto; that in case of conflict between Republic Acts
Nos. 2207 and 3452 on the one hand, and aforementioned contracts,

on the other, the latter should prevail, because, if a treaty and a statute are inconsistent
with each other, the conflict must be resolved — under the American jurisprudence — in
favor of the one which is latest in point of time; that petitioner herein assails the validity of
acts of the Executive relative to foreign relations in the conduct of which the Supreme Court
cannot interfere; and the aforementioned contracts have already been consummated, the
Government of the Philippines having already paid the price of the rice involved therein
through irrevocable letters of credit in favor of the sell of the said commodity. We find no
merit in this pretense.
The Court is not satisfied that the status of said tracts as alleged executive agreements has
been sufficiently established. The parties to said contracts do not pear to have regarded the
same as executive agreements. But, even assuming that said contracts may properly
considered as executive agreements, the same are unlawful, as well as null and void, from a
constitutional viewpoint, said agreements being inconsistent with the provisions of Republic
Acts Nos. 2207 and 3452. Although the President may, under the American constitutional
system enter into executive agreements without previous legislative authority, he may not,
by executive agreement, enter into a transaction which is prohibited by statutes enacted
prior thereto. Under the Constitution, the main function of the Executive is to enforce laws
enacted by Congress. The former may not interfere in the performance of the legislative
powers of the latter, except in the exercise of his veto power. He may not defeat legislative
enactments that have acquired the status of law, by indirectly repealing the same through
an executive agreement providing for the performance of the very act prohibited by said
laws.

The American theory to the effect that, in the event of conflict between a treaty and a
statute, the one which is latest in point of time shall prevail, is not applicable to the case at
bar, for respondents not only admit, but, also insist that the contracts adverted to are not
treaties. Said theory may be justified upon the ground that treaties to which the United
States is signatory require the advice and consent of its Senate, and, hence, of a branch of
the legislative department. No such justification can be given as regards executive
agreements not authorized by previous legislation, without completely upsetting the
principle of separation of powers and the system of checks and balances which are
fundamental in our constitutional set up and that of the United States.

As regards the question whether an international agreement may be invalidated by our

courts, suffice it to say that the Constitution of the Philippines has clearly settled it in the
affirmative, by providing, in Section 2 of Article VIII thereof, that the Supreme Court may
not be deprived "of its jurisdiction to review, revise, reverse, modify, or affirm on appeal,
certiorari, or writ of error as the law or the rules of court may provide, final judgments and
decrees of inferior courts in — (1) All cases in which the constitutionality or validity of any
treaty, law, ordinance, or executive order or regulation is in question". In other words, our
Constitution authorizes the nullification of a treaty, not only when it conflicts with the
fundamental law, but, also, when it runs counter to an act of Congress.

The alleged consummation of the aforementioned contracts with Vietnam and Burma does
not render this case academic, Republic Act No. 2207 enjoins our Government not from
entering into contracts for the purchase of rice, but from importing rice, except under the
conditions Prescribed in said Act. Upon the other hand, Republic Act No. 3452 has two (2)
main features, namely: (a) it requires the Government to purchase rice and corn directly
from our local planters, growers or landowners; and (b) it prohibits importations of rice by
the Government, and leaves such importations to private parties. The pivotal issue in this
case is whether the proposed importation — which has not been consummated as yet — is
legally feasible.
Lastly, a judicial declaration of illegality of the proposed importation would not compel our
Government to default in the performance of such obligations as it may have contracted
with the sellers of the rice in question, because, aside from the fact that said obligations
may be complied with without importing the commodity into the Philippines, the proposed
importation may still be legalized by complying with the provisions of the aforementioned
laws.

V. The writ of preliminary injunction.

The members of the Court have divergent opinions on the question whether or not
respondents herein should be enjoined from implementing the aforementioned proposed
importation. However, the majority favors the negative view, for which reason the
injunction prayed for cannot be granted.

WHEREFORE, judgment is hereby rendered declaring that respondent Executive Secretary

had and has no power to authorize the importation in question; that he exceeded his
jurisdiction in granting said authority; said importation is not sanctioned by law and is
contrary to its provisions; and that, for lack of the requisite majority, the injunction prayed
for must be and is, accordingly denied. It is so ordered.

Under Republic Act No. 2207, which took effect on May 15, 1959, it is unlawful for any
person, association, corporation or government agency to import rice and corn into any
point in the Philippines. The exception is if there is an existing or imminent shortage of such
commodity of much gravity as to constitute national emergency in which case an
importation may be authorized by the President when so certified by the National Economic
Council.

However, on June 14, 1962, Republic Act 3452 was enacted providing that the importation
of rice and corn can only be made by private parties thereby prohibiting from doing so the
Rice and Corn Administration or any other government agency. Republic Act 3452 does not
expressly repeal Republic Act 2207, but only repeals or modified those parts thereof that
are inconsistent with its provisions. The question that now arises is: Has the enactment of
Republic Act 3452 the effect of prohibiting completely the government from importing rice
and corn into the Philippines?

My answer is in the negative. Since this Act does not in any manner provide for the
importation of rice and corn in case of national emergency, the provision of the former law
on that matter should stand, for that is not inconsistent with any provision embodied in
Republic Act 3452. The Rice and Corn Administration, or any other government agency,
may therefore still import rice and corn into the Philippines as provided in Republic Act 2207
if there is a declared national emergency.

The next question that arises is: Can the government authorize the importation of rice and
corn regardless of Republic Act 2207 if that is authorized by the President as Commander-
in-Chief of the Philippine Army as a military precautionary measure for military stockpile?

Respondents answer this question in the affirmative. They advance the argument that it is
the President's duty to see to it that the Armed Forces of the Philippines are geared to the
defenses of the country as well as to the fulfillment of our international commitments in
Southeast Asia in the event the peace and security of the area are in danger. The
stockpiling of rice, they aver, is an essential requirement of defense preparation in view of
the limited local supply and the probable disruption of trade and commerce with outside
countries in the event of armed hostilities, and this military precautionary measure is
necessary because of the unsettled conditions in the Southeast Asia bordering on actual
threats of armed conflicts as evaluated by the Intelligence Service of the Military
Department of our Government. This advocacy, they contend, finds support in the national
defense policy embodied in Section 2 of our National Defense Act (Commonwealth Act No.
1), which provides:

(a) The preservation of the State is the obligation of every citizen. The security of the
Philippines and the freedom, independence and perpetual neutrality of the Philippine
Republic shall be guaranteed by the employment of all citizens, without distinction of sex or
age, and all resources.

(b) The employment of the nation's citizens and resources for national defense shall be
effected by a national mobilization.

(c) The national mobilization shall include the execution of all measures necessary to pass
from a peace to a war footing.

(d) The civil authority shall always be supreme. The President of the Philippines as the
Commander-in-Chief of all military forces, shall be responsible that mobilization measures
are prepared at all times.(Emphasis supplied)

Indeed, I find in that declaration of policy that the security of the Philippines and its
freedom constitutes the core of the preservation of our State which is the basic duty of
every citizen and that to secure which it is enjoined that the President employ all the
resources at his command. But over and above all that power and duty, fundamental as
they may seem, there is the injunction that the civil authority shall always be supreme.
 This injunction can only mean that while all precautions should be taken to insure the
security and preservation of the State and to this effect the employment of all resources
may be resorted to, the action must always be taken within the framework of the civil
authority. Military authority should be harmonized and coordinated with civil authority, the
only exception being when the law clearly ordains otherwise. Neither Republic Act 2207, nor
Republic Act 3452, contains any exception in favor of military action concerning importation
of rice and corn. An exception must be strictly construed.

A distinction is made between the government and government agency in an attempt to

take the former out of the operation of Republic Act 2207. I disagree.

The Government of the Republic of the Philippines under the Revised Administrative Code
refers to that entity through which the functions of government are exercised, including the
various arms through which political authority is made effective whether they be provincial,
municipal or other form of local government,

whereas a government instrumentality refers to corporations owned or controlled by the

government to promote certain aspects of the economic life of our people. A government
agency, therefore, must necessarily refer to the government itself of the Republic, as
distinguished from any government instrumentality which has a personality distinct and
separate from it (Section 2).

The important point to determine, however, is whether we should enjoin respondents from
carrying out the importation of the rice which according to the record has been authorized
to be imported on government to government level, it appearing that the arrangement to
this effect has already been concluded, the only thing lacking being its implementation. This
is evident from the manifestation submitted by the Solicitor General wherein it appears that
the contract for the purchase of 47,000 tons of rice from had been sign on October 5, 1963,
and for the purchase of 20,000 tons from Burma on October 8, 1963, by the authorized
representatives of both our government and the governments of Vietnam and Burma,
respectively. If it is true that, our government has already made a formal commitment with
the selling countries there arises the question as to whether the act can still be impeded at
this stage of the negotiations. Though on this score there is a divergence of opinion, it is
gratifying to note that the majority has expressed itself against it. This is a plausible
attitude for, had the writ been issued, our government would have been placed in a
predicament where, as a necessary consequence, it would have to repudiate a duly
formalized agreement to its great embarrassment and loss of face. This was avoided by the
judicial statesmanship evinced by the Court.

BARRERA, J., concurring:

Because of possible complications that might be aggravated by misrepresentation of the

true nature and scope of the case before this Court, it is well to restate as clearly as
possible, the real and only issue presented by the respondents representing the
government.

From the answer filed by the Solicitor General, in behalf of respondents, we quote:

The importation of the rice in question by the Armed Forces of the Philippines is for military
stockpiling authorized by the President pursuant to his inherent power as commander-in-
chief and as a military precautionary measure in view the worsening situation in Laos and
Vietnam and, it may added, the recent, tension created by the Malaysia problem (Answer,
p. 2; emphasis supplied.)

During the oral argument, Senator Fernandez, appealing in behalf of the respondents,
likewise reiterated the imported rice was for military stockpiling, and which he admitted that
some of it went to the Rice and Corn Administration, he emphasized again and again that
rice was not intended for the RCA for distribution to people, as there was no shortage of rice
for that purpose but it was only exchanged for palay because this could better preserved.

From the memorandum filed thereafter by the Solicits General, again the claim was made:

We respectfully reiterate the arguments in our answer dated October 4, 1963 that the
importation of rice sought be enjoined in this petition is in the exercise of the authority
vested in the President of the Philippines as Commander-in-Chief of the Armed Forces, as a
measure of military preparedness demanded by a real and actual threat of emergency in the
South East Asian countries. (p. 1, Emphasis supplied.)

xxx xxx xxx

It (the stressing of the unsettled conditions in Southeast Asia) is merely our intention to
show the necessity for the stockpiling of rice for army purposes, which is the very reason for
the importation.

xxx xxx xxx

As it is, the importation in question is being made by the Republic of the Philippines for its
own use, and the rice is not supposed to be poured into the open market as to affect the
price to be paid by the public. (p. 4, Emphasis supplied.)
xxx xxx xxx

What we do contend is that the law, for want of express and clear provision to that effect,
does not include in its prohibition importation by the Government of rice for its own use and
not for the consuming public, regardless of whether there is or there is no emergency. (p. 5,
Emphasis supplied.)

From the above, it not only appears but is evident that the respondents were not concerned
with the present rice situation confronting the consuming public, but were solely and
exclusively after the stockpiling of rice for the future use of the army.

The issue, therefore, in which the Government was interested is not whether rice is
imported to give the people a bigger or greater supply to maintain the price at P.80 per
ganta — for, to quote again their contention:

"the rice is not supposed to be poured into the open market to affect the price to be paid by
the public, as it is not for the consuming public, regardless of whether there is or there is no
emergency", — but whether rice can legally be imported by the Armed Forces of the
Philippines avowedly for its future use, notwithstanding the prohibitory provisions of
Republic Acts Nos. 2207 and 3452. The majority opinion ably sets forth the reasons why
this Court can not accept the contention of the respondents that this importation is beyond
and outside the operation of these statutes.

I can only emphasize that I see in the theory advanced by the Solicitor General a
dangerous trend — that because the policies enunciated in the cited laws are for the
protection of the producers and the consumers, the army is removed from their application.
To adopt this theory is to proclaim the existence in the Philippines of three economic groups
or classes: the producers, the consumers, and the Armed Forces of the Philippines. What is
more portentous is the effect to equate the army with the Government itself.

Then again, the importation of this rice for military stockpiling is sought to be justified by
the alleged threat of emergency in the Southeast Asian countries. But the existence of this
supposed threat was unilaterally determined by the Department of National Defense alone.
We recall that there exists a body called the National Security Council in which are
represented the Executive as well as the Legislative department. In it sit not only members
of the party in power but of the opposition as well. To our knowledge, this is the highest
consultative body which deliberates precisely in times of emergency threatening to affect
the security of the state. The democratic composition of this council is to guarantee that its
deliberations would be non-partisan and only the best interests of the nation will be
considered. Being a deliberative body, it insures against precipitate action. This is as it
should be. Otherwise, in these days of ever present cold war, any change or development in
the political climate in any region of the world is apt to be taken as an excuse for the
military to conjure up a crisis or emergency and thereupon attempt to override our laws and
legal processes, and imperceptibly institute some kind of martial law on the pretext of
precautionary mobilization measure avowedly in the interest of the security of the state.
One need not, be too imaginative to perceive a hint of this in the present case.
The Supreme Court, in arriving at the conclusion unanimously reached, is fully aware of the
difficult and delicate task it had to discharge. Its position is liable to be exploited by some
for their own purposes by claiming and making it appear that the Court is unmindful of the
plight of our people during these days of hardship; that it preferred to give substance to the
"niceties of the law than heed the needs of the people.

Our answer is that the Court was left no alternative. It had, in compliance with its duty, to
decide the case upon the facts presented to it. The respondents, representing the
administration, steadfastly maintained and insisted that there is no rice shortage; that the
imported rice is not for the consuming public and is not supposed to be placed in the open
market to affect the price to be paid by the public; that it is solely for stockpiling of the
army for future use as a measure of mobilization in the face of what the Department of
National Defense unilaterally deemed a threatened armed conflict in Southeast Asia.
Confronted with these facts upon, which the Government has built and rested its case, we
have searched in vain for legal authority or cogent reasons to justify this importation made
admittedly contrary to the provisions of Republic Acts Nos. 2207 and 3452. I say
admittedly, because respondents never as much as pretended that the importation fulfills
the conditions specified in these laws, but limited themselves to the contention, which is
their sole defense that this importation does not fall within the scope of said laws. In our
view, however, the laws are clear.

The laws are comprehensive and their application does not admit of any exception. The
laws are adequate. Compliance therewith is not difficult, much less impossible. The avowed
emergency, if at all, is not urgently immediate.

In this connection, it is pertinent to bear in mind that the Supreme Court has a duty to
perform under the Constitution. It has to decide, when called upon to do so in an
appropriate proceeding, all cases in which the constitutionality or validity of any treaty, law,
ordinance, executive order or regulation is in question. We can not elude this duty. To do so
would be culpable dereliction on our part. While we sympathize with the public that might
be adversely affected as a result of this decision yet our sympathy does not authorize us to
sanction an act contrary to applicable laws.

The fault lies with those who stubbornly contended and represented before this Court that
there is no rice shortage, that the imported rice is not intended for the consuming public,
but for stockpiling of the army. And, if as now claimed before the public, contrary to the
Government's stand in this case, that there is need for imported rice to stave off hunger,
our legislature has provided for such a situation.

As already stated, the laws are adequate. The importation of rice under the conditions set
forth in the laws may be authorized not only where there is an existing shortage, but also
when the shortage is imminent. In other words, lawful remedy to solve the situation is
available, if only those who have the duty to execute the laws perform their duty. If there is
really need for the importation of rice, who adopt some dubious means which necessitates
resort to doubtful exercise of the power of the President as Commander-in-Chief of the
Army? Why not comply with the mandate of the law? Ours is supposed to be a regime under
the rule of law. Adoption as a government policy of the theory of the end justifies the means
brushing aside constitutional and legal restraints, must be rejected, lest we end up with the
end of freedom.

For these reasons, I concur in the decision of the Court.

IBP V. Zamora

At bar is a special civil action for certiorari and prohibition with prayer for issuance of a temporary restraining order
seeking to nullity on constitutional grounds the order of President Joseph Ejercito Estrada commanding the
deployment of the Philippine Marines (the Marines) to join the Philippine National Police (the "PNP") in visibility
patrols around the metropolis. chanrob1es virtua1 1aw 1ibrary

In view of the alarming increase in violent crimes in Metro Manila, like robberies, kidnappings and carnappings, the
President, in a verbal directive, ordered the PNP and the Marines to conduct joint visibility patrols for the purpose
of crime prevention and suppression. The Secretary of National Defense, the Chief of Staff of the Armed Forces of
the Philippines (the "AFP"), the Chief of the PNP and the Secretary of the Interior and Local Government were
tasked to execute and implement the said order. In compliance with the presidential mandate, the PNP Chief,
through Police Chief Superintendent Edgar B. Aglipay, formulated Letter of Instruction 02/2000 1 (the "LOI") which
detailed the manner by which the joint visibility patrols, called Task Force Tulungan, would be conducted. 2 Task
Force Tulungan was placed under the leadership of the Police Chief of Metro Manila.

Subsequently, the President confirmed his previous directive on the deployment of the Marines in a Memorandum,
dated 24 January 2000, addressed to the Chief of Staff of the AFP and the PNP Chief. 3 In the Memorandum, the
President expressed his desire to improve the peace and order situation in Metro Manila through a more effective
crime prevention program including increased police patrols. 4 The President further stated that to heighten police
visibility in the metropolis, augmentation from the AFP is necessary. 5 Invoking his powers as Commander-in-Chief
under Section 18, Article VII of the Constitution, the President directed the AFP Chief of Staff and PNP Chief to
coordinate with each other for the proper deployment and utilization of the Marines to assist the PNP in preventing
or suppressing criminal or lawless violence. 6 Finally, the President declared that the services of the Marines in the
anti-crime campaign are merely temporary in nature and for a reasonable period only, until such time when the
situation shall have improved. 7

The LOI explains the concept of the PNP-Philippine Marines joint visibility patrols as follows: chanrob1es virtual 1aw library

x       x       x

2. PURPOSE: chanrob1es virtual 1aw library

The Joint Implementing Police Visibility Patrols between the PNP NCRPO and the Philippine Marines partnership in
the conduct of visibility patrols in Metro Manila for the suppression of crime prevention and other serious threats to
national security

3. SITUATION: chanrob1es virtual 1aw library

Criminal incidents in Metro Manila have been perpetrated not only by ordinary criminals but also by organized
syndicates whose members include active and former police/military personnel whose training, skill, discipline and
firepower prove well-above the present capability of the local police alone to handle. The deployment of a joint PNP
NCRPO-Philippine Marines in the conduct of police visibility patrol in urban areas will reduce the incidence of crimes
specially those perpetrated by active or former police/military personnel. chanrob1es virtua1 1aw 1ibrary

4. MISSION: chanrob1es virtual 1aw library

The PNP NCRPO will organize a provisional Task Force to conduct joint NCRPO-PM visibility patrols to keep Metro
Manila streets crime-free, through a sustained street patrolling to minimize or eradicate all forms of high-profile
crimes especially those perpetrated by organized crime syndicates whose members include those that are well-
trained, disciplined and well-armed active or former PNP/Military personnel.

5. CONCEPT IN JOINT VISIBILITY PATROL OPERATIONS: chanrob1es virtual 1aw library

a. The visibility patrols shall be conducted jointly by the NCRPO [National Capital Regional Police Office] and the
Philippine Marines to curb criminality in Metro Manila and to preserve the internal security of the state against
insurgents and other serious threat to national -security, although the primary responsibility over Internal Security
Operations still rests upon the AFP.

b. The principle of integration of efforts shall be applied to eradicate all forms of high-profile crimes perpetrated by
organized crime syndicates operating in Metro Manila. This concept requires the military and police to work
cohesively and unify efforts to ensure a focused, effective and holistic approach in addressing crime prevention.
Along this line, the role of the military and police aside from neutralizing crime syndicates is to bring a wholesome
atmosphere wherein delivery of basic services to the people and development is achieved Hand-in-hand with this
joint NCRPO-Philippine Marines visibility patrols, local Police Units are responsible for the maintenance of peace and
order in their locality.

c. To ensure the effective implementation of this project, a provisional Task Force "TULUNGAN" shall be organized
to provide the mechanism, structure, and procedures for the integrated planning, coordinating, monitoring and
assessing the security situation.

x       x       x 8

The selected areas of deployment under the LOI are: Monumento Circle, North Edsa (SM City), Araneta Shopping
Center, Greenhills, SM Megamall, Makati Commercial Center, LRT/MRT Stations and the NAIA and Domestic
Airport. 9

On 17 January 2000, the Integrated Bar of the Philippines (the "IBP") filed the instant petition to annul LOI
02/2000 and to declare the deployment of the Philippine Marines, null and void and unconstitutional, arguing
that: chanrob1es virtual 1aw library

THE DEPLOYMENT OF THE PHILIPPINE MARINES IN METRO MANILA IS VIOLATIVE OF THE CONSTITUTION, IN
THAT: chanrob1es virtual 1aw library

A) NO EMERGENCY SITUATION OBTAINS IN METRO MANILA AS WOULD JUSTIFY, EVEN ONLY REMOTELY, THE
DEPLOYMENT OF SOLDIERS FOR LAW ENFORCEMENT WORK; HENCE, SAID DEPLOYMENT IS IN DEROGATION OF
ARTICLE II, SECTION 3 OF THE CONSTITUTION; chanrob1es virtua1 1aw 1ibrary

B) SAID DEPLOYMENT CONSTITUTES AN INSIDIOUS INCURSION BY THE MILITARY IN A CIVILIAN FUNCTION OF

GOVERNMENT (LAW ENFORCEMENT) IN DEROGATION OF ARTICLE XVI, SECTION 5 (4), OF THE CONSTITUTION;

C) SAID DEPLOYMENT CREATES A DANGEROUS TENDENCY TO RELY ON THE MILITARY TO PERFORM THE CIVILIAN
FUNCTIONS OF THE GOVERNMENT.

II

IN MILITARIZING LAW ENFORCEMENT IN METRO MANILA, THE ADMINISTRATION IS UNWITTINGLY MAKING THE
MILITARY MORE POWERFUL THAN WHAT IT SHOULD REALLY BE UNDER THE CONSTITUTION. 10

Asserting itself as the official organization of Filipino lawyers tasked with the bounden duty to uphold the rule of
law and the Constitution, the IBP questions the validity of the deployment and utilization of the Marines to assist
the PNP in law enforcement.
Without granting due course to the petition, the Court in a Resolution, 11 dated 25 January 2000, required the
Solicitor General to file his Comment on the petition. On 8 February 2000, the Solicitor General submitted his
Comment. chanrob1es virtua1 1aw 1ibrary

The Solicitor General vigorously defends the constitutionality of the act of the President in deploying the Marines,
contending, among others, that petitioner has no legal standing; that the question of deployment of the Marines is
not proper for judicial scrutiny since the same involves a political question; that the organization and conduct of
police visibility patrols, which feature the team-up of one police officer and one Philippine Marine soldier, does not
violate the civilian supremacy clause in the Constitution.

The issues raised in the present petition are: (1) Whether or not petitioner has legal standing; (2) Whether or not
the President’s factual determination of the necessity of calling the armed forces is subject to judicial review, and,
(3) Whether or not the calling of the armed forces to assist the PNP in joint visibility patrols violates the
constitutional provisions on civilian supremacy over the military and the civilian character of the PNP.

The petition has no merit.

First, petitioner failed to sufficiently show that it is in possession of the requisites of standing to raise the issues in
the petition. Second, the President did not commit grave abuse of discretion amounting to lack or excess of
jurisdiction nor did he commit a violation of the civilian supremacy clause of the Constitution.

The power of judicial review is set forth in Section 1, Article VIII of the Constitution, to wit: chanrob1es virtual 1aw library

SECTION 1. The judicial power Shall be vested in one Supreme Court and in such lower courts as may be
established by law.

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 grave abuse of discretion
amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of the Government.

When questions of constitutional significance are raised, the Court can exercise its power of judicial review only if
the following requisites are complied with, namely: (1J the existence of an actual and appropriate case; (2) a
personal and substantial interest of the party raising the constitutional question; (3) the exercise of judicial review
is pleaded at the earliest opportunity; and (4) the constitutional question is the lis mota of the case. 12

The IBP has not sufficiently complied with the requisites of standing in this case.

"Legal standing" or locus standi has been defined as a personal and substantial interest in the case such that the
party has sustained or will sustain direct injury as a result of the governmental act that is being challenged. 13 The
term "interest" means a material interest, an interest in issue affected by the decree, as distinguished from mere
interest in the question involved, or a mere incidental interest. 14 The gist of the question of standing is whether a
party alleges such personal stake in the outcome of the controversy as to assure that concrete adverseness which
sharpens the presentation of issues upon which the court depends for illumination of difficult constitutional
questions. 15

In the case at bar, the IBP primarily anchors its standing on its alleged responsibility to uphold the rule of law and
the Constitution. Apart from this declaration, however, the IBP asserts no other basis in support of its locus standi
The mere invocation by the IBP of its duty to preserve the rule of law and nothing more, while undoubtedly true, is
not sufficient to clothe it with standing in this case. This is too general an interest which is shared by other groups
and the whole citizenry. Based on the standards above-stated, the IBP has failed to present a specific and
substantial interest in the resolution of the case. Its fundamental purpose which, under Section 2, Rule 139-A of
the Rules of Court, is to elevate the standards of the law profession and to improve the administration of justice is
alien to, and cannot be affected by the deployment of the Marines. It should also be noted that the interest of the
National President of the IBP who signed the petition, is his alone, absent a formal board resolution authorizing him
to file the present action. To be sure, members of the BAR, those in the judiciary included, have varying opinions
on the issue. Moreover, the IBP, assuming that it has duly authorized the National President to file the petition, has
not shown any specific injury which it has suffered or may suffer by virtue of the questioned governmental act.
Indeed, none of its members, whom the IBP purportedly represents, has sustained any form of injury as a result of
the operation of the joint visibility patrols. Neither is it alleged that any of its members has been arrested or that
their civil liberties have been violated by the deployment of the Marines. What the IBP projects as injurious is the
supposed "militarization" of law enforcement which might threaten Philippine democratic institutions and may
cause more harm than good in the long run. Not only is the presumed "injury" not personal in character, it is
likewise too vague, highly speculative and uncertain to satisfy the requirement of standing. Since petitioner has not
successfully established a direct and personal injury as a consequence of the questioned act, it does not possess
the personality to assail the validity of the deployment of the Marines. This Court, however, does not categorically
rule that the IBP has absolutely no standing to raise constitutional issues now or in the future. The IBP must, by
way of allegations and proof, satisfy this Court that it has sufficient stake to obtain judicial resolution of the
controversy. chanrob1es virtua1 1aw 1ibrary

Having stated the foregoing, it must be emphasized that this Court has the discretion to take cognizance of a suit
which does not satisfy the requirement of legal standing when paramount interest is involved. 16 In not a few
cases, the Court has adopted a liberal attitude on the locus standi of a petitioner where the petitioner is able to
craft an issue of transcendental significance to the people. 17 Thus, when the issues raised are of paramount
importance to the public, the Court may brush aside technicalities of procedure. 18 In this case, a reading of the
petition shows that the IBP has advanced constitutional issues which deserve the attention of this Court in view of
their seriousness, novelty and weight as precedents. Moreover, because peace and order are under constant threat
and lawless violence occurs in increasing tempo, undoubtedly aggravated by the Mindanao insurgency problem, the
legal controversy raised in the petition almost certainly will not go away. It will stare us in the face again. It,
therefore, behooves the Court to relax the rules on standing and to resolve the issue now, rather than later.

The President did not commit grave abuse of discretion in calling out the Marines.

In the case at bar, the bone of contention concerns the factual determination of the President of the necessity of
calling the armed forces, particularly the Marines, to aid the PNP in visibility patrols. In this regard, the IBP admits
that the deployment of the military personnel falls under the Commander-in-Chief powers of the President as
stated in Section 18, Article VII of the Constitution, specifically, the power to call out the armed forces to prevent
or suppress lawless violence, invasion or rebellion. What the IBP questions, however, is the basis for the calling of
the Marines under the aforestated provision. According to the IBP, no emergency exists that would justify the need
for the calling of the military to assist the police force. It contends that no lawless violence, invasion or rebellion
exist to warrant the calling of the Marines. Thus, the IBP prays that this Court "review the sufficiency of the factual
basis for said troop [Marine] deployment." 19

The Solicitor General, on the other hand, contends that the issue pertaining to the necessity of calling the armed
forces is not proper for judicial scrutiny since it involves a political question and the resolution of factual issues
which are beyond the review powers of this Court. chanrob1es virtua1 1aw 1ibrary

As framed by the parties, the underlying issues are the scope of presidential powers and limits, and the extent of
judicial review. But, while this Court gives considerable weight to the parties’ formulation of the issues, the
resolution of the controversy may warrant a creative approach that goes beyond the narrow confines of the issues
raised. Thus, while the parties are in agreement that the power exercised by the President is the power to call out
the armed forces, the Court is of the view that the power involved may be no more than the maintenance of peace
and order and promotion of the general welfare. 20 For one, the realities on the ground do not show that there
exist a state of warfare, widespread civil unrest or anarchy. Secondly, the full brunt of the military is not brought
upon the citizenry, a point discussed in the latter part of this decision. In the words of the late Justice Irene Cortes
in Marcos v. Manglapus: chanrob1es virtual 1aw library

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

x       x       x 21

Nonetheless, even if it is conceded that the power involved is the President’s power to call out the armed forces to
prevent or suppress lawless violence, invasion or rebellion, the resolution of the controversy will reach a similar
result.

We now address the Solicitor General’s argument that the issue involved is not susceptible to review by the
judiciary because it involves a political question, and thus, not justiciable.

As a general proposition, a controversy is justiciable if it refers to a matter which is appropriate for court review. 22
It pertains to issues which are inherently susceptible of being decided on grounds recognized by law. Nevertheless,
the Court does not automatically assume jurisdiction over actual constitutional cases brought before it even in
instances that are ripe for resolution. One class of cases wherein the Court hesitates to rule on are ‘’political
questions." The reason is that political questions are concerned with issues dependent upon the wisdom, not the
legality, of a particular act or measure being assailed. Moreover, the political question being a function of the
separation of powers, the courts will not normally interfere with the workings of another co-equal branch unless the
case shows a clear need for the courts to step in to uphold the law and the Constitution.

As Tañada v. Cuenco, 23 puts it, political questions refer "to those questions which, under the Constitution, are to
be decided by the people in their sovereign capacity, or in regard to which full discretionary authority has been
delegated to the legislative or executive branch of government. Thus, if an issue is clearly identified by the text of
the Constitution as matters for discretionary action by a particular branch of government or to the people
themselves then it is held to be a political question. In the classic formulation of Justice Brennan in Baker v. Carr,
24 [p]rominent on the surface of any case held to involve a political question is found a textually demonstrable
constitutional commitment of the issue to a coordinate political department; or a lack of judicially discoverable and
manageable standards for resolving it; or the impossibility of deciding without an initial policy determination of a
kind clearly for nonjudicial discretion; or the impossibility of a court’s undertaking independent resolution without
expressing lack of the respect due coordinate branches of government; or an unusual need for unquestioning
adherence to a political decision already made; or the potentiality of embarrassment from multifarious
pronouncements by various departments on the one question. chanrob1es virtua1 1aw 1ibrary

The 1987 Constitution expands the concept of judicial review by providing that [T]he Judicial power shall be vested
in one Supreme Court and in such lower courts as may be established by law. 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." 25 Under this definition, the Court
cannot agree with the Solicitor General that the issue involved is a political question beyond the jurisdiction of this
Court to review. When the grant of power is qualified, conditional or subject to limitations, the issue of whether the
prescribed qualifications or conditions have been met or the limitations respected, is justiciable — the problem
being one of legality or validity, not its wisdom. 26 Moreover, the jurisdiction to delimit constitutional boundaries
has been given to this Court. 27 When political questions are involved, the Constitution limits the determination as
to whether or not there has been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part
of the official whose action is being questioned. 28chanrob1es virtua1 1aw 1ibrary

By grave abuse of discretion is meant simply capricious or whimsical exercise of judgment that is patent and gross
as to amount to an evasion of positive duty or a virtual refusal to perform a duty enjoined by law, or to act at all in
contemplation of law, as where the power is exercised in an arbitrary and despotic manner by reason of passion or
hostility. 29 Under this definition, a court is without power to directly decide matters over which full discretionary
authority has been delegated. But while this Court has no power to substitute its judgment for that of Congress or
of the President, it may look into the question of whether such exercise has been made in grave abuse of
discretion. 30 A showing that plenary power is granted either department of government, may not be an obstacle
to judicial inquiry, for the improvident exercise or abuse thereof may give rise to justiciable controversy. 31

When the President calls the armed forces to prevent or suppress lawless violence, invasion or rebellion, he
necessarily exercises a discretionary power solely vested in his wisdom. This is clear from the intent of the framers
and from the text of the Constitution itself. The Court, thus, cannot be called upon to overrule the President’s
wisdom or substitute its own. However, this does not prevent an examination of whether such power was exercised
within permissible constitutional limits or whether it was exercised in a manner constituting grave abuse of
discretion. In view of the constitutional intent to give the President full discretionary power to determine the
necessity of calling out the armed forces, it is incumbent upon the petitioner to show that the President’s decision
is totally bereft of factual basis. The present petition fails to discharge such heavy burden as there is no evidence
to support the assertion that there exist no justification for calling out the armed forces. There is, likewise, no
evidence to support the proposition that grave abuse was committed because the power to call was exercised in
such a manner as to violate the constitutional provision on civilian supremacy over the military. In the performance
of this Court’s duty of purposeful hesitation" 32 before declaring an act of another branch as unconstitutional, only
where such grave abuse of discretion is clearly shown shall the Court interfere with the President’s judgment. To
doubt is to sustain.

There is a clear textual commitment under the Constitution to bestow on the President full discretionary power to
call out the armed forces and to determine the necessity for the exercise of such power. Section 18, Article VII of
the Constitution, which embodies the powers of the President as Commander-in-Chief, provides in part: chanrob1es virtua1 1aw 1ibrary

The President shall be the Commander-in-Chief of all armed forces of the Philippines and whenever it becomes
necessary, he may call out such armed forces to prevent or suppress lawless violence, invasion or rebellion. In
case of invasion or rebellion, when the public safety requires it, he may, for a period not exceeding sixty days,
suspend the privilege of the writ of habeas corpus, or place the Philippines or any part thereof under martial law.

x       x       x

The full discretionary power of the President to determine the factual basis for the exercise of the calling out power
is also implied and further reinforced in the rest of Section 18, Article VII which reads, thus: chanrob1es virtual 1aw library

x       x       x

Within forty-eight hours from the proclamation of martial law or the suspension of the privilege of the writ of
habeas corpus, the President shall submit a report in person or in writing to the Congress. The Congress, voting
jointly, by a vote of at least a majority of all its Members in regular or special session, may revoke such
proclamation or suspension, which revocation shall not be set aside by the President. Upon the initiative of the
President, the Congress may, in the same manner, extend such proclamation or suspension for a period to be
determined by the Congress, if the invasion or rebellion shall persist and public safety requires it.

The Congress, if not in session, shall within twenty-four hours following such proclamation or suspension, convene
in accordance with its rules without need of a call.

The Supreme Court may review, in an appropriate proceeding filed by any citizen, the sufficiency of the factual
basis of the proclamation of martial law or the suspension of the privilege of the writ or the extension thereof, and
must promulgate its decision thereon within thirty days from its filing. chanrob1es virtua1 1aw 1ibrary

A state of martial law does not suspend the operation of the Constitution, nor supplant the functioning of the civil
courts or legislative assemblies, nor authorize the conferment of jurisdiction on military courts and agencies over
civilians where civil courts are able to function, nor automatically suspend the privilege of the writ.

The suspension of the privilege of the writ shall apply only to persons judicially charged for rebellion or offenses
inherent in or directly connected with invasion.

During the suspension of the privilege of the writ, any person thus arrested or detained shall be judicially charged
within three days, otherwise he shall be released.

Under the foregoing provisions, Congress may revoke such proclamation or suspension and the Court may review
the sufficiency of the factual basis thereof. However, there is no such equivalent provision dealing with the
revocation or review of the President’s action to call out the armed forces. The distinction places the calling out
power in a different category from the power to declare martial law and the power to suspend the privilege of the
writ of habeas corpus, otherwise, the framers of the Constitution would have simply lumped together the three
powers and provided for their revocation and review without any qualification. Expressio unius est exclusio alterius.
Where the terms are expressly limited to certain matters, it may not, by interpretation or construction, be
extended to other matters. 33 That the intent of the Constitution is exactly what its letter says, i.e., that the power
to call is fully discretionary to the President, is extant in the deliberation of the Constitutional Commission, to wit:
virtual 1aw library
chanrob1es

FR. BERNAS. It will not make any difference. I may add that there is a graduated power of the President as
Commander-in-Chief. First, he can call out such Armed Forces as may be necessary to suppress lawless violence;
then he can suspend the privilege of the writ of habeas corpus, then he can impose martial law. This is a graduated
sequence.
When he judges that it is necessary to impose martial law or suspend the privilege of the writ of habeas corpus, his
judgment is subject to review. We are making it subject to review by the Supreme Court and subject to
concurrence by the National Assembly. But when he exercises this lesser power of calling on the Armed Forces,
when he says it is necessary, it is my opinion that his judgment cannot be reviewed by anybody.

x       x       x

FR. BERNAS. Let me just add that when we only have imminent danger, the matter can be handled by the first
sentence: "The President...may call out such armed forces to prevent or suppress lawless violence, invasion or
rebellion." So we feel that that is sufficient for handling imminent danger.chanrob1es virtua1 1aw 1ibrary

MR. DE LOS REYES. So actually, if a President feels that there is imminent danger, the matter can be handled by
the First Sentence: "The President . . . may call out such Armed Forces to prevent or suppress lawless violence,
invasion or rebellion. So we feel that that is sufficient for handling imminent danger, of invasion or rebellion,
instead of imposing martial law or suspending the writ of habeas corpus, he must necessarily have to call the
Armed Forces of the Philippines as their Commander-in-Chief. Is that the idea?

MR. REGALADO. That does not require any concurrence by the legislature nor is it subject to judicial review. 34

The reason for the difference in the treatment of the aforementioned powers highlights the intent to grant the
President the widest leeway and broadest discretion in using the power to call out because it is considered as the
lesser and more benign power compared to the power to suspend the privilege of the writ of habeas corpus and the
power to impose martial law, both of which involve the curtailment and suppression of certain basic civil rights and
individual freedoms, and thus necessitating safeguards by Congress and review by this Court.

Moreover, under Section 18, Article VII of the Constitution, in the exercise of the power to suspend the privilege of
the writ of habeas corpus or to impose martial law, two conditions must concur: (1) there must be an actual
invasion or rebellion and, (2) public safety must require it. These conditions are not required in the case of the
power to call out the armed forces. The only criterion is that "whenever it becomes necessary," the President may
call the armed forces to prevent or suppress lawless violence, invasion or rebellion." The implication is that the
President is given full discretion and wide latitude in the exercise of the power to call as compared to the two other
powers.

If the petitioner fails, by way of proof, to support the assertion that the President acted without factual basis, then
this Court cannot undertake an independent investigation beyond the pleadings. The factual necessity of calling out
the armed forces is not easily quantifiable and cannot be objectively established since matters considered for
satisfying the same is a combination of several factors which are not always accessible to the courts. Besides the
absence of textual standards that the court may use to judge necessity, information necessary to arrive at such
judgment might also prove unmanageable for the courts. Certain pertinent information might be difficult to verify,
or wholly unavailable to the courts. In many instances, the evidence upon which the President might decide that
there is a need to call out the armed forces may be of a nature not constituting technical proof. chanrob1es virtua1 1aw 1ibrary

On the other hand, the President as Commander-in-Chief has a vast intelligence network to gather information,
some of which may be classified as highly confidential or affecting the security of the state. In the exercise of the
power to call, on-the-spot decisions may be imperatively necessary in emergency situations to avert great loss of
human lives and mass destruction of property. Indeed, the decision to call out the military to prevent or suppress
lawless violence must be done swiftly and decisively if it were to have any effect at all. Such a scenario is not
farfetched when we consider the present situation in Mindanao, where the insurgency problem could spill over the
other parts of the country. The determination of the necessity for the calling out power if subjected to unfettered
judicial scrutiny could be a veritable prescription for disaster, as such power may be unduly straitjacketed by an
injunction or a temporary restraining order every time it is exercised.

Thus, it is the unclouded intent of the Constitution to vest upon the President, as Commander-in-Chief of the
Armed Forces, full discretion to call forth the military when in his judgment it is necessary to do so in order to
prevent or suppress lawless violence, invasion or rebellion. Unless the petitioner can show that the exercise of such
discretion was gravely abused, the President’s exercise of judgment deserves to be accorded respect from this
Court.
The President has already determined the necessity and factual basis for calling the armed forces. In his
Memorandum, he categorically asserted that, [V]iolent crimes like bank/store robberies, holdups, kidnappings and
carnappings continue to occur in Metro Manila. . ." We do not doubt the veracity of the President’s assessment of
the situation, especially in the light of present developments. The Court takes judicial notice of the recent
bombings perpetrated by lawless elements in the shopping malls, public utilities, and other public places. These are
among the areas of deployment described in the LOI 2000. Considering all these facts, we hold that the President
has sufficient factual basis to call for military aid in law enforcement and in the exercise of this constitutional
power.

The deployment of the Marines does not violate the civilian supremacy clause nor does it infringe the civilian
character of the police force.

Prescinding from its argument that no emergency situation exists to justify the calling of the Marines, the IBP
asserts that by the deployment of the Marines, the civilian task of law enforcement is "militarized" in violation of
Section 3, Article II 36 of the Constitution.
chanrob1es virtua1 1aw 1ibrary

We disagree. The deployment of the Marines does not constitute a breach of the civilian supremacy clause. The
calling of the Marines in this case constitutes permissible use of military assets for civilian law enforcement. The
participation of the Marines in the conduct of joint visibility patrols is appropriately circumscribed. The limited
participation of the Marines is evident in the provisions of the LOI itself, which sufficiently provides the metes and
bounds of the Marines’ authority. It is noteworthy that the local police forces are the ones in charge of the visibility
patrols at all times, the real authority belonging to the PNP. In fact, the Metro Manila Police Chief is the overall
leader of the PNP-Philippine Marines joint visibility patrols. Under the LOI, the police forces are tasked to brief or
orient the soldiers on police patrol procedures. It is their responsibility to direct and manage the deployment of the
Marines. It is, likewise, their duty to provide the necessary equipment to the Marines and render logistical support
to these soldiers. In view of the foregoing, it cannot be properly argued that military authority is supreme over
civilian authority.

Moreover, the deployment of the Marines to assist the PNP does not unmake the civilian character of the police
force. Neither does it amount to an "insidious incursion" of the military in the task of law enforcement in violation
of Section 5(4), Article XVI of the Constitution.

In this regard, it is not correct to say that General Angelo Reyes, Chief of Staff of the AFP, by his alleged
involvement in civilian law enforcement, has been virtually appointed to a civilian post in derogation of the
aforecited provision. The real authority in these operations, as stated in the LOI, is lodged with the head of a
civilian institution, the PNP, and not with the military. Such being the case, it does not matter whether the AFP
Chief actually participates in the Task Force Tulungan since he does not exercise any authority or control over the
same. Since none of the Marines was incorporated or enlisted as members of the PNP, there can be no
appointment to a civilian position to speak of. Hence, the deployment of the Marines in the joint visibility patrols
does not destroy the civilian character of the PNP.

Considering the above circumstances, the Marines render nothing more than assistance required in conducting the
patrols. As such, there can be no "insidious incursion" of the military in civilian affairs nor can there be a violation
of the civilian supremacy clause in the Constitution.

It is worth mentioning that military assistance to civilian authorities in various forms persists in Philippine
jurisdiction. The Philippine experience reveals that it is not averse to requesting the assistance of the military in the
implementation and execution of certain traditionally "civil" functions. As correctly pointed out by the Solicitor
General, some of the multifarious activities wherein military aid has been rendered, exemplifying the activities that
bring both the civilian and the military together in a relationship of cooperation, are:chanrob1es virtual 1aw library

1. Elections;

2. Administration of the Philippine National Red Cross;

3. Relief and rescue operations during calamities and disasters;

4. Amateur sports promotion and development;

5. Development of the culture and the arts;

6. Conservation of natural resources;

7. Implementation of the agrarian reform program;

8. Enforcement of customs laws; chanrob1es vi

9. Composite civilian-military law enforcement activities;

10. Conduct of licensure examinations;

11. Conduct of nationwide tests for elementary and high school students;

12. Anti-drug enforcement activities;

13. Sanitary inspections;

14. Conduct of census work;

15. Administration of the Civil Aeronautics Board;

16. Assistance in installation of weather forecasting devices;

17. Peace and order policy formulation in local government units.

This unquestionably constitutes a gloss on executive power resulting from a systematic, unbroken, executive
practice, long pursued to the knowledge of Congress and, yet, never before questioned. 59 What we have here is
mutual support and cooperation between the military and civilian authorities, not derogation of civilian
supremacy. chanrob1es virtua1 1aw 1ibrary

In the United States, where a long tradition of suspicion and hostility towards the use of military force for domestic
purposes has persisted, 60 and whose Constitution, unlike ours, does not expressly provide for the power to call,
the use of military personnel by civilian law enforcement officers is allowed under circumstances similar to those
surrounding the present deployment of the Philippine Marines.

Under the Posse Comitatus Act 61 of the US, the use of the military in civilian law enforcement is generally
prohibited, except in certain allowable circumstances. A provision of the Act states: chanrob1es virtual 1aw library

§ 1385. Use of Army and Air Force as posse comitatus

Whoever, except in cases and under circumstances expressly authorized by the Constitution or Act of Congress,
willfully uses any part of the Army or the Air Force as posse comitatus or otherwise to execute the laws shall be
fined not more than $10,000 or imprisoned not more than two years, or both. 62

To determine whether there is a violation of the Posse Comitatus Act in the use of military personnel, the US courts
63 apply the following standards, to wit: chanrob1es virtual 1aw library

Were Army or Air Force personnel used by the civilian law enforcement officers at Wounded Knee in such a manner
that the military personnel subjected the citizens to the exercise of military power which was regulatory,
proscriptive, or compulsory 64 in nature, either presently or prospectively?

x       x       x

When this concept is transplanted into the present legal context, we take it to mean that military involvement,
even when not expressly authorized by the Constitution or a statute, does not violate the Posse Comitatus Act
unless it actually regulates, forbids or compels some conduct on the part of those claiming relief. A mere threat of
some future injury would be insufficient. (Emphasis supplied)

Even if the Court were to apply the above rigid standards to the present case to determine whether there is
permissible use of the military in civilian law enforcement, the conclusion is inevitable that no violation of the
civilian supremacy clause in the Constitution is committed. On this point, the Court agrees with the observation of
the Solicitor General:
chanrob1es virtual 1aw library

3. The designation of tasks in Annex A 65 does not constitute the exercise of regulatory, proscriptive, or
compulsory military power. First, the soldiers do not control or direct the operation. This is evident from Nos. 6, 66
8(k) 67 and 9(a) 68 of Annex A. These soldiers, second, also have no power to prohibit or condemn. In No. 9(d) 69
of Annex A, all arrested persons are brought to the nearest police stations for proper disposition. And last, these
soldiers apply no coercive force. The materials or equipment issued to them, as shown in No. 8(c) 70 of Annex A,
are all low impact and defensive in character. The conclusion is that there being no exercise of regulatory,
proscriptive or compulsory military power, the deployment of a handful of Philippine Marines constitutes no
impermissible use of military power for civilian law enforcement.

It appears that the present petition is anchored on fear that once the armed forces are deployed, the military will
gain ascendancy, and thus place in peril our cherished liberties. Such apprehensions, however, are unfounded. The
power to call the armed forces is just that — calling out the armed forces. Unless, petitioner IBP can show, which it
has not, that in the deployment of the Marines, the President has violated the fundamental law, exceeded his
authority or jeopardized the civil liberties of the people, this Court is not inclined to overrule the President’s
determination of the factual basis for the calling of the Marines to prevent or suppress lawless violence.chanrob1es virtua1 1aw 1ibrary

One last point. Since the institution of the joint visibility patrol in January, 2000, not a single citizen has
complained that his political or civil rights have been violated as a result of the deployment of the Marines. It was
precisely to safeguard peace, tranquility and the civil liberties of the people that the joint visibility patrol was
conceived. Freedom and democracy will be in full bloom only when people feel secure in their homes and in the
streets, not when the shadows of violence and anarchy constantly lurk in their midst.

WHEREFORE, premises considered, the petition is hereby DISMISSED.

SO ORDERED.

Gudangi V. Senga

Petitioners seek the annulment of a directive from President Gloria Macapagal-

Arroyo [1] 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.

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]

FACTS; 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.

Gen. Gudani, Col. Balutan, and AFP Chief of Staff Lieutenant General
GenerosoSenga (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.”

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. 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. 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 in Parañaque 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.

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 xx” Both Gen. Gudani and
Col. Balutan were likewise relieved of their assignments then.

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. 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. The following day, Gen. Gudani was
compulsorily retired from military service, having reached the age of 56.

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. As recommended, the case was referred to a Pre-Trial
Investigation Officer (PTIO) preparatory to trial by the General Court Martial (GCM).
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 and 97 of Commonwealth
Act No. 408, and to submit their counter-affidavits and affidavits of witnesses at
the Office of the Judge Advocate General. 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. 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]

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 xx [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 xx” [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 xx” [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.

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.

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.

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.

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.

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.
 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.

Gonzales vs. Gen. Abaya

The facts are:

On July 26, 2003, President Gloria Macapagal Arroyo received intelligence reports that some members of the AFP,
with high-powered weapons, had abandoned their designated places of assignment. Their aim was to destabilize
the government. The President then directed the AFP and the Philippine National Police (PNP) to track and arrest
them.

On July 27, 2003 at around 1:00 a.m., more than 300 heavily armed junior officers and enlisted men of the AFP -
mostly from the elite units of the Army's Scout Rangers and the Navy's Special Warfare Group - entered the
premises of the Oakwood Premier Luxury Apartments on Ayala Avenue, Makati City. They disarmed the security
guards and planted explosive devices around the building.

Led by Navy Lt. (SG) Antonio Trillanes IV, the troops sported red armbands emblazoned with the emblem of
the "Magdalo" faction of the Katipunan.1 The troops then, through broast media, announced their grievances
against the administration of President Gloria Macapagal Arroyo, such as the graft and corruption in the military,
the illegal sale of arms and ammunition to the "enemies" of the State, and the bombings in Davao City intended to
acquire more military assistance from the US government. They declared their withdrawal of support from their
Commander-in-Chief and demanded that she resign as President of the Republic. They also called for the
resignation of her cabinet members and the top brass of the AFP and PNP.

About noontime of the same day, President Arroyo issued Proclamation No. 427 declaring a state of rebellion,
followed by General Order No. 4 directing the AFP and PNP to take all necessary measures to suppress the rebellion
then taking place in Makati City. She then called the soldiers to surrender their weapons at five o'clock in the
afternoon of that same day.

In order to avoid a bloody confrontation, the government sent negotiators to dialogue with the soldiers. The aim
was to persuade them to peacefully return to the fold of the law. After several hours of negotiation, the
government panel succeeded in convincing them to lay down their arms and defuse the explosives placed around
the premises of the Oakwood Apartments. Eventually, they returned to their barracks.

A total of 321 soldiers, including petitioners herein, surrendered to the authorities.

The National Bureau of Investigation (NBI) investigated the incident and recommended that the military personnel
involved be charged with coup d etat defined and penalized under Article 134-A of the Revised Penal Code, as
amended. On July 31, 2003, the Chief State Prosecutor of the Department of Justice (DOJ) recommended the filing
of the corresponding Information against them.
Meanwhile, on August 2, 2003, pursuant to Article 70 of the Articles of War, respondent General Narciso Abaya,
then AFP Chief of Staff, ordered the arrest and detention of the soldiers involved in the Oakwood incident and
directed the AFP to conduct its own separate investigation.

On August 5, 2003, the DOJ filed with the Regional Trial Court (RTC), Makati City an Information for  coup d
etat 2 against those soldiers, docketed as Criminal Case No. 03-2784 and eventually raffled off to Branch 61,
presided by Judge Romeo F. Barza. 3 Subsequently, this case was consolidated with Criminal Case No. 03-2678,
involving the other accused, pending before Branch 148 of the RTC, Makati City, presided by Judge Oscar B.
Pimentel.

On August 13, 2003, the RTC directed the DOJ to conduct a reinvestigation of Criminal Case No. 03-2784.

On the same date, respondent Chief of Staff issued Letter Order No. 625 creating a Pre-Trial Investigation Panel
tasked to determine the propriety of filing with the military tribunal charges for violations of the Articles of War
under Commonwealth Act No. 408, 4 as amended, against the same military personnel. Specifically, the charges
are: (a) violation of Article 63 for disrespect toward the President, the Secretary of National Defense, etc., (b)
violation of Article 64 for disrespect toward a superior officer, (c) violation of Article 67 for mutiny or sedition, (d)
violation of Article 96 for conduct unbecoming an officer and a gentleman, and (e) violation of Article 97 for
conduct prejudicial to good order and military discipline.

Of the original 321 accused in Criminal Case No. 03-2784, only 243 (including petitioners herein) filed with the
RTC, Branch 148 an Omnibus Motion praying that the said trial court assume jurisdiction over all the charges filed
with the military tribunal. They invoked Republic Act (R.A.) No. 7055. 5

On September 15, 2003, petitioners filed with the Judge Advocate General's Office (JAGO) a motion praying for the
suspension of its proceedings until after the RTC shall have resolved their motion to assume jurisdiction.

On October 29, 2003, the Pre-Trial Investigation Panel submitted its Initial Report to the AFP Chief of Staff
recommending that the military personnel involved in the Oakwood incident be charged before a general court
martial with violations of Articles 63, 64, 67, 96, and 97 of the Articles of War.

Meanwhile, on November 11, 2003, the DOJ, after conducting a reinvestigation, found probable cause against only
31 (petitioners included) of the 321 accused in Criminal Case No. 03-2784. Accordingly, the prosecution filed with
the RTC an Amended Information.6

In an Order dated November 14, 2003, the RTC admitted the Amended Information and dropped the charge
of coup d etat against the 290 accused.

Subsequently, or on December 12, 2003, the Pre-Trial Investigation Panel submitted its Final Pre-Trial
Investigation Report 7 to the JAGO, recommending that, following the "doctrine of absorption," those charged
with coup d etat before the RTCshould not be charged before the military tribunal for violation of the Articles of
War.

For its part, the RTC, on February 11, 2004, issued an Order 8 stating that "all charges before the court martial
against the accused are hereby declared not service-connected, but rather absorbed and in furtherance of the
alleged crime of coup d etat." The trial court then proceeded to hear petitioners' applications for bail.

In the meantime, Colonel Julius A. Magno, in his capacity as officer-in-charge of the JAGO, reviewed the findings of
the Pre-Trial Investigation Panel. He recommended that 29 of the officers involved in the Oakwood incident,
including petitioners, be prosecuted before a general court martial for violation of Article 96 (conduct unbecoming
an officer and a gentleman) of the Articles of War.

On June 17, 2004, Colonel Magno's recommendation was approved by the AFP top brass. The AFP Judge Advocate
General then directed petitioners to submit their answer to the charge. Instead of complying, they filed with this
Court the instant Petition for Prohibition praying that respondents be ordered to desist from charging them with
violation of Article 96 of the Articles of War in relation to the Oakwood incident. 9

Petitioners maintain that since the RTC has made a determination in its Order of February 11, 2004 that the
offense for violation of Article 96 (conduct unbecoming an officer and a gentleman) of the Articles of War is not
service-connected, but is absorbed in the crime of coup d etat, the military tribunal cannot compel them to submit
to its jurisdiction.

The Solicitor General, representing the respondents, counters that R.A. No. 7055 specifies which offenses covered
by the Articles of War areservice-connected. These are violations of Articles 54 to 70, 72 to 92, and 95 to 97. The
law provides that violations of these Articles are properly cognizable by the court martial. As the charge against
petitioners is violation of Article 96 which, under R.A. No. 7055 is a service-connected offense, then it falls under
the jurisdiction of the court martial.

Subsequently, petitioners filed with this Court a Supplemental Petition raising the additional issue that the offense
charged before the General Court Martial has prescribed. Petitioners alleged therein that during the pendency of
their original petition, respondents proceeded with the Pre-Trial Investigation for purposes of charging them with
violation of Article 96 (conduct unbecoming an officer and a gentleman) of the Articles of War; that the Pre-Trial
Investigation Panel then referred the case to the General Court Martial; that "almost two years since the Oakwood
incident on July 27, 2003, only petitioner Lt. (SG) Antonio Trillanes was arraigned, and this was done under
questionable circumstances;" 10 that in the hearing of July 26, 2005, herein petitioners moved for the dismissal of
the case on the ground that they were not arraigned within the prescribed period of two (2) years from the date of
the commission of the alleged offense, in violation of Article 38 of the Articles of War;  11 that "the offense charged
prescribed on July 25, 2005;" 12 that the General Court Martial ruled, however, that "the prescriptive period shall
end only at 12:00 midnight of July 26, 2005;" 13 that "(a)s midnight of July 26, 2005 was approaching and it was
becoming apparent that the accused could not be arraigned, the prosecution suddenly changed its position and
asserted that 23 of the accused have already been arraigned;" 14 and that petitioners moved for a reconsideration
but it was denied by the general court martial in its Order dated September 14, 2005. 15

In his Comment, the Solicitor General prays that the Supplemental Petition be denied for lack of merit. He alleges
that "contrary to petitioners' pretensions, all the accused were duly arraigned on July 13 and 18, 2005."  16 The
"(r)ecords show that in the hearing on July 13, 2005, all the 29 accused were present" and, "(o)n that day, Military
Prosecutor Captain Karen Ong Jags read the Charges and Specifications from the Charge Sheet in open court (pp.
64, TSN, July 13, 2005)." 17

The sole question for our resolution is whether the petitioners are entitled to the writ of prohibition.

There is no dispute that petitioners, being officers of the AFP, are subject to military law. Pursuant to Article 1 (a)
of Commonwealth Act No. 408, as amended, otherwise known as the Articles of War, the term "officer" is
"construed to refer to a commissioned officer." Article 2 provides:

Art. 2. Persons Subject to Military Law. - The following persons are subject to these articles and shall be
understood as included in the term "any person subject to military law" or "persons subject to military law,"
whenever used in these articles:

(a) All officers and soldiers in the active service of the Armed Forces of the Philippines or of the Philippine
Constabulary, all members of the reserve force, from the dates of their call to active duty and while on such active
duty; all trainees undergoing military instructions; and all other persons lawfully called, drafted, or ordered into, or
to duty or for training in the said service, from the dates they are required by the terms of the call, draft, or order
to obey the same.

Upon the other hand, Section 1 of R.A. No. 7055 reads:

SEC. 1. Members of the Armed Forces of the Philippines and other persons subject to military law, including
members of the Citizens Armed Forces Geographical Units, who commit crimes or offenses penalized under the
Revised Penal Code, other special penal laws, or local government ordinances, regardless of whether or not
civilians are co-accused, victims, or offended parties, which may be natural or juridical persons, shall be tried by
the proper civil court, except when the offense, as determined before arraignment by the civil court, is service-
connected, in which case, the offense shall be tried by court-martial, Provided, That the President of the Philippines
may, in the interest of justice, order or direct at any time before arraignment that any such crimes or offenses be
tried by the proper civil courts.

As used in this Section, service-connected crimes or offenses shall be limited to those defined in Articles 54 to 70,
Articles 72 to 92, and Articles 95 to 97 of Commonwealth Act No. 408, as amended.
In imposing the penalty for such crimes or offenses, the court-martial may take into consideration the penalty
prescribed therefor in the Revised Penal Code, other special laws, or local government ordinances.

Section 1 of R.A. No. 7055, quoted above, is clear and unambiguous. First, it lays down the general rule that
members of the AFP and other persons subject to military law, including members of the Citizens Armed Forces
Geographical Units, who commit crimes or offenses penalized under the Revised Penal Code (like coup d etat),
other special penal laws, or local ordinances shall be tried by the proper civil court. Next, it provides the exception
to the general rule, i.e., where the civil court, before arraignment, has determined the offense to be service-
connected, then the offending soldier shall be tried by a court martial. Lastly, the law states an exception to the
exception, i.e., where the President of the Philippines, in the interest of justice, directs before arraignment that any
such crimes or offenses be tried by the proper civil court.

The second paragraph of the same provision further identifies the "service-connected crimes or offenses" as
"limited to those defined in Articles 54 to 70, Articles 72 to 92, and Articles 95 to 97" of the Articles of War.
Violations of these specified Articles are triable by court martial. This delineates the jurisdiction between the civil
courts and the court martial over crimes or offenses committed by military personnel.

Such delineation of jurisdiction by R.A. No. 7055 is necessary to preserve the peculiar nature of military justice
system over military personnel charged with service-connected offenses. The military justice system is disciplinary
in nature, aimed at achieving the highest form of discipline in order to ensure the highest degree of military
efficiency.18 Military law is established not merely to enforce discipline in times of war, but also to preserve the
tranquility and security of the State in time of peace; for there is nothing more dangerous to the public peace and
safety than a licentious and undisciplined military body. 19 The administration of military justice has been universally
practiced. Since time immemorial, all the armies in almost all countries of the world look upon the power of military
law and its administration as the most effective means of enforcing discipline. For this reason, the court martial has
become invariably an indispensable part of any organized armed forces, it being the most potent agency in
enforcing discipline both in peace and in war. 20

Here, petitioners are charged for violation of Article 96 (conduct unbecoming an officer and a gentleman) of the
Articles of War before the court martial, thus:

All persons subject to military law, did on or about 27 July 2003 at Oakwood Hotel, Makati City, Metro Manila,
willfully, unlawfully and feloniously violate their solemn oath as officers to defend the Constitution, the law
and the duly-constituted authorities and abused their constitutional duty to protect the people and the
State by, among others, attempting to oust the incumbent duly-elected and legitimate President by force and
violence, seriously disturbing the peace and tranquility of the people and the nation they are sworn to
protect, thereby causing dishonor and disrespect to the military profession, conduct unbecoming an
officer and a gentleman, in violation of AW 96 of the Articles of War.

CONTRARY TO LAW. (Underscoring ours)

Article 96 of the Articles of War 21 provides:

ART. 96. Conduct Unbecoming an Officer and Gentleman. - Any officer, member of the Nurse Corps, cadet, flying
cadet, or probationary second lieutenant, who is convicted of conduct unbecoming an officer and a gentleman shall
be dismissed from the service. (Underscoring ours)

We hold that the offense for violation of Article 96 of the Articles of War is service-connected. This is expressly
provided in Section 1 (second paragraph) of R.A. No. 7055. It bears stressing that the charge against the
petitioners concerns the alleged violation of their solemn oath as officers to defend the Constitution and the
duly-constituted authorities.Such violation allegedly caused dishonor and disrespect to the military
profession. In short, the charge has a bearing on their professional conduct or behavior as military officers.
Equally indicative of the "service-connected" nature of the offense is the penalty prescribed for the same
- dismissal from the service - imposable only by the military court.Such penalty is purely disciplinary in
character, evidently intended to cleanse the military profession of misfits and to preserve the stringent standard of
military discipline.

Obviously, there is no merit in petitioners' argument that they can no longer be charged before the court martial
for violation of Article 96 of the Articles of War because the same has been declared by the RTC in its Order of
February 11, 2004 as "not service-connected, but rather absorbed and in furtherance of the alleged crime of  coup
d etat," hence, triable by said court (RTC). The RTC, in making such declaration, practically amended the law which
expressly vests in the court martial the jurisdiction over "service-connected crimes or offenses." What the law has
conferred the court should not take away. It is only the Constitution or the law that bestows jurisdiction on the
court, tribunal, body or officer over the subject matter or nature of an action which can do so. 22 And it is only
through a constitutional amendment or legislative enactment that such act can be done. The first and fundamental
duty of the courts is merely to apply the law "as they find it, not as they like it to be." 23 Evidently, such declaration
by the RTC constitutes grave abuse of discretion tantamount to lack or excess of jurisdiction and is, therefore, void.

In Navales v. Abaya., 24 this Court, through Mr. Justice Romeo J. Callejo, Sr., held:

We agree with the respondents that the sweeping declaration made by the RTC (Branch 148) in the dispositive
portion of its Order dated February 11, 2004 that all charges before the court-martial against the accused were not
service-connected, but absorbed and in furtherance of the crime of coup d etat, cannot be given effect. x x x, such
declaration was made without or in excess of jurisdiction; hence, a nullity.

The second paragraph of the above provision (referring to Section 1 of R.A. No. 7055) explicitly specifies what are
considered "service-connected crimes or offenses" under Commonwealth Act No. 408, as amended, also known as
the Articles of War, to wit:

Articles 54 to 70:

Art. 54. Fraudulent Enlistment.

Art. 55. Officer Making Unlawful Enlistment.

Art. 56. False Muster.

Art. 57. False Returns.

Art. 58. Certain Acts to Constitute Desertion.

Art. 59. Desertion.

Further, Section 1 of Rep. Act No. 7055 vests on the military courts the jurisdiction over the foregoing offenses. x x
x.

It is clear from the foregoing that Rep. Act No. 7055 did not divest the military courts of jurisdiction to try cases
involving violations of Articles 54 to 70, Articles 72 to 92, and Articles 95 to 97 of the Articles of War as these are
considered "service-connected crimes or offenses." In fact, it mandates that these shall be tried by the court-
martial.

Moreover, the observation made by Mr. Justice Antonio T. Carpio during the deliberation of this case is worth
quoting, thus:

The trial court aggravated its error when it justified its ruling by holding that the charge of Conduct Unbecoming an
Officer and a Gentleman is 'absorbed and in furtherance to the alleged crime of coup d etat.' Firstly, the doctrine of
'absorption of crimes' is peculiar to criminal law and generally applies to crimes punished by the same
statute, 25 unlike here where different statutes are involved. Secondly, the doctrine applies only if the trial court
has jurisdiction over both offenses. Here, Section 1 of R.A. 7055 deprives civil courts of jurisdiction over service-
connected offenses, including Article 96 of the Articles of War. Thus, the doctrine of absorption of crimes is not
applicable to this case.

Military law is sui generis (Calley v. Callaway, 519 F.2d 184 [1975]), applicable only to military personnel because
the military constitutes an armed organization requiring a system of discipline separate from that of civilians (see
Orloff v. Willoughby, 345 U.S. 83 [1953]). Military personnel carry high-powered arms and other lethal weapons
not allowed to civilians. History, experience, and the nature of a military organization dictate that military
personnel must be subjected to a separate disciplinary system not applicable to unarmed civilians or unarmed
government personnel.

A civilian government employee reassigned to another place by his superior may question his reassignment by
asking a temporary restraining order or injunction from a civil court. However, a soldier cannot go to a civil court
and ask for a restraining or injunction if his military commander reassigns him to another area of military
operations. If this is allowed, military discipline will collapse.

xxx

This Court has recognized that courts-martial are instrumentalities of the Executive to enable the President, as
Commander-in-Chief, to effectively command, control, and discipline the armed forces (see Ruffy v. Chief of Staff,
75 Phil. 875 [1946], citing Winthrop's Military Law and Precedents, 2nd edition, p. 49). In short, courts-martial
form part of the disciplinary system that ensures the President's control, and thus civilian supremacy, over the
military. At the apex of this disciplinary system is the President who exercises review powers over decisions of
courts-martial (citing Article 50 of the Articles of War; quoted provisions omitted).

xxx

While the Court had intervened before in courts-martial or similar proceedings, it did so sparingly and only to
release a military personnel illegally detained (Ognir v. Director of Prisons, 80 Phil. 401 [1948] or to correct
objectionable procedures (Yamashita v. Styer, 75 Phil. 563 [1945]). The Court has never suppressed court-martial
proceedings on the ground that the offense charged 'is absorbed and in furtherance of' another criminal charge
pending with the civil courts. The Court may now do so only if the offense charged is not one of the service-
connected offenses specified in Section 1 of RA 7055. Such is not the situation in the present case.

With respect to the issue of prescription raised by petitioners in their Supplemental Petition, suffice it to say that
we cannot entertain the same. The contending parties are at loggerheads as to (a) who among the petitioners were
actually arraigned, and (b) the dates of their arraignment. These are matters involving questions of fact, not within
our power of review, as we are not a trier of facts. In a petition for prohibition, such as the one at bar, only legal
issues affecting the jurisdiction of the tribunal, board or officer involved may be resolved on the basis of the
undisputed facts.26

Clearly, the instant petition for prohibition must fail. The office of prohibition is to prevent the unlawful and
oppressive exercise of authority and is directed against proceedings that are done without or in excess of
jurisdiction, or with grave abuse of discretion, there being no appeal or other plain, speedy, and adequate remedy
in the ordinary course of law. 27 Stated differently, prohibition is the remedy to prevent inferior courts, corporations,
boards, or persons from usurping or exercising a jurisdiction or power with which they have not been vested by
law.28

In fine, this Court holds that herein respondents have the authority in convening a court martial and in charging
petitioners with violation of Article 96 of the Articles of War.

WHEREFORE, the instant petition for prohibition is DISMISSED.

SO ORDERED.

SEPARATION OF CHURCH AND STATE

Iglesia ni Cristo v. Court of Appeals

SYLLABUS
1. CONSTITUTIONAL LAW; BILL OF RIGHTS; FREEDOM OF RELIGION; ACCORDED A PREFERRED STATUS. —
Freedom of religion has been accorded a preferred status by the framers of our fundamental laws, past and
present. We have affirmed this preferred status well aware that it is "designed to protect the broadest possible
liberty of conscience, to allow each man to believe as his conscience directs, to profess his beliefs, and to live as he
believes he ought to live, consistent with the liberty of others and with the common good.

2. ID.; ID.; ID.; CAN BE REGULATED BY THE STATE; — We reject petitioner’s postulate that its religious program is
per se beyond review by the respondent Board. Its public broadcast on TV of its religious program brings it out of
the bosom of internal belief. Television is a medium that reaches even the eyes and ears of children. The Court
iterates the rule that the exercise of religious freedom can be regulated by the State when it will bring about the
clear and present danger of some substantive evil which the State is duty bound to prevent, i.e., serious detriment
to the more overriding interest of public health, public morals, or public welfare. A laissez faire policy on the
exercise of religion can be seductive to the liberal mind but history counsels the Court against its blind adoption as
religion is and continues to be a volatile area of concern in our country today.

3. ID.; ID.; FREEDOM OF SPEECH; PRIOR RESTRAINTS, ENJOINED. — Deeply ensconced in our fundamental law is
its hostility against all prior restraints on speech, including religious speech. Hence, any act that restrains speech is
hobbled by the presumption of invalidity and should be qreeted with furrowed brows. It is the burden of the
respondent Board to overthrow this presumption. If it fails to discharge this burden, its act of censorship will be
struck down.

4. ADMINISTRATIVE LAW; BOARD OF REVIEW FOR MOVING PICTURES AND TELEVISION; T.V. SERIES
CONTAINING CRITICISM OF SOME OF DEEPLY HELD DOGMAS AND TENETS OF OTHER RELIGION, NOT INDECENT,
CONTRARY TO LAW AND GOOD CUSTOMS. — The evidence shows that the respondent Board x-rated petitioners TV
series for "attacking" other religions, especially the Catholic church. An examination of the evidence, especially
Exhibits "A," "A-1," "B," "C," "D" will show that the so-called "attacks" are mere criticisms of some of the deeply
held dogmas and tenets of other religions. The videotapes were not viewed by the respondent court as they were
not viewed by the respondent court as they were not presented as evidence. Yet they were considered by the
respondent court as indecent, contrary to law and good customs, hence, can be prohibited from public viewing
under sections 3(c) of PD 1986. This ruling clearly suppresses petitioner’s freedom of speech and interferes with its
right to free exercise of religion. The respondent Board may disagree with the criticisms of other religions by
petitioner but that gives it no excuse to interdict such criticisms, however, unclean they may be. Under our
constitutional scheme, it is not the task of the State to favor any religion by protecting it against an attack by
another religion. Religious dogmas and beliefs are often at war and to preserve peace among their followers,
especially the fanatics, the establishment clause of freedom of religion prohibits the State from leaning towards any
religion. Vis-a-vis religious differences, the State enjoys no banquet of options. Neutrality alone is its fixed and
immovable stance. In fine, respondent board cannot squelch the speech of petitioner Iglesia ni Cristo simply
because it attacks other religions, even if said religion happens to be the most numerous church in our country. In
a State where there ought to be no difference between the appearance and the reality freedom of religion, the
remedy against bad theology is better theology. The bedrock of freedom of religion is freedom of thought and it is
best served by encouraging the marketplace of dueling ideas. When the luxury of time permits, the marketplace of
ideas demands that speech should be met by more speech for it is the spark of opposite speech, the heat of
colliding ideas that can fan the embers of truth.

5. ID.; ID.; T.V. SERIES CONTAINING "ATTACKS AGAINST ANOTHER RELIGION," NOT A GROUND PROHIBITING
BROADCAST." — The respondents cannot also rely on the ground "attacks against another religion" in x-rating the
religious program of petitioner. Even a sideglance at section 3 of PD No. 1986 will reveal that it is not among the
grounds to justify an order prohibiting the broadcast of petitioner’s television program. The ground "attack against
another religion" was merely added by the respondent Board in its Rules. This rule is void for it runs smack against
the hoary doctrine that administrative rules and regulations cannot expand the letter and spirit of the law they
seek to enforce.

6. CRIMINAL LAW; IMMORAL DOCTRINES, OBSCENE PUBLICATIONS AND EXHIBITIONS; SHOWS WHICH OFFEND
ANY RACE OR RELIGION; WORD "OFFEND" NOT SYNONYMOUS WITH "ATTACK." — It is opined that the respondent
board can still utilize "attack against any religion" as a ground allegedly." . . because section 3(c) of PD No. 1986
prohibits the showing of motion pictures, television programs and publicity material which are contrary to law and
Article 201 (2) (b) (3) of the Revised Penal Code punishes anyone who exhibits "shows which offend any race or
religion." We respectfully disagree for it is plain that the word "attack" is not synonymous with the word "offend."
library
cralaw virtua1aw

7. ID.; ID.; ID.; CANNOT BE UTILIZE TO JUSTIFY PRIOR CENSORSHIP OF SPEECH. — Article 201 (2) (b) (3) of the
Revised Penal Code should be invoked to justify the subsequent punishment of a show which offends any religion.
It cannot be utilized to justify prior censorship of speech. It must be emphasized that E.O. 876, the law prior to PD
1986, included "attack against any religion" as a ground for censorship. The ground was not, however, carried over
by PD 1986. Its deletion is a decree to disuse it. There can be no other intent.

8. CONSTITUTIONAL LAW; BILL OF RIGHTS; FREEDOM OF RELIGION; GROUND FOR RESTRAINTS. — In American
Bible Society v. City of Manila, this Court held: "The constitutional guaranty of free exercise and enjoyment of
religious profession and worship carries with it the right to disseminate religious information. Any restraint of such
right can be justified like other restraints on freedom of expression on the ground that there is a clear and present
danger of any substantive evil which the State has the right to prevent." In Victoriano v. Elizalde Rope Workers
Union, we further ruled that." . . it is only where it is unavoidably necessary to prevent an immediate and grave
danger to the security and welfare of the community that infringement of religious freedom may be justified, and
only to the smallest extent necessary to avoid the danger.

9. ID.; ID.; ID.; HYPOTHETICAL FEARS OF SUBSTANTIVE AND IMMINENT EVIL, NOT VALID GROUND. — The
records show that the decision of the respondent, Board, affirmed by the respondent appellate court, is completely
bereft of findings of facts to justify the conclusion that the subject video tapes constitute impermissible attacks
against another religion. There is no showing whatsoever of the type of harm the tapes will bring about especially
the gravity and imminence of the threatened harm. Prior restraint on speech, including religious speech, cannot be
justified by hypothetical fears but only by the showing of a substantive and imminent evil which has taken the life
of a reality already on ground.

10. ID.; ID.; ID.; CLEAR AND PRESENT DANGER; RULE APPLY TO SPEECHES AND ATTACKS AGAINST OTHER
RELIGIONS. — It is suggested we re-examine the application of clear and present danger rule to the case at bar. In
the United States, it is true that the clear and present danger test undergone permutations. Presently in the United
States, the clear and present danger test is not applied to protect low value speeches such as obscene speech,
commercial speech and defamation. Be that as it may, the test is still applied to four types of speech: speech that
advocates dangerous ideas, speech that provokes a hostile audience reaction, out of court contempt and release of
information that endangers a fair trial. Hence, even following the drift of American jurisprudence, there is reason to
apply the clear and present danger test to the case at bar which concerns speech that attacks other religions and
could readily provoke hostile audience reaction. It cannot be doubted that religious truths disturb and disturb
terribly.

11. ID.; ID.; ID.; ID.; RULE APPLIES TO VIDEO TAPES THAT ARE PRE-TAPED. — It is also opined that it is
inappropriate to apply the clear and present danger test to the case at bar because the issue involves the content
of speech and not the time, place or manner of speech. Allegedly, unless the speech is first allowed, its impact
cannot be measured, and the causal connection between the speech and the evil apprehended cannot be
established. The contention overlooks the fact that the case at bar involves videotape that are pre-taped and
hence, their speech content is known and not an X quantity. Given the specific content of the speech, it is not
unreasonable to assume that the respondent Board, with its expertise, can determine whether its sulphur will bring
about the substantive evil feared by the law.

12. ID.; CONGRESS; MAY GRANT ADMINISTRATIVE BODIES QUASI-JUDICIAL POWER TO PREVIEW AND CLASSIFY
T.V. PROGRAMS. — We are not ready to hold that it is unconstitutional for Congress to grant an administrative
body quasi-judicial power to preview and classify TV programs and enforce its decision subject to review by our
court.

1. CONSTITUTIONAL LAW; BILL OF RIGHTS; FREEDOM OF SPEECH AND EXPRESSION; GROUNDS FOR
CENSORSHIP. — Censorship may be allowed only in a narrow class of cases involving pornography, excessive
violence, and danger to national security.

2. ADMINISTRATIVE LAW; P.D. 1986; POWER OF THE BOARD TO CENSOR MOTION PICTURES AND TV PROGRAMS,
NOT FINAL; AGGRIEVED PARTY MAY RESORT TO COURTS. — Even in these cases, only courts can prohibit the
showing of a film or the broadcast of a program. In all other cases, the only remedy against speech which creates
a clear and present danger to public interests is through subsequent punishment. Considering the potentiality for
harm which motion pictures and TV programs may have especially on the young, all materials may validly be
required to be submitted for review before they may be shown or broadcast. However, the final determination of
character of the materials cannot be left to an administrative agency. That judicial review of administrative action
is available does not obviate the constitutional objection to censorship. For these reasons, I would hold Sec. 3(b) of
P.D. No. 1986, which gives to the Board limited time for review, to be valid, while finding Sec. 3(c), under which
the Board acted in this case in censoring petitioner’s materials to be, on its face and as applied, unconstitutional.
3. CONSTITUTIONAL LAW; BILL OF RIGHTS; FREEDOM OF SPEECH AND EXPRESSION, PREFERRED RIGHTS; PRIOR
RESTRAINT ON THEIR EXERCISE CARRIES WITH IT A PRESUMPTION OF INVALIDITY. — At the very least, free
speech and free press may be identified with the liberty to discuss publicly and truthfully any matter of public
interest without censorship or punishment. There is to be . . . no previous restraint on the communication of views
no subsequent — liability whether in libel suits, prosecution for sedition, or action for damages, or contempt
proceedings, unless there be a clear and present danger of substantive evil that Congress has a right to prevent.
Because of the preferred character of the constitutional rights of freedom of speech and expression, a weighty
presumption of invalidity vitiates measures of prior restraint upon the exercise of such freedoms.

4. ID.; ID.; ID.; TYPES OF PRIOR RESTRAINTS. — Authoritative interpretations of the free speech clause consider
as invalid two types of prior restraints, namely, those which are imposed prior to the dissemination of any matter
and those imposed prior to an adequate determination that the expression is not constitutionally protected.

5. ADMINISTRATIVE LAW; P.D. NO. 1986; SEC 3(b) THEREOF REQUIRING THE SUBMISSION OF MOTION
PICTURES, TV PROGRAMS AND PUBLICITY MATERIALS TO THE BOARD FOR REVIEW DOES NOT CONSTITUTE
PRIOR RESTRAINT ON FREEDOM OF SPEECH AND EXPRESSION. — P.D. No. 1986, Sec. 3(b) requires motion
pictures, television programs and publicity materials to be submitted to the Board for review. Does Sec. 3(b)
impermissibly impose a prior restraint because of its requirement that films and TV programs must be submitted to
the Board for review before they can be shown or broadcast? In my view it does not. The Burstyn case, in declaring
motion pictures to be protected under the free expression clause, was careful to add. "It does not follow that the
Constitution requires absolute freedom to exhibit every motion picture of every kind at all times and all places. . . .
Nor does it follow that motion pictures are necessarily subject to the precise rules governing any other particular
method of expression. Each method tends to present its own peculiar problems." With reference to television, this
Court is on record that "a less liberal approach calls for observance. This is so because unlike motion pictures
where patrons have to pay their way, television reaches every home where there is a [TV] set. Children then will
likely be among the avid viewers of programs therein shown . . . .[T]he State as parens patriae is called upon to
manifest an attitude of caring for the welfare of the young." I hold Sec. (b) to be a valid exercise of the State’s
power to protect legitimate public interests. The purpose of this restraint — temporary in character — is to allow
the Board time to screen materials and to seek an injunction from the courts against those which it believes to be
harmful.

6. ID.; ID.; SEC 3(c) AUTHORIZING THE BOARD TO PROHIBIT THE EXHIBITION OF MOTION PICTURES, TV
PROGRAMS AND PUBLICITY MATERIALS WHICH IN THE BOARD’S OPINION IMMORAL, INDECENT, CONTRARY TO
LAW AND/OR GOOD CUSTOMS, INJURIOUS TO THE REPUBLIC OR ITS PEOPLE OR WHICH HAVE A DANGEROUS
TEND TO ENCOURAGE COMMISSION OF VIOLENCE, WRONG OR A CRIME CONSTITUTES CENSORSHIP IN ITS
BOLDEST FORM. — I reach a different conclusion, however, with respect to Sec. 3(c). This provision authorizes the
Board to prohibit, among other things, the exhibition or broadcast of motion pictures, television programs and
publicity materials which, in its opinion, are "immoral, indecent, contrary to law and/or good customs, injurious to
the prestige of the Republic of the Philippines or its people, or [which have] a dangerous tendency to encourage
the commission of violence or of a wrong or crime." Under this authority, the Board can determine what can be
shown or broadcast and what cannot. It is not true, as the Board claims, that under P.D. No. 1986 its power is
limited to the classification of motion pictures and TV programs. The power to classify includes the power to
censor. The Board can x-rate films and TV programs and thus ban their public exhibition or broadcast. And once it
declares that a motion picture or television program is, for example, indecent or contrary to law, as in the case of
the INC program in question, its declaration becomes the law. Unless the producer or exhibitor is willing to go to
court, shouldering not only the burden of showing that his movie or television program is constitutionally protected
but also the cost of litigation, the ban stays. This is censorship in its baldest form. This is contrary to the
fundamental tenet of our law that until and unless speech is found by the courts to be unprotected its expression
must be allowed. By authorizing the censorship of materials which in the opinion of the Board are "contrary to law,
Sec. 3(c) makes what is only a ground for subsequent punishment also a ground for prior restraint on expression.
It is Sec. 3(c) of P.D. No. 1986, and not only the rules implementing it, which is unconstitutional. To the extent
therefore that P.D. No. 1986, Sec. 3(c) vests in the Board the final authority to determine whether expression by
motion picture or television is constitutionally protected, I find it unconstitutional.

7. CONSTITUTIONAL LAW; BILL OF RIGHTS; FREEDOM OF SPEECH AND EXPRESSION; CLEAR AND PRESENT
DANGER RULE; DETERMINATION OF APPLICABILITY OF RULE REQUIRES FACTUAL RECORD. — The clear and
present danger test has been devised for use in criminal prosecutions for violations of laws punishing certain types
of utterances. While the test has been applied to the regulation of the use of streets and parks — surely a form of
prior restraint — its use in such context can be justified on the ground that the content of the speech is not the
issue. But when the regulation concerns not the time, place or manner of speech but its content (i.e., it is content
based) the clear and present danger test simply cannot, be applied. This is because a determination whether an
utterance has created a clear and present danger to public interests requires a factual record.

This is a petition for review of the Decision dated March 24, 1995 of the respondent Court of Appeals affirming the
action of the respondent Board for Moving Pictures and Television which x-rated the TV Program "Ang Iglesia ni
Cristo."
cralaw virtua1aw library

Petitioner Iglesia ni Cristo, a duly organized religious organization, has a television program entitled "Ang Iglesia ni
Cristo" aired on Channel 2 every Saturday and on Channel 13 every Sunday. The program presents and propagates
petitioner’s religious beliefs, doctrines and practices often times in comparative studies with other religions.

Sometime in the months of September, October and November 1992, petitioner submitted to the respondent Board
of Review for Moving Pictures and Television the VTR tapes of its TV program Series Nos. 116, 119, 121 and 128.
The Board classified the series as "X" or not for public viewing on the ground that they "offend and constitute an
attack against other religions which is expressly prohibited by law." cralaw virtua1aw library

Petitioner pursued two (2) courses of action against the respondent Board. On November 28, 1992, it appealed to
the Office of the President the classification of its TV Series No. 128. It succeeded in its appeal for on December 18,
1992, the Office of the President reversed the decision of the respondent Board. Forthwith, the Board allowed
Series No. 128 to be publicly telecast.

On December 14, 1992, petitioner also filed against the respondent Board Civil Case No. Q-92-14280, with the
RTC, NCR, Quezon City. 1 Petitioner alleged that the respondent Board acted without jurisdiction or with grave
abuse of discretion in requiring petitioner to submit the VTR tapes of its TV program and in x-rating them. It cited
its TV Program Series Nos. 115, 119, 121 and 128. In their Answer, respondent Board invoked its power under PD
No. 1986 in relation to Article 201 of the Revised Penal Code.

On January 4, 1993, the trial court held a hearing on petitioner’s prayer for a writ of preliminary injunction. The
parties orally argued and then marked their documentary evidence. Petitioner submitted the following as its
exhibits, viz.: chanrob1es virtual 1aw library

(1) Exhibit "A," respondent Board’s Voting Slip for Television showing its September 9, 1992 action on petitioner’s
Series No. 115 as follows: 2

REMARKS: chanrob1es virtual 1aw library

There are some inconsistencies in the particular program as it is very surprising for this program to show series of
Catholic ceremonies and also some religious sects and using it in their discussion about the bible. There are
remarks which are direct criticism which affect other religions.

Need more opinions for this particular program. Please subject to more opinions.

(2) Exhibit "A-1," respondent Board’s Voting Slip for Television showing its September 11, 1992 subsequent action
on petitioner’s Series No. 115 as follows: 3

REMARKS: chanrob1es virtual 1aw library

This program is criticizing different religions, based on their own interpretation of the Bible.

We suggest that the program should delve on explaining their own faith and beliefs and avoid attacks on other
faith.

(3) Exhibit "B," respondent Board’s Voting Slip for Television showing its October 9, 1992 action on petitioner’s
Series No. 119, as follows: 4

REMARKS: chanrob1es virtual 1aw library

The Iglesia ni Cristo insists on the literal translation of the bible and says that our (Catholic) veneration of the
Virgin Mary is not to be condoned because nowhere it is found in the bible that we should do so.

This is intolerance and robs off all sects of freedom of choice, worship and decision.
(4) Exhibit "C," respondent Board’s Voting Slip for Television showing its October 20, 1992 action on petitioner’s
Series No. 121 as follows: 5

REMARKS: chanrob1es virtual 1aw library

I refuse to approve the telecast of this episode for reasons of the attacks, they do on, specifically, the Catholic
religion.

I refuse to admit that they can tell, dictate any other religion that they are right and the rest are wrong, which they
clearly present in this episode.

(5) Exhibit "D," respondent Board’s Voting Slip for Television showing its November 20, 1992 action on petitioner’s
Series No. 128 as follows: 6

REMARKS: chanrob1es virtual 1aw library

The episode presented criticizes the religious beliefs of the Catholic and Protestant’s beliefs.

We suggest a second review.

(6) Exhibits "E," "E-1," petitioner’s block time contract with ABS-CBN Broadcasting Corporation dated September 1,
1992. 7

(7) Exhibit "F," petitioner’s Airtime Contract with Island Broadcasting Corporation. 8

(8) Exhibit "G," letter dated December 18, 1992 of former Executive Secretary Edelmiro A. Amante, Sr., addressed
to Henrietta S. Mendez reversing the decision of the respondent Board which x-rated the showing of petitioner’s
Series No. 129. The letter reads in part: jgc:chanrobles.com.ph

"x       x       x

The television episode in question is protected by the constitutional guarantee of free speech and expression under
Article III, section 4 of the 1987 Constitution.

We have viewed a tape of the television episode in question, as well as studied the passages found by MTRCB to be
objectionable and we find no indication that the episode poses any clear and present danger sufficient to limit the
said constitutional guarantee." cralaw virtua1aw library

(9) Exhibits "H," "H-1," letter dated November 26, 1992 of Teofilo C. Ramos, Sr., addressed to President Fidel V.
Ramos appealing the action of the respondent Board x-rating petitioner’s Series No. 128.

On its part, respondent Board submitted the following exhibits, viz.: chanrob1es virtual 1aw library

(1) Exhibit "1," Permit Certificate for Television Exhibition No. 15181 dated December 18, 1992 allowing the
showing of Series No. 128 under parental guidance.

(2) Exhibit "2," which is Exhibit "G" of petitioner.

(3) Exhibit "3," letter dated October 12, 1992 of Henrietta S. Mendez, addressed to the Christian Era Broadcasting
Service which reads in part: chanrob1es virtual 1aw library

x       x       x

In the matter of your television show "Ang Iglesia ni Cristo" Series No. 119, please be informed that the Board was
constrained to deny your show a permit to exhibit. The material involved constitute an attack against another
religion which is expressly prohibited by law. Please be guided in the submission of future shows.

After evaluating the evidence of the parties, the trial court issued a writ of preliminary injunction on petitioner’s
bond of P10,000.00.
The trial court set the pre-trial of the case and the parties submitted their pre-trial briefs. 9 The pre-trial briefs
show that the parties’ evidence is basically the evidence they submitted in the hearing of the issue of preliminary
injunction. The trial of the case was set and reset several times as the parties tried to reach an amicable accord.
Their efforts failed and the records show that after submission of memoranda, the trial court rendered a Judgment,
10 on December 15, 1993, the dispositive portion of which reads: jgc:chanrobles.com.ph

"x       x       x

WHEREFORE, judgment is hereby rendered ordering respondent Board of Review for Moving Pictures and Television
(BRMPT) to grant petitioner Iglesia ni Cristo the necessary permit for all the series of ‘Ang Iglesia ni Cristo’
program.

Petitioner Iglesia ni Cristo, however, is directed to refrain from offending and attacking other existing religions in
showing ‘Ang Iglesia ni Cristo’ program.

SO ORDERED." cralaw virtua1aw library

Petitioner moved for reconsideration 11 praying: (a) for the deletion of the second paragraph of the dispositive
portion of the Decision, and (b) for the Board to be perpetually enjoined from requiring petitioner to submit for
review the tapes of its program. The respondent Board opposed the motion. 12 On March 7, 1993, the trial court
granted petitioner’s Motion for Reconsideration. It ordered: 13

"x       x       x

WHEREFORE, the Motion for Reconsideration is granted. The second portion of the Court’s Order dated December
15, 1993, directing petitioner to refrain from offending and attacking other existing religions in showing ‘Ang
Iglesia ni Cristo’ program is hereby deleted and set aside. Respondents are further prohibited from requiring
petitioner Iglesia ni Cristo to submit for review VTR tapes of its religious program Ang Iglesia ni Cristo." ‘

Respondent Board appealed to the Court of Appeals after its motion for reconsideration was denied. 14

On March 5, 1995, the respondent Court of Appeals 15 reversed the trial court. It ruled that: (1) the respondent
board has jurisdiction and power to review the TV program "Ang Iglesia ni Cristo," and (2) the respondent Board
did not act with grave abuse of discretion when it denied permit for the exhibition on TV of the three series of "Ang
Iglesia ni Cristo" on the ground that the materials constitute an attack against another religion. It also found the
series "indecent, contrary to law and contrary to good customs." cralaw virtua1aw library

In this petition for review on certiorari under Rule 45, petitioner raises the following issues: chanrob1es virtual 1aw library

WHETHER OR NOT THE HONORABLE COURT OF APPEALS ERRED IN HOLDING THAT THE ‘ANG IGLESIA NI CRISTO’
PROGRAM IS NOT CONSTITUTIONALLY PROTECTED AS A FORM OF RELIGIOUS EXERCISE AND EXPRESSION.

II

WHETHER OR NOT THE HONORABLE COURT OF APPEALS ERRED IN NOT HOLDING THAT BEING AN EXERCISE OF
RELIGIOUS FREEDOM, THE ‘ANG IGLESIA NI CRISTO’ PROGRAM IS SUBJECT TO THE POLICE POWER OF THE
STATE ONLY IN THE EXTREME CASE THAT IT POSES A CLEAR AND PRESENT DANGER.

III

WHETHER OR NOT THE HONORABLE COURT OF APPEALS ERRED IN HOLDING THAT THE MTRCB IS VESTED WITH
THE POWER TO CENSOR RELIGIOUS PROGRAMS.
 IV

WHETHER OR NOT THE HONORABLE COURT OF APPEALS ERRED IN HOLDING THAT THE ‘ANG IGLESIA NI CRISTO,’
A PURELY RELIGIOUS PROGRAM IS INDECENT AND CONTRARY TO LAW AND GOOD CUSTOMS.

The basic issues can be reduced into two: (1) first, whether the respondent Board has the power to review
petitioner’s TV program "Ang Iglesia ni Cristo," and (2) second, assuming it has the power, whether it gravely
abused its discretion when it prohibited the airing of petitioner’s religious program, series Nos. 115, 119 and 121,
for the reason that they constitute an attack against other religions and that they are indecent, contrary to law and
good customs.

The first issue can be resolved by examining the powers of the Board under PD No. 1986. Its section 3 pertinently
provides: jgc:chanrobles.com.ph

"Sec. 3 Powers and Functions. — The BOARD shall have the following functions, powers and duties: chanrob1es virtual 1aw library

x       x       x

b) To screen, review and examine all motion pictures as herein defined, television programs, including publicity
materials such as advertisements, trailers and stills, whether such motion pictures and publicity materials be for
theatrical or non-theatrical distribution for television broadcast or for general viewing, imported or produced in the
Philippines and in the latter case, whether they be for local viewing or for export.

c) To approve, delete objectionable portion from and/or prohibit the importation, exportation, production, copying,
distribution, sale, lease, exhibition and/or television broadcast of the motion pictures, television programs and
publicity materials, subject of the preceding paragraph, which, in the judgment of the BOARD applying
contemporary Filipino cultural values as standard, are objectionable for being immoral, indecent, contrary to law
and/or good customs, injurious to the prestige of the Republic of the Philippines and its people, or with a
dangerous tendency to encourage the commission of violence or of a wrong or crime, such as but not limited to:
library
chanrob1es virtual 1aw

i) Those which tend to incite subversion, insurrection, rebellion or sedition against the State, or otherwise threaten
the economic and/or political stability of the State;

ii) Those which tend to undermine the faith and confidence of the people, their government and/or duly constituted
authorities.

iii) Those which glorify criminals or condone crimes;

iv) Those which serve no other purpose but to satisfy the market for violence or pornography;

v) Those which tend to abet the traffic in and use of prohibited drugs;

vi) Those which are libelous or defamatory to the good name and reputation of any person, whether living or dead;

vii) Those which may constitute contempt of court or of any quasi-judicial tribunal, or pertain to matters which are
sub-judice in nature (Emphasis ours).

The law gives the Board the power to screen, review and examine all "television programs." By the clear terms of
the law, the Board has the power to "approve, delete . . . and/or prohibit the . . . exhibition and/or television
broadcast of . . . television programs . . ." The law also directs the Board to apply "contemporary Filipino cultural
values as standard" to determine those which are objectionable for being "immoral, indecent, contrary to law
and/or good customs, injurious to the prestige of the Republic of the Philippines and its people, or with a
dangerous tendency to encourage the commission of violence or of a wrong or crime." cralaw virtua1aw library

Petitioner contends that the term "television program" should not include religious programs like its program "Ang
Iglesia ni Cristo." A contrary interpretation, it is urged, will contravene section 5, Article III of the Constitution
which guarantees that "no law shall be made respecting an establishment of religion, or prohibiting the free
exercise thereof. The free exercise and enjoyment of religious profession and worship, without discrimination or
preference, shall forever be allowed." cralaw virtua1aw library

We reject petitioner’s submission which need not set us adrift in a constitutional voyage towards an uncharted sea.
Freedom of religion has been accorded a preferred status by the framers of our fundamental laws, past and
present. We have affirmed this preferred status well aware that it is "designed to protect the broadest possible
liberty of conscience, to allow each man to believe as his conscience directs, to profess his beliefs, and to live as he
believes he ought to live, consistent with the liberty of others and with the common good." 16 We have also
laboriously defined in our jurisprudence the intersecting umbras and penumbras of the right to religious profession
and worship. To quote the summation of Mr. Justice Isagani Cruz, our well-known constitutionalist: 17

Religious Profession and Worship

The right to religious profession and worship has a two-fold aspect, viz., freedom to believe and freedom to act on
one’s beliefs. The first is absolute as long as the belief is confined within the realm of thought. The second is
subject to regulation where the belief is translated into external acts that affect the public welfare.

(1) Freedom to Believe

The individual is free to believe (or disbelieve) as he pleases concerning the hereafter. He may indulge his own
theories about life and death; worship any god he chooses, or none at all; embrace or reject any religion;
acknowledge the divinity of God or of any being that appeals to his reverence; recognize or deny the immortality of
his soul — in fact, cherish any religious conviction as he and he alone sees fit. However absurd his beliefs may be
to others, even if they be hostile and heretical to the majority, he has full freedom to believe as he pleases. He
may not be required to prove his beliefs. He may not be punished for his inability to do so. Religion, after all, is a
matter of faith.’Men may believe what they cannot prove.’ Every one has a right to his beliefs and he may not be
called to account because he cannot prove what he believes.

(2) Freedom to Act on One’s Beliefs

But where the individual externalizes his beliefs in acts or omissions that affect the public, his freedom to do so
becomes subject to the authority of the State. As great as this liberty may be, religious freedom, like all the other
rights guaranteed in the Constitution, can be enjoyed only with a proper regard for the rights of others. It is error
to think that the mere invocation of religious freedom will stalemate the State and render it impotent in protecting
the general welfare. The inherent police power can be exercised to prevent religious practices inimical to society.
And this is true even if such practices are pursued out of sincere religious conviction and not merely for the
purpose of evading the reasonable requirements or prohibitions of the law.

Justice Frankfurter put it succinctly: ‘The constitutional provision on religious freedom terminated disabilities, it did
not create new privileges. It gave religious liberty, not civil immunity. Its essence is freedom from conformity to
religious dogma, not freedom from conformity to law because of religious dogma.

Accordingly, while one has full freedom to believe in Satan, he may not offer the object of his piety a human
sacrifice, as this would be murder. Those who literally interpret the Biblical command to "go forth and multiply" are
nevertheless not allowed to contract plural marriages in violation of the laws against bigamy. A person cannot
refuse to pay taxes on the ground that it would be against his religious tenets to recognize any authority except
that of God alone. An atheist cannot express his disbelief in acts of derision that wound the feelings of the faithful.
The police power can be validly asserted against the Indian practice of the suttee born of deep religious conviction,
that calls on the widow to immolate herself at the funeral pile of her husband.

We thus reject petitioner’s postulate that its religious program is per se beyond review by the respondent Board.
Its public broadcast on TV of its religious program brings it out of the bosom of internal belief. Television is a
medium that reaches even the eyes and ears of children. The Court iterates the rule that the exercise of religious
freedom can be regulated by the State when it will bring about the clear and present danger of some substantive
evil which the State is duty bound to prevent, i.e., serious detriment to the more overriding interest of public
health, public morals, or public welfare. A laissez faire policy on the exercise of religion can be seductive to the
liberal mind but history counsels the Court against its blind adoption as religion is and continues to be a volatile
area of concern in our country today. Across the sea and in our shore, the bloodiest and bitterest wars fought by
men were caused by irreconcilable religious differences. Our country is still not safe from the recurrence of this
stultifying strife considering our warring religious beliefs and the fanaticism with which some of us cling and claw to
these beliefs. Even now, we have yet to settle the near century old strife in Mindanao, the roots of which have
been nourished by the mistrust and misunderstanding between our Christian and Muslim brothers and sisters. The
bewildering rise of weird religious cults espousing violence as an article of faith also proves the wisdom of our rule
rejecting a strict let alone policy on the exercise of religion. For sure, we shall continue to subject any act pinching
the space for the free exercise of religion to a heightened scrutiny but we shall not leave its rational exercise to the
irrationality of man. For when religion divides and its exercise destroys, the State should not stand still.

It is also petitioner’s submission that the respondent appellate court gravely erred when it affirmed the ruling of
the respondent Board x-rating its TV Program Series Nos. 115, 119, 121 and 128. The records show that the
respondent Board disallowed the program series for "attacking" other religions. Thus, Exhibits "A," "A-1,"
(respondent Board’s Voting Slip for Television) reveal that its reviewing members x-rated Series 115 for." . .
criticizing different religions, based on their own interpretation of the Bible." They suggested that the program
should only explain petitioner’s." . . own faith and beliefs and avoid attacks on other faiths." Exhibit "B" shows that
Series No. 119 was x-rated because "the Iglesia ni Cristo insists on the literal translation of the bible and says that
our Catholic veneration of the Virgin Mary is not to be condoned because nowhere it is found in the bible that we
should do so. This is intolerance . . ." Exhibit "C" shows that Series No. 121 was x-rated." . . for reasons of the
attacks, they do on, specifically, the Catholic religion. . . . (T)hey can not tell, dictate any other religion that they
are right and the rest are wrong . . ." Exhibit "D" also shows that Series No. 128 was not favorably recommended
because it." . . outrages Catholic and Protestant’s beliefs." On second review, it was x-rated because of its
"unbalanced interpretations of some parts of the bible." 18 In sum, the respondent Board x-rated petitioner’s TV
program series Nos. 115, 119, 121 and 128 because of petitioner’s controversial biblical interpretations and its
"attacks" against contrary religious beliefs. The respondent appellate court agreed and even held that the said
"attacks" are indecent, contrary to law and good customs.

We reverse the ruling of the appellate court.

First. Deeply ensconced in our fundamental law is its hostility against all prior restraints on speech, including
religious speech. Hence, any act that restrains speech is hobbled by the presumption of invalidity and should be
greeted with furrowed brows. 19 It is the burden of the respondent Board to overthrow this presumption. If it fails
to discharge this burden, its act of censorship will be struck down. It failed in the case at bar.

Second. The evidence shows that the respondent Board x-rated petitioners TV series for "attacking" other religions,
especially the Catholic church. An examination of the evidence, especially Exhibits "A," "A-1," "B, "C," and "D" will
show that the so-called "attacks" are mere criticisms of some of the deeply held dogmas and tenets of other
religions. The videotapes were not viewed by the respondent court as they were not presented as evidence. Yet
they were considered by the respondent court as indecent, contrary to law and good customs, hence, can be
prohibited from public viewing under section 3(c) of PD 1986. This ruling clearly suppresses petitioner’s freedom of
speech and interferes with its right to free exercise of religion. It misappreciates the essence of freedom to differ as
delineated in the benchmark case of Cantwell v. Connecticut, 20 viz.: chanrob1es virtual 1aw library

x       x       x

In the realm of religious faith, and in that of political belief, sharp differences arise. In both fields, the tenets of one
man may seem the rankest error to his neighbor. To persuade others to his own point of view, the pleader, as we
know, at times, resorts to exaggeration, to vilification of men who have been, or are prominent in church or state
or even to false statements. But the people of this nation have ordained in the light of history that inspite of the
probability of excesses and abuses, these liberties are, in the long view, essential to enlightened opinion and right
conduct on the part of the citizens of democracy.

The respondent Board may disagree with the criticisms of other religions by petitioner but that gives it no excuse
to interdict such criticisms, however, unclean they may be. Under our constitutional scheme, it is not the task of
the State to favor any religion by protecting it against an attack by another religion. Religious dogmas and beliefs
are often at war and to preserve peace among their followers, especially the fanatics, the establishment clause of
freedom of religion prohibits the State from leaning towards any religion. Vis-a-vis religious differences, the State
enjoys no banquet of options. Neutrality alone is its fixed and immovable stance. In fine, respondent board cannot
squelch the speech of petitioner Iglesia ni Cristo simply because it attacks other religions, even if said religion
happens to be the most numerous church in our country. In a State where there ought to be no difference between
the appearance and the reality of freedom of religion, the remedy against bad theology is better theology. The
bedrock of freedom of religion is freedom of thought and it is best served by encouraging the marketplace of
dueling ideas. When the luxury of time permits, the marketplace of ideas demands that speech should be met by
more speech for it is the spark of opposite speech, the heat of colliding ideas that can fan the embers of truth.
Third. The respondents cannot also rely on the ground "attacks against another religion" in x-rating the religious
program of petitioner. Even a side-glance at section 3 of PD No. 1986 will reveal that it is not among the grounds
to justify an order prohibiting the broadcast of petitioner’s television program. The ground "attack against another
religion" was merely added by the respondent Board in its Rules. 21 This rule is void for it runs smack against the
hoary doctrine that administrative rules and regulations cannot expand the letter and spirit of the law they seek to
enforce.

It is opined that the respondent board can still utilize "attack against any religion" as a ground allegedly." . .
because section 3 (c) of PD No. 1986 prohibits the showing of motion pictures, television programs and publicity
materials which are contrary to law and Article 201 (2) (b) (3) of the Revised Penal Code punishes anyone who
exhibits "shows which offend any race or religion." We respectfully disagree for it is plain that the word "attack" is
not synonymous with the word "offend." Moreover, Article 201 (2) (b) (3) of the Revised Penal Code should be
invoked to justify the subsequent punishment of a show which offends any religion. It cannot be utilized to justify
prior censorship of speech. It must be emphasized that E.O. 876, the law prior to PD 1986, included "attack
against any religion" as a ground for censorship. The ground was not, however, carried over by PD 1986. Its
deletion is a decree to disuse it. There can be no other intent. Indeed, even the Executive Department espouses
this view. Thus, in an Opinion dated November 28, 1985 then Minister of Justice, now President of the Senate,
Neptali Gonzales explained: jgc:chanrobles.com.ph

"x       x       x

"However, the question whether the BRMPT (now MTRCB) may preview and censor the subject television program
of INC should be viewed in the light of the provision of Section 3, paragraph (c) of PD 1986, which is substantially
the same as the provision of Section 3, paragraph (c) of E.O. No. 876-A, which prescribes the standards of
censorship, to wit: ‘immoral, indecent, contrary to law and/or good customs, injurious to the prestige of the
Republic of the Philippines or its people or with dangerous tendency to encourage the commission of violence, or of
a wrong’ as determined by the Board, ‘applying contemporary Filipino cultural values as standard.’ As stated, the
intention of the Board to subject the INC’s television program to ‘previewing and censorship is prompted by the
fact that its religious program’ makes mention of beliefs and practices of other religion.’ On the face of the law
itself, there can conceivably be no basis for censorship of said program by the Board as much as the alleged reason
cited by the Board does not appear to be within the contemplation of the standards of censorship set by law."
(Emphasis supplied)

Fourth. In x-rating the TV program of the petitioner, the respondents failed to apply the clear and present danger
rule. In American Bible Society v. City of Manila, 22 this Court held: "The constitutional guaranty of free exercise
and enjoyment of religious profession and worship carries with it the right to disseminate religious information. Any
restraint of such right can be justified like other restraints on freedom of expression on the ground that there is a
clear and present danger of any substantive evil which the State has the right to prevent." In Victoriano v. Elizalde
Rope Workers Union, 23 we further ruled that." . . it is only where it is unavoidably necessary to prevent an
immediate and grave danger to the security and welfare of the community that infringement of religious freedom
may be justified, and only to the smallest extent necessary to avoid the danger." cralaw virtua1aw library

The records show that the decision of the respondent Board, affirmed by the respondent appellate court, is
completely bereft of findings of facts to justify the conclusion that the subject video tapes constitute impermissible
attacks against another religion. There is no showing whatsoever of the type of harm the tapes will bring about
especially the gravity and imminence of the threatened harm. Prior restraint on speech, including religious speech,
cannot be justified by hypothetical fears but only by the showing of a substantive and imminent evil which has
taken the life of a reality already on ground.

It is suggested that we re-examine the application of clear and present danger rule to the case at bar. In the
United States, it is true that the clear and present danger test has undergone permutations. It was Mr. Justice
Holmes who formulated the test in Schenck v. US, 24 as follows: ". . . the question in every case is whether the
words used are used in such circumstances and are of such a nature as to create a clear and present danger that
they will bring about the substantive evils that Congress has a right to prevent." Admittedly, the test was originally
designed to determine the latitude which should be given to speech that espouses anti-government action.
Bannered by Justices Holmes and Brandeis, the test attained its full flowering in the decade of the forties, when its
umbrella was used to protect speech other than subversive speech. 25 Thus, for instance, the test was applied to
annul a total ban on labor picketing. 26 The use of the test took a downswing in the 1950’s when the US Supreme
Court decided Dennis v. United States involving communist conspiracy. 27 In Dennis, the components of the test
were altered as the High Court adopted Judge Learned Hand’s formulation that." . . in each case [courts] must ask
whether the gravity of the ‘evil,’ discounted by its improbability, justifies such invasion of free speech as is
necessary to avoid the danger." The imminence requirement of the test was thus diminished and to that extent,
the protection of the rule was weakened. In 1969, however, the strength of the test was reinstated in Brandenburg
v. Ohio, 28 when the High Court restored in the test the imminence requirement, and even added an intent
requirement which according to a noted commentator ensured that only speech directed at inciting lawlessness
could be punished. 29 Presently in the United States, the clear and present danger test is not applied to protect low
value speeches such as obscene speech, commercial speech and defamation. Be that as it may, the test is still
applied to four types of speech: speech that advocates dangerous ideas, speech that provokes a hostile audience
reaction, out of court contempt and release of information that endangers a fair trial. 30 Hence, even following the
drift of American jurisprudence, there is reason to apply the clear and present danger test to the case at bar which
concerns speech that attacks other religions and could readily provoke hostile audience reaction. It cannot be
doubted that religious truths disturb and disturb terribly.

It is also opined that it is inappropriate to apply the clear and present danger test to the case at bar because the
issue involves the content of speech and not the time, place or manner of speech. Allegedly, unless the speech is
first allowed, its impact cannot be measured, and the causal connection between the speech and the evil
apprehended cannot be established. The contention overlooks the fact that the case at bar involves videotapes that
are pre-taped and hence, their speech content is known and not an X quantity. Given the specific content of the
speech, it is not unreasonable to assume that the respondent Board, with its expertise, can determine whether its
sulphur will bring about the substantive evil feared by the law.

Finally, it is also opined by Mr. Justice Kapunan that . . . the determination of the question as to whether or not
such vilification, exaggeration or fabrication falls within or lies outside the boundaries of protected speech or
expression is a judicial function which cannot be arrogated by an administrative body such as a Board of Censors."
He submits that a "system of prior restraint may only be validly administered by judges and not left to
administrative agencies." The same submission is made by Mr. Justice Mendoza.

This thoughtful thesis is an attempt to transplant another American rule in our jurisdiction. Its seedbed was laid
down by Mr. Justice Brennan in his concurring opinion in the 1962 case of Manual Enterprise v. Day. 31 By 1965,
the US Supreme Court in Freedman v. Maryland 32 was ready to hold that "the teaching of cases is that, because
only a judicial determination in an adversary proceeding ensures the necessary sensitivity to freedom of
expression, only a procedure requiring a judicial determination suffices to impose a valid final restraint." 33

While the thesis has a lot to commend itself, we are not ready to hold that it is unconstitutional for Congress to
grant an administrative body quasi-judicial power to preview and classify TV programs and enforce its decision
subject to review by our courts. As far back as 1921, we upheld this set-up in Sotto v. Ruiz, 34 viz.: jgc:chanrobles.com.ph

"The use of the mails by private persons is in the nature of a privilege which can be regulated in order to avoid its
abuse. Persons posses no absolute right to put into the mail anything they please, regardless of its character.

On the other hand, the exclusion of newspaper and other publications from the mails, in the exercise of executive
power, is extremely delicate in nature and can only be justified where the statute is unequivocably applicable to the
supposed objectionable publication. In excluding any publication for the mails, the object should be not to interfere
with the freedom of the press or with any other fundamental right of the people. This is the more true with
reference to articles supposedly libelous than to other particulars of the law, since whether an article is or is not
libelous, is fundamentally a legal question. In order for there to be due process of law, the action of the Director of
Posts must be subject to revision by the courts in case he had abused his discretion or exceeded his authority. (Ex
parte Jackson [1878], 96 U.S., 727; Public Clearing House v. Coyne [1903], 194 U.S., 497; Post Publishing Co. v.
Murray [1916]. 23-Fed., 773)

As has been said, the performance of the duty of determining whether a publication contains printed matter of a
libelous character rests with the Director of Posts and involves the exercise of his judgment and discretion. Every
intendment of the law is in favor of the correctness of his action. The rule is (and we go only to those cases coming
from the United States Supreme Court and pertaining to the United States Postmaster-General), that the courts
will not interfere with the decision of the Director of Posts unless clearly of opinion that it was wrong. (Bates &
Guilid Co. v. Payne [1904], 194 U.S., 106; Smith v. Hitchcock [1912], 226 U.S., 63; Masses Pub. Co. v. Patten
[1917], 246 Fed., 24. But see David v. Brown [1900], 103 Fed., 909, announcing a somewhat different doctrine
and relied upon by the Attorney-General).

To be sure, legal scholars in the United States are still debating the proposition whether or not courts alone are
competent to decide whether speech is constitutionally protected. 35 The issue involves highly arguable policy
considerations and can be better addressed by our legislators.

IN VIEW WHEREOF , the Decision of the respondent Court of Appeals dated March 24, 1995 is affirmed insofar as it
sustained the jurisdiction of the respondent MTRCB to review petitioner’s TV program entitled "Ang Iglesia ni
Cristo," and is reversed and set aside insofar as it sustained the action of the respondent MTRCB x-rating
petitioner’s TV Program Series Nos. 115,119, and 121. No costs.

ISLAMIC DA’WAH COUNCIL OF PHIL VS. EXEC SEC JULY 9, 2003

Moreover, petitioner argues that the subject EO violates Sections 15 and 16 of

Article XIII of the 1987 Constitution which respectively provide:

ROLE AND RIGHTS OF PEOPLE'S ORGANIZATIONS

Sec. 15. The State shall respect the role of independent people's organizations to
enable the people to pursue and protect, within the democratic framework, their
legitimate and collective interests and aspirations through peaceful and lawful
means.

People's organizations are bona fide associations of citizens with demonstrated

capacity to promote the public interest and with identifiable leadership,
membership, and structure.

Sec. 16. The rights of the people and their organizations to effective and reasonable
participation at all levels of social, political, and economic decision-making shall not
be abridged. The State shall, by law, facilitate, the establishment of adequate
consultation mechanisms.

According to petitioner, the subject EO was issued with utter haste and without
even consulting Muslim people's organizations like petitioner before it became
effective.

We grant the petition.

OMA was created in 1981 through Executive Order No. 697 (EO 697) "to ensure the
integration of Muslim Filipinos into the mainstream of Filipino society with due
regard to their beliefs, customs, traditions, and institutions."8 OMA deals with the
societal, legal, political and economic concerns of the Muslim community as a
"national cultural community" and not as a religious group. Thus, bearing in mind
the constitutional barrier between the Church and State, the latter must make sure
that OMA does not intrude into purely religious matters lest it violate the non-
establishment clause and the "free exercise of religion" provision found in Article
III, Section 5 of the 1987 Constitution.9

Freedom of religion was accorded preferred status by the framers of our

fundamental law. And this Court has consistently affirmed this preferred status, well
aware that it is "designed to protect the broadest possible liberty of conscience, to
allow each man to believe as his conscience directs, to profess his beliefs, and to
live as he believes he ought to live, consistent with the liberty of others and with
the common good."10

Without doubt, classifying a food product as halal is a religious function because the
standards used are drawn from the Qur'an and Islamic beliefs. By giving OMA the
exclusive power to classify food products as halal, EO 46 encroached on the
religious freedom of Muslim organizations like herein petitioner to interpret for
Filipino Muslims what food products are fit for Muslim consumption. Also, by
arrogating to itself the task of issuing halal certifications, the State has in effect
forced Muslims to accept its own interpretation of the Qur'an and Sunnah on halal
food.

To justify EO 46's intrusion into the subject religious activity, the Solicitor General
argues that the freedom of religion is subservient to the police power of the State.
By delegating to OMA the authority to issue halal certifications, the government
allegedly seeks to protect and promote the muslim Filipinos' right to health, and to
instill health consciousness in them.

We disagree.

Only the prevention of an immediate and grave danger to the security and welfare
of the community can justify the infringement of religious freedom.11 If the
government fails to show the seriousness and immediacy of the threat, State
intrusion is constitutionally unacceptable. In a society with a democratic framework
like ours, the State must minimize its interference with the affairs of its citizens and
instead allow them to exercise reasonable freedom of personal and religious
activity.

In the case at bar, we find no compelling justification for the government to deprive
muslim organizations, like herein petitioner, of their religious right to classify a
product as halal, even on the premise that the health of muslim Filipinos can be
effectively protected by assigning to OMA the exclusive power to issue halal
certifications. The protection and promotion of the muslim Filipinos' right to health
are already provided for in existing laws and ministered to by government agencies
charged with ensuring that food products released in the market are fit for human
consumption, properly labeled and safe. Unlike EO 46, these laws do not encroach
on the religious freedom of muslims.

Section 48(4) of the Administrative Code of 1987 gives to the National Meat
Inspection Commission (NMIC) of the Department of Agriculture (DOA) the power
to inspect slaughtered animals intended for human consumption to ensure the
safety of the meat released in the market. Another law, RA 7394, otherwise known
as "The Consumer Act of 1992," gives to certain government departments the duty
to protect the interests of the consumer, promote his general welfare and to
establish standards of conduct for business and industry.12 To this end, a food
product, before its distribution to the market, is required to secure the Philippine
Standard Certification Mark after the concerned department inspects and certifies
its compliance with quality and safety standards.13

One such government agency designated by RA 7394 is the Bureau of Food and
Drugs (BFD) of the Department of Health (DOH). Under Article 22 of said law, BFD
has the duty to promulgate and enforce rules and regulations fixing and
establishing a reasonable definition and standard of identity, a standard of quality
and a standard of fill of containers for food. The BFD also ensures that food
products released in the market are not adulterated.14

Furthermore, under Article 48 of RA 7394, the Department of Trade and Industry

(DTI) is tasked to protect the consumer against deceptive, unfair and
unconscionable sales acts or practices as defined in Article 50.15 DTI also enforces
compulsory labeling and fair packaging to enable the consumer to obtain accurate
information as to the nature, quality and quantity of the contents of consumer
products and to facilitate his comparison of the value of such products.16
With these regulatory bodies given detailed functions on how to screen and check
the quality and safety of food products, the perceived danger against the health of
muslim and non-muslim Filipinos alike is totally avoided. Of great help are the
provisions on labeling of food products (Articles 74 to 85)17 of RA 7394. In fact,
through these labeling provisions, the State ably informs the consuming public of
the contents of food products released in the market. Stiff sanctions are imposed on
violators of said labeling requirements.

Through the laws on food safety and quality, therefore, the State indirectly aids
muslim consumers in differentiating food from non-food products. The NMIC
guarantees that the meat sold in the market has been thoroughly inspected and fit
for consumption. Meanwhile, BFD ensures that food products are properly
categorized and have passed safety and quality standards. Then, through the
labeling provisions enforced by the DTI, muslim consumers are adequately apprised
of the products that contain substances or ingredients that, according to their
Islamic beliefs, are not fit for human intake. These are the non-secular steps put in
place by the State to ensure that the muslim consumers' right to health is
protected. The halal certifications issued by petitioner and similar organizations
come forward as the official religious approval of a food product fit for muslim
consumption.

We do not share respondents' apprehension that the absence of a central

administrative body to regulate halal certifications might give rise to schemers who,
for profit, will issue certifications for products that are not actually halal. Aside from
the fact that muslim consumers can actually verify through the labels whether a
product contains non-food substances, we believe that they are discerning enough
to know who the reliable and competent certifying organizations in their community
are. Before purchasing a product, they can easily avert this perceived evil by a
diligent inquiry on the reliability of the concerned certifying organization.

WHEREFORE, the petition is GRANTED. Executive Order 46, s. 2000, is hereby

declared NULL AND VOID. Consequently, respondents are prohibited from enforcing
the same.

SO ORDERED.

LOCAL AUTONOMY; Art II, Sec 25 of Constitution Art.10 Sec 2

Province of North Cotabato

Subject of these consolidated cases is the extent of the powers of the President in pursuing the peace process . While the facts
surrounding this controversy center on the armed conflict in Mindanao between the government and the Moro Islamic Liberation
Front (MILF), the legal issue involved has a bearing on all areas in the country where there has been a long-standing armed conflict.
Yet again, the Court is tasked to perform a delicate balancing act. It must uncompromisingly delineate the bounds within which the
President may lawfully exercise her discretion, but it must do so in strict adherence to the Constitution, lest its ruling unduly restricts
the freedom of action vested by that same Constitution in the Chief Executive precisely to enable her to pursue the peace process
effectively.

I. FACTUAL ANTECEDENTS OF THE PETITIONS

On August 5, 2008, the Government of the Republic of the Philippines (GRP) and the MILF, through the Chairpersons of their
respective peace negotiating panels, were scheduled to sign a Memorandum of Agreement on the Ancestral Domain (MOA-AD)
Aspect of the GRP-MILF Tripoli Agreement on Peace of 2001 in Kuala Lumpur, Malaysia.

The MILF is a rebel group which was established in March 1984 when, under the leadership of the late Salamat Hashim, it
splintered from the Moro National Liberation Front (MNLF) then headed by Nur Misuari, on the ground, among others, of what
Salamat perceived to be the manipulation of the MNLF away from an Islamic basis towards Marxist-Maoist orientations. 1

The signing of the MOA-AD between the GRP and the MILF was not to materialize, however, for upon motion of petitioners,
specifically those who filed their cases before the scheduled signing of the MOA-AD, this Court issued a Temporary Restraining
Order enjoining the GRP from signing the same.

The MOA-AD was preceded by a long process of negotiation and the concluding of several prior agreements between the two
parties beginning in 1996, when the GRP-MILF peace negotiations began. On July 18, 1997, the GRP and MILF Peace Panels
signed the Agreement on General Cessation of Hostilities. The following year, they signed the General Framework of Agreement of
Intent on August 27, 1998.

The Solicitor General, who represents respondents, summarizes the MOA-AD by stating that the same contained, among others,
the commitment of the parties to pursue peace negotiations, protect and respect human rights, negotiate with sincerity in the
resolution and pacific settlement of the conflict, and refrain from the use of threat or force to attain undue advantage while the peace
negotiations on the substantive agenda are on-going. 2

Early on, however, it was evident that there was not going to be any smooth sailing in the GRP-MILF peace process. Towards the
end of 1999 up to early 2000, the MILF attacked a number of municipalities in Central Mindanao and, in March 2000, it took control
of the town hall of Kauswagan, Lanao del Norte. 3 In response, then President Joseph Estrada declared and carried out an "all-out-
war" against the MILF.

When President Gloria Macapagal-Arroyo assumed office, the military offensive against the MILF was suspended and the
government sought a resumption of the peace talks. The MILF, according to a leading MILF member, initially responded with deep
reservation, but when President Arroyo asked the Government of Malaysia through Prime Minister Mahathir Mohammad to help
convince the MILF to return to the negotiating table, the MILF convened its Central Committee to seriously discuss the matter and,
eventually, decided to meet with the GRP.4

The parties met in Kuala Lumpur on March 24, 2001, with the talks being facilitated by the Malaysian government, the parties
signing on the same date the Agreement on the General Framework for the Resumption of Peace Talks Between the GRP and the
MILF. The MILF thereafter suspended all its military actions.5

Formal peace talks between the parties were held in Tripoli, Libya from June 20-22, 2001, the outcome of which was the GRP-MILF
Tripoli Agreement on Peace (Tripoli Agreement 2001) containing the basic principles and agenda on the following aspects of the
negotiation: Security Aspect, Rehabilitation Aspect, and Ancestral Domain Aspect. With regard to the Ancestral Domain Aspect,
the parties in Tripoli Agreement 2001 simply agreed "that the same be discussed further by the Parties in their next meeting."

A second round of peace talks was held in Cyberjaya, Malaysia on August 5-7, 2001 which ended with the signing of
the Implementing Guidelines on the Security Aspect of the Tripoli Agreement 2001 leading to a ceasefire status between the parties.
This was followed by the Implementing Guidelines on the Humanitarian Rehabilitation and Development Aspects of the Tripoli
Agreement 2001, which was signed on May 7, 2002 at Putrajaya, Malaysia. Nonetheless, there were many incidence of violence
between government forces and the MILF from 2002 to 2003.

Meanwhile, then MILF Chairman Salamat Hashim passed away on July 13, 2003 and he was replaced by Al Haj Murad, who was
then the chief peace negotiator of the MILF. Murad's position as chief peace negotiator was taken over by Mohagher Iqbal. 6

In 2005, several exploratory talks were held between the parties in Kuala Lumpur, eventually leading to the crafting of the draft
MOA-AD in its final form, which, as mentioned, was set to be signed last August 5, 2008.

II. STATEMENT OF THE PROCEEDINGS

Before the Court is what is perhaps the most contentious "consensus" ever embodied in an instrument - the MOA-AD which is
assailed principally by the present petitions bearing docket numbers 183591, 183752, 183893, 183951 and 183962.

Commonly impleaded as respondents are the GRP Peace Panel on Ancestral Domain 7 and the Presidential Adviser on the Peace
Process (PAPP) Hermogenes Esperon, Jr.

On July 23, 2008, the Province of North Cotabato8 and Vice-Governor Emmanuel Piñol filed a petition, docketed as G.R. No.
183591, for Mandamus and Prohibition with Prayer for the Issuance of Writ of Preliminary Injunction and Temporary Restraining
Order.9 Invoking the right to information on matters of public concern, petitioners seek to compel respondents to disclose and furnish
them the complete and official copies of the MOA-AD including its attachments, and to prohibit the slated signing of the MOA-AD,
pending the disclosure of the contents of the MOA-AD and the holding of a public consultation thereon. Supplementarily, petitioners
pray that the MOA-AD be declared unconstitutional.10

This initial petition was followed by another one, docketed as G.R. No. 183752, also for Mandamus and Prohibition 11 filed by the City
of Zamboanga,12 Mayor Celso Lobregat, Rep. Ma. Isabelle Climaco and Rep. Erico Basilio Fabian who likewise pray for similar
injunctive reliefs. Petitioners herein moreover pray that the City of Zamboanga be excluded from the Bangsamoro Homeland and/or
Bangsamoro Juridical Entity and, in the alternative, that the MOA-AD be declared null and void.

By Resolution of August 4, 2008, the Court issued a Temporary Restraining Order commanding and directing public respondents
and their agents to cease and desist from formally signing the MOA-AD. 13 The Court also required the Solicitor General to submit to
the Court and petitioners the official copy of the final draft of the MOA-AD,14 to which she complied.15

Meanwhile, the City of Iligan 16 filed a petition for Injunction and/or Declaratory Relief, docketed as G.R. No. 183893, praying that
respondents be enjoined from signing the MOA-AD or, if the same had already been signed, from implementing the same, and that
the MOA-AD be declared unconstitutional. Petitioners herein additionally implead Executive Secretary Eduardo Ermita as
respondent.

The Province of Zamboanga del Norte, 17 Governor Rolando Yebes, Vice-Governor Francis Olvis, Rep. Cecilia Jalosjos-Carreon,
Rep. Cesar Jalosjos, and the members18 of the Sangguniang Panlalawigan of Zamboanga del Norte filed on August 15, 2008 a
petition for Certiorari, Mandamus and Prohibition, 19 docketed as G.R. No. 183951. They pray, inter alia, that the MOA-AD be
declared null and void and without operative effect, and that respondents be enjoined from executing the MOA-AD.

On August 19, 2008, Ernesto Maceda, Jejomar Binay, and Aquilino Pimentel III filed a petition for Prohibition, 20 docketed as G.R.
No. 183962, praying for a judgment prohibiting and permanently enjoining respondents from formally signing and executing the
MOA-AD and or any other agreement derived therefrom or similar thereto, and nullifying the MOA-AD for being unconstitutional and
illegal. Petitioners herein additionally implead as respondent the MILF Peace Negotiating Panel represented by its Chairman
Mohagher Iqbal.

Various parties moved to intervene and were granted leave of court to file their petitions-/comments-in-intervention. Petitioners-in-
Intervention include Senator Manuel A. Roxas, former Senate President Franklin Drilon and Atty. Adel Tamano, the City of
Isabela21 and Mayor Cherrylyn Santos-Akbar, the Province of Sultan Kudarat 22 and Gov. Suharto Mangudadatu, the Municipality of
Linamon in Lanao del Norte,23 Ruy Elias Lopez of Davao City and of the Bagobo tribe, Sangguniang Panlungsod member Marino
Ridao and businessman Kisin Buxani, both of Cotabato City; and lawyers Carlo Gomez, Gerardo Dilig, Nesario Awat, Joselito
Alisuag, Richalex Jagmis, all of Palawan City. The Muslim Legal Assistance Foundation, Inc. (Muslaf) and the Muslim Multi-Sectoral
Movement for Peace and Development (MMMPD) filed their respective Comments-in-Intervention.

By subsequent Resolutions, the Court ordered the consolidation of the petitions. Respondents filed Comments on the petitions,
while some of petitioners submitted their respective Replies.
Respondents, by Manifestation and Motion of August 19, 2008, stated that the Executive Department shall thoroughly review the
MOA-AD and pursue further negotiations to address the issues hurled against it, and thus moved to dismiss the cases. In the
succeeding exchange of pleadings, respondents' motion was met with vigorous opposition from petitioners.

The cases were heard on oral argument on August 15, 22 and 29, 2008 that tackled the following principal issues:

1. Whether the petitions have become moot and academic

(i) insofar as the mandamus aspect is concerned, in view of the disclosure of official copies of the final draft of the Memorandum of
Agreement (MOA); and

(ii) insofar as the prohibition aspect involving the Local Government Units is concerned, if it is considered that consultation has
become fait accompli with the finalization of the draft;

2. Whether the constitutionality and the legality of the MOA is ripe for adjudication;

3. Whether respondent Government of the Republic of the Philippines Peace Panel committed grave abuse of discretion amounting
to lack or excess of jurisdiction when it negotiated and initiated the MOA vis-à-vis ISSUES Nos. 4 and 5;

4. Whether there is a violation of the people's right to information on matters of public concern (1987 Constitution, Article III, Sec. 7)
under a state policy of full disclosure of all its transactions involving public interest (1987 Constitution, Article II, Sec. 28) including
public consultation under Republic Act No. 7160 (LOCAL GOVERNMENT CODE OF 1991)[;]

If it is in the affirmative, whether prohibition under Rule 65 of the 1997 Rules of Civil Procedure is an appropriate remedy;

5. Whether by signing the MOA, the Government of the Republic of the Philippines would be BINDING itself

a) to create and recognize the Bangsamoro Juridical Entity (BJE) as a separate state, or a juridical, territorial or political subdivision
not recognized by law;

b) to revise or amend the Constitution and existing laws to conform to the MOA;

c) to concede to or recognize the claim of the Moro Islamic Liberation Front for ancestral domain in violation of Republic Act No.
8371 (THE INDIGENOUS PEOPLES RIGHTS ACT OF 1997), particularly Section 3(g) & Chapter VII (DELINEATION,
RECOGNITION OF ANCESTRAL DOMAINS)[;]

If in the affirmative, whether the Executive Branch has the authority to so bind the Government of the Republic of the Philippines;

6. Whether the inclusion/exclusion of the Province of North Cotabato, Cities of Zamboanga, Iligan and Isabela, and the Municipality
of Linamon, Lanao del Norte in/from the areas covered by the projected Bangsamoro Homeland is a justiciable question; and

7. Whether desistance from signing the MOA derogates any prior valid commitments of the Government of the Republic of the
Philippines.24

The Court, thereafter, ordered the parties to submit their respective Memoranda. Most of the parties submitted their memoranda on
time.

III. OVERVIEW OF THE MOA-AD

As a necessary backdrop to the consideration of the objections raised in the subject five petitions and six petitions-in-intervention
against the MOA-AD, as well as the two comments-in-intervention in favor of the MOA-AD, the Court takes an overview of the MOA.

The MOA-AD identifies the Parties to it as the GRP and the MILF.

Under the heading "Terms of Reference" (TOR), the MOA-AD includes not only four earlier agreements between the GRP and
MILF, but also two agreements between the GRP and the MNLF: the 1976 Tripoli Agreement, and the Final Peace Agreement on
the Implementation of the 1976 Tripoli Agreement, signed on September 2, 1996 during the administration of President Fidel
Ramos.
The MOA-AD also identifies as TOR two local statutes - the organic act for the Autonomous Region in Muslim Mindanao
(ARMM)25 and the Indigenous Peoples Rights Act (IPRA), 26 and several international law instruments - the ILO Convention No. 169
Concerning Indigenous and Tribal Peoples in Independent Countries in relation to the UN Declaration on the Rights of the
Indigenous Peoples, and the UN Charter, among others.

The MOA-AD includes as a final TOR the generic category of "compact rights entrenchment emanating from the regime of dar-ul-
mua'hada (or territory under compact) and dar-ul-sulh (or territory under peace agreement) that partakes the nature of a treaty
device."

During the height of the Muslim Empire, early Muslim jurists tended to see the world through a simple dichotomy: there was the  dar-
ul-Islam (the Abode of Islam) and dar-ul-harb (the Abode of War). The first referred to those lands where Islamic laws held sway,
while the second denoted those lands where Muslims were persecuted or where Muslim laws were outlawed or ineffective. 27 This
way of viewing the world, however, became more complex through the centuries as the Islamic world became part of the
international community of nations.

As Muslim States entered into treaties with their neighbors, even with distant States and inter-governmental organizations, the
classical division of the world into dar-ul-Islam and dar-ul-harb eventually lost its meaning. New terms were drawn up to describe
novel ways of perceiving non-Muslim territories. For instance, areas like dar-ul-mua'hada (land of compact) and dar-ul-sulh (land
of treaty) referred to countries which, though under a secular regime, maintained peaceful and cooperative relations with Muslim
States, having been bound to each other by treaty or agreement. Dar-ul-aman (land of order), on the other hand, referred to
countries which, though not bound by treaty with Muslim States, maintained freedom of religion for Muslims. 28

It thus appears that the "compact rights entrenchment" emanating from the regime of dar-ul-mua'hada and dar-ul-sulh simply refers
to all other agreements between the MILF and the Philippine government - the Philippines being the land of compact and peace
agreement - that partake of the nature of a treaty device, "treaty" being broadly defined as "any solemn agreement in writing that
sets out understandings, obligations, and benefits for both parties which provides for a framework that elaborates the principles
declared in the [MOA-AD]."29

The MOA-AD states that the Parties "HAVE AGREED AND ACKNOWLEDGED AS FOLLOWS," and starts with its main body.

The main body of the MOA-AD is divided into four strands, namely, Concepts and Principles, Territory, Resources, and
Governance.

A. CONCEPTS AND PRINCIPLES

This strand begins with the statement that it is "the birthright of all Moros and all Indigenous peoples of Mindanao to identify
themselves and be accepted as ‘Bangsamoros.'" It defines "Bangsamoro people" as the natives or original inhabitants of
Mindanao and its adjacent islands including Palawan and the Sulu archipelago at the time of conquest or colonization, and their
descendants whether mixed or of full blood, including their spouses.30

Thus, the concept of "Bangsamoro," as defined in this strand of the MOA-AD, includes not only "Moros" as traditionally understood
even by Muslims,31 but all indigenous peoples of Mindanao and its adjacent islands. The MOA-AD adds that the freedom of choice
of indigenous peoples shall be respected. What this freedom of choice consists in has not been specifically defined.

The MOA-AD proceeds to refer to the "Bangsamoro homeland," the ownership of which is vested exclusively in the Bangsamoro
people by virtue of their prior rights of occupation.32 Both parties to the MOA-AD acknowledge that ancestral domain does not form
part of the public domain.33

The Bangsamoro people are acknowledged as having the right to self-governance, which right is said to be rooted on ancestral
territoriality exercised originally under the suzerain authority of their sultanates and the Pat a Pangampong ku Ranaw. The
sultanates were described as states or "karajaan/kadatuan" resembling a body politic endowed with all the elements of a nation-
state in the modern sense.34

The MOA-AD thus grounds the right to self-governance of the Bangsamoro people on the past suzerain authority of the sultanates.
As gathered, the territory defined as the Bangsamoro homeland was ruled by several sultanates and, specifically in the case of the
Maranao, by the Pat a Pangampong ku Ranaw, a confederation of independent principalities (pangampong) each ruled by datus
and sultans, none of whom was supreme over the others.35

The MOA-AD goes on to describe the Bangsamoro people as "the ‘First Nation' with defined territory and with a system of
government having entered into treaties of amity and commerce with foreign nations."

The term "First Nation" is of Canadian origin referring to the indigenous peoples of that territory, particularly those known as
Indians. In Canada, each of these indigenous peoples is equally entitled to be called "First Nation," hence, all of them are usually
described collectively by the plural "First Nations." 36 To that extent, the MOA-AD, by identifying the Bangsamoro people as "the First
Nation" - suggesting its exclusive entitlement to that designation - departs from the Canadian usage of the term.

The MOA-AD then mentions for the first time the "Bangsamoro Juridical Entity" (BJE) to which it grants the authority and
jurisdiction over the Ancestral Domain and Ancestral Lands of the Bangsamoro.37

B. TERRITORY

The territory of the Bangsamoro homeland is described as the land mass as well as the maritime, terrestrial, fluvial and alluvial
domains, including the aerial domain and the atmospheric space above it, embracing the Mindanao-Sulu-Palawan geographic
region.38

More specifically, the core of the BJE is defined as the present geographic area of the ARMM  - thus constituting the following areas:
Lanao del Sur, Maguindanao, Sulu, Tawi-Tawi, Basilan, and Marawi City. Significantly, this core also includes certain municipalities
of Lanao del Norte that voted for inclusion in the ARMM in the 2001 plebiscite.39

Outside of this core, the BJE is to cover other provinces, cities, municipalities and barangays, which are grouped into two
categories, Category A and Category B. Each of these areas is to be subjected to a plebiscite to be held on different dates, years
apart from each other. Thus, Category A areas are to be subjected to a plebiscite not later than twelve (12) months following the
signing of the MOA-AD.40 Category B areas, also called "Special Intervention Areas," on the other hand, are to be subjected to a
plebiscite twenty-five (25) years from the signing of a separate agreement - the Comprehensive Compact. 41

The Parties to the MOA-AD stipulate that the BJE shall have jurisdiction over all natural resources within its " internal waters,"
defined as extending fifteen (15) kilometers from the coastline of the BJE area; 42 that the BJE shall also have "territorial waters,"
which shall stretch beyond the BJE internal waters up to the baselines of the Republic of the Philippines (RP) south east and south
west of mainland Mindanao; and that within these territorial waters, the BJE and the "Central Government"  (used interchangeably
with RP) shall exercise joint jurisdiction, authority and management over all natural resources. 43 Notably, the jurisdiction over
the internal waters is not similarly described as "joint."

The MOA-AD further provides for the sharing of minerals on the territorial waters between the Central Government and the BJE, in
favor of the latter, through production sharing and economic cooperation agreement.44 The activities which the Parties are allowed to
conduct on the territorial waters are enumerated, among which are the exploration and utilization of natural resources, regulation of
shipping and fishing activities, and the enforcement of police and safety measures. 45 There is no similar provision on the sharing of
minerals and allowed activities with respect to the internal waters of the BJE.

C. RESOURCES

The MOA-AD states that the BJE is free to enter into any economic cooperation and trade relations with foreign countries and shall
have the option to establish trade missions in those countries. Such relationships and understandings, however, are not to include
aggression against the GRP. The BJE may also enter into environmental cooperation agreements. 46

The external defense of the BJE is to remain the duty and obligation of the Central Government. The Central Government is also
bound to "take necessary steps to ensure the BJE's participation in international meetings and events" like those of the ASEAN and
the specialized agencies of the UN. The BJE is to be entitled to participate in Philippine official missions and delegations for the
negotiation of border agreements or protocols for environmental protection and equitable sharing of incomes and revenues involving
the bodies of water adjacent to or between the islands forming part of the ancestral domain. 47

With regard to the right of exploring for, producing, and obtaining all potential sources of energy, petroleum, fossil fuel, mineral oil
and natural gas, the jurisdiction and control thereon is to be vested in the BJE "as the party having control within its territorial
jurisdiction." This right carries the proviso that, "in times of national emergency, when public interest so requires," the Central
Government may, for a fixed period and under reasonable terms as may be agreed upon by both Parties, assume or direct the
operation of such resources.48

The sharing between the Central Government and the BJE of total production pertaining to natural resources is to be 75:25 in favor
of the BJE.49

The MOA-AD provides that legitimate grievances of the Bangsamoro people arising from any unjust dispossession of their territorial
and proprietary rights, customary land tenures, or their marginalization shall be acknowledged. Whenever restoration is no longer
possible, reparation is to be in such form as mutually determined by the Parties. 50

The BJE may modify or cancel the forest concessions, timber licenses, contracts or agreements, mining concessions, Mineral
Production and Sharing Agreements (MPSA), Industrial Forest Management Agreements (IFMA), and other land tenure
instruments granted by the Philippine Government, including those issued by the present ARMM.51
D. GOVERNANCE

The MOA-AD binds the Parties to invite a multinational third-party to observe and monitor the implementation of
the Comprehensive Compact. This compact is to embody the "details for the effective enforcement" and "the mechanisms and
modalities for the actual implementation" of the MOA-AD. The MOA-AD explicitly provides that the participation of the third party
shall not in any way affect the status of the relationship between the Central Government and the BJE. 52

The "associative" relationship

between the Central Government
and the BJE

The MOA-AD describes the relationship of the Central Government and the BJE as "associative," characterized  by shared authority
and responsibility. And it states that the structure of governance is to be based on executive, legislative, judicial, and administrative
institutions with defined powers and functions in the Comprehensive Compact.

The MOA-AD provides that its provisions requiring "amendments to the existing legal framework" shall take effect upon signing of
the Comprehensive Compact and upon effecting the aforesaid amendments, with due regard to the non-derogation of prior
agreements and within the stipulated timeframe to be contained in the Comprehensive Compact. As will be discussed later,
much of the present controversy hangs on the legality of this provision.

The BJE is granted the power to build, develop and maintain its own institutions inclusive of civil service, electoral, financial and
banking, education, legislation, legal, economic, police and internal security force, judicial system and correctional institutions,  the
details of which shall be discussed in the negotiation of the comprehensive compact.

As stated early on, the MOA-AD was set to be signed on August 5, 2008 by Rodolfo Garcia and Mohagher Iqbal, Chairpersons of
the Peace Negotiating Panels of the GRP and the MILF, respectively. Notably, the penultimate paragraph of the MOA-AD identifies
the signatories as "the representatives of the Parties," meaning the GRP and MILF themselves, and not merely of the negotiating
panels.53 In addition, the signature page of the MOA-AD states that it is "WITNESSED BY" Datuk Othman Bin Abd Razak, Special
Adviser to the Prime Minister of Malaysia, "ENDORSED BY" Ambassador Sayed Elmasry, Adviser to Organization of the Islamic
Conference (OIC) Secretary General and Special Envoy for Peace Process in Southern Philippines, and SIGNED "IN THE
PRESENCE OF" Dr. Albert G. Romulo, Secretary of Foreign Affairs of RP and Dato' Seri Utama Dr. Rais Bin Yatim, Minister of
Foreign Affairs, Malaysia, all of whom were scheduled to sign the Agreement last August 5, 2008.

Annexed to the MOA-AD are two documents containing the respective lists cum maps of the provinces, municipalities, and
barangays under Categories A and B earlier mentioned in the discussion on the strand on TERRITORY.

IV. PROCEDURAL ISSUES

A. RIPENESS

The power of judicial review is limited to actual cases or controversies. 54 Courts decline to issue advisory opinions or to resolve
hypothetical or feigned problems, or mere academic questions. 55 The limitation of the power of judicial review to actual cases and
controversies defines the role assigned to the judiciary in a tripartite allocation of power, to assure that the courts will not intrude into
areas committed to the other branches of government.56

An actual case or controversy involves a conflict of legal rights, an assertion of opposite legal claims, susceptible of judicial
resolution as distinguished from a hypothetical or abstract difference or dispute. There must be a contrariety of legal rights that can
be interpreted and enforced on the basis of existing law and jurisprudence. 57 The Court can decide the constitutionality of an act or
treaty only when a proper case between opposing parties is submitted for judicial determination. 58

Related to the requirement of an actual case or controversy is the requirement of ripeness. A question is ripe for adjudication when
the act being challenged has had a direct adverse effect on the individual challenging it. 59 For a case to be considered ripe for
adjudication, it is a prerequisite that something had then been accomplished or performed by either branch before a court may come
into the picture,60 and the petitioner must allege the existence of an immediate or threatened injury to itself as a result of the
challenged action.61 He must show that he has sustained or is immediately in danger of sustaining some direct injury as a result of
the act complained of.62

The Solicitor General argues that there is no justiciable controversy that is ripe for judicial review in the present petitions, reasoning
that

The unsigned MOA-AD is simply a list of consensus points subject to further negotiations and legislative enactments as well as
constitutional processes aimed at attaining a final peaceful agreement. Simply put, the MOA-AD remains to be a proposal that does
not automatically create legally demandable rights and obligations until the list of operative acts required have been duly complied
with. x x x

xxxx

In the cases at bar, it is respectfully submitted that this Honorable Court has no authority to pass upon issues based on hypothetical
or feigned constitutional problems or interests with no concrete bases. Considering the preliminary character of the MOA-AD, there
are no concrete acts that could possibly violate petitioners' and intervenors' rights since the acts complained of are  mere
contemplated steps toward the formulation of a final peace agreement. Plainly, petitioners and intervenors' perceived injury, if at all,
is merely imaginary and illusory apart from being unfounded and based on mere conjectures. (Underscoring supplied)

The Solicitor General cites63 the following provisions of the MOA-AD:

TERRITORY

xxxx

2. Toward this end, the Parties enter into the following stipulations:

xxxx

d. Without derogating from the requirements of prior agreements, the Government stipulates to conduct and deliver, using all
possible legal measures, within twelve (12) months following the signing of the MOA-AD, a plebiscite covering the areas as
enumerated in the list and depicted in the map as Category A attached herein (the "Annex"). The Annex constitutes an integral part
of this framework agreement. Toward this end, the Parties shall endeavor to complete the negotiations and resolve all outstanding
issues on the Comprehensive Compact within fifteen (15) months from the signing of the MOA-AD.

xxxx

GOVERNANCE

xxxx

7. The Parties agree that mechanisms and modalities for the actual implementation of this MOA-AD shall be spelt out in the
Comprehensive Compact to mutually take such steps to enable it to occur effectively.

Any provisions of the MOA-AD requiring amendments to the existing legal framework shall come into force upon the signing of a
Comprehensive Compact and upon effecting the necessary changes to the legal framework with due regard to non-derogation of
prior agreements and within the stipulated timeframe to be contained in the Comprehensive Compact. 64 (Underscoring supplied)

The Solicitor General's arguments fail to persuade.

Concrete acts under the MOA-AD are not necessary to render the present controversy ripe. In Pimentel, Jr. v. Aguirre,65 this Court
held:

x x x [B]y the mere enactment of the questioned law or the approval of the challenged action, the dispute is said to have ripened into
a judicial controversy even without any other overt act. Indeed, even a singular violation of the Constitution and/or the law is enough
to awaken judicial duty.

xxxx

By the same token, when an act of the President, who in our constitutional scheme is a coequal of Congress, is seriously alleged to
have infringed the Constitution and the laws x x x settling the dispute becomes the duty and the responsibility of the courts. 66

In Santa Fe Independent School District v. Doe,67 the United States Supreme Court held that the challenge to the constitutionality of
the school's policy allowing student-led prayers and speeches before games was ripe for adjudication, even if no public prayer had
yet been led under the policy, because the policy was being challenged as unconstitutional on its face. 68

That the law or act in question is not yet effective does not negate ripeness. For example, in New York v. United States,69 decided in
1992, the United States Supreme Court held that the action by the State of New York challenging the provisions of the Low-Level
Radioactive Waste Policy Act was ripe for adjudication even if the questioned provision was not to take effect until January 1, 1996,
because the parties agreed that New York had to take immediate action to avoid the provision's consequences. 70

The present petitions pray for Certiorari,71 Prohibition, and Mandamus. Certiorari and Prohibition are remedies granted by law when
any tribunal, board or officer has acted, in the case of certiorari, or is proceeding, in the case of prohibition, without or in excess of
its jurisdiction or with grave abuse of discretion amounting to lack or excess of jurisdiction. 72 Mandamus is a remedy granted by law
when any tribunal, corporation, board, officer or person unlawfully neglects the performance of an act which the law specifically
enjoins as a duty resulting from an office, trust, or station, or unlawfully excludes another from the use or enjoyment of a right or
office to which such other is entitled. 73 Certiorari, Mandamus and Prohibition are appropriate remedies to raise constitutional issues
and to review and/or prohibit/nullify, when proper, acts of legislative and executive officials. 74

The authority of the GRP Negotiating Panel is defined by Executive Order No. 3 (E.O. No. 3), issued on February 28, 2001. 75 The
said executive order requires that "[t]he government's policy framework for peace, including the systematic approach and the
administrative structure for carrying out the comprehensive peace process x x x be governed by this Executive Order." 76

The present petitions allege that respondents GRP Panel and PAPP Esperon drafted the terms of the MOA-AD without consulting
the local government units or communities affected, nor informing them of the proceedings. As will be discussed in greater detail
later, such omission, by itself, constitutes a departure by respondents from their mandate under E.O. No. 3.

Furthermore, the petitions allege that the provisions of the MOA-AD violate the Constitution. The MOA-AD provides that "any
provisions of the MOA-AD requiring amendments to the existing legal framework shall come into force upon the signing of a
Comprehensive Compact and upon effecting the necessary changes to the legal framework," implying an amendment of the
Constitution to accommodate the MOA-AD. This stipulation, in effect,  guaranteed to the MILF the amendment of the
Constitution. Such act constitutes another violation of its authority. Again, these points will be discussed in more detail later.

As the petitions allege acts or omissions on the part of respondent that exceed their authority, by violating their duties under E.O.
No. 3 and the provisions of the Constitution and statutes, the petitions make a prima facie case for Certiorari, Prohibition, and
Mandamus, and an actual case or controversy ripe for adjudication exists. When an act of a branch of government is seriously
alleged to have infringed the Constitution, it becomes not only the right but in fact the duty of the judiciary to settle the
dispute.77

B. LOCUS STANDI

For a party to have locus standi, one must allege "such a personal stake in the outcome of the controversy as to assure that
concrete adverseness which sharpens the presentation of issues upon which the court so largely depends for illumination of difficult
constitutional questions."78

Because constitutional cases are often public actions in which the relief sought is likely to affect other persons, a preliminary
question frequently arises as to this interest in the constitutional question raised. 79

When suing as a citizen, the person complaining must allege that he has been or is about to be denied some right or privilege to
which he is lawfully entitled or that he is about to be subjected to some burdens or penalties by reason of the statute or act
complained of.80 When the issue concerns a public right, it is sufficient that the petitioner is a citizen and has an interest in the
execution of the laws.81

For a taxpayer, one is allowed to sue where there is an assertion that public funds are illegally disbursed or deflected to an illegal
purpose, or that there is a wastage of public funds through the enforcement of an invalid or unconstitutional law. 82 The Court retains
discretion whether or not to allow a taxpayer's suit.83

In the case of a legislator or member of Congress, an act of the Executive that injures the institution of Congress causes a derivative
but nonetheless substantial injury that can be questioned by legislators. A member of the House of Representatives has standing to
maintain inviolate the prerogatives, powers and privileges vested by the Constitution in his office. 84

An organization may be granted standing to assert the rights of its members, 85 but the mere invocation by the Integrated Bar of the
Philippines or any member of the legal profession of the duty to preserve the rule of law does not suffice to clothe it with standing. 86

As regards a local government unit (LGU), it can seek relief in order to protect or vindicate an interest of its own, and of the other
LGUs.87

Intervenors, meanwhile, may be given legal standing upon showing of facts that satisfy the requirements of the law authorizing
intervention,88 such as a legal interest in the matter in litigation, or in the success of either of the parties.
In any case, the Court has discretion to relax the procedural technicality on locus standi, given the liberal attitude it has exercised,
highlighted in the case of David v. Macapagal-Arroyo,89 where technicalities of procedure were brushed aside, the constitutional
issues raised being of paramount public interest or of transcendental importance deserving the attention of the Court in view of their
seriousness, novelty and weight as precedents. 90 The Court's forbearing stance on locus standi on issues involving constitutional
issues has for its purpose the protection of fundamental rights.

In not a few cases, the Court, in keeping with its duty under the Constitution to determine whether the other branches of government
have kept themselves within the limits of the Constitution and the laws and have not abused the discretion given them, has brushed
aside technical rules of procedure.91

In the petitions at bar, petitioners Province of North Cotabato (G.R. No. 183591) Province of Zamboanga del Norte (G.R. No.
183951), City of Iligan (G.R. No. 183893) and City of Zamboanga (G.R. No. 183752) and petitioners-in-intervention Province of
Sultan Kudarat, City of Isabela and Municipality of Linamon have locus standi in view of the direct and substantial injury that
they, as LGUs, would suffer as their territories, whether in whole or in part, are to be included in the intended domain of the BJE.
These petitioners allege that they did not vote for their inclusion in the ARMM which would be expanded to form the BJE territory.
Petitioners' legal standing is thus beyond doubt.

In G.R. No. 183962, petitioners Ernesto Maceda, Jejomar Binay and Aquilino Pimentel III would have no standing as citizens
and taxpayers for their failure to specify that they would be denied some right or privilege or there would be wastage of public funds.
The fact that they are a former Senator, an incumbent mayor of Makati City, and a resident of Cagayan de Oro, respectively, is of no
consequence. Considering their invocation of the transcendental importance of the issues at hand, however, the Court grants them
standing.

Intervenors Franklin Drilon and Adel Tamano, in alleging their standing as taxpayers, assert that government funds would be
expended for the conduct of an illegal and unconstitutional plebiscite to delineate the BJE territory. On that score alone, they can be
given legal standing. Their allegation that the issues involved in these petitions are of "undeniable transcendental importance"
clothes them with added basis for their personality to intervene in these petitions.

With regard to Senator Manuel Roxas, his standing is premised on his being a member of the Senate and a citizen to enforce
compliance by respondents of the public's constitutional right to be informed of the MOA-AD, as well as on a genuine legal interest
in the matter in litigation, or in the success or failure of either of the parties. He thus possesses the requisite standing as an
intervenor.

With respect to Intervenors Ruy Elias Lopez, as a former congressman of the 3 rd district of Davao City, a taxpayer and a member of
the Bagobo tribe; Carlo B. Gomez, et al., as members of the IBP Palawan chapter, citizens and taxpayers; Marino Ridao, as
taxpayer, resident and member of the Sangguniang Panlungsod of Cotabato City; and Kisin Buxani, as taxpayer, they failed to
allege any proper legal interest in the present petitions. Just the same, the Court exercises its discretion to relax the procedural
technicality on locus standi given the paramount public interest in the issues at hand.

Intervening respondents Muslim Multi-Sectoral Movement for Peace and Development, an advocacy group for justice and the
attainment of peace and prosperity in Muslim Mindanao; and Muslim Legal Assistance Foundation Inc., a non-government
organization of Muslim lawyers, allege that they stand to be benefited or prejudiced, as the case may be, in the resolution of the
petitions concerning the MOA-AD, and prays for the denial of the petitions on the grounds therein stated. Such legal interest suffices
to clothe them with standing.

B. MOOTNESS

Respondents insist that the present petitions have been rendered moot with the satisfaction of all the reliefs prayed for by petitioners
and the subsequent pronouncement of the Executive Secretary that "[n]o matter what the Supreme Court ultimately decides[,] the
government will not sign the MOA."92

In lending credence to this policy decision, the Solicitor General points out that the President had already disbanded the GRP Peace
Panel.93

In David v. Macapagal-Arroyo,94 this Court held that the "moot and academic" principle not being a magical formula that
automatically dissuades courts in resolving a case, it will decide cases, otherwise moot and academic, if it finds that (a) there is a
grave violation of the Constitution; 95 (b) the situation is of exceptional character and paramount public interest is involved; 96 (c) the
constitutional issue raised requires formulation of controlling principles to guide the bench, the bar, and the public; 97 and (d) the case
is capable of repetition yet evading review.98

Another exclusionary circumstance that may be considered is where there is a voluntary cessation of the activity complained of by
the defendant or doer. Thus, once a suit is filed and the doer voluntarily ceases the challenged conduct, it does not automatically
deprive the tribunal of power to hear and determine the case and does not render the case moot especially when the plaintiff seeks
damages or prays for injunctive relief against the possible recurrence of the violation. 99
The present petitions fall squarely into these exceptions to thus thrust them into the domain of judicial review. The grounds cited
above in David are just as applicable in the present cases as they were, not only in David, but also in Province of Batangas v.
Romulo100 and Manalo v. Calderon101 where the Court similarly decided them on the merits, supervening events that would ordinarily
have rendered the same moot notwithstanding.

Petitions not mooted

Contrary then to the asseverations of respondents, the non-signing of the MOA-AD and the eventual dissolution of the GRP Peace
Panel did not moot the present petitions. It bears emphasis that the signing of the MOA-AD did not push through due to the Court's
issuance of a Temporary Restraining Order.

Contrary too to respondents' position, the MOA-AD cannot be considered a mere "list of consensus points," especially given
its nomenclature, the need to have it signed or initialed by all the parties concerned on August 5, 2008, and the far-reaching
Constitutional implications of these "consensus points," foremost of which is the creation of the BJE.

In fact, as what will, in the main, be discussed, there is a commitment on the part of respondents to amend and effect
necessary changes to the existing legal framework for certain provisions of the MOA-AD to take effect . Consequently, the
present petitions are not confined to the terms and provisions of the MOA-AD, but to other  on-going and future negotiations and
agreements necessary for its realization. The petitions have not, therefore, been rendered moot and academic simply by the public
disclosure of the MOA-AD,102 the manifestation that it will not be signed as well as the disbanding of the GRP Panel not
withstanding.

Petitions are imbued with paramount public interest

There is no gainsaying that the petitions are imbued with paramount public interest, involving a significant part of the country's
territory and the wide-ranging political modifications of affected LGUs. The assertion that the MOA-AD is subject to further legal
enactments including possible Constitutional amendments more than ever provides impetus for the Court to formulate
controlling principles to guide the bench, the bar, the public and, in this case, the government and its negotiating entity.

Respondents cite Suplico v. NEDA, et al.103 where the Court did not "pontificat[e] on issues which no longer legitimately constitute an
actual case or controversy [as this] will do more harm than good to the nation as a whole."

The present petitions must be differentiated from Suplico. Primarily, in Suplico, what was assailed and eventually cancelled was a
stand-alone government procurement contract for a national broadband network involving a one-time contractual relation between
two parties-the government and a private foreign corporation. As the issues therein involved specific government procurement
policies and standard principles on contracts, the majority opinion in Suplico found nothing exceptional therein, the factual
circumstances being peculiar only to the transactions and parties involved in the controversy.

The MOA-AD is part of a series of agreements

In the present controversy, the MOA-AD is a significant part of a series of agreements  necessary to carry out the Tripoli
Agreement 2001. The MOA-AD which dwells on the Ancestral Domain Aspect of said Tripoli Agreement is the third such component
to be undertaken following the implementation of the Security Aspect in August 2001 and the Humanitarian, Rehabilitation and
Development Aspect in May 2002.

Accordingly, even if the Executive Secretary, in his Memorandum of August 28, 2008 to the Solicitor General, has stated that "no
matter what the Supreme Court ultimately decides[,] the government will not sign the MOA[-AD]," mootness will not set in in light of
the terms of the Tripoli Agreement 2001.

Need to formulate principles-guidelines

Surely, the present MOA-AD can be renegotiated or another one will be drawn up to carry out the Ancestral Domain Aspect of
the Tripoli Agreement 2001, in another or in any form, which could contain similar or significantly drastic provisions. While the
Court notes the word of the Executive Secretary that the government "is committed to securing an agreement that is both
constitutional and equitable because that is the only way that long-lasting peace can be assured," it is minded to render a decision
on the merits in the present petitions to formulate controlling principles to guide the bench, the bar, the public and, most
especially, the government in negotiating with the MILF regarding Ancestral Domain .

Respondents invite the Court's attention to the separate opinion of then Chief Justice Artemio Panganiban in Sanlakas v. Reyes104 in
which he stated that the doctrine of "capable of repetition yet evading review" can override mootness, "provided the party raising it in
a proper case has been and/or continue to be prejudiced or damaged as a direct result of their issuance." They contend that the
Court must have jurisdiction over the subject matter for the doctrine to be invoked.
The present petitions all contain prayers for Prohibition over which this Court exercises original jurisdiction. While G.R. No. 183893
(City of Iligan v. GRP) is a petition for Injunction and Declaratory Relief, the Court will treat it as one for Prohibition as it has far
reaching implications and raises questions that need to be resolved. 105 At all events, the Court has jurisdiction over most if not the
rest of the petitions.

Indeed, the present petitions afford a proper venue for the Court to again apply the doctrine immediately referred to as what it had
done in a number of landmark cases.106 There is a reasonable expectation that petitioners, particularly the Provinces of North
Cotabato, Zamboanga del Norte and Sultan Kudarat, the Cities of Zamboanga, Iligan and Isabela, and the Municipality of Linamon,
will again be subjected to the same problem in the future as respondents' actions are capable of repetition, in another or any form.

It is with respect to the prayers for Mandamus that the petitions have become moot, respondents having, by Compliance of August
7, 2008, provided this Court and petitioners with official copies of the final draft of the MOA-AD and its annexes. Too, intervenors
have been furnished, or have procured for themselves, copies of the MOA-AD.

V. SUBSTANTIVE ISSUES

As culled from the Petitions and Petitions-in-Intervention, there are basically two SUBSTANTIVE issues to be resolved, one relating
to the manner in which the MOA-AD was negotiated and finalized, the other relating to its provisions, viz:

1. Did respondents violate constitutional and statutory provisions on public consultation and the right to information when they
negotiated and later initialed the MOA-AD?

2. Do the contents of the MOA-AD violate the Constitution and the laws?

ON THE FIRST SUBSTANTIVE ISSUE

Petitioners invoke their constitutional right to information on matters of public concern, as provided in Section 7, Article III on the
Bill of Rights:

Sec. 7. 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. 107

As early as 1948, in Subido v. Ozaeta,108 the Court has recognized the statutory right to examine and inspect public records, a right
which was eventually accorded constitutional status.

The right of access to public documents, as enshrined in both the 1973 Constitution and the 1987 Constitution, has been recognized
as a self-executory constitutional right.109

In the 1976 case of Baldoza v. Hon. Judge Dimaano,110 the Court ruled that access to public records is predicated on the right of the
people to acquire information on matters of public concern since, undoubtedly, in a democracy, the pubic has a legitimate interest in
matters of social and political significance.

x x x The incorporation of this right in the Constitution is a recognition of the fundamental role of free exchange of information in a
democracy. There can be no realistic perception by the public of the nation's problems, nor a meaningful democratic decision-
making if they are denied access to information of general interest. Information is needed to enable the members of society to cope
with the exigencies of the times. As has been aptly observed: "Maintaining the flow of such information depends on protection for
both its acquisition and its dissemination since, if either process is interrupted, the flow inevitably ceases." x x x 111

In the same way that free discussion enables members of society to cope with the exigencies of their time, access to information of
general interest aids the people in democratic decision-making by giving them a better perspective of the vital issues confronting the
nation112 so that they may be able to criticize and participate in the affairs of the government in a responsible, reasonable and
effective manner. It is by ensuring an unfettered and uninhibited exchange of ideas among a well-informed public that a government
remains responsive to the changes desired by the people. 113

The MOA-AD is a matter of public concern

That the subject of the information sought in the present cases is a matter of public concern 114 faces no serious challenge. In
fact, respondents admit that the MOA-AD is indeed of public concern.115 In previous cases, the Court found that the regularity of real
estate transactions entered in the Register of Deeds, 116 the need for adequate notice to the public of the various laws, 117 the civil
service eligibility of a public employee, 118 the proper management of GSIS funds allegedly used to grant loans to public
officials,119 the recovery of the Marcoses' alleged ill-gotten wealth,120 and the identity of party-list nominees,121 among others, are
matters of public concern. Undoubtedly, the MOA-AD subject of the present cases is of public concern, involving as it does
the sovereignty and territorial integrity of the State, which directly affects the lives of the public at large.

Matters of public concern covered by the right to information include steps and negotiations leading to the consummation of the
contract. In not distinguishing as to the executory nature or commercial character of agreements, the Court has categorically ruled:

x x x [T]he right to information "contemplates inclusion of negotiations leading to the consummation of the transaction."
Certainly, a consummated contract is not a requirement for the exercise of the right to information. Otherwise, the people can never
exercise the right if no contract is consummated, and if one is consummated, it may be too late for the public to expose its defects.

Requiring a consummated contract will keep the public in the dark until the contract, which may be grossly disadvantageous to the
government or even illegal, becomes fait accompli. This negates the State policy of full transparency on matters of public concern, a
situation which the framers of the Constitution could not have intended. Such a requirement will prevent the citizenry from
participating in the public discussion of any proposed contract, effectively truncating a basic right enshrined in the Bill of Rights. We
can allow neither an emasculation of a constitutional right, nor a retreat by the State of its avowed "policy of full disclosure of all its
transactions involving public interest." 122 (Emphasis and italics in the original)

Intended as a "splendid symmetry"123 to the right to information under the Bill of Rights is the policy of public disclosure under
Section 28, Article II of the Constitution reading:

Sec. 28. Subject to reasonable conditions prescribed by law, the State adopts and implements a policy of full public disclosure of all
its transactions involving public interest. 124

The policy of full public disclosure enunciated in above-quoted Section 28 complements the right of access to information on

matters of public concern found in the Bill of Rights. The right to information guarantees the right of the people to demand
information, while Section 28 recognizes the duty of officialdom to give information even if nobody demands.125

The policy of public disclosure establishes a concrete ethical principle for the conduct of public affairs in a genuinely open
democracy, with the people's right to know as the centerpiece. It is a mandate of the State to be accountable by following such
policy.126 These provisions are vital to the exercise of the freedom of expression and essential to hold public officials at all times
accountable to the people.127

Whether Section 28 is self-executory, the records of the deliberations of the Constitutional Commission so disclose:

MR. SUAREZ. And since this is not self-executory, this policy will not be enunciated or will not be in force and effect until after
Congress shall have provided it.

MR. OPLE. I expect it to influence the climate of public ethics immediately but, of course, the implementing law will have to be
enacted by Congress, Mr. Presiding Officer.128

The following discourse, after Commissioner Hilario Davide, Jr., sought clarification on the issue, is enlightening.

MR. DAVIDE. I would like to get some clarifications on this. Mr. Presiding Officer, did I get the Gentleman correctly as having said
that this is not a self-executing provision? It would require a legislation by Congress to implement?

MR. OPLE. Yes. Originally, it was going to be self-executing, but I accepted an amendment from Commissioner Regalado, so that
the safeguards on national interest are modified by the clause "as may be provided by law"

MR. DAVIDE. But as worded, does it not mean that this will immediately take effect and Congress may provide for
reasonable safeguards on the sole ground national interest?

MR. OPLE. Yes. I think so, Mr. Presiding Officer, I said earlier that it should immediately influence the climate of the
conduct of public affairs but, of course, Congress here may no longer pass a law revoking it, or if this is approved, revoking this
principle, which is inconsistent with this policy.129 (Emphasis supplied)

Indubitably, the effectivity of the policy of public disclosure need not await the passing of a statute. As Congress cannot
revoke this principle, it is merely directed to provide for "reasonable safeguards." The complete and effective exercise of the right to
information necessitates that its complementary provision on public disclosure derive the same self-executory nature. Since both
provisions go hand-in-hand, it is absurd to say that the broader 130 right to information on matters of public concern is already
enforceable while the correlative duty of the State to disclose its transactions involving public interest is not enforceable until there is
an enabling law. Respondents cannot thus point to the absence of an implementing legislation as an excuse in not effecting such
policy.
An essential element of these freedoms is to keep open a continuing dialogue or process of communication between the
government and the people. 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. 131 Envisioned to be corollary to the twin rights to
information and disclosure is the design for feedback mechanisms.

MS. ROSARIO BRAID. Yes. And lastly, Mr. Presiding Officer, will the people be able to participate? Will the government
provide feedback mechanisms so that the people can participate and can react where the existing media facilities are not
able to provide full feedback mechanisms to the government? I suppose this will be part of the government implementing
operational mechanisms.

MR. OPLE. Yes. I think through their elected representatives and that is how these courses take place. There is a message and a
feedback, both ways.

xxxx

MS. ROSARIO BRAID. Mr. Presiding Officer, may I just make one last sentence?

I think when we talk about the feedback network, we are not talking about public officials but also network of private
business o[r] community-based organizations that will be reacting. As a matter of fact, we will put more credence or credibility
on the private network of volunteers and voluntary community-based organizations. So I do not think we are afraid that there will be
another OMA in the making.132 (Emphasis supplied)

The imperative of a public consultation, as a species of the right to information, is evident in the "marching orders" to
respondents. The mechanics for the duty to disclose information and to conduct public consultation regarding the peace agenda and
process is manifestly provided by E.O. No. 3. 133 The preambulatory clause of E.O. No. 3 declares that there is a need to further
enhance the contribution of civil society to the comprehensive peace process by institutionalizing the people's participation.

One of the three underlying principles of the comprehensive peace process is that it "should be community-based, reflecting the
sentiments, values and principles important to all Filipinos" and "shall be defined not by the government alone, nor by the different
contending groups only, but by all Filipinos as one community." 134 Included as a component of the comprehensive peace process is
consensus-building and empowerment for peace, which includes "continuing consultations on both national and local levels to build
consensus for a peace agenda and process, and the mobilization and facilitation of people's participation in the peace process."135

Clearly, E.O. No. 3 contemplates not just the conduct of a plebiscite to effectuate "continuing" consultations, contrary to
respondents' position that plebiscite is "more than sufficient consultation."136

Further, E.O. No. 3 enumerates the functions and responsibilities of the PAPP, one of which is to "[c]onduct regular dialogues with
the National Peace Forum (NPF) and other peace partners to seek relevant information, comments, recommendations as well as to
render appropriate and timely reports on the progress of the comprehensive peace process." 137 E.O. No. 3 mandates the
establishment of the NPF to be "the principal forum  for the PAPP to consult with and seek advi[c]e from the peace advocates, peace
partners and concerned sectors of society on both national and local levels, on the implementation of the comprehensive peace
process, as well as for government[-]civil society dialogue and consensus-building on peace agenda and initiatives." 138

In fine, E.O. No. 3 establishes petitioners' right to be consulted on the peace agenda, as a corollary to the constitutional
right to information and disclosure.

PAPP Esperon committed grave abuse of discretion

The PAPP committed grave abuse of discretion  when he failed to carry out the pertinent consultation. The furtive process by
which the MOA-AD was designed and crafted  runs contrary to and in excess of the legal authority, and amounts to a whimsical,
capricious, oppressive, arbitrary and despotic exercise thereof.

The Court may not, of course, require the PAPP to conduct the consultation in a particular way or manner. It may, however, require
him to comply with the law and discharge the functions within the authority granted by the President.139

Petitioners are not claiming a seat at the negotiating table, contrary to respondents' retort in justifying the denial of petitioners' right
to be consulted. Respondents' stance manifests the manner by which they treat the salient provisions of E.O. No. 3 on people's
participation. Such disregard of the express mandate of the President is not much different from superficial conduct toward token
provisos that border on classic lip service. 140 It illustrates a gross evasion of positive duty and a virtual refusal to perform the duty
enjoined.
As for respondents' invocation of the doctrine of executive privilege, it is not tenable under the premises. The argument defies sound
reason when contrasted with E.O. No. 3's explicit provisions on continuing consultation and dialogue on both national and local
levels. The executive order even recognizes the exercise of the public's right even before the GRP makes its official
recommendations or before the government proffers its definite propositions.141 It bear emphasis that E.O. No. 3 seeks to elicit
relevant advice, information, comments and recommendations from the people through dialogue.

AT ALL EVENTS, respondents effectively waived the defense of executive privilege in view of their unqualified disclosure of the
official copies of the final draft of the MOA-AD. By unconditionally complying with the Court's August 4, 2008 Resolution, without a
prayer for the document's disclosure in camera, or without a manifestation that it was complying therewith ex abundante ad
cautelam.

Petitioners' assertion that the Local Government Code (LGC) of 1991 declares it a State policy to "require all national agencies and
offices to conduct periodic consultations with appropriate local government units, non-governmental and people's organizations, and
other concerned sectors of the community before any project or program is implemented in their respective jurisdictions" 142 is well-
taken. The LGC chapter on intergovernmental relations puts flesh into this avowed policy:

Prior Consultations Required. - No project or program shall be implemented by government authorities  unless the consultations
mentioned in Sections 2 (c) and 26 hereof are complied with, and prior approval of the sanggunian concerned is obtained: Provided,
That occupants in areas where such projects are to be implemented shall not be evicted unless appropriate relocation sites have
been provided, in accordance with the provisions of the Constitution.143 (Italics and underscoring supplied)

In Lina, Jr. v. Hon. Paño,144 the Court held that the above-stated policy and above-quoted provision of the LGU apply only to national
programs or projects which are to be implemented in a particular local community. Among the programs and projects covered are
those that are critical to the environment and human ecology including those that may call for the eviction of a particular group of
people residing in the locality where these will be implemented.145 The MOA-AD is one peculiar program that unequivocally and
unilaterally vests ownership of a vast territory to the Bangsamoro people,146 which could pervasively and drastically result
to the diaspora or displacement of a great number of inhabitants from their total environment.

With respect to the indigenous cultural communities/indigenous peoples (ICCs/IPs), whose interests are represented herein by
petitioner Lopez and are adversely affected by the MOA-AD, the ICCs/IPs have, under the IPRA, the right to participate fully at all
levels of decision-making in matters which may affect their rights, lives and destinies. 147 The MOA-AD, an instrument recognizing
ancestral domain, failed to justify its non-compliance with the clear-cut mechanisms ordained in said Act, 148 which entails, among
other things, the observance of the free and prior informed consent of the ICCs/IPs.

Notably, the IPRA does not grant the Executive Department or any government agency the power to delineate and recognize an
ancestral domain claim by mere agreement or compromise . The recognition of the ancestral domain is the raison d'etre of the MOA-
AD, without which all other stipulations or "consensus points" necessarily must fail. In proceeding to make a sweeping declaration
on ancestral domain, without complying with the IPRA, which is cited as one of the TOR of the MOA-AD, respondents clearly
transcended the boundaries of their authority. As it seems, even the heart of the MOA-AD is still subject to necessary changes
to the legal framework. While paragraph 7 on Governance suspends the effectivity of all provisions requiring changes to the legal
framework, such clause is itself invalid, as will be discussed in the following section.

Indeed, ours is an open society, with all the acts of the government subject to public scrutiny and available always to public
cognizance. This has to be so if the country is to remain democratic, with sovereignty residing in the people and all government
authority emanating from them.149

ON THE SECOND SUBSTANTIVE ISSUE

With regard to the provisions of the MOA-AD, there can be no question that they cannot all be accommodated under the present
Constitution and laws. Respondents have admitted as much in the oral arguments before this Court, and the MOA-AD itself
recognizes the need to amend the existing legal framework to render effective at least some of its provisions. Respondents,
nonetheless, counter that the MOA-AD is free of any legal infirmity because any provisions therein which are inconsistent with the
present legal framework will not be effective until the necessary changes to that framework are made. The validity of this argument
will be considered later. For now, the Court shall pass upon how

The MOA-AD is inconsistent with the Constitution and laws as presently worded.

In general, the objections against the MOA-AD center on the extent of the powers conceded therein to the BJE. Petitioners assert
that the powers granted to the BJE exceed those granted to any local government under present laws, and even go beyond those of
the present ARMM. Before assessing some of the specific powers that would have been vested in the BJE, however, it would be
useful to turn first to a general idea that serves as a unifying link to the different provisions of the MOA-AD, namely, the international
law concept of association. Significantly, the MOA-AD explicitly alludes to this concept, indicating that the Parties actually framed its
provisions with it in mind.
Association is referred to in paragraph 3 on TERRITORY, paragraph 11 on RESOURCES, and paragraph 4 on GOVERNANCE. It
is in the last mentioned provision, however, that the MOA-AD most clearly uses it to describe the envisioned relationship between
the BJE and the Central Government.

4. The relationship between the Central Government and the Bangsamoro juridical entity shall be associative characterized
by shared authority and responsibility  with a structure of governance based on executive, legislative, judicial and administrative
institutions with defined powers and functions in the comprehensive compact. A period of transition shall be established in a
comprehensive peace compact specifying the relationship between the Central Government and the BJE. (Emphasis and
underscoring supplied)

The nature of the "associative" relationship may have been intended to be defined more precisely in the still to be forged
Comprehensive Compact. Nonetheless, given that there is a concept of "association" in international law, and the MOA-AD - by its
inclusion of international law instruments in its TOR- placed itself in an international legal context, that concept of association may
be brought to bear in understanding the use of the term "associative" in the MOA-AD.

Keitner and Reisman state that

[a]n association is formed when two states of unequal power voluntarily establish durable links. In the basic model, one state, the
associate, delegates certain responsibilities to the other, the principal, while maintaining its international status as a state.
Free associations represent a middle ground between integration and independence. x x x150 (Emphasis and underscoring
supplied)

For purposes of illustration, the Republic of the Marshall Islands and the Federated States of Micronesia (FSM), formerly part of the
U.S.-administered Trust Territory of the Pacific Islands, 151 are associated states of the U.S. pursuant to a Compact of Free
Association. The currency in these countries is the U.S. dollar, indicating their very close ties with the U.S., yet they issue their own
travel documents, which is a mark of their statehood. Their international legal status as states was confirmed by the UN Security
Council and by their admission to UN membership.

According to their compacts of free association, the Marshall Islands and the FSM generally have the capacity to conduct foreign
affairs in their own name and right, such capacity extending to matters such as the law of the sea, marine resources, trade, banking,
postal, civil aviation, and cultural relations. The U.S. government, when conducting its foreign affairs, is obligated to consult with the
governments of the Marshall Islands or the FSM on matters which it (U.S. government) regards as relating to or affecting either
government.

In the event of attacks or threats against the Marshall Islands or the FSM, the U.S. government has the authority and obligation to
defend them as if they were part of U.S. territory. The U.S. government, moreover, has the option of establishing and using military
areas and facilities within these associated states and has the right to bar the military personnel of any third country from having
access to these territories for military purposes.

It bears noting that in U.S. constitutional and international practice, free association is understood as an international association
between sovereigns. The Compact of Free Association is a treaty which is subordinate to the associated nation's national
constitution, and each party may terminate the association consistent with the right of independence. It has been said that, with the
admission of the U.S.-associated states to the UN in 1990, the UN recognized that the American model of free association is
actually based on an underlying status of independence. 152

In international practice, the "associated state" arrangement has usually been used as a transitional device of former colonies on
their way to full independence. Examples of states that have passed through the status of associated states as a transitional phase
are Antigua, St. Kitts-Nevis-Anguilla, Dominica, St. Lucia, St. Vincent and Grenada. All have since become independent states. 153

Back to the MOA-AD, it contains many provisions which are consistent with the international legal concept of  association,
specifically the following: the BJE's capacity to enter into economic and trade relations with foreign countries, the commitment of the
Central Government to ensure the BJE's participation in meetings and events in the ASEAN and the specialized UN agencies, and
the continuing responsibility of the Central Government over external defense. Moreover, the BJE's right to participate in Philippine
official missions bearing on negotiation of border agreements, environmental protection, and sharing of revenues pertaining to the
bodies of water adjacent to or between the islands forming part of the ancestral domain, resembles the right of the governments of
FSM and the Marshall Islands to be consulted by the U.S. government on any foreign affairs matter affecting them.

These provisions of the MOA indicate, among other things, that the Parties aimed to vest in the BJE the status of an  associated
state or, at any rate, a status closely approximating it.

The concept of association is not recognized under the present Constitution

No province, city, or municipality, not even the ARMM, is recognized under our laws as having an "associative" relationship with the
national government. Indeed, the concept implies powers that go beyond anything ever granted by the Constitution to any local or
regional government. It also implies the recognition of the  associated entity as a state. The Constitution, however, does not
contemplate any state in this jurisdiction other than the Philippine State, much less does it provide for a transitory status that aims to
prepare any part of Philippine territory for independence.

Even the mere concept animating many of the MOA-AD's provisions, therefore, already requires for its validity the amendment of
constitutional provisions, specifically the following provisions of Article X:

SECTION 1. The territorial and political subdivisions of the Republic of the Philippines are the provinces, cities, municipalities,
and barangays. There shall be autonomous regions in Muslim Mindanao and the Cordilleras as hereinafter provided.

SECTION 15. There shall be created autonomous regions in Muslim Mindanao and in the Cordilleras consisting of provinces, cities,
municipalities, and geographical areas sharing common and distinctive historical and cultural heritage, economic and social
structures, and other relevant characteristics within the framework of this Constitution and the national sovereignty as well as
territorial integrity of the Republic of the Philippines.

The BJE is a far more powerful

entity than the autonomous region
recognized in the Constitution

It is not merely an expanded version of the ARMM, the status of its relationship with the national government being fundamentally
different from that of the ARMM. Indeed, BJE is a state in all but name as it meets the criteria of a state laid down in the
Montevideo Convention,154 namely, a permanent population, a defined territory, a government, and a capacity to enter into
relations with other states.

Even assuming arguendo that the MOA-AD would not necessarily sever any portion of Philippine territory, the spirit animating it -
which has betrayed itself by its use of the concept of association - runs counter to the national sovereignty and territorial
integrity of the Republic.

The defining concept underlying the relationship between the national government and the BJE being itself contrary to the
present Constitution, it is not surprising that many of the specific provisions of the MOA-AD on the formation and powers
of the BJE are in conflict with the Constitution and the laws.

Article X, Section 18 of the Constitution provides that "[t]he creation of the autonomous region shall be effective when approved by a
majority of the votes cast by the constituent units in a plebiscite called for the purpose, provided that  only provinces, cities, and
geographic areas voting favorably in such plebiscite shall be included in the autonomous region." (Emphasis supplied)

As reflected above, the BJE is more of a state than an autonomous region. But even assuming that it is covered by the term
"autonomous region" in the constitutional provision just quoted, the MOA-AD would still be in conflict with it. Under paragraph 2(c)
on TERRITORY in relation to 2(d) and 2(e), the present geographic area of the ARMM and, in addition, the municipalities of Lanao
del Norte which voted for inclusion in the ARMM during the 2001 plebiscite  - Baloi, Munai, Nunungan, Pantar, Tagoloan and
Tangkal - are automatically part of the BJE without need of another plebiscite, in contrast to the areas under Categories A and B
mentioned earlier in the overview. That the present components of the ARMM and the above-mentioned municipalities voted for
inclusion therein in 2001, however, does  not render another plebiscite unnecessary under the Constitution, precisely because what
these areas voted for then was their inclusion in the ARMM, not the BJE.

The MOA-AD, moreover, would not

comply with Article X, Section 20 of
the Constitution

since that provision defines the powers of autonomous regions as follows:

SECTION 20. Within its territorial jurisdiction and subject to the provisions of this Constitution and national laws, the organic act of
autonomous regions shall provide for legislative powers over:

(1) Administrative organization;

(2) Creation of sources of revenues;

(3) Ancestral domain and natural resources;

(4) Personal, family, and property relations;

(5) Regional urban and rural planning development;

(6) Economic, social, and tourism development;

(7) Educational policies;

(8) Preservation and development of the cultural heritage; and

(9) Such other matters as may be authorized by law for the promotion of the general welfare of the people of the region.
(Underscoring supplied)

Again on the premise that the BJE may be regarded as an autonomous region, the MOA-AD would require an amendment that
would expand the above-quoted provision. The mere passage of new legislation pursuant to sub-paragraph No. 9 of said
constitutional provision would not suffice, since any new law that might vest in the BJE the powers found in the MOA-AD must, itself,
comply with other provisions of the Constitution. It would not do, for instance, to merely pass legislation vesting the BJE with treaty-
making power in order to accommodate paragraph 4 of the strand on RESOURCES which states: "The BJE is free to enter into any
economic cooperation and trade relations with foreign countries: provided, however, that such relationships and understandings do
not include aggression against the Government of the Republic of the Philippines x x x." Under our constitutional system, it is only
the President who has that power. Pimentel v. Executive Secretary155 instructs:

In our system of government, the President, being the head of state, is regarded as the sole organ and authority in external
relations and is the country's sole representative with foreign nations. As the chief architect of foreign policy, the President
acts as the country's mouthpiece with respect to international affairs. Hence, the President is vested with the authority to deal
with foreign states and governments, extend or withhold recognition, maintain diplomatic relations, enter into treaties, and
otherwise transact the business of foreign relations. In the realm of treaty-making, the President has the sole authority to
negotiate with other states. (Emphasis and underscoring supplied)

Article II, Section 22 of the Constitution must also be amended if the scheme envisioned in the MOA-AD is to be effected .
That constitutional provision states: "The State recognizes and promotes the rights of indigenous cultural communities within the
framework of national unity and development." (Underscoring supplied) An associative arrangement does not uphold national unity.
While there may be a semblance of unity because of the associative ties between the BJE and the national government, the act of
placing a portion of Philippine territory in a status which, in international practice, has generally been a  preparation for
independence, is certainly not conducive to national unity.

Besides being irreconcilable with the Constitution, the MOA-AD is also inconsistent with prevailing statutory law, among which
are R.A. No. 9054156 or the Organic Act of the ARMM, and the IPRA.157

Article X, Section 3 of the Organic Act of the ARMM is a bar to the adoption of the definition of "Bangsamoro people"  used
in the MOA-AD. Paragraph 1 on Concepts and Principles states:

1. It is the birthright of all Moros and all Indigenous peoples of Mindanao to identify themselves and be accepted as
"Bangsamoros". The Bangsamoro people refers to those who are natives or original inhabitants of Mindanao and its adjacent
islands including Palawan and the Sulu archipelago at the time of conquest or colonization of its descendants whether mixed or of
full blood. Spouses and their descendants are classified as Bangsamoro. The freedom of choice of the Indigenous people shall be
respected. (Emphasis and underscoring supplied)

This use of the term Bangsamoro sharply contrasts with that found in the Article X, Section 3 of the Organic Act, which, rather than
lumping together the identities of the Bangsamoro and other indigenous peoples living in Mindanao, clearly distinguishes between
Bangsamoro people and Tribal peoples, as follows:

"As used in this Organic Act, the phrase "indigenous cultural community" refers to Filipino citizens residing in the autonomous
region who are:

(a) Tribal peoples. These are citizens whose social, cultural and economic conditions distinguish them from other sectors of the
national community; and

(b) Bangsa Moro people. These are citizens who are believers in Islam and who have retained some or all of their own social,
economic, cultural, and political institutions."
Respecting the IPRA, it lays down the prevailing procedure for the delineation and recognition of ancestral domains. The MOA-AD's
manner of delineating the ancestral domain of the Bangsamoro people is a clear departure from that procedure . By paragraph 1 of
Territory, the Parties simply agree that, subject to the delimitations in the agreed Schedules, "[t]he Bangsamoro homeland and
historic territory refer to the land mass as well as the maritime, terrestrial, fluvial and alluvial domains, and the aerial domain, the
atmospheric space above it, embracing the Mindanao-Sulu-Palawan geographic region."

Chapter VIII of the IPRA, on the other hand, lays down a detailed procedure, as illustrated in the following provisions thereof:

SECTION 52. Delineation Process. - The identification and delineation of ancestral domains shall be done in accordance with the
following procedures:

xxxx

b) Petition for Delineation. - The process of delineating a specific perimeter may be initiated by the NCIP with the consent of the
ICC/IP concerned, or through a Petition for Delineation filed with the NCIP, by a majority of the members of the ICCs/IPs;

c) Delineation Proper. - The official delineation of ancestral domain boundaries including census of all community members therein,
shall be immediately undertaken by the Ancestral Domains Office upon filing of the application by the ICCs/IPs concerned.
Delineation will be done in coordination with the community concerned and shall at all times include genuine involvement and
participation by the members of the communities concerned;

d) Proof Required. - Proof of Ancestral Domain Claims shall include the testimony of elders or community under oath, and other
documents directly or indirectly attesting to the possession or occupation of the area since time immemorial by such ICCs/IPs in the
concept of owners which shall be any one (1) of the following authentic documents:

1) Written accounts of the ICCs/IPs customs and traditions;

2) Written accounts of the ICCs/IPs political structure and institution;

3) Pictures showing long term occupation such as those of old improvements, burial grounds, sacred places and old villages;

4) Historical accounts, including pacts and agreements concerning boundaries entered into by the ICCs/IPs concerned with other
ICCs/IPs;

5) Survey plans and sketch maps;

6) Anthropological data;

7) Genealogical surveys;

8) Pictures and descriptive histories of traditional communal forests and hunting grounds;

9) Pictures and descriptive histories of traditional landmarks such as mountains, rivers, creeks, ridges, hills, terraces and the like;
and

10) Write-ups of names and places derived from the native dialect of the community.

e) Preparation of Maps. - On the basis of such investigation and the findings of fact based thereon, the Ancestral Domains Office of
the NCIP shall prepare a perimeter map, complete with technical descriptions, and a description of the natural features and
landmarks embraced therein;

f) Report of Investigation and Other Documents. - A complete copy of the preliminary census and a report of investigation, shall be
prepared by the Ancestral Domains Office of the NCIP;

g) Notice and Publication. - A copy of each document, including a translation in the native language of the ICCs/IPs concerned shall
be posted in a prominent place therein for at least fifteen (15) days. A copy of the document shall also be posted at the local,
provincial and regional offices of the NCIP, and shall be published in a newspaper of general circulation once a week for two (2)
consecutive weeks to allow other claimants to file opposition thereto within fifteen (15) days from date of such publication: Provided,
That in areas where no such newspaper exists, broadcasting in a radio station will be a valid substitute: Provided, further, That mere
posting shall be deemed sufficient if both newspaper and radio station are not available;
h) Endorsement to NCIP. - Within fifteen (15) days from publication, and of the inspection process, the Ancestral Domains Office
shall prepare a report to the NCIP endorsing a favorable action upon a claim that is deemed to have sufficient proof. However, if the
proof is deemed insufficient, the Ancestral Domains Office shall require the submission of additional evidence: Provided, That the
Ancestral Domains Office shall reject any claim that is deemed patently false or fraudulent after inspection and verification:
Provided, further, That in case of rejection, the Ancestral Domains Office shall give the applicant due notice, copy furnished all
concerned, containing the grounds for denial. The denial shall be appealable to the NCIP: Provided, furthermore, That in cases
where there are conflicting claims among ICCs/IPs on the boundaries of ancestral domain claims, the Ancestral Domains Office
shall cause the contending parties to meet and assist them in coming up with a preliminary resolution of the conflict, without
prejudice to its full adjudication according to the section below.

xxxx

To remove all doubts about the irreconcilability of the MOA-AD with the present legal system, a discussion of not only the
Constitution and domestic statutes, but also of international law is in order, for

Article II, Section 2 of the Constitution states that the Philippines "adopts the generally accepted principles of international
law as part of the law of the land."

Applying this provision of the Constitution, the Court, in Mejoff v. Director of Prisons,158 held that the Universal Declaration of Human
Rights is part of the law of the land on account of which it ordered the release on bail of a detained alien of Russian descent whose
deportation order had not been executed even after two years. Similarly, the Court in Agustin v. Edu159 applied the aforesaid
constitutional provision to the 1968 Vienna Convention on Road Signs and Signals.

International law has long recognized the right to self-determination of "peoples," understood not merely as the entire population of a
State but also a portion thereof. In considering the question of whether the people of Quebec had a right to unilaterally secede from
Canada, the Canadian Supreme Court in REFERENCE RE SECESSION OF QUEBEC 160 had occasion to acknowledge that "the
right of a people to self-determination is now so widely recognized in international conventions that the principle has acquired a
status beyond ‘convention' and is considered a general principle of international law."

Among the conventions referred to are the International Covenant on Civil and Political Rights 161 and the International Covenant on
Economic, Social and Cultural Rights 162 which state, in Article 1 of both covenants, that all peoples, by virtue of the right of self-
determination, "freely determine their political status and freely pursue their economic, social, and cultural development."

The people's right to self-determination should not, however, be understood as extending to a unilateral right of secession. A
distinction should be made between the right of internal and external self-determination. REFERENCE RE SECESSION OF
QUEBEC is again instructive:

"(ii) Scope of the Right to Self-determination

126. The recognized sources of international law establish that the right to self-determination of a people is normally fulfilled
through internal self-determination - a people's pursuit of its political, economic, social and cultural development within
the framework of an existing state.  A right to external self-determination (which in this case potentially takes the form of
the assertion of a right to unilateral secession) arises in only the most extreme of cases and, even then, under carefully
defined circumstances. x x x

External self-determination can be defined as in the following statement from the Declaration on Friendly Relations,
supra, as

The establishment of a sovereign and independent State, the free association or integration with an independent State or
the emergence into any other political status freely determined by a people constitute modes of implementing the right of self-
determination by that people. (Emphasis added)

127. The international law principle of self-determination has evolved within a framework of respect for the territorial
integrity of existing states. The various international documents that support the existence of a people's right to self-determination
also contain parallel statements supportive of the conclusion that the exercise of such a right must be sufficiently limited to prevent
threats to an existing state's territorial integrity or the stability of relations between sovereign states.

x x x x (Emphasis, italics and underscoring supplied)

The Canadian Court went on to discuss the exceptional cases in which the right to external self-determination can arise, namely,
where a people is under colonial rule, is subject to foreign domination or exploitation outside a colonial context, and - less definitely
but asserted by a number of commentators - is blocked from the meaningful exercise of its right to internal self-determination. The
Court ultimately held that the population of Quebec had no right to secession, as the same is not under colonial rule or foreign
domination, nor is it being deprived of the freedom to make political choices and pursue economic, social and cultural development,
citing that Quebec is equitably represented in legislative, executive and judicial institutions within Canada, even occupying
prominent positions therein.

The exceptional nature of the right of secession is further exemplified in the REPORT OF THE INTERNATIONAL COMMITTEE OF
JURISTS ON THE LEGAL ASPECTS OF THE AALAND ISLANDS QUESTION. 163 There, Sweden presented to the Council of the
League of Nations the question of whether the inhabitants of the Aaland Islands should be authorized to determine by plebiscite if
the archipelago should remain under Finnish sovereignty or be incorporated in the kingdom of Sweden. The Council, before
resolving the question, appointed an International Committee composed of three jurists to submit an opinion on the preliminary issue
of whether the dispute should, based on international law, be entirely left to the domestic jurisdiction of Finland. The Committee
stated the rule as follows:

x x x [I]n the absence of express provisions in international treaties,  the right of disposing of national territory is essentially an
attribute of the sovereignty of every State. Positive International Law does not recognize the right of national groups, as
such, to separate themselves from the State of which they form part by the simple expression of a wish, any more than it
recognizes the right of other States to claim such a separation. Generally speaking, the grant or refusal of the right to a portion
of its population of determining its own political fate by plebiscite or by some other method, is, exclusively, an attribute of
the sovereignty of every State which is definitively constituted. A dispute between two States concerning such a question,
under normal conditions therefore, bears upon a question which International Law leaves entirely to the domestic jurisdiction of one
of the States concerned. Any other solution would amount to an infringement of sovereign rights of a State and would involve the
risk of creating difficulties and a lack of stability which would not only be contrary to the very idea embodied in term "State," but
would also endanger the interests of the international community. If this right is not possessed by a large or small section of a
nation, neither can it be held by the State to which the national group wishes to be attached, nor by any other State. (Emphasis and
underscoring supplied)

The Committee held that the dispute concerning the Aaland Islands did not refer to a question which is left by international law to the
domestic jurisdiction of Finland, thereby applying the exception rather than the rule elucidated above. Its ground for departing from
the general rule, however, was a very narrow one, namely, the Aaland Islands agitation originated at a time when Finland was
undergoing drastic political transformation. The internal situation of Finland was, according to the Committee, so abnormal that, for a
considerable time, the conditions required for the formation of a sovereign State did not exist. In the midst of revolution, anarchy,
and civil war, the legitimacy of the Finnish national government was disputed by a large section of the people, and it had, in fact,
been chased from the capital and forcibly prevented from carrying out its duties. The armed camps and the police were divided into
two opposing forces. In light of these circumstances, Finland was not, during the relevant time period, a "definitively constituted"
sovereign state. The Committee, therefore, found that Finland did not possess the right to withhold from a portion of its population
the option to separate itself - a right which sovereign nations generally have with respect to their own populations.

Turning now to the more specific category of indigenous peoples, this term has been used, in scholarship as well as international,
regional, and state practices, to refer to groups with distinct cultures, histories, and connections to land (spiritual and otherwise) that
have been forcibly incorporated into a larger governing society. These groups are regarded as "indigenous" since they are the living
descendants of pre-invasion inhabitants of lands now dominated by others. Otherwise stated, indigenous peoples, nations, or
communities are culturally distinctive groups that find themselves engulfed by settler societies born of the forces of empire and
conquest.164 Examples of groups who have been regarded as indigenous peoples are the Maori of New Zealand and the aboriginal
peoples of Canada.

As with the broader category of "peoples," indigenous peoples situated within states do not have a general right to independence or
secession from those states under international law, 165 but they do have rights amounting to what was discussed above as the right
to internal self-determination.

In a historic development last September 13, 2007, the UN General Assembly adopted the United Nations Declaration on the Rights
of Indigenous Peoples (UN DRIP) through General Assembly Resolution 61/295. The vote was 143 to 4, the Philippines being
included among those in favor, and the four voting against being Australia, Canada, New Zealand, and the U.S. The Declaration
clearly recognized the right of indigenous peoples to self-determination, encompassing the right to autonomy or self-
government, to wit:

Article 3

Indigenous peoples have the right to self-determination. By virtue of that right they freely determine their political status and freely
pursue their economic, social and cultural development.

Article 4

Indigenous peoples, in exercising their right to self-determination, have the right to autonomy or self-government in matters
relating to their internal and local affairs, as well as ways and means for financing their autonomous functions.
Article 5

Indigenous peoples have the right to maintain and strengthen their distinct political, legal, economic, social and cultural institutions,
while retaining their right to participate fully, if they so choose, in the political, economic, social and cultural life of the State.

Self-government, as used in international legal discourse pertaining to indigenous peoples, has been understood as equivalent to
"internal self-determination."166 The extent of self-determination provided for in the UN DRIP is more particularly defined in its
subsequent articles, some of which are quoted hereunder:

Article 8

1. Indigenous peoples and individuals have the right not to be subjected to forced assimilation or destruction of their culture.

2. States shall provide effective mechanisms for prevention of, and redress for:

(a) Any action which has the aim or effect of depriving them of their integrity as distinct peoples, or of their cultural values
or ethnic identities;

(b) Any action which has the aim or effect of dispossessing them of their lands, territories or resources;

(c) Any form of forced population transfer which has the aim or effect of violating or undermining any of their rights;

(d) Any form of forced assimilation or integration;

(e) Any form of propaganda designed to promote or incite racial or ethnic discrimination directed against them.

Article 21

1. Indigenous peoples have the right, without discrimination, to the improvement of their economic and social conditions, including,
inter alia, in the areas of education, employment, vocational training and retraining, housing, sanitation, health and social security.

2. States shall take effective measures and, where appropriate, special measures to ensure continuing improvement of their
economic and social conditions. Particular attention shall be paid to the rights and special needs of indigenous elders, women,
youth, children and persons with disabilities.

Article 26

1. Indigenous peoples have the right to the lands, territories and resources which they have traditionally owned, occupied
or otherwise used or acquired.

2. Indigenous peoples have the right to own, use, develop and control the lands, territories and resources that they possess by
reason of traditional ownership or other traditional occupation or use, as well as those which they have otherwise acquired.

3. States shall give legal recognition and protection to these lands, territories and resources. Such recognition shall be conducted
with due respect to the customs, traditions and land tenure systems of the indigenous peoples concerned.

Article 30

1. Military activities shall not take place in the lands or territories of indigenous peoples, unless justified by a relevant public interest
or otherwise freely agreed with or requested by the indigenous peoples concerned.

2. States shall undertake effective consultations with the indigenous peoples concerned, through appropriate procedures and in
particular through their representative institutions, prior to using their lands or territories for military activities.

Article 32

1. Indigenous peoples have the right to determine and develop priorities and strategies for the development or use of their lands or
territories and other resources.
2. States shall consult and cooperate in good faith with the indigenous peoples concerned through their own representative
institutions in order to obtain their free and informed consent prior to the approval of any project affecting their lands or territories
and other resources, particularly in connection with the development, utilization or exploitation of mineral, water or other resources.

3. States shall provide effective mechanisms for just and fair redress for any such activities, and appropriate measures shall be
taken to mitigate adverse environmental, economic, social, cultural or spiritual impact.

Article 37

1. Indigenous peoples have the right to the recognition, observance and enforcement of treaties, agreements and other constructive
arrangements concluded with States or their successors and to have States honour and respect such treaties, agreements and
other constructive arrangements.

2. Nothing in this Declaration may be interpreted as diminishing or eliminating the rights of indigenous peoples contained in treaties,
agreements and other constructive arrangements.

Article 38

States in consultation and cooperation with indigenous peoples, shall take the appropriate measures, including legislative measures,
to achieve the ends of this Declaration.

Assuming that the UN DRIP, like the Universal Declaration on Human Rights, must now be regarded as embodying customary
international law - a question which the Court need not definitively resolve here - the obligations enumerated therein do not strictly
require the Republic to grant the Bangsamoro people, through the instrumentality of the BJE, the particular rights and powers
provided for in the MOA-AD. Even the more specific provisions of the UN DRIP are general in scope, allowing for flexibility in its
application by the different States.

There is, for instance, no requirement in the UN DRIP that States now guarantee indigenous peoples their own police and internal
security force. Indeed, Article 8 presupposes that it is the State which will provide protection for indigenous peoples against acts like
the forced dispossession of their lands - a function that is normally performed by police officers. If the protection of a right so
essential to indigenous people's identity is acknowledged to be the responsibility of the State, then surely the protection of rights
less significant to them as such peoples would also be the duty of States. Nor is there in the UN DRIP an acknowledgement of the
right of indigenous peoples to the aerial domain and atmospheric space. What it upholds, in Article 26 thereof, is the right of
indigenous peoples to the lands, territories and resources which they have traditionally owned, occupied or otherwise used or
acquired.

Moreover, the UN DRIP, while upholding the right of indigenous peoples to autonomy, does not obligate States to grant indigenous
peoples the near-independent status of an associated state. All the rights recognized in that document are qualified in Article 46 as
follows:

1. Nothing in this Declaration may be interpreted as implying for any State, people, group or person any right to engage in any
activity or to perform any act contrary to the Charter of the United Nations or construed as authorizing or encouraging any
action which would dismember or impair, totally or in part, the territorial integrity or political unity of sovereign and
independent States.

Even if the UN DRIP were considered as part of the law of the land pursuant to Article II, Section 2 of the Constitution, it would not
suffice to uphold the validity of the MOA-AD so as to render its compliance with other laws unnecessary.

It is, therefore, clear that the MOA-AD contains numerous provisions that cannot be reconciled with the Constitution and
the laws as presently worded. Respondents proffer, however, that the signing of the MOA-AD alone would not have entailed any
violation of law or grave abuse of discretion on their part, precisely because it stipulates that the provisions thereof inconsistent with
the laws shall not take effect until these laws are amended. They cite paragraph 7 of the MOA-AD strand on GOVERNANCE quoted
earlier, but which is reproduced below for convenience:

7. The Parties agree that the mechanisms and modalities for the actual implementation of this MOA-AD shall be spelt out in the
Comprehensive Compact to mutually take such steps to enable it to occur effectively.

Any provisions of the MOA-AD requiring amendments to the existing legal framework shall come into force upon signing of a
Comprehensive Compact and upon effecting the necessary changes to the legal framework with due regard to non derogation of
prior agreements and within the stipulated timeframe to be contained in the Comprehensive Compact.
Indeed, the foregoing stipulation keeps many controversial provisions of the MOA-AD from coming into force until the necessary
changes to the legal framework are effected. While the word "Constitution" is not mentioned in the provision now under
consideration or anywhere else in the MOA-AD, the term "legal framework" is certainly broad enough to include the
Constitution.

Notwithstanding the suspensive clause, however, respondents, by their mere act of incorporating in the MOA-AD the provisions
thereof regarding the associative relationship between the BJE and the Central Government, have already violated the
Memorandum of Instructions From The President dated March 1, 2001, which states that the "negotiations shall be conducted in
accordance with x x x the principles of the sovereignty and territorial integrity of the Republic of the Philippines." (Emphasis
supplied) Establishing an associative relationship between the BJE and the Central Government is, for the reasons already
discussed, a preparation for independence, or worse, an implicit acknowledgment of an independent status already prevailing.

Even apart from the above-mentioned Memorandum, however, the MOA-AD is defective because the suspensive clause is invalid,
as discussed below.

The authority of the GRP Peace Negotiating Panel to negotiate with the MILF is founded on E.O. No. 3, Section 5(c), which states
that there shall be established Government Peace Negotiating Panels for negotiations with different rebel groups to be "appointed
by the President as her official emissaries to conduct negotiations, dialogues, and face-to-face discussions with rebel groups."
These negotiating panels are to report to the President, through the PAPP on the conduct and progress of the negotiations.

It bears noting that the GRP Peace Panel, in exploring lasting solutions to the Moro Problem through its negotiations with the MILF,
was not restricted by E.O. No. 3 only to those options available under the laws as they presently stand. One of the components of a
comprehensive peace process, which E.O. No. 3 collectively refers to as the "Paths to Peace," is the pursuit of social, economic,
and political reforms which may require new legislation or even constitutional amendments. Sec. 4(a) of E.O. No. 3, which reiterates
Section 3(a), of E.O. No. 125,167 states:

SECTION 4. The Six Paths to Peace. - The components of the comprehensive peace process comprise the processes known as
the "Paths to Peace". These component processes are interrelated and not mutually exclusive, and must therefore be pursued
simultaneously in a coordinated and integrated fashion. They shall include, but may not be limited to, the following:

a. PURSUIT OF SOCIAL, ECONOMIC AND POLITICAL REFORMS. This component involves the vigorous implementation of
various policies, reforms, programs and projects aimed at addressing the root causes of internal armed conflicts and
social unrest. This may require administrative action, new legislation or even constitutional amendments.

x x x x (Emphasis supplied)

The MOA-AD, therefore, may reasonably be perceived as an attempt of respondents to address, pursuant to this provision of E.O.
No. 3, the root causes of the armed conflict in Mindanao. The E.O. authorized them to "think outside the box," so to speak. Hence,
they negotiated and were set on signing the MOA-AD that included various social, economic, and political reforms which cannot,
however, all be accommodated within the present legal framework, and which thus would require new legislation and constitutional
amendments.

The inquiry on the legality of the "suspensive clause," however, cannot stop here, because it must be asked whether the President
herself may exercise the power delegated to the GRP Peace Panel under E.O. No. 3, Sec. 4(a).

The President cannot delegate a power that she herself does not possess. May the President, in the course of peace negotiations,
agree to pursue reforms that would require new legislation and constitutional amendments, or should the reforms be restricted only
to those solutions which the present laws allow? The answer to this question requires a discussion of the extent of the President's
power to conduct peace negotiations.

That the authority of the President to conduct peace negotiations with rebel groups is not explicitly mentioned in the Constitution
does not mean that she has no such authority. In Sanlakas v. Executive Secretary,168 in issue was the authority of the President to
declare a state of rebellion - an authority which is not expressly provided for in the Constitution. The Court held thus:

"In her ponencia in Marcos v. Manglapus, Justice Cortes put her thesis into jurisprudence. There, the Court, by a slim 8-7 margin,
upheld the President's power to forbid the return of her exiled predecessor. The rationale for the majority's ruling rested on the
President's

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

Thus, the President's authority to declare a state of rebellion springs in the main from her powers as chief executive and, at
the same time, draws strength from her Commander-in-Chief powers. x x x (Emphasis and underscoring supplied)

Similarly, the President's power to conduct peace negotiations is implicitly included in her powers as Chief Executive and
Commander-in-Chief. As Chief Executive, the President has the general responsibility to promote public peace, and as
Commander-in-Chief, she has the more specific duty to prevent and suppress rebellion and lawless violence. 169

As the experience of nations which have similarly gone through internal armed conflict will show, however, peace is rarely attained
by simply pursuing a military solution. Oftentimes, changes as far-reaching as a fundamental reconfiguration of the nation's
constitutional structure is required. The observations of Dr. Kirsti Samuels are enlightening, to wit:

x x x [T]he fact remains that a successful political and governance transition must form the core of any post-conflict peace-building
mission. As we have observed in Liberia and Haiti over the last ten years, conflict cessation without modification of the political
environment, even where state-building is undertaken through technical electoral assistance and institution- or capacity-building, is
unlikely to succeed. On average, more than 50 percent of states emerging from conflict return to conflict. Moreover, a substantial
proportion of transitions have resulted in weak or limited democracies.

The design of a constitution and its constitution-making process can play an important role in the political and governance transition.
Constitution-making after conflict is an opportunity to create a common vision of the future of a state and a road map on how to get
there. The constitution can be partly a peace agreement and partly a framework setting up the rules by which the new democracy
will operate.170

In the same vein, Professor Christine Bell, in her article on the nature and legal status of peace agreements, observed that the
typical way that peace agreements establish or confirm mechanisms for demilitarization and demobilization is by linking them
to new constitutional structures addressing governance, elections, and legal and human rights institutions. 171

In the Philippine experience, the link between peace agreements and constitution-making has been recognized by no less than the
framers of the Constitution. Behind the provisions of the Constitution on autonomous regions 172 is the framers' intention to implement
a particular peace agreement, namely, the Tripoli Agreement of 1976 between the GRP and the MNLF, signed by then
Undersecretary of National Defense Carmelo Z. Barbero and then MNLF Chairman Nur Misuari.

MR. ROMULO. There are other speakers; so, although I have some more questions, I will reserve my right to ask them if they are
not covered by the other speakers. I have only two questions.

I heard one of the Commissioners say that local autonomy already exists in the Muslim region ; it is working very well; it has,
in fact, diminished a great deal of the problems. So, my question is: since that already exists, why do we have to go into
something new?

MR. OPLE. May I answer that on behalf of Chairman Nolledo. Commissioner Yusup Abubakar is right that  certain definite steps
have been taken to implement the provisions of the Tripoli Agreement with respect to an autonomous region in Mindanao.
This is a good first step, but there is no question that this is merely a partial response to the Tripoli Agreement itself and to
the fuller standard of regional autonomy contemplated in that agreement, and now by state policy. 173(Emphasis supplied)

The constitutional provisions on autonomy and the statutes enacted pursuant to them have, to the credit of their drafters, been partly
successful. Nonetheless, the Filipino people are still faced with the reality of an on-going conflict between the Government and the
MILF. If the President is to be expected to find means for bringing this conflict to an end and to achieve lasting peace in Mindanao,
then she must be given the leeway to explore, in the course of peace negotiations, solutions that may require changes to the
Constitution for their implementation. Being uniquely vested with the power to conduct peace negotiations with rebel groups, the
President is in a singular position to know the precise nature of their grievances which, if resolved, may bring an end to hostilities.

The President may not, of course, unilaterally implement the solutions that she considers viable, but she may not be prevented from
submitting them as recommendations to Congress, which could then, if it is minded, act upon them pursuant to the legal procedures
for constitutional amendment and revision. In particular, Congress would have the option, pursuant to Article XVII, Sections 1 and 3
of the Constitution, to propose the recommended amendments or revision to the people, call a constitutional convention, or submit
to the electorate the question of calling such a convention.

While the President does not possess constituent powers - as those powers may be exercised only by Congress, a Constitutional
Convention, or the people through initiative and referendum - she may submit proposals for constitutional change to Congress in a
manner that does not involve the arrogation of constituent powers.
In Sanidad v. COMELEC,174 in issue was the legality of then President Marcos' act of directly submitting proposals for constitutional
amendments to a referendum, bypassing the interim National Assembly which was the body vested by the 1973 Constitution with
the power to propose such amendments. President Marcos, it will be recalled, never convened the interim National Assembly. The
majority upheld the President's act, holding that "the urges of absolute necessity" compelled the President as the agent of the
people to act as he did, there being no interim National Assembly to propose constitutional amendments. Against this ruling,
Justices Teehankee and Muñoz Palma vigorously dissented. The Court's concern at present, however, is not with regard to the
point on which it was then divided in that controversial case, but on that which was not disputed by either side.

Justice Teehankee's dissent,175 in particular, bears noting. While he disagreed that the President may directly submit proposed
constitutional amendments to a referendum, implicit in his opinion is a recognition that he would have upheld the President's action
along with the majority had the President convened the interim National Assembly and coursed his proposals through it. Thus
Justice Teehankee opined:

"Since the Constitution provides for the organization of the essential departments of government, defines and delimits the powers of
each and prescribes the manner of the exercise of such powers, and the constituent power has not been granted to but has been
withheld from the President or Prime Minister, it follows that the President's questioned decrees proposing and submitting
constitutional amendments directly to the people (without the intervention of the interim National Assembly in whom the
power is expressly vested) are devoid of constitutional and legal basis." 176 (Emphasis supplied)

From the foregoing discussion, the principle may be inferred that the President - in the course of conducting peace negotiations -
may validly consider implementing even those policies that require changes to the Constitution, but she may not unilaterally
implement them without the intervention of Congress, or act in any way as if the assent of that body were assumed as a
certainty.

Since, under the present Constitution, the people also have the power to directly propose amendments through initiative and
referendum, the President may also submit her recommendations to the people, not as a formal proposal to be voted on in a
plebiscite similar to what President Marcos did in Sanidad, but for their independent consideration of whether these
recommendations merit being formally proposed through initiative.

These recommendations, however, may amount to nothing more than the President's suggestions to the people, for any further
involvement in the process of initiative by the Chief Executive may vitiate its character as a genuine "people's initiative." The only
initiative recognized by the Constitution is that which truly proceeds from the people. As the Court stated in Lambino v.
COMELEC:177

"The Lambino Group claims that their initiative is the ‘people's voice.' However, the Lambino Group unabashedly states in ULAP
Resolution No. 2006-02, in the verification of their petition with the COMELEC, that ‘ULAP maintains its unqualified support to the
agenda of Her Excellency President Gloria Macapagal-Arroyo for constitutional reforms.' The Lambino Group thus admits that their
‘people's' initiative is an ‘unqualified support to the agenda' of the incumbent President to change the Constitution. This forewarns
the Court to be wary of incantations of ‘people's voice' or ‘sovereign will' in the present initiative."

It will be observed that the President has authority, as stated in her oath of office, 178 only to preserve and defend the Constitution.
Such presidential power does not, however, extend to allowing her to change the Constitution, but simply to recommend proposed
amendments or revision. As long as she limits herself to recommending these changes and submits to the proper procedure for
constitutional amendments and revision, her mere recommendation need not be construed as an unconstitutional act.

The foregoing discussion focused on the President's authority to propose constitutional amendments, since her authority to
propose new legislation is not in controversy. It has been an accepted practice for Presidents in this jurisdiction to propose new
legislation. One of the more prominent instances the practice is usually done is in the yearly State of the Nation Address of the
President to Congress. Moreover, the annual general appropriations bill has always been based on the budget prepared by the
President, which - for all intents and purposes - is a proposal for new legislation coming from the President. 179

The "suspensive clause" in the MOA-AD viewed in light of the above-discussed standards

Given the limited nature of the President's authority to propose constitutional amendments, she cannot guarantee to any third party
that the required amendments will eventually be put in place, nor even be submitted to a plebiscite. The most she could do is submit
these proposals as recommendations either to Congress or the people, in whom constituent powers are vested.

Paragraph 7 on Governance of the MOA-AD states, however, that all provisions thereof which cannot be reconciled with the present
Constitution and laws "shall come into force upon signing of a Comprehensive Compact and upon effecting the necessary changes
to the legal framework." This stipulation does not bear the marks of a suspensive condition - defined in civil law as a future
and uncertain event - but of a term. It is not a question of whether the necessary changes to the legal framework will be effected,
but when. That there is no uncertainty being contemplated is plain from what follows, for the paragraph goes on to state that the
contemplated changes shall be "with due regard to non derogation of prior agreements and within the stipulated timeframe to be
contained in the Comprehensive Compact."
Pursuant to this stipulation, therefore, it is mandatory for the GRP to effect the changes to the legal framework contemplated in the
MOA-AD - which changes would include constitutional amendments, as discussed earlier. It bears noting that,

By the time these changes are put in place, the MOA-AD itself would be counted among the "prior agreements" from which
there could be no derogation.

What remains for discussion in the Comprehensive Compact would merely be the implementing details for these "consensus points"
and, notably, the deadline for effecting the contemplated changes to the legal framework.

Plainly, stipulation-paragraph 7 on GOVERNANCE is inconsistent with the limits of the President's authority to propose
constitutional amendments, it being a virtual guarantee that the Constitution and the laws of the Republic of the Philippines will
certainly be adjusted to conform to all the "consensus points" found in the MOA-AD. Hence, it must be struck down
as unconstitutional.

A comparison between the "suspensive clause" of the MOA-AD with a similar provision appearing in the 1996 final peace
agreement between the MNLF and the GRP is most instructive.

As a backdrop, the parties to the 1996 Agreement stipulated that it would be implemented in two phases.  Phase I covered a three-
year transitional period involving the putting up of new administrative structures through Executive Order, such as the Special Zone
of Peace and Development (SZOPAD) and the Southern Philippines Council for Peace and Development (SPCPD), while  Phase
II covered the establishment of the new regional autonomous government through amendment or repeal of R.A. No. 6734, which
was then the Organic Act of the ARMM.

The stipulations on Phase II consisted of specific agreements on the structure of the expanded autonomous region envisioned by
the parties. To that extent, they are similar to the provisions of the MOA-AD. There is, however, a crucial difference between the two
agreements. While the MOA-AD virtually guarantees that the "necessary changes to the legal framework" will be put in
place, the GRP-MNLF final peace agreement states thus: "Accordingly, these provisions [on Phase II] shall be recommended by
the GRP to Congress for incorporation in the amendatory or repealing law."

Concerns have been raised that the MOA-AD would have given rise to a binding international law obligation on the part of the
Philippines to change its Constitution in conformity thereto, on the ground that it may be considered either as a binding agreement
under international law, or a unilateral declaration of the Philippine government to the international community that it would grant to
the Bangsamoro people all the concessions therein stated. Neither ground finds sufficient support in international law, however.

The MOA-AD, as earlier mentioned in the overview thereof, would have included foreign dignitaries as signatories. In addition,
representatives of other nations were invited to witness its signing in Kuala Lumpur. These circumstances readily lead one to
surmise that the MOA-AD would have had the status of a binding international agreement had it been signed. An examination of the
prevailing principles in international law, however, leads to the contrary conclusion.

The Decision on Challenge to Jurisdiction: Lomé Accord Amnesty 180 (the Lomé Accord case) of the Special Court of Sierra Leone is
enlightening. The Lomé Accord was a peace agreement signed on July 7, 1999 between the Government of Sierra Leone and the
Revolutionary United Front (RUF), a rebel group with which the Sierra Leone Government had been in armed conflict for around
eight years at the time of signing. There were non-contracting signatories to the agreement, among which were the Government of
the Togolese Republic, the Economic Community of West African States, and the UN.

On January 16, 2002, after a successful negotiation between the UN Secretary-General and the Sierra Leone Government, another
agreement was entered into by the UN and that Government whereby the Special Court of Sierra Leone was established. The sole
purpose of the Special Court, an international court, was to try persons who bore the greatest responsibility for serious violations of
international humanitarian law and Sierra Leonean law committed in the territory of Sierra Leone since November 30, 1996.

Among the stipulations of the Lomé Accord was a provision for the full pardon of the members of the RUF with respect to anything
done by them in pursuit of their objectives as members of that organization since the conflict began.

In the Lomé Accord case, the Defence argued that the Accord created an internationally binding obligation not to prosecute the
beneficiaries of the amnesty provided therein, citing, among other things, the participation of foreign dignitaries and international
organizations in the finalization of that agreement. The Special Court, however, rejected this argument, ruling that the Lome Accord
is not a treaty and that it can only create binding obligations and rights between the parties in municipal law, not in international law.
Hence, the Special Court held, it is ineffective in depriving an international court like it of jurisdiction.

"37. In regard to the nature of a negotiated settlement of an internal armed conflict it is easy to assume and to argue with some
degree of plausibility, as Defence counsel for the defendants seem to have done, that the mere fact that in addition to the
parties to the conflict, the document formalizing the settlement is signed by foreign heads of state or their representatives
and representatives of international organizations, means the agreement of the parties is internationalized so as to create
obligations in international law.

xxxx

40. Almost every conflict resolution will involve the parties to the conflict and the mediator or facilitator of the settlement, or persons
or bodies under whose auspices the settlement took place but who are not at all parties to the conflict, are not contracting parties
and who do not claim any obligation from the contracting parties or incur any obligation from the settlement.

41. In this case, the parties to the conflict are the lawful authority of the State and the RUF which has no status of
statehood and is to all intents and purposes a faction within the state. The non-contracting signatories of the Lomé
Agreement were moral guarantors of the principle that, in the terms of Article XXXIV of the Agreement, "this peace
agreement is implemented with integrity and in good faith by both parties". The moral guarantors assumed no legal
obligation. It is recalled that the UN by its representative appended, presumably for avoidance of doubt, an understanding of the
extent of the agreement to be implemented as not including certain international crimes.

42. An international agreement in the nature of a treaty must create rights and obligations regulated by international law so that a
breach of its terms will be a breach determined under international law which will also provide principle means of enforcement.  The
Lomé Agreement created neither rights nor obligations capable of being regulated by international law. An agreement
such as the Lomé Agreement which brings to an end an internal armed conflict no doubt creates a factual situation of
restoration of peace that the international community acting through the Security Council may take note of. That, however,
will not convert it to an international agreement which creates an obligation enforceable in international, as distinguished
from municipal, law. A breach of the terms of such a peace agreement resulting in resumption of internal armed conflict or creating
a threat to peace in the determination of the Security Council may indicate a reversal of the factual situation of peace to be visited
with possible legal consequences arising from the new situation of conflict created. Such consequences such as action by the
Security Council pursuant to Chapter VII arise from the situation and not from the agreement, nor from the obligation imposed by it.
Such action cannot be regarded as a remedy for the breach. A peace agreement which settles an internal armed conflict
cannot be ascribed the same status as one which settles an international armed conflict which, essentially, must be
between two or more warring States. The Lomé Agreement cannot be characterised as an international instrument.  x x x"
(Emphasis, italics and underscoring supplied)

Similarly, that the MOA-AD would have been signed by representatives of States and international organizations not parties to the
Agreement would not have sufficed to vest in it a binding character under international law.

In another vein, concern has been raised that the MOA-AD would amount to a unilateral declaration of the Philippine State, binding
under international law, that it would comply with all the stipulations stated therein, with the result that it would have to amend its
Constitution accordingly regardless of the true will of the people. Cited as authority for this view is Australia v. France,181 also known
as the Nuclear Tests Case, decided by the International Court of Justice (ICJ).

In the Nuclear Tests Case, Australia challenged before the ICJ the legality of France's nuclear tests in the South Pacific. France
refused to appear in the case, but public statements from its President, and similar statements from other French officials including
its Minister of Defence, that its 1974 series of atmospheric tests would be its last, persuaded the ICJ to dismiss the case. 182 Those
statements, the ICJ held, amounted to a legal undertaking addressed to the international community, which required no acceptance
from other States for it to become effective.

Essential to the ICJ ruling is its finding that the French government intended to be bound to the international community in issuing its
public statements, viz:

43. It is well recognized that declarations made by way of unilateral acts, concerning legal or factual situations, may have the effect
of creating legal obligations. Declarations of this kind may be, and often are, very specific. When it is the intention of the State
making the declaration that it should become bound according to its terms, that intention confers on the declaration the
character of a legal undertaking, the State being thenceforth legally required to follow a course of conduct consistent with
the declaration. An undertaking of this kind, if given publicly, and with an intent to be bound, even though not made within the
context of international negotiations, is binding. In these circumstances, nothing in the nature of a quid pro quo nor any subsequent
acceptance of the declaration, nor even any reply or reaction from other States, is required for the declaration to take effect, since
such a requirement would be inconsistent with the strictly unilateral nature of the juridical act by which the pronouncement by the
State was made.

44. Of course, not all unilateral acts imply obligation; but a State may choose to take up a certain position in relation to a
particular matter with the intention of being bound-the intention is to be ascertained by interpretation of the act. When
States make statements by which their freedom of action is to be limited, a restrictive interpretation is called for.

xxxx
51. In announcing that the 1974 series of atmospheric tests would be the last, the French Government conveyed to the
world at large, including the Applicant, its intention effectively to terminate these tests. It was bound to assume that other
States might take note of these statements and rely on their being effective. The validity of these statements and their legal
consequences must be considered within the general framework of the security of international intercourse, and the
confidence and trust which are so essential in the relations among States. It is from the actual substance of these statements,
and from the circumstances attending their making, that the legal implications of the unilateral act must be deduced.  The
objects of these statements are clear and they were addressed to the international community as a whole, and the Court
holds that they constitute an undertaking possessing legal effect. The Court considers *270 that the President of the Republic,
in deciding upon the effective cessation of atmospheric tests, gave an undertaking to the international community to which his words
were addressed. x x x (Emphasis and underscoring supplied)

As gathered from the above-quoted ruling of the ICJ, public statements of a state representative may be construed as a  unilateral
declaration only when the following conditions are present: the statements were clearly addressed to the international community,
the state intended to be bound to that community by its statements, and that not to give legal effect to those statements would be
detrimental to the security of international intercourse. Plainly, unilateral declarations arise only in peculiar circumstances.

The limited applicability of the Nuclear Tests Case ruling was recognized in a later case decided by the ICJ entitled  Burkina Faso v.
Mali,183 also known as the Case Concerning the Frontier Dispute. The public declaration subject of that case was a statement made
by the President of Mali, in an interview by a foreign press agency, that Mali would abide by the decision to be issued by a
commission of the Organization of African Unity on a frontier dispute then pending between Mali and Burkina Faso.

Unlike in the Nuclear Tests Case, the ICJ held that the statement of Mali's President was not a unilateral act with legal implications.
It clarified that its ruling in the Nuclear Tests case rested on the peculiar circumstances surrounding the French declaration subject
thereof, to wit:

40. In order to assess the intentions of the author of a unilateral act, account must be taken of all the factual circumstances in which
the act occurred. For example, in the Nuclear Tests cases, the Court took the view that since the applicant States were not
the only ones concerned at the possible continuance of atmospheric testing by the French Government, that
Government's unilateral declarations had ‘conveyed to the world at large, including the Applicant, its intention effectively
to terminate these tests‘ (I.C.J. Reports 1974, p. 269, para. 51; p. 474, para. 53). In the particular circumstances of those
cases, the French Government could not express an intention to be bound otherwise than by unilateral declarations. It is
difficult to see how it could have accepted the terms of a negotiated solution with each of the applicants without thereby
jeopardizing its contention that its conduct was lawful. The circumstances of the present case are radically different. Here,
there was nothing to hinder the Parties from manifesting an intention to accept the binding character of the conclusions of
the Organization of African Unity Mediation Commission by the normal method: a formal agreement on the basis of
reciprocity. Since no agreement of this kind was concluded between the Parties, the Chamber finds that there are no grounds to
interpret the declaration made by Mali's head of State on 11 April 1975 as a unilateral act with legal implications in regard to the
present case. (Emphasis and underscoring supplied)

Assessing the MOA-AD in light of the above criteria, it would not have amounted to a unilateral declaration on the part of the
Philippine State to the international community. The Philippine panel did not draft the same with the clear intention of being bound
thereby to the international community as a whole or to any State, but only to the MILF. While there were States and international
organizations involved, one way or another, in the negotiation and projected signing of the MOA-AD, they participated merely as
witnesses or, in the case of Malaysia, as facilitator. As held in the Lomé Accord case, the mere fact that in addition to the parties to
the conflict, the peace settlement is signed by representatives of states and international organizations does not mean that the
agreement is internationalized so as to create obligations in international law.

Since the commitments in the MOA-AD were not addressed to States, not to give legal effect to such commitments would not be
detrimental to the security of international intercourse - to the trust and confidence essential in the relations among States.

In one important respect, the circumstances surrounding the MOA-AD are closer to that of Burkina Faso wherein, as already
discussed, the Mali President's statement was not held to be a binding unilateral declaration by the ICJ. As in that case, there was
also nothing to hinder the Philippine panel, had it really been its intention to be bound to other States, to manifest that intention by
formal agreement. Here, that formal agreement would have come about by the inclusion in the MOA-AD of a clear commitment to
be legally bound to the international community, not just the MILF, and by an equally clear indication that the signatures of the
participating states-representatives would constitute an acceptance of that commitment. Entering into such a formal agreement
would not have resulted in a loss of face for the Philippine government before the international community, which was one of the
difficulties that prevented the French Government from entering into a formal agreement with other countries. That the Philippine
panel did not enter into such a formal agreement suggests that it had no intention to be bound to the international community. On
that ground, the MOA-AD may not be considered a unilateral declaration under international law.

The MOA-AD not being a document that can bind the Philippines under international law notwithstanding, respondents' almost
consummated act of guaranteeing amendments to the legal framework is, by itself, sufficient to constitute grave abuse of
discretion. The grave abuse lies not in the fact that they considered, as a solution to the Moro Problem, the creation of a state
within a state, but in their brazen willingness to guarantee that Congress and the sovereign Filipino people would give their
imprimatur to their solution. Upholding such an act would amount to authorizing a usurpation of the constituent powers vested
only in Congress, a Constitutional Convention, or the people themselves through the process of initiative, for the only way that the
Executive can ensure the outcome of the amendment process is through an undue influence or interference with that process.

The sovereign people may, if it so desired, go to the extent of giving up a portion of its own territory to the Moros for the sake of
peace, for it can change the Constitution in any it wants, so long as the change is not inconsistent with what, in international law, is
known as Jus Cogens.184 Respondents, however, may not preempt it in that decision.

SUMMARY

The petitions are ripe for adjudication. The failure of respondents to consult the local government units or communities affected
constitutes a departure by respondents from their mandate under E.O. No. 3. Moreover, respondents exceeded their authority by
the mere act of guaranteeing amendments to the Constitution. Any alleged violation of the Constitution by any branch of government
is a proper matter for judicial review.

As the petitions involve constitutional issues which are of paramount public interest or of transcendental importance, the Court
grants the petitioners, petitioners-in-intervention and intervening respondents the requisite locus standi in keeping with the liberal
stance adopted in David v. Macapagal-Arroyo.

Contrary to the assertion of respondents that the non-signing of the MOA-AD and the eventual dissolution of the GRP Peace Panel
mooted the present petitions, the Court finds that the present petitions provide an exception to the "moot and academic" principle in
view of (a) the grave violation of the Constitution involved; (b) the exceptional character of the situation and paramount public
interest; (c) the need to formulate controlling principles to guide the bench, the bar, and the public; and (d) the fact that the case is
capable of repetition yet evading review.

The MOA-AD is a significant part of a series of agreements necessary to carry out the GRP-MILF Tripoli Agreement on Peace
signed by the government and the MILF back in June 2001. Hence, the present MOA-AD can be renegotiated or another one drawn
up that could contain similar or significantly dissimilar provisions compared to the original.

The Court, however, finds that the prayers for mandamus have been rendered moot in view of the respondents' action in providing
the Court and the petitioners with the official copy of the final draft of the MOA-AD and its annexes.

The people's right to information on matters of public concern under Sec. 7, Article III of the Constitution is in  splendid
symmetry with the state policy of full public disclosure of all its transactions involving public interest under Sec. 28, Article II of the
Constitution. The right to information guarantees the right of the people to demand information, while Section 28 recognizes the duty
of officialdom to give information even if nobody demands. The complete and effective exercise of the right to information
necessitates that its complementary provision on public disclosure derive the same self-executory nature, subject only to reasonable
safeguards or limitations as may be provided by law.

The contents of the MOA-AD is a matter of paramount public concern involving public interest in the highest order. In declaring that
the right to information contemplates steps and negotiations leading to the consummation of the contract, jurisprudence finds no
distinction as to the executory nature or commercial character of the agreement.

An essential element of these twin freedoms is to keep a continuing dialogue or process of communication between the government
and the people. Corollary to these twin rights is the design for feedback mechanisms. The right to public consultation was
envisioned to be a species of these public rights.

At least three pertinent laws animate these constitutional imperatives and justify the exercise of the people's right to be consulted on
relevant matters relating to the peace agenda.

One, E.O. No. 3 itself is replete with mechanics for continuing consultations on both national and local levels and for a principal
forum for consensus-building. In fact, it is the duty of the Presidential Adviser on the Peace Process to conduct regular dialogues to
seek relevant information, comments, advice, and recommendations from peace partners and concerned sectors of society.

Two, Republic Act No. 7160 or the Local Government Code of 1991 requires all national offices to conduct consultations before any
project or program critical to the environment and human ecology including those that may call for the eviction of a particular group
of people residing in such locality, is implemented therein. The MOA-AD is one peculiar program that unequivocally and unilaterally
vests ownership of a vast territory to the Bangsamoro people, which could pervasively and drastically result to the diaspora or
displacement of a great number of inhabitants from their total environment.

Three, Republic Act No. 8371 or the Indigenous Peoples Rights Act of 1997 provides for clear-cut procedure for the recognition and
delineation of ancestral domain, which entails, among other things, the observance of the free and prior informed consent of the
Indigenous Cultural Communities/Indigenous Peoples. Notably, the statute does not grant the Executive Department or any
government agency the power to delineate and recognize an ancestral domain claim by mere agreement or compromise.
The invocation of the doctrine of executive privilege as a defense to the general right to information or the specific right to
consultation is untenable. The various explicit legal provisions fly in the face of executive secrecy. In any event, respondents
effectively waived such defense after it unconditionally disclosed the official copies of the final draft of the MOA-AD, for judicial
compliance and public scrutiny.

In sum, the Presidential Adviser on the Peace Process committed grave abuse of discretion when he failed to carry out the pertinent
consultation process, as mandated by E.O. No. 3, Republic Act No. 7160, and Republic Act No. 8371. The furtive process by which
the MOA-AD was designed and crafted runs contrary to and in excess of the legal authority, and amounts to a whimsical, capricious,
oppressive, arbitrary and despotic exercise thereof. It illustrates a gross evasion of positive duty and a virtual refusal to perform the
duty enjoined.

The MOA-AD cannot be reconciled with the present Constitution and laws. Not only its specific provisions but the very concept
underlying them, namely, the associative relationship envisioned between the GRP and the BJE, are unconstitutional, for the
concept presupposes that the associated entity is a state and implies that the same is on its way to independence.

While there is a clause in the MOA-AD stating that the provisions thereof inconsistent with the present legal framework will not be
effective until that framework is amended, the same does not cure its defect. The inclusion of provisions in the MOA-AD establishing
an associative relationship between the BJE and the Central Government is, itself, a violation of the Memorandum of Instructions
From The President dated March 1, 2001, addressed to the government peace panel. Moreover, as the clause is worded, it virtually
guarantees that the necessary amendments to the Constitution and the laws will eventually be put in place. Neither the GRP Peace
Panel nor the President herself is authorized to make such a guarantee. Upholding such an act would amount to authorizing a
usurpation of the constituent powers vested only in Congress, a Constitutional Convention, or the people themselves through the
process of initiative, for the only way that the Executive can ensure the outcome of the amendment process is through an undue
influence or interference with that process.

While the MOA-AD would not amount to an international agreement or unilateral declaration binding on the Philippines under
international law, respondents' act of guaranteeing amendments is, by itself, already a constitutional violation that renders the MOA-
AD fatally defective.

WHEREFORE, respondents' motion to dismiss is DENIED. The main and intervening petitions are GIVEN DUE COURSE and
hereby GRANTED.

The Memorandum of Agreement on the Ancestral Domain Aspect of the GRP-MILF Tripoli Agreement on Peace of 2001 is declared
contrary to law and the Constitution.

DECENTRALIZATION OF ADMINISTRATION VS. DECENTRALIZATION OF

POWER

Limbona vs. Magelin

The acts of the Sangguniang Pampook of Region XII are assailed in this petition. The antecedent facts are as follows:
1. On September 24, 1986, petitioner Sultan Alimbusar Limbona was appointed as a member of the Sangguniang Pampook,
Regional Autonomous Government, Region XII, representing Lanao del Sur.

2. On March 12, 1987 petitioner was elected Speaker of the Regional Legislative Assembly or Batasang Pampook of Central
Mindanao (Assembly for brevity).

3. Said Assembly is composed of eighteen (18) members. Two of said members, respondents Acmad Tomawis and Pakil
Dagalangit, filed on March 23, 1987 with the Commission on Elections their respective certificates of candidacy in the May 11, 1987
congressional elections for the district of Lanao del Sur but they later withdrew from the aforesaid election and thereafter resumed
again their positions as members of the Assembly.

4. On October 21, 1987 Congressman Datu Guimid Matalam, Chairman of the Committee on Muslim Affairs of the House of
Representatives, invited Mr. Xavier Razul, Pampook Speaker of Region XI, Zamboanga City and the petitioner in his capacity as
Speaker of the Assembly, Region XII, in a letter which reads:

The Committee on Muslim Affairs well undertake consultations and dialogues with local government officials, civic, religious
organizations and traditional leaders on the recent and present political developments and other issues affecting Regions IX and XII.

The result of the conference, consultations and dialogues would hopefully chart the autonomous governments of the two regions as
envisioned and may prod the President to constitute immediately the Regional Consultative Commission as mandated by the
Commission.

You are requested to invite some members of the Pampook Assembly of your respective assembly on November 1 to 15, 1987, with
venue at the Congress of the Philippines. Your presence, unstinted support and cooperation is (sic) indispensable.

5. Consistent with the said invitation, petitioner sent a telegram to Acting Secretary Johnny Alimbuyao of the Assembly to wire all
Assemblymen that there shall be no session in November as "our presence in the house committee hearing of Congress take (sic)
precedence over any pending business in batasang pampook ... ."

6. In compliance with the aforesaid instruction of the petitioner, Acting Secretary Alimbuyao sent to the members of the Assembly
the following telegram:

TRANSMITTING FOR YOUR INFORMATION AND GUIDANCE TELEGRAM RECEIVED FROM SPEAKER LIMBONA QUOTE
CONGRESSMAN JIMMY MATALAM CHAIRMAN OF THE HOUSE COMMITTEE ON MUSLIM AFFAIRS REQUESTED ME TO
ASSIST SAID COMMITTEE IN THE DISCUSSION OF THE PROPOSED AUTONOMY ORGANIC NOV. 1ST TO 15. HENCE
WERE ALL ASSEMBLYMEN THAT THERE SHALL BE NO SESSION IN NOVEMBER AS OUR PRESENCE IN THE HOUSE
COMMITTEE HEARING OF CONGRESS TAKE PRECEDENCE OVER ANY PENDING BUSINESS IN BATASANG PAMPOOK OF
MATALAM FOLLOWS UNQUOTE REGARDS.

7. On November 2, 1987, the Assembly held session in defiance of petitioner's advice, with the following assemblymen present:

1. Sali, Salic

2. Conding, Pilipinas (sic)

3. Dagalangit, Rakil

4. Dela Fuente, Antonio

5. Mangelen, Conte

6. Ortiz, Jesus

7. Palomares, Diego

8. Sinsuat, Bimbo

9. Tomawis, Acmad

10. Tomawis, Jerry

After declaring the presence of a quorum, the Speaker Pro-Tempore was authorized to preside in the session. On Motion to declare
the seat of the Speaker vacant, all Assemblymen in attendance voted in the affirmative, hence, the chair declared said seat of the
Speaker vacant. 8. On November 5, 1987, the session of the Assembly resumed with the following Assemblymen present:

1. Mangelen Conte-Presiding Officer

2. Ali Salic

3. Ali Salindatu

4. Aratuc, Malik

5. Cajelo, Rene

6. Conding, Pilipinas (sic)

7. Dagalangit, Rakil

8. Dela Fuente, Antonio

9. Ortiz, Jesus

10 Palomares, Diego

11. Quijano, Jesus

12. Sinsuat, Bimbo

13. Tomawis, Acmad

14. Tomawis, Jerry

An excerpt from the debates and proceeding of said session reads:

HON. DAGALANGIT: Mr. Speaker, Honorable Members of the House, with the presence of our colleagues who have come to
attend the session today, I move to call the names of the new comers in order for them to cast their votes on the previous motion to
declare the position of the Speaker vacant. But before doing so, I move also that the designation of the Speaker Pro Tempore as the
Presiding Officer and Mr. Johnny Evangelists as Acting Secretary in the session last November 2, 1987 be reconfirmed in today's
session.

HON. SALIC ALI: I second the motions.

PRESIDING OFFICER: Any comment or objections on the two motions presented? Me chair hears none and the said motions are
approved. ...

Twelve (12) members voted in favor of the motion to declare the seat of the Speaker vacant; one abstained and none voted
against. 1

Accordingly, the petitioner prays for judgment as follows:

WHEREFORE, petitioner respectfully prays that-

(a) This Petition be given due course;

(b) Pending hearing, a restraining order or writ of preliminary injunction be issued enjoining respondents from proceeding with their
session to be held on November 5, 1987, and on any day thereafter;
(c) After hearing, judgment be rendered declaring the proceedings held by respondents of their session on November 2, 1987 as
null and void;

(d) Holding the election of petitioner as Speaker of said Legislative Assembly or Batasan Pampook, Region XII held on March 12,
1987 valid and subsisting, and

(e) Making the injunction permanent.

Petitioner likewise prays for such other relief as may be just and equitable. 
2

Pending further proceedings, this Court, on January 19, 1988, received a resolution filed by the Sangguniang Pampook,
"EXPECTING ALIMBUSAR P. LIMBONA FROM MEMBERSHIP OF THE SANGGUNIANG PAMPOOK AUTONOMOUS REGION
XII,"   on the grounds, among other things, that the petitioner "had caused to be prepared and signed by him paying [sic] the salaries
3

and emoluments of Odin Abdula, who was considered resigned after filing his Certificate of Candidacy for Congressmen for the First
District of Maguindanao in the last May 11, elections. . . and nothing in the record of the Assembly will show that any request for
reinstatement by Abdula was ever made . . ."   and that "such action of Mr. Lim bona in paying Abdula his salaries and emoluments
4

without authority from the Assembly . . . constituted a usurpation of the power of the Assembly,"    that the petitioner "had recently
5

caused withdrawal of so much amount of cash from the Assembly resulting to the non-payment of the salaries and emoluments of
some Assembly [sic],"   and that he had "filed a case before the Supreme Court against some members of the Assembly on
6

question which should have been resolved within the confines of the Assembly,"   for which the respondents now submit that the
7

petition had become "moot and academic".  8

The first question, evidently, is whether or not the expulsion of the petitioner (pending litigation) has made the case moot and
academic.

We do not agree that the case has been rendered moot and academic by reason simply of the expulsion resolution so issued. For, if
the petitioner's expulsion was done purposely to make this petition moot and academic, and to preempt the Court, it will not make it
academic.

On the ground of the immutable principle of due process alone, we hold that the expulsion in question is of no force and effect. In
the first place, there is no showing that the Sanggunian had conducted an investigation, and whether or not the petitioner had been
heard in his defense, assuming that there was an investigation, or otherwise given the opportunity to do so. On the other hand, what
appears in the records is an admission by the Assembly (at least, the respondents) that "since November, 1987 up to this writing,
the petitioner has not set foot at the Sangguniang Pampook."   "To be sure, the private respondents aver that "[t]he Assemblymen,
9

in a conciliatory gesture, wanted him to come to Cotabato City,"   but that was "so that their differences could be threshed out and
10

settled."   Certainly, that avowed wanting or desire to thresh out and settle, no matter how conciliatory it may be cannot be a
11

substitute for the notice and hearing contemplated by law.

While we have held that due process, as the term is known in administrative law, does not absolutely require notice and that a party
need only be given the opportunity to be heard,   it does not appear herein that the petitioner had, to begin with, been made aware
12

that he had in fact stood charged of graft and corruption before his collegues. It cannot be said therefore that he was accorded any
opportunity to rebut their accusations. As it stands, then, the charges now levelled amount to mere accusations that cannot warrant
expulsion.

In the second place, (the resolution) appears strongly to be a bare act of vendetta by the other Assemblymen against the petitioner
arising from what the former perceive to be abduracy on the part of the latter. Indeed, it (the resolution) speaks of "a case [having
been filed] [by the petitioner] before the Supreme Court . . . on question which should have been resolved within the confines of the
Assemblyman act which some members claimed unnecessarily and unduly assails their integrity and character as representative of
the people"   an act that cannot possibly justify expulsion. Access to judicial remedies is guaranteed by the Constitution,   and,
13 14

unless the recourse amounts to malicious prosecution, no one may be punished for seeking redress in the courts.

We therefore order reinstatement, with the caution that should the past acts of the petitioner indeed warrant his removal, the
Assembly is enjoined, should it still be so minded, to commence proper proceedings therefor in line with the most elementary
requirements of due process. And while it is within the discretion of the members of the Sanggunian to punish their erring
colleagues, their acts are nonetheless subject to the moderating band of this Court in the event that such discretion is exercised with
grave abuse.

It is, to be sure, said that precisely because the Sangguniang Pampook(s) are "autonomous," the courts may not rightfully intervene
in their affairs, much less strike down their acts. We come, therefore, to the second issue: Are the so-called autonomous
governments of Mindanao, as they are now constituted, subject to the jurisdiction of the national courts? In other words, what is the
extent of self-government given to the two autonomous governments of Region IX and XII?

The autonomous governments of Mindanao were organized in Regions IX and XII by Presidential Decree No. 1618    promulgated
15

on July 25, 1979. Among other things, the Decree established "internal autonomy"   in the two regions "[w]ithin the framework of the
16
national sovereignty and territorial integrity of the Republic of the Philippines and its Constitution,"    with legislative and executive
17

machinery to exercise the powers and responsibilities   specified therein.

18

It requires the autonomous regional governments to "undertake all internal administrative matters for the respective
regions,"   except to "act on matters which are within the jurisdiction and competence of the National Government,"   "which include,
19 20

but are not limited to, the following:

(1) National defense and security;

(2) Foreign relations;

(3) Foreign trade;

(4) Currency, monetary affairs, foreign exchange, banking and quasi-banking, and external borrowing,

(5) Disposition, exploration, development, exploitation or utilization of all natural resources;

(6) Air and sea transport

(7) Postal matters and telecommunications;

(8) Customs and quarantine;

(9) Immigration and deportation;

(10) Citizenship and naturalization;

(11) National economic, social and educational planning; and

(12) General auditing.  21

In relation to the central government, it provides that "[t]he President shall have the power of general supervision and control over
the Autonomous Regions ..."  22

Now, autonomy is either decentralization of administration or decentralization of power. There is decentralization of administration
when the central government delegates administrative powers to political subdivisions in order to broaden the base of government
power and in the process to make local governments "more responsive and accountable,"   "and ensure their fullest development as
23

self-reliant communities and make them more effective partners in the pursuit of national development and social progress."   At the 24

same time, it relieves the central government of the burden of managing local affairs and enables it to concentrate on national
concerns. The President exercises "general supervision"   over them, but only to "ensure that local affairs are administered
25

according to law."   He has no control over their acts in the sense that he can substitute their judgments with his own. 
26 27

Decentralization of power, on the other hand, involves an abdication of political power in the favor of local governments units declare
to be autonomous . In that case, the autonomous government is free to chart its own destiny and shape its future with minimum
intervention from central authorities. According to a constitutional author, decentralization of power amounts to "self-immolation,"
since in that event, the autonomous government becomes accountable not to the central authorities but to its constituency.  28

But the question of whether or not the grant of autonomy Muslim Mindanao under the 1987 Constitution involves, truly, an effort to
decentralize power rather than mere administration is a question foreign to this petition, since what is involved herein is a local
government unit constituted prior to the ratification of the present Constitution. Hence, the Court will not resolve that controversy
now, in this case, since no controversy in fact exists. We will resolve it at the proper time and in the proper case.

Under the 1987 Constitution, local government units enjoy autonomy in these two senses, thus:

Section 1. The territorial and political subdivisions of the Republic of the Philippines are the provinces, cities, municipalities, and
barangays. Here shall be autonomous regions in Muslim Mindanao ,and the Cordilleras as hereinafter provided.  29

Sec. 2. The territorial and political subdivisions shall enjoy local autonomy. 30
xxx xxx xxx

See. 15. Mere shall be created autonomous regions in Muslim Mindanao and in the Cordilleras consisting of provinces, cities,
municipalities, and geographical areas sharing common and distinctive historical and cultural heritage, economic and social
structures, and other relevant characteristics within the framework of this Constitution and the national sovereignty as well as
territorial integrity of the Republic of the Philippines. 
31

An autonomous government that enjoys autonomy of the latter category [CONST. (1987), art. X, sec. 15.] is subject alone to the
decree of the organic act creating it and accepted principles on the effects and limits of "autonomy." On the other hand, an
autonomous government of the former class is, as we noted, under the supervision of the national government acting through the
President (and the Department of Local Government).   If the Sangguniang Pampook (of Region XII), then, is autonomous in the
32

latter sense, its acts are, debatably beyond the domain of this Court in perhaps the same way that the  internal acts, say, of the
Congress of the Philippines are beyond our jurisdiction. But if it is autonomous in the former category only, it comes unarguably
under our jurisdiction. An examination of the very Presidential Decree creating the autonomous governments of Mindanao
persuades us that they were never meant to exercise autonomy in the second sense, that is, in which the central government
commits an act of self-immolation. Presidential Decree No. 1618, in the first place, mandates that "[t]he President shall have the
power of general supervision and control over Autonomous Regions."  In the second place, the Sangguniang Pampook, their
33

legislative arm, is made to discharge chiefly administrative services, thus:

SEC. 7. Powers of the Sangguniang Pampook. The Sangguniang Pampook shall exercise local legislative powers over regional
affairs within the framework of national development plans, policies and goals, in the following areas:

(1) Organization of regional administrative system;

(2) Economic, social and cultural development of the Autonomous Region;

(3) Agricultural, commercial and industrial programs for the Autonomous Region;

(4) Infrastructure development for the Autonomous Region;

(5) Urban and rural planning for the Autonomous Region;

(6) Taxation and other revenue-raising measures as provided for in this Decree;

(7) Maintenance, operation and administration of schools established by the Autonomous Region;

(8) Establishment, operation and maintenance of health, welfare and other social services, programs and facilities;

(9) Preservation and development of customs, traditions, languages and culture indigenous to the Autonomous Region; and

(10) Such other matters as may be authorized by law,including the enactment of such measures as may be necessary for the
promotion of the general welfare of the people in the Autonomous Region.

The President shall exercise such powers as may be necessary to assure that enactment and acts of the Sangguniang Pampook
and the Lupong Tagapagpaganap ng Pook are in compliance with this Decree, national legislation, policies, plans and programs.

The Sangguniang Pampook shall maintain liaison with the Batasang Pambansa.  34

Hence, we assume jurisdiction. And if we can make an inquiry in the validity of the expulsion in question, with more reason can we
review the petitioner's removal as Speaker.

Briefly, the petitioner assails the legality of his ouster as Speaker on the grounds that: (1) the Sanggunian, in convening on
November 2 and 5, 1987 (for the sole purpose of declaring the office of the Speaker vacant), did so in violation of the Rules of the
Sangguniang Pampook since the Assembly was then on recess; and (2) assuming that it was valid, his ouster was ineffective
nevertheless for lack of quorum.

Upon the facts presented, we hold that the November 2 and 5, 1987 sessions were invalid. It is true that under Section 31 of the
Region XII Sanggunian Rules, "[s]essions shall not be suspended or adjourned except by direction of the Sangguniang
Pampook,"   but it provides likewise that "the Speaker may, on [sic] his discretion, declare a recess of "short intervals."    Of course,
35 36

there is disagreement between the protagonists as to whether or not the recess called by the petitioner effective November 1
through 15, 1987 is the "recess of short intervals" referred to; the petitioner says that it is while the respondents insist that, to all
intents and purposes, it was an adjournment and that "recess" as used by their Rules only refers to "a recess when arguments get
heated up so that protagonists in a debate can talk things out informally and obviate dissenssion [sic] and disunity.    The Court 37

agrees with the respondents on this regard, since clearly, the Rules speak of "short intervals." Secondly, the Court likewise agrees
that the Speaker could not have validly called a recess since the Assembly had yet to convene on November 1, the date session
opens under the same Rules.   Hence, there can be no recess to speak of that could possibly interrupt any session. But while this
38

opinion is in accord with the respondents' own, we still invalidate the twin sessions in question, since at the time the petitioner called
the "recess," it was not a settled matter whether or not he could. do so. In the second place, the invitation tendered by the
Committee on Muslim Affairs of the House of Representatives provided a plausible reason for the intermission sought. Thirdly,
assuming that a valid recess could not be called, it does not appear that the respondents called his attention to this mistake. What
appears is that instead, they opened the sessions themselves behind his back in an apparent act of mutiny. Under the
circumstances, we find equity on his side. For this reason, we uphold the "recess" called on the ground of good faith.

It does not appear to us, moreover, that the petitioner had resorted to the aforesaid "recess" in order to forestall the Assembly from
bringing about his ouster. This is not apparent from the pleadings before us. We are convinced that the invitation was what
precipitated it.

In holding that the "recess" in question is valid, we are not to be taken as establishing a precedent, since, as we said, a recess can
not be validly declared without a session having been first opened. In upholding the petitioner herein, we are not giving him a  carte
blanche to order recesses in the future in violation of the Rules, or otherwise to prevent the lawful meetings thereof.

Neither are we, by this disposition, discouraging the Sanggunian from reorganizing itself pursuant to its lawful prerogatives.
Certainly, it can do so at the proper time. In the event that be petitioner should initiate obstructive moves, the Court is certain that it
is armed with enough coercive remedies to thwart them.  39

In view hereof, we find no need in dwelling on the issue of quorum.

WHEREFORE, premises considered, the petition is GRANTED. The Sangguniang Pampook, Region XII, is ENJOINED to (1)
REINSTATE the petitioner as Member, Sangguniang Pampook, Region XII; and (2) REINSTATE him as Speaker thereof. No costs.

BASCO V. PAGCOR

But the petitioners think otherwise, that is why, they filed the instant petition seeking to annul the Philippine
Amusement and Gaming Corporation (PAGCOR) Charter - PD 1869, because it is allegedly contrary to morals,
public policy and order, and because -

A. It constitutes a waiver of a right prejudicial to a third person with a right recognized by law. It
waived the Manila City government's right to impose taxes and license fees, which is recognized
by law; chanrobles virtual law library

B. For the same reason stated in the immediately preceding paragraph, the law has intruded into
the local government's right to impose local taxes and license fees. This, in contravention of the
constitutionally enshrined principle of local autonomy; chanrobles virtual law library

C. It violates the equal protection clause of the constitution in that it legalizes PAGCOR -
conducted gambling, while most other forms of gambling are outlawed, together with
prostitution, drug trafficking and other vices; chanrobles virtual law library

D. It violates the avowed trend of the Cory government away from monopolistic and crony
economy, and toward free enterprise and privatization. (p. 2, Amended Petition; p. 7, Rollo)

In their Second Amended Petition, petitioners also claim that PD 1869 is contrary to the declared national policy of
the "new restored democracy" and the people's will as expressed in the 1987 Constitution. The decree is said to
have a "gambling objective" and therefore is contrary to Sections 11, 12 and 13 of Article II, Sec. 1 of Article VIII
and Section 3 (2) of Article XIV, of the present Constitution (p. 3, Second Amended Petition; p. 21, Rollo). chanroblesvirtualawlibrary chanrobles virtual law library

The procedural issue is whether petitioners, as taxpayers and practicing lawyers (petitioner Basco being also the
Chairman of the Committee on Laws of the City Council of Manila), can question and seek the annulment of PD
1869 on the alleged grounds mentioned above. chanroblesvirtualawlibrary chanrobles virtual law library
The Philippine Amusements and Gaming Corporation (PAGCOR) was created by virtue of P.D. 1067-A dated
January 1, 1977 and was granted a franchise under P.D. 1067-B also dated January 1, 1977 "to establish, operate
and maintain gambling casinos on land or water within the territorial jurisdiction of the Philippines." Its operation
was originally conducted in the well known floating casino "Philippine Tourist." The operation was considered a
success for it proved to be a potential source of revenue to fund infrastructure and socio-economic projects, thus,
P.D. 1399 was passed on June 2, 1978 for PAGCOR to fully attain this objective. chanroblesvirtualawlibrary chanrobles virtual law library

Subsequently, on July 11, 1983, PAGCOR was created under P.D. 1869 to enable the Government to regulate and
centralize all games of chance authorized by existing franchise or permitted by law, under the following declared
policy -

Sec. 1. Declaration of Policy. - It is hereby declared to be the policy of the State to centralize and
integrate all games of chance not heretofore authorized by existing franchises or permitted by
law in order to attain the following objectives: chanrobles virtual law library

(a) To centralize and integrate the right and authority to operate and conduct games of chance
into one corporate entity to be controlled, administered and supervised by the Government.
library
chanroblesvirtualawlibrary chanrobles virtual law

(b) To establish and operate clubs and casinos, for amusement and recreation, including sports
gaming pools, (basketball, football, lotteries, etc.) and such other forms of amusement and
recreation including games of chance, which may be allowed by law within the territorial
jurisdiction of the Philippines and which will: (1) generate sources of additional revenue to fund
infrastructure and socio-civic projects, such as flood control programs, beautification, sewerage
and sewage projects, Tulungan ng Bayan Centers, Nutritional Programs, Population Control and
such other essential public services; (2) create recreation and integrated facilities which will
expand and improve the country's existing tourist attractions; and (3) minimize, if not totally
eradicate, all the evils, malpractices and corruptions that are normally prevalent on the conduct
and operation of gambling clubs and casinos without direct government involvement. (Section 1,
P.D. 1869)

To attain these objectives PAGCOR is given territorial jurisdiction all over the Philippines. Under its Charter's
repealing clause, all laws, decrees, executive orders, rules and regulations, inconsistent therewith, are accordingly
repealed, amended or modified. chanroblesvirtualawlibrary chanrobles virtual law library

It is reported that PAGCOR is the third largest source of government revenue, next to the Bureau of Internal
Revenue and the Bureau of Customs. In 1989 alone, PAGCOR earned P3.43 Billion, and directly remitted to the
National Government a total of P2.5 Billion in form of franchise tax, government's income share, the President's
Social Fund and Host Cities' share. In addition, PAGCOR sponsored other socio-cultural and charitable projects on
its own or in cooperation with various governmental agencies, and other private associations and organizations. In
its 3 1/2 years of operation under the present administration, PAGCOR remitted to the government a total of P6.2
Billion. As of December 31, 1989, PAGCOR was employing 4,494 employees in its nine (9) casinos nationwide,
directly supporting the livelihood of Four Thousand Four Hundred Ninety-Four (4,494) families. chanroblesvirtualawlibrary chanrobles virtual law library

But the petitioners, are questioning the validity of P.D. No. 1869. They allege that the same is "null and void" for
being "contrary to morals, public policy and public order," monopolistic and tends toward "crony economy", and is
violative of the equal protection clause and local autonomy as well as for running counter to the state policies
enunciated in Sections 11 (Personal Dignity and Human Rights), 12 (Family) and 13 (Role of Youth) of Article II,
Section 1 (Social Justice) of Article XIII and Section 2 (Educational Values) of Article XIV of the 1987
Constitution. chanroblesvirtualawlibrary chanrobles virtual law library

This challenge to P.D. No. 1869 deserves a searching and thorough scrutiny and the most deliberate consideration
by the Court, involving as it does the exercise of what has been described as "the highest and most delicate
function which belongs to the judicial department of the government." (State v. Manuel, 20 N.C. 144; Lozano v.
Martinez, 146 SCRA 323). chanroblesvirtualawlibrary chanrobles virtual law library

As We enter upon the task of passing on the validity of an act of a co-equal and coordinate branch of the
government We need not be reminded of the time-honored principle, deeply ingrained in our jurisprudence, that a
statute is presumed to be valid. Every presumption must be indulged in favor of its constitutionality. This is not to
say that We approach Our task with diffidence or timidity. Where it is clear that the legislature or the executive for
that matter, has over-stepped the limits of its authority under the constitution, We should not hesitate to wield the
axe and let it fall heavily, as fall it must, on the offending statute (Lozano v. Martinez, supra). chanroblesvirtualawlibrary chanrobles virtual law library
In Victoriano v. Elizalde Rope Workers' Union, et al, 59 SCRA 54, the Court thru Mr. Justice Zaldivar underscored
the -

. . . thoroughly established principle which must be followed in all cases where questions of
constitutionality as obtain in the instant cases are involved. All presumptions are indulged in
favor of constitutionality; one who attacks a statute alleging unconstitutionality must prove its
invalidity beyond a reasonable doubt; that a law may work hardship does not render it
unconstitutional; that if any reasonable basis may be conceived which supports the statute, it will
be upheld and the challenger must negate all possible basis; that the courts are not concerned
with the wisdom, justice, policy or expediency of a statute and that a liberal interpretation of the
constitution in favor of the constitutionality of legislation should be adopted. (Danner v. Hass,
194 N.W. 2nd 534, 539; Spurbeck v. Statton, 106 N.W. 2nd 660, 663; 59 SCRA 66; see also e.g.
Salas v. Jarencio, 46 SCRA 734, 739 [1970]; Peralta v. Commission on Elections, 82 SCRA 30, 55
[1978]; and Heirs of Ordona v. Reyes, 125 SCRA 220, 241-242 [1983] cited in Citizens Alliance
for Consumer Protection v. Energy Regulatory Board, 162 SCRA 521, 540)

Of course, there is first, the procedural issue. The respondents are questioning the legal personality of petitioners
to file the instant petition. chanroblesvirtualawlibrary chanrobles virtual law library

Considering however the importance to the public of the case at bar, and in keeping with the Court's duty, under
the 1987 Constitution, to determine whether or not the other branches of government have kept themselves within
the limits of the Constitution and the laws and that they have not abused the discretion given to them, the Court
has brushed aside technicalities of procedure and has taken cognizance of this petition. (Kapatiran ng mga
Naglilingkod sa Pamahalaan ng Pilipinas Inc. v. Tan, 163 SCRA 371)

With particular regard to the requirement of proper party as applied in the cases before us, We
hold that the same is satisfied by the petitioners and intervenors because each of them has
sustained or is in danger of sustaining an immediate injury as a result of the acts or measures
complained of. And even if, strictly speaking they are not covered by the definition, it is still
within the wide discretion of the Court to waive the requirement and so remove the impediment
to its addressing and resolving the serious constitutional questions raised. chanroblesvirtualawlibrary chanrobles virtual law library

In the first Emergency Powers Cases, ordinary citizens and taxpayers were allowed to question
the constitutionality of several executive orders issued by President Quirino although they were
involving only an indirect and general interest shared in common with the public. The Court
dismissed the objection that they were not proper parties and ruled that "the transcendental
importance to the public of these cases demands that they be settled promptly and definitely,
brushing aside, if we must technicalities of procedure." We have since then applied the exception
in many other cases. (Association of Small Landowners in the Philippines, Inc. v. Sec. of Agrarian
Reform, 175 SCRA 343).

Having disposed of the procedural issue, We will now discuss the substantive issues raised. chanroblesvirtualawlibrary chanrobles virtual law library

Gambling in all its forms, unless allowed by law, is generally prohibited. But the prohibition of gambling does not
mean that the Government cannot regulate it in the exercise of its police power. chanroblesvirtualawlibrary chanrobles virtual law library

The concept of police power is well-established in this jurisdiction. It has been defined as the "state authority to
enact legislation that may interfere with personal liberty or property in order to promote the general welfare." (Edu
v. Ericta, 35 SCRA 481, 487) As defined, it consists of (1) an imposition or restraint upon liberty or property, (2) in
order to foster the common good. It is not capable of an exact definition but has been, purposely, veiled in general
terms to underscore its all-comprehensive embrace. (Philippine Association of Service Exporters, Inc. v. Drilon, 163
SCRA 386). chanroblesvirtualawlibrary chanrobles virtual law library

Its scope, ever-expanding to meet the exigencies of the times, even to anticipate the future where it could be
done, provides enough room for an efficient and flexible response to conditions and circumstances thus assuming
the greatest benefits. (Edu v. Ericta, supra) chanrobles virtual law library

It finds no specific Constitutional grant for the plain reason that it does not owe its origin to the charter. Along with
the taxing power and eminent domain, it is inborn in the very fact of statehood and sovereignty. It is a
fundamental attribute of government that has enabled it to perform the most vital functions of governance.
Marshall, to whom the expression has been credited, refers to it succinctly as the plenary power of the state "to
govern its citizens". (Tribe, American Constitutional Law, 323, 1978). The police power of the State is a power co-
extensive with self-protection and is most aptly termed the "law of overwhelming necessity." (Rubi v. Provincial
Board of Mindoro, 39 Phil. 660, 708) It is "the most essential, insistent, and illimitable of powers." (Smith Bell &
Co. v. National, 40 Phil. 136) It is a dynamic force that enables the state to meet the agencies of the winds of
change. chanroblesvirtualawlibrary chanrobles virtual law library

What was the reason behind the enactment of P.D. 1869? chanrobles virtual law library

P.D. 1869 was enacted pursuant to the policy of the government to "regulate and centralize thru an appropriate
institution all games of chance authorized by existing franchise or permitted by law" (1st whereas clause, PD
1869). As was subsequently proved, regulating and centralizing gambling operations in one corporate entity - the
PAGCOR, was beneficial not just to the Government but to society in general. It is a reliable source of much needed
revenue for the cash strapped Government. It provided funds for social impact projects and subjected gambling to
"close scrutiny, regulation, supervision and control of the Government" (4th Whereas Clause, PD 1869). With the
creation of PAGCOR and the direct intervention of the Government, the evil practices and corruptions that go with
gambling will be minimized if not totally eradicated. Public welfare, then, lies at the bottom of the enactment of PD
1896.chanroblesvirtualawlibrary chanrobles virtual law library

Petitioners contend that P.D. 1869 constitutes a waiver of the right of the City of Manila to impose taxes and legal
fees; that the exemption clause in P.D. 1869 is violative of the principle of local autonomy. They must be referring
to Section 13 par. (2) of P.D. 1869 which exempts PAGCOR, as the franchise holder from paying any "tax of any
kind or form, income or otherwise, as well as fees, charges or levies of whatever nature, whether National or
Local."

(2) Income and other taxes. - a) Franchise Holder: No tax of any kind or form, income or
otherwise as well as fees, charges or levies of whatever nature, whether National or Local, shall
be assessed and collected under this franchise from the Corporation; nor shall any form or tax or
charge attach in any way to the earnings of the Corporation, except a franchise tax of five (5%)
percent of the gross revenues or earnings derived by the Corporation from its operations under
this franchise. Such tax shall be due and payable quarterly to the National Government and shall
be in lieu of all kinds of taxes, levies, fees or assessments of any kind, nature or description,
levied, established or collected by any municipal, provincial or national government authority
(Section 13 [2]).

Their contention stated hereinabove is without merit for the following reasons: chanrobles virtual law library

(a) The City of Manila, being a mere Municipal corporation has no inherent right to impose taxes (Icard v. City of
Baguio, 83 Phil. 870; City of Iloilo v. Villanueva, 105 Phil. 337; Santos v. Municipality of Caloocan, 7 SCRA 643).
Thus, "the Charter or statute must plainly show an intent to confer that power or the municipality cannot assume
it" (Medina v. City of Baguio, 12 SCRA 62). Its "power to tax" therefore must always yield to a legislative act which
is superior having been passed upon by the state itself which has the "inherent power to tax" (Bernas, the Revised
[1973] Philippine Constitution, Vol. 1, 1983 ed. p. 445). chanroblesvirtualawlibrary chanrobles virtual law library

(b) The Charter of the City of Manila is subject to control by Congress. It should be stressed that "municipal
corporations are mere creatures of Congress" (Unson v. Lacson, G.R. No. 7909, January 18, 1957) which has the
power to "create and abolish municipal corporations" due to its "general legislative powers" (Asuncion v. Yriantes,
28 Phil. 67; Merdanillo v. Orandia, 5 SCRA 541). Congress, therefore, has the power of control over Local
governments (Hebron v. Reyes, G.R. No. 9124, July 2, 1950). And if Congress can grant the City of Manila the
power to tax certain matters, it can also provide for exemptions or even take back the power. chanroblesvirtualawlibrary chanrobles virtual law library

(c) The City of Manila's power to impose license fees on gambling, has long been revoked. As early as 1975, the
power of local governments to regulate gambling thru the grant of "franchise, licenses or permits" was withdrawn
by P.D. No. 771 and was vested exclusively on the National Government, thus:

Sec. 1. Any provision of law to the contrary notwithstanding, the authority of chartered cities and
other local governments to issue license, permit or other form of franchise to operate, maintain
and establish horse and dog race tracks, jai-alai and other forms of gambling is hereby
revoked. chanroblesvirtualawlibrary chanrobles virtual law library

Sec. 2. Hereafter, all permits or franchises to operate, maintain and establish, horse and dog
race tracks, jai-alai and other forms of gambling shall be issued by the national government upon
proper application and verification of the qualification of the applicant . . .
Therefore, only the National Government has the power to issue "licenses or permits" for the operation of
gambling. Necessarily, the power to demand or collect license fees which is a consequence of the issuance of
"licenses or permits" is no longer vested in the City of Manila. chanroblesvirtualawlibrary chanrobles virtual law library

(d) Local governments have no power to tax instrumentalities of the National Government. PAGCOR is a
government owned or controlled corporation with an original charter, PD 1869. All of its shares of stocks are owned
by the National Government. In addition to its corporate powers (Sec. 3, Title II, PD 1869) it also exercises
regulatory powers thus:

Sec. 9. Regulatory Power. - The Corporation shall maintain a Registry of the affiliated entities,
and shall exercise all the powers, authority and the responsibilities vested in the Securities and
Exchange Commission over such affiliating entities mentioned under the preceding section,
including, but not limited to amendments of Articles of Incorporation and By-Laws, changes in
corporate term, structure, capitalization and other matters concerning the operation of the
affiliated entities, the provisions of the Corporation Code of the Philippines to the contrary
notwithstanding, except only with respect to original incorporation.

PAGCOR has a dual role, to operate and to regulate gambling casinos. The latter role is governmental, which places
it in the category of an agency or instrumentality of the Government. Being an instrumentality of the Government,
PAGCOR should be and actually is exempt from local taxes. Otherwise, its operation might be burdened, impeded
or subjected to control by a mere Local government.

The states have no power by taxation or otherwise, to retard, impede, burden or in any manner
control the operation of constitutional laws enacted by Congress to carry into execution the
powers vested in the federal government. (MC Culloch v. Marland, 4 Wheat 316, 4 L Ed. 579)

This doctrine emanates from the "supremacy" of the National Government over local governments.

Justice Holmes, speaking for the Supreme Court, made reference to the entire absence of power
on the part of the States to touch, in that way (taxation) at least, the instrumentalities of the
United States (Johnson v. Maryland, 254 US 51) and it can be agreed that no state or political
subdivision can regulate a federal instrumentality in such a way as to prevent it from
consummating its federal responsibilities, or even to seriously burden it in the accomplishment of
them. (Antieau, Modern Constitutional Law, Vol. 2, p. 140, emphasis supplied)

Otherwise, mere creatures of the State can defeat National policies thru extermination of what local authorities
may perceive to be undesirable activities or enterprise using the power to tax as "a tool for regulation" (U.S. v.
Sanchez, 340 US 42). chanroblesvirtualawlibrary chanrobles virtual law library

The power to tax which was called by Justice Marshall as the "power to destroy" (Mc Culloch v. Maryland, supra)
cannot be allowed to defeat an instrumentality or creation of the very entity which has the inherent power to wield
it.
chanroblesvirtualawlibrary chanrobles virtual law library

(e) Petitioners also argue that the Local Autonomy Clause of the Constitution will be violated by P.D. 1869. This is
a pointless argument. Article X of the 1987 Constitution (on Local Autonomy) provides:

Sec. 5. Each local government unit shall have the power to create its own source of revenue and
to levy taxes, fees, and other charges subject to such guidelines and limitation as the congress
may provide, consistent with the basic policy on local autonomy. Such taxes, fees and charges
shall accrue exclusively to the local government. (emphasis supplied)

The power of local government to "impose taxes and fees" is always subject to "limitations" which Congress may
provide by law. Since PD 1869 remains an "operative" law until "amended, repealed or revoked" (Sec. 3, Art.
XVIII, 1987 Constitution), its "exemption clause" remains as an exception to the exercise of the power of local
governments to impose taxes and fees. It cannot therefore be violative but rather is consistent with the principle of
local autonomy. chanroblesvirtualawlibrary chanrobles virtual law library

Besides, the principle of local autonomy under the 1987 Constitution simply means "decentralization" (III Records
of the 1987 Constitutional Commission, pp. 435-436, as cited in Bernas, The Constitution of the Republic of the
Philippines, Vol. II, First Ed., 1988, p. 374). It does not make local governments sovereign within the state or an
"imperium in imperio."
 Local Government has been described as a political subdivision of a nation or state which is
constituted by law and has substantial control of local affairs. In a unitary system of government,
such as the government under the Philippine Constitution, local governments can only be an intra
sovereign subdivision of one sovereign nation, it cannot be an imperium in imperio. Local
government in such a system can only mean a measure of decentralization of the function of
government. (emphasis supplied)

As to what state powers should be "decentralized" and what may be delegated to local government units remains a
matter of policy, which concerns wisdom. It is therefore a political question. (Citizens Alliance for Consumer
Protection v. Energy Regulatory Board, 162 SCRA 539). chanroblesvirtualawlibrary chanrobles virtual law library

What is settled is that the matter of regulating, taxing or otherwise dealing with gambling is a State concern and
hence, it is the sole prerogative of the State to retain it or delegate it to local governments.

As gambling is usually an offense against the State, legislative grant or express charter power is
generally necessary to empower the local corporation to deal with the subject . . . . In the
absence of express grant of power to enact, ordinance provisions on this subject which are
inconsistent with the state laws are void. (Ligan v. Gadsden, Ala App. 107 So. 733 Ex-Parte
Solomon, 9, Cals. 440, 27 PAC 757 following in re Ah You, 88 Cal. 99, 25 PAC 974, 22 Am St.
Rep. 280, 11 LRA 480, as cited in Mc Quinllan Vol. 3 Ibid, p. 548, emphasis supplied)

Petitioners next contend that P.D. 1869 violates the equal protection clause of the Constitution, because "it
legalized PAGCOR - conducted gambling, while most gambling are outlawed together with prostitution, drug
trafficking and other vices" (p. 82, Rollo). chanroblesvirtualawlibrary chanrobles virtual law library

We, likewise, find no valid ground to sustain this contention. The petitioners' posture ignores the well-accepted
meaning of the clause "equal protection of the laws." The clause does not preclude classification of individuals who
may be accorded different treatment under the law as long as the classification is not unreasonable or arbitrary
(Itchong v. Hernandez, 101 Phil. 1155). A law does not have to operate in equal force on all persons or things to
be conformable to Article III, Section 1 of the Constitution (DECS v. San Diego, G.R. No. 89572, December 21,
1989).chanroblesvirtualawlibrary chanrobles virtual law library

The "equal protection clause" does not prohibit the Legislature from establishing classes of individuals or objects
upon which different rules shall operate (Laurel v. Misa, 43 O.G. 2847). The Constitution does not require
situations which are different in fact or opinion to be treated in law as though they were the same (Gomez v.
Palomar, 25 SCRA 827). chanroblesvirtualawlibrary chanrobles virtual law library

Just how P.D. 1869 in legalizing gambling conducted by PAGCOR is violative of the equal protection is not clearly
explained in the petition. The mere fact that some gambling activities like cockfighting (P.D 449) horse racing (R.A.
306 as amended by RA 983), sweepstakes, lotteries and races (RA 1169 as amended by B.P. 42) are legalized
under certain conditions, while others are prohibited, does not render the applicable laws, P.D. 1869 for one,
unconstitutional.

If the law presumably hits the evil where it is most felt, it is not to be overthrown because there
are other instances to which it might have been applied. (Gomez v. Palomar, 25 SCRA 827) chanrobles virtual law library

The equal protection clause of the 14th Amendment does not mean that all occupations called by
the same name must be treated the same way; the state may do what it can to prevent which is
deemed as evil and stop short of those cases in which harm to the few concerned is not less than
the harm to the public that would insure if the rule laid down were made mathematically exact.
(Dominican Hotel v. Arizona, 249 US 2651).

Anent petitioners' claim that PD 1869 is contrary to the "avowed trend of the Cory Government away from
monopolies and crony economy and toward free enterprise and privatization" suffice it to state that this is not a
ground for this Court to nullify P.D. 1869. If, indeed, PD 1869 runs counter to the government's policies then it is
for the Executive Department to recommend to Congress its repeal or amendment.

The judiciary does not settle policy issues. The Court can only declare what the law is and not
what the law should be. Under our system of government, policy issues are within the domain of
the political branches of government and of the people themselves as the repository of all state
power. (Valmonte v. Belmonte, Jr., 170 SCRA 256).
On the issue of "monopoly," however, the Constitution provides that:

Sec. 19. The State shall regulate or prohibit monopolies when public interest so requires. No
combinations in restraint of trade or unfair competition shall be allowed. (Art. XII, National
Economy and Patrimony)

It should be noted that, as the provision is worded, monopolies are not necessarily prohibited by the Constitution.
The state must still decide whether public interest demands that monopolies be regulated or prohibited. Again, this
is a matter of policy for the Legislature to decide. chanroblesvirtualawlibrary chanrobles virtual law library

On petitioners' allegation that P.D. 1869 violates Sections 11 (Personality Dignity) 12 (Family) and 13 (Role of
Youth) of Article II; Section 13 (Social Justice) of Article XIII and Section 2 (Educational Values) of Article XIV of
the 1987 Constitution, suffice it to state also that these are merely statements of principles and, policies. As such,
they are basically not self-executing, meaning a law should be passed by Congress to clearly define and effectuate
such principles.

In general, therefore, the 1935 provisions were not intended to be self-executing principles ready
for enforcement through the courts. They were rather directives addressed to the executive and
the legislature. If the executive and the legislature failed to heed the directives of the articles the
available remedy was not judicial or political. The electorate could express their displeasure with
the failure of the executive and the legislature through the language of the ballot. (Bernas, Vol.
II, p. 2)

Every law has in its favor the presumption of constitutionality (Yu Cong Eng v. Trinidad, 47 Phil. 387; Salas v.
Jarencio, 48 SCRA 734; Peralta v. Comelec, 82 SCRA 30; Abbas v. Comelec, 179 SCRA 287). Therefore, for PD
1869 to be nullified, it must be shown that there is a clear and unequivocal breach of the Constitution, not merely
a doubtful and equivocal one. In other words, the grounds for nullity must be clear and beyond reasonable doubt.
(Peralta v. Comelec, supra) Those who petition this Court to declare a law, or parts thereof, unconstitutional must
clearly establish the basis for such a declaration. Otherwise, their petition must fail. Based on the grounds raised
by petitioners to challenge the constitutionality of P.D. 1869, the Court finds that petitioners have failed to
overcome the presumption. The dismissal of this petition is therefore, inevitable. But as to whether P.D. 1869
remains a wise legislation considering the issues of "morality, monopoly, trend to free enterprise, privatization as
well as the state principles on social justice, role of youth and educational values" being raised, is up for Congress
to determine.chanroblesvirtualawlibrary chanrobles virtual law library

As this Court held in Citizens' Alliance for Consumer Protection v. Energy Regulatory Board, 162 SCRA 521 -

Presidential Decree No. 1956, as amended by Executive Order No. 137 has, in any case, in its
favor the presumption of validity and constitutionality which petitioners Valmonte and the KMU
have not overturned. Petitioners have not undertaken to identify the provisions in the
Constitution which they claim to have been violated by that statute. This Court, however, is not
compelled to speculate and to imagine how the assailed legislation may possibly offend some
provision of the Constitution. The Court notes, further, in this respect that petitioners have in the
main put in question the wisdom, justice and expediency of the establishment of the OPSF, issues
which are not properly addressed to this Court and which this Court may not constitutionally pass
upon. Those issues should be addressed rather to the political departments of government: the
President and the Congress.

Parenthetically, We wish to state that gambling is generally immoral, and this is precisely so when the gambling
resorted to is excessive. This excessiveness necessarily depends not only on the financial resources of the gambler
and his family but also on his mental, social, and spiritual outlook on life. However, the mere fact that some
persons may have lost their material fortunes, mental control, physical health, or even their lives does not
necessarily mean that the same are directly attributable to gambling. Gambling may have been the antecedent, but
certainly not necessarily the cause. For the same consequences could have been preceded by an overdose of food,
drink, exercise, work, and even sex. chanroblesvirtualawlibrary chanrobles virtual law library

WHEREFORE, the petition is DISMISSED for lack of merit. chanroblesvirtualawlibrary chanrobles virtual law library

SO ORDERED.
Fernan, C.J., Narvasa, Gutierrez, Jr., Cruz, Feliciano, Gancayco, Bidin, Sarmiento, Griño-Aquino, Medialdea,
Regalado and Davide, Jr., JJ., concur.

Separate Opinions

PADILLA, J., concurring: chanrobles virtual law library

I concur in the result of the learned decision penned by my brother Mr. Justice Paras. This means that I agree with
the decision insofar as it holds that the prohibition, control, and regulation of the entire activity known as gambling
properly pertain to "state policy." It is, therefore, the political departments of government, namely, the legislative
and the executive that should decide on what government should do in the entire area of gambling, and assume
full responsibility to the people for such policy. chanroblesvirtualawlibrary chanrobles virtual law library

The courts, as the decision states, cannot inquire into the wisdom, morality or expediency of policies adopted by
the political departments of government in areas which fall within their authority, except only when such policies
pose a clear and present danger to the life, liberty or property of the individual. This case does not involve such a
factual situation. chanroblesvirtualawlibrary chanrobles virtual law library

However, I hasten to make of record that I do not subscribe to gambling in any form. It demeans the human
personality, destroys self-confidence and eviscerates one's self-respect, which in the long run will corrode whatever
is left of the Filipino moral character. Gambling has wrecked and will continue to wreck families and homes; it is an
antithesis to individual reliance and reliability as well as personal industry which are the touchstones of real
economic progress and national development. chanroblesvirtualawlibrary chanrobles virtual law library

Gambling is reprehensible whether maintained by government or privatized. The revenues realized by the
government out of "legalized" gambling will, in the long run, be more than offset and negated by the irreparable
damage to the people's moral values. chanroblesvirtualawlibrary chanrobles virtual law library

Also, the moral standing of the government in its repeated avowals against "illegal gambling" is fatally flawed and
becomes untenable when it itself engages in the very activity it seeks to eradicate. chanroblesvirtualawlibrary chanrobles virtual law library

One can go through the Court's decision today and mentally replace the activity referred to therein as gambling,
which is legal only because it is authorized by law and run by the government, with the activity known
as prostitution. Would prostitution be any less reprehensible were it to be authorized by law, franchised, and
"regulated" by the government, in return for the substantial revenues it would yield the government to carry out its
laudable projects, such as infrastructure and social amelioration? The question, I believe, answers itself. I submit
that the sooner the legislative department outlaws all forms of gambling, as a fundamental state policy, and the
sooner the executive implements such policy, the better it will be for the nation.

POLITICAL DYNASTY/ EQUAL ACCESS OF OPPORTUNITIES FOR PUBLIC SERVICE

Pamatong vs. Commission on Elections

A brief recall of the antecedents, as cited in our Resolution dated 13 April 2004. Petitioner Elly Velez Lao Pamatong filed his certificate of
candidacy for the President. However, respondent Commission on Elections (COMELEC) refused to give due course to it per Resolution No.
6558 dated 17 January 2004. After the COMELEC denied his Motion for Reconsideration, petitioner filed the present petition before the Court.

Petitioner argued that the "equal access clause" in the Constitution 1 vested in him the right to seek public office, the presidency in particular.
He also sought a temporary restraining order to enjoin the COMELEC from enforcing its assailed Resolutions. The Court deemed it proper not
to grant the provisional relief sought.
In the aforementioned Resolution dated 13 April 2004, the Court ruled that the equal access clause does grant petitioner the right to seek
public office. However, owing to the fact that the assailed resolutions of the COMELEC do not direct the Court to the evidence which it
considered in determining that petitioner was a nuisance candidate, the Court remanded the case to the COMELEC for the reception of further
evidence, with a directive to the poll body to complete the proceedings and "report its findings to this Court with deliberate dispatch."

In accordance with the Court's Resolution, the COMELEC held the hearing for the reception of further evidence on 27 April 2004. During the
hearing, petitioner appeared for himself. He presented two witnesses. 2 He also
offered the documentary evidence before the
COMELEC, including copies of various books authored by the petitioner. 3

On 4 May 2004, the COMELEC, through Commissioner Florentine A. Tuason, Jr., submitted to this Court a Compliance Report. Attached
thereto were the various documentary exhibits submitted by petitioner, as well as a transcript of the hearing of 27 April 2004. A portion of the
Report, under the caption "Findings", contained a very brief summary of the antecedent facts, and citations of Section 69 of the Omnibus
Election Code and Section 6 of Comelec Resolution No. 6452. The provisions contain the legal basis for the disqualification of "nuisance
candidates." However, the Report did not present any evaluation of the evidence submitted by petitioner. Neither did it offer any
recommendation.

The Report was deemed unsatisfactory in light of the specific instructions given to the COMELEC in the 13 April 2004 Resolution, the relevant
portion of which reads:

However valid the law and the COMELEC issuance involved are, their proper application in the case of the petitioner cannot be tested and
reviewed by this Court on the basis of what is now before it. The assailed resolutions of the COMELEC do not direct the Court to the evidence
which it considered in determining that petitioner was a nuisance candidate. This precludes the Court from reviewing at this instance whether
the COMELEC committed grave abuse of discretion in disqualifying petitioner, since such a review would necessarily take into account the
matters which the COMELEC considered in arriving at its decisions.

Petitioner has submitted to this Court mere photocopies of various documents purportedly evincing his credentials
as an eligible candidate for the presidency. Yet this Court, not being a trier of facts, can not properly pass upon the reproductions as evidence
at this level. Neither the COMELEC nor the Solicitor General appended any document to their respective Comments.

The question of whether a candidate is a nuisance candidate or not is both legal and factual. The basis of the factual determination is not
before this Court. Thus, the remand of this case for the reception of further evidence is in order. 4

Accordingly, in the Resolution dated 6 May 2004, the Court required the COMELEC to "FULLY COMPLY with the aforesaid resolution of 13 April
2004 by submitting a signed report containing the evaluation of the evidence and its recommendation, within five (5) days from notice
hereof."5 On 12 May 2004, the COMELEC submitted a new Compliance Report, which contained an evaluation of petitioner's evidence but was
signed "for the Commission" by one Alioden D. Dalaig, Director IV, Law Department of the COMELEC. 6

In a Resolution dated 8 June 2004, the Court returned the Compliance Report filed by Atty. Dalaig to the COMELEC, for resubmission together
with the appropriate signatures thereon. 7 On 28 June 2004, the Compliance Report was resubmitted, this time signed by five Commissioners
of the COMELEC.8

The COMELEC Compliance Report recites the following findings:

In its Resolution No. 6558, the Commission denied due course to the certificate of candidacy of several presidential candidates, including
petitioner, on the following grounds:

1. Candidates who have no bona fide intention to run for the office for which the certificate of candidacy had been filed or acts that clearly
demonstrate the lack of such bona fide intention as:

a. candidates who do not belong to or are nominated by any registered political party of national constituency;

b. presidential candidates who do not present running mate for vice-president, nor senatorial candidates;

c. candidates who do not have a platform of government and are not capable of waging a nationwide campaign.

The records of the Commission indubitably show that petitioner is not nominated by any political party; neither does he have a running mate
for vice-president nor senatorial candidates. While it may be true that he has a platform of government but he is not capable of waging a
nationwide campaign. He has no organizational setup on a nationwide basis.

In the hearing of April 27, 2004, the testimonial and documentary evidence submitted by petitioner are nothing but an enumeration of the
books he has written, his achievements and his work experiences. There is nothing therein which show that he has the machinery and
necessary organization to wage a nationwide campaign.

In his testimony on April 27, 2004, petitioner admitted that he was a party-list nominee (Alliance for Democracy) in the May 2001 elections
and said party garnered only about 50,000 votes; and that he run for a certain elective position in Zamboanga and garnered only more or
less 456 votes. If petitioner cannot obtain substantial number of votes for these elective positions, in the absence of other evidence showing
his bona fide intention to run for the Office of President and his capability to wage a nationwide campaign, there is no cogent reason to
disturb the findings of the Commission that the is a nuisance candidate. 9

There is nothing disputable about the above-quoted findings of the COMELEC. Section 69 of the Omnibus Election Code authorizes the
disqualification of a candidate who has no bona fide intention to run for the office for which the certificate of candidacy has been filed. 10
COMELEC Resolution No. 6452 likewise provides the mechanics and the grounds for denying, among others, a presidential candidacy,  bona
fide status, such as the lack of a political party backing the candidacy, the lack of a running mate or accompanying slate of candidates, or the
incapability to wage a nationwide campaign. 11 The COMELEC has made the specific finding that petitioner's candidacy is not bona fide, citing
the reasons on which the conclusion is based.

However, the present petition has obviously been mooted with the holding of the presidential elections on 10 May 2004. The Court is no
longer in a position to grant the relief prayed for in the petition. Hence, there is no recourse but to dismiss the petition on the ground of
mootness.

WHEREFORE, the Petition is dismissed for having become MOOT and ACADEMIC. No costs.

CHECKS and BALANCES

SENATE BLUE RIBBON VS. MAJADUCON

For resolution are two consolidated petitions: (a) G.R. No. 136760, for certiorari, prohibition, mandamus and
preliminary injunction, assailing the resolution dated November 11, 1998 of Judge Jose S. Majaducon of the
Regional Trial Court of General Santos City, Branch 23, which denied the Senate Blue Ribbon Committees motion
to dismiss the petition for prohibition, injunction with writ of preliminary injunction filed by private respondent Atty.
Nilo J. Flaviano; and (b) G.R. No. 138378, for review of the resolution dated April 15, 1999 of respondent Judge
Majaducon declaring petitioner Senator Aquilino Q. Pimentel, Jr. guilty of indirect contempt of court.

The antecedent facts are as follows:

G.R. No. 136760:

On August 28, 1998, Senator Blas F. Ople filed Senate Resolution No. 157 directing the Committee on National
Defense and Security to conduct an inquiry, in aid of legislation, into the charges of then Defense Secretary
Orlando Mercado that a group of active and retired military officers were organizing a coup detat to prevent the
administration of then President Joseph Estrada from probing alleged fund irregularities in the Armed Forces of the
Philippines.1 cräläwvirtualibräry

On the same date, Senator Vicente C. Sotto III also filed Resolution No. 160, directing the appropriate senate
committee to conduct an inquiry, in aid of legislation, into the alleged mismanagement of the funds and investment
portfolio of the Armed Forces Retirement and Separation Benefits System (AFP-RSBS) xxx. 2 cräläwvirtualibräry

The Senate President referred the two resolutions to the Committee on Accountability of Public Officers and
Investigations (Blue Ribbon Committee) and the Committee on National Defense and Security.

During the public hearings conducted by the Senate Blue Ribbon Committee (hereafter called the Committee), it
appeared that the AFP-RSBS purchased a lot in General Santos City, designated as Lot X, MR-1160, for P10,500.00
per square meter from private respondent Atty. Nilo J. Flaviano. However, the deed of sale filed with the Register
of Deeds indicated that the purchase price of the lot was only P3,000.00 per square meter.

The Committee thereafter caused the service of a subpoena to respondent Atty. Flaviano, directing him to appear
and testify before it. Respondent refused to appear at the hearing. Instead, he filed a petition for prohibition and
preliminary injunction with prayer for temporary restraining order with the Regional Trial Court of General Santos
City, Branch 23, which was docketed as SP Civil Case No. 496.

On October 21, 1998, the trial court issued a Temporary Restraining Order directing the Committee to CEASE and
DESIST from proceeding with the inquiry in P.S. 160 particularly in General Santos City and/or anywhere in Region
XI or Manila on matters affecting the patenting/titling and sale of Lot X, MR-1160-D to AFP-RSBS, and from issuing
subpoenas to witnesses from Region XI, particularly from General Santos City, pending the hearing of the petition
for prohibition and injunction.3 cräläwvirtualibräry

On November 5, 1998, the Committee filed a motion to dismiss the petition on the grounds of (a) lack of
jurisdiction, and (b) failure to state a valid cause of action. It further argued that the issuance of the Temporary
Restraining Order was invalid for violating the rule against ex-parte issuance thereof; and that the same was not
enforceable beyond the territorial jurisdiction of the trial court.

On November 11, 1998, the trial court denied petitioners motion to dismiss and granted the writ of preliminary
injunction, thus:

WHEREFORE, PREMISES CONSIDERED, the motion to dismiss is DENIED, and the WRIT OF PRELIMINARY
INJUNCTION is hereby issued against respondent. It is enjoined from enforcing its subpoenas to petitioner in
Region XI to appear and testify before it in any of its inquiry or investigation anywhere in the Philippines regarding
the acquisition by the AFP-RSBS of Lot X, MR-1160-D, located in General Santos City. The bond of petitioner filed
on October 21, 1998, for P500,000.00 for the TRO also serves as his bond in this injunction.

SO ORDERED.4 cräläwvirtualibräry

Hence, the instant petition for certiorari which was docketed as G.R. No. 136760, alleging that respondent Judge
Majaducon committed grave abuse of discretion and/or acted without or in excess of jurisdiction when he:

I. DENIED PETITIONERS MOTION TO DISMISS THE PETITION FOR PROHIBITION AND PRELIMINARY
INJUNCTION FILED BY PRIVATE RESPONDENT, ATTY. NILO J. FLAVIANO, AGAINST THE PETITIONER
IN SP. CIVIL CASE NO. 496.

II. ISSUED (1) A TEMPORARY RESTRAINING ORDER EX-PARTE FOR A PERIOD OF TWENTY (20) DAYS
AGAINST THE PETITIONER ON OCTOBER 21, 1998, AND (2) A WRIT OF PRELIMINARY INJUNCTION
ON NOVEMBER 11, 1998 ENJOINING THE PETITIONER FROM ENFORCING ITS SUBPOENAS TO
PRIVATE RESPONENT IN REGION XI.

III. APPLIED THE RULING OF BENGZON VS. SENATE BLUE RIBBON IN GRANTING INJUNCTIVE RELIEF TO
PRIVATE RESPONDENT.5 cräläwvirtualibräry

G.R. No. 138378:

On January 13, 1999, the newspaper, The Philippine Star published a news report on the filing by the Committee
with this Court of the petition for certiorari which was docketed as G.R. No. 136760. The news report quoted
portions of the petition filed by the Committee, alleging that Regional Trial Court Judge Majaducon was guilty of
gross ignorance of the rules and procedures when he issued the temporary restraining order and the writ of
preliminary injunction because, under the principle of separation of powers, courts cannot interfere with the
exercise by the legislature of its authority to conduct investigations in aid of legislation. 6
cräläwvirtualibräry

Reacting to the aforesaid news report, respondent Judge Majaducon motu proprio initiated a charge for indirect
contempt of court against Senator Aquilino Q. Pimentel, Jr., news reporter Perseus Echeminada, Philippine Star
publisher Maximo Soliven, editor-in-chief Ramon J. Farolan, and executive editor Bobby G. dela Cruz, which was
docketed as Special Civil Case No. 496. Judge Majaducon averred that the news report created in the minds of the
reader the impression that he violated the separation of powers clause of the Constitution and that he was guilty of
gross ignorance of the rules and procedures.

After the respondents submitted their respective answers, a decision was rendered on April 15, 1999 finding
petitioner Pimentel guilty of indirect contempt.

Hence, the instant petition based on the following grounds:

I. THE EXPRESSION GROSS IGNORANCE OF THE RULES OF PROCEDURE OR GROSS IGNORANCE OF THE LAW
IN REFERENCE TO THE RESPONDENTS EX-PARTE ISSUANCE OF INJUNCTIVE RELIEF IS NOT
PEJORATIVE AS TO CONSTITUTE A GROUND FOR INDIRECT CONTEMPT.
 II. THIS HONORABLE COURT ITSELF USES GROSS IGNORANCE OF THE LAW AND OTHER EXPRESSIONS OF
SIMILAR FORCEFUL IMPORT IN DESCRIBING GROSS AND PALPABLE ERRORS OF JUDGES.

III. BY UPHOLDING HIS CONTEMPT CHARGE AGAINST THE PETITIONER, THE RESPONDENT JUDGE HAS, IN
EFFECT, PREEMPTED THIS HONORABLE COURT IN RESOLVING THE ISSUES RAISED AGAINST HIM IN
G.R. NO. 136760.

IV. THE PUBLICATION BY PHILIPPINE STAR OF THE BLUE RIBBON PETITION IN G.R. NO. 136760, OR
EXCERPTS THEREOF WAS A LEGITIMATE EXERCISE OF FREEDOM OF EXPRESSION AND OF THE
PRESS.

The two petitions, namely, G.R. No. 136760 and G.R. No. 138378, were ordered consolidated on December 11,
2000.

The issues for resolution in these joint petitions are: (a) whether or not respondent Judge Jose Majaducon
committed grave abuse of discretion when he dismissed petitioners motion to dismiss the petition for prohibition
and issued the writ of preliminary injunction; and (b) whether or not respondent Judge erred in convicting
petitioner Pimentel of indirect contempt of court.

On the first issue, petitioner Committee contends that courts have no jurisdiction to restrain Congress from
performing its constitutionally vested function to conduct investigations in aid of legislation, following the principle
of separation of powers. Moreover, the petition filed by respondent Flaviano before the trial court failed to state a
cause of action considering that the legislative inquiry did not deal with the issuance of the patent and title to Lot
X, MR-1160-D in the name of AFP-RSBS, which is well within the courts jurisdiction, but with the anomaly in the
purchase thereof, which falls squarely within the ambit of Senate Resolutions Nos. 157 7 and 160.8 cräläwvirtualibräry

On the other hand, respondent Flaviano contends that the trial court may properly intervene into investigations by
Congress pursuant to the power of judicial review vested in it by the Constitution. He avers that he has a valid
cause of action to file the petition for prohibition considering that the Committees investigation will delve into the
validity of the patenting and titling of Lot X, MR-1160-D which, as admitted by petitioner, falls within the
competence of judicial courts. In fact, the validity of the purchase by AFP-RSBS of the subject lot is already the
subject of a pending action before the Regional Trial Court of General Santos City and the Ombudsman of
Mindanao. Finally, he cites the case of Bengzon v. Senate Blue Ribbon Committee,9 and argues that preliminary
injunction may issue in cases pending before administrative bodies such as the Ombudsman or the Office of the
Prosecutor as long as the right to self-incrimination guaranteed by the Bill of Rights is in danger. Furthermore, an
information against him has been filed with the Sandiganbayan.

We find for petitioner. There is grave abuse of discretion when the respondent acts in a capricious, whimsical,
arbitrary or despotic manner in the exercise of his judgment, as when the assailed order is bereft of any factual
and legal justification.10 In this case, the assailed resolution of respondent Judge Majaducon was issued without
legal basis.

The principle of separation of powers essentially means that legislation belongs to Congress, execution to the
Executive, and settlement of legal controversies to the Judiciary. Each is prevented from invading the domain of
the others.11 When the Senate Blue Ribbon Committee served subpoena on respondent Flaviano to appear and
testify before it in connection with its investigation of the alleged misuse and mismanagement of the AFP-RSBS
funds, it did so pursuant to its authority to conduct inquiries in aid of legislation. This is clearly provided in Article
VI, Section 21 of the Constitution, thus:

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.

Hence, the Regional Trial Court of General Santos City, or any court for that matter, had no authority to prohibit
the Committee from requiring respondent to appear and testify before it.

The ruling in Bengzon, cited by respondent, does not apply in this case. We agree with petitioner Committee that
the factual circumstances therein are different from those in the case at bar. In  Bengzon, no intended legislation
was involved and the subject matter of the inquiry was more within the province of the courts rather than of the
legislature. More specifically, the investigation in the said case was an offshoot of the privilege speech of then
Senator Enrile, who urged the Senate to look into a possible violation of the Anti-Graft and Corrupt Practices Act by
the relatives of then President Corazon Aquino, particularly Mr. Ricardo Lopa, in connection with the alleged sale of
36 to 39 corporations belonging to Benjamin Romualdez. On the other hand, there was in this case a clear
legislative purpose, as stated in Senate Resolution No. 160, and the appropriate Senate Committee was directed to
look into the reported misuse and mismanagement of the AFP-RSBS funds, with the intention of enacting
appropriate legislation to protect the rights and interests of the officers and members of the Armed Forces of the
Philippines. Further, in Bengzon, the validity of the sale of Romualdezs corporations was pending with the
Sandiganbayan when the Senate Blue Ribbon Committee decided to conduct its investigation. In short, the issue
had already been pre-empted by the court.

In the instant case, the complaint against respondent Flaviano regarding the anomaly in the sale of Lot X, MR-1160
was still pending before the Office of the Ombudsman when the Committee served subpoena on him. In other
words, no court had acquired jurisdiction over the matter. Thus, there was as yet no encroachment by the
legislature into the exclusive jurisdiction of another branch of the government. Clearly, there was no basis for the
respondent Judge to apply the ruling in Bengzon. Hence, the denial of petitioners motion to dismiss the petition for
prohibition amounted to grave abuse of discretion.

In G.R. No. 138378, Petitioner, Senator Aquilino Pimentel, Jr., contends that respondent judge erred in finding him,
as representative of the Committee, guilty of indirect contempt of court under Rule 71, Section 3(d) of the 1997
Rules of Civil Procedure. According to Pimentel, the phrase gross ignorance of the rules of law and procedure,
which the Committee used in the petition, is not depreciatory, but merely a description of normal usage in petitions
where the acts of lower courts are challenged before higher judicial bodies. In fact, this Court often uses the phrase
in its decisions to describe judges who commit gross and palpable mistakes in their interpretation and application
of the law. Petitioner further maintains that when the Committee used the phrase, it did so without malice. Rather,
it was only to stress the unfamiliarity of or disregard by the respondent Judge of a basic rule of procedure, and to
buttress its arguments in support of its petition for certiorari.

Petitioner Pimentel also contends that he had no participation in the publication in the Philippine Star of excerpts
from the Committees petition for certiorari. Even assuming arguendo that it was within his control, he pointed out
that he could not have prevented the editors and writers of the newspaper from publishing the same, lest he
violate their constitutional right of free expression. Indeed, the report by the Philippine Star of the filing of the
petition and the reproduction of its contents was a legitimate exercise of press freedom.

Respondent Judge counters that Pimentel was guilty of indirect contempt of court, first, for causing the publication
of the Committees petition in the Philippine Star notwithstanding that the same was sub judice; second, for making
derogatory remarks in the petition itself which affected the honor and integrity of the respondent judge and
degraded the administration of justice; and third, for making it appear that an administrative complaint was filed
against respondent Judge for gross ignorance of the law. These, he said, constituted malicious and false report
which obstructed the administration of justice.

Rule 71, Section 3(d) of the 1997 Rules of Civil Procedure provides:

Section 3. Indirect contempt to be punished after charge and hearing. After a charge in writing has been filed, and
an opportunity given to the respondent to comment thereon within such period as may be fixed by the court and to
be heard by himself or counsel, a person guilty of any of the following acts may be punished for indirect contempt:

xxx

d) Any improper conduct tending, directly or indirectly, to impede, obstruct, or degrade the administration of
justice; x x x.

After deliberating on the parties arguments, we find that petitioner Pimentel is not guilty of improper conduct which
obstructs or degrades the administration of justice.

Verily, it does not appear that Pimentel caused the publication in the Philippine Star of the fact of filing of the
petition for certiorari by the Committee and the reproduction of excerpts thereof. He had no right to choose which
news articles will see print in the newspaper. Rather, it is the publisher thereof which decides which news events
will be reported in the broadsheet. In doing so, it is allowed the widest latitude of choice as to what items should
see the light of day so long as they are relevant to a matter of public interest, pursuant to its right of press
freedom.12cräläwvirtualibräry
Respondent Judges allegation that petitioner made it appear that an administrative complaint was filed against him
is without basis. From a careful perusal of the records, it appears that while the Committee prayed for the
imposition of administrative sanctions against respondent Judge Majaducon for gross ignorance of the law, no
formal administrative complaint was instituted separately from the petition for certiorari.

Finally, the statement that respondent Judge was grossly ignorant of the rules of law and procedure does not
constitute improper conduct that tends to impede, obstruct or degrade the administration of justice. As correctly
argued by petitioner, the phrase gross ignorance of the rules of law and procedure is ordinarily found in
administrative complaints and is a necessary description to support a petition which seeks the annulment of an
order of a judge wherein basic legal principles are disregarded.

In Spouses Bacar v. Judge De Guzman, Jr.,13 it was held that when the law is so elementary, not to know it or to
act as if a judge does not know it, constitutes gross ignorance of the law. In this case, there was no showing that
petitioner Pimentel, as representative of the Committee, used the phrase to malign the trial court. Rather, it was
used to express what he believed as a violation of the basic principle of separation of powers.

In this connection, it bears stressing that the power to declare a person in contempt of court must be exercised on
the preservative, not vindictive principle, and on the corrective and not retaliatory idea of punishment. 14 This was
aptly expressed in the case of Nazareno v. Barnes:15 cräläwvirtualibräry

A judge, as a public servant, should not be so thin-skinned or sensitive as to feel hurt or offended if a citizen
expresses an honest opinion about him which may not altogether be flattering to him. After all, what matters is
that a judge performs his duties in accordance with the dictates of his conscience and the light that God has given
him. A judge should never allow himself to be moved by pride, prejudice, passion, or pettiness in the performance
of his duties. He should always bear in mind that the power of the court to punish for contempt should be exercised
for purposes that are impersonal, because that power is intended as a safeguard not for the judges as persons but
for the functions that they exercise.

WHEREFORE, in view of the foregoing, the petitions docketed as G.R. Nos. 136760 and 138378 are GRANTED.
The resolution of the Regional Trial Court of General Santos City, Branch 23, in Special Civil Case No. 496 dated
November 11, 1998, which denied the Senate Blue Ribbon Committees motion to dismiss, is REVERSED and SET
ASIDE. The Writ of Preliminary Injunction issued by the trial court on November 11, 1998 is DISSOLVED. The
resolution dated April 15, 1999, which declared Senator Aquilino Q. Pimentel, Jr. guilty of indirect contempt of
court, is REVERSED and SET ASIDE. The petition for indirect contempt is ordered DISMISSED

SENATE V. 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. 133Art. 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 lismota 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 SaturOcampo (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 BatasangPambansa—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. xx 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 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 xx ” (Emphasis and underscoring supplied)

Almonte involved a subpoena ducestecum 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. xxx 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 BatasangPambansa—as the Gentleman himself has experienced in the interim BatasangPambansa—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.

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.

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

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 ducestecum 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