G.R. No. L-65366 November 9, 1983

JOSE B.L. REYES, in behalf of the ANTI-BASES COALITION (ABC), petitioner, vs.RAMON BAGATSING, as Mayor of the City of Manila, respondent.

Lorenzo M. Tañada Jose W. Diokno and Haydee B. Yorac for petitioner.

The Solicitor General for respondent.

 

FERNANDO, C.J.:ñé+.£ªwph!1

This Court, in this case of first impression, at least as to some aspects, is called upon to delineate the boundaries of the protected area of the cognate rights to free speech and peaceable assembly, 1 against an alleged intrusion by respondent Mayor Ramon Bagatsing. Petitioner, retired Justice JB L. Reyes, on behalf of the Anti-Bases Coalition sought a permit from the City of Manila to hold a peaceful march and rally on October 26, 1983 from 2:00 to 5:00 in the afternoon, starting from the Luneta, a public park, to the gates of the United States Embassy, hardly two blocks away. Once there, and in an open space of public property, a short program would be held. 2 During the course of the oral argument, 3 it was stated that after the delivery of two brief speeches, a petition based on the resolution adopted on the last day by the International Conference for General Disbarmament, World Peace and the Removal of All Foreign Military Bases held in Manila, would be presented to a representative of the Embassy or any of its personnel who may be there so that it may be delivered to the United States Ambassador. The march would be attended by the local and foreign participants of such conference. There was likewise an assurance in the petition that in the exercise of the constitutional rights to free speech and assembly, all the necessary steps would be taken by it "to ensure a peaceful march and rally." 4

The filing of this suit for mandamus with alternative prayer for writ of preliminary mandatory injunction on October 20, 1983 was due to the fact that as of that date, petitioner had not been informed of any action taken on his request on behalf of the organization to hold a rally. On October 25, 1983, the answer of respondent Mayor was filed on his behalf by Assistant Solicitor General Eduardo G. Montenegro. 5 It turned out that on October 19, such permit was denied. Petitioner was unaware of such a fact as the denial was sent by ordinary mail. The reason for refusing a permit was due to police intelligence reports which strongly militate against the advisability of issuing such permit at this time and at the place applied for." 6 To be more specific, reference was made to persistent intelligence reports affirm[ing] the plans of subversive/criminal elements to infiltrate and/or disrupt any assembly or congregations where a large number of people is expected to attend." 7 Respondent Mayor suggested, however, in accordance with the recommendation of the police authorities, that "a permit may be issued for the rally if it is to be held at the Rizal Coliseum or any other enclosed area where the safety of the participants themselves and the general public may be ensured." 8

The oral argument was heard on October 25, 1983, the very same day the answer was filed. The Court then deliberated on the matter. That same afternoon, a minute resolution was issued by the Court granting the mandatory injunction prayed for on the ground that there was no showing of the existence of a clear and present danger of a substantive evil that could justify the denial of a permit. On this point, the Court was unanimous, but there was a dissent by Justice Aquino on the ground that the holding of a rally in front of the US Embassy would be violative of Ordinance No. 7295 of the City of Manila. The last sentence of such minute resolution reads: "This resolution is without prejudice to a more extended opinion." 9 Hence this detailed exposition of the Court's stand on the matter.

1. It is thus clear that the Court is called upon to protect the exercise of the cognate rights to free speech and peaceful assembly, arising from the denial of a permit. The Constitution is quite explicit: "No law shall be passed abridging the freedom of speech, or of the press, or the right of the people peaceably to assemble and petition the Government for redress of grievances." 10 Free speech, like free press, may be Identified with the liberty to discuss publicly and truthfully any matter of public concern without censorship or punishment. 11 There is to be then no previous restraint on the communication of views or subsequent liability whether in libel suits, 12 prosecution for sedition, 13 or action for damages, 14 or contempt proceedings 15 unless there be a clear and present danger of a substantive evil that [the State] has a right to prevent." 16 Freedom of assembly connotes the right people to meet peaceably for consultation and discussion of matters Of public concern. 17 It is entitled to be accorded the utmost deference and respect. It is hot to be limited, much less denied, except on a showing, as 's the case with freedom of expression, of a clear and present danger of a substantive evil that the state has a right to prevent. 18 Even prior to the 1935 Constitution, Justice Maicolm had occasion to stress that it is a necessary consequence of our republican institutions and complements the right of free speech. 19 To paraphrase opinion of Justice Rutledge speaking for the majority of the American Supreme Court Thomas v. Collins, 20 it was not by accident or coincidence that the right to freedom of speech and of the press were toupled in a single guarantee with the and to petition the rights of the people peaceably to assemble and to petition the government for redress of grievances. All these rights, while not Identical, are inseparable. the every case, therefo re there is a limitation placed on the exercise of this right, the judiciary is called upon to examine the effects of the challenged governmental actuation. The sole justification for a limitation on the exercise of this right, so fundamental to the maintenance of democratic institutions, is the danger, of a character both grave and imminent, of a serious evil to public safety, public morals, public health, or any other legitimate public interest. 21

2. Nowhere is the rationale that underlies the freedom of expression and peaceable assembly better expressed than in this excerpt from an opinion of Justice Frankfurter: "It must never be forgotten, however, that the Bill of Rights was the child of the Enlightenment. Back of the guaranty of free speech lay faith in the power of an appeal to reason by all the peaceful means for gaining access to the mind. It was in order to avert force and explosions due to restrictions upon rational modes of communication that the guaranty of free speech was given a generous scope. But utterance in a context of violence can lose its significance as an appeal to reason and become part of an instrument of force. Such utterance was not meant to be sheltered by the Constitution." 22 What was rightfully stressed is the abandonment of reason, the utterance, whether verbal or printed, being in a context of violence. It must always be remembered that this right likewise provides for a safety valve, allowing parties the opportunity to give vent to their-views, even if contrary to the prevailing climate of opinion. For if the peaceful means of communication cannot be availed of, resort to non-peaceful means may be the only alternative. Nor is this the sole reason for the expression of dissent. It means more than just the right to be heard of the person who feels aggrieved or who is dissatisfied with things as they are. Its value may lie in the fact that there may be something worth hearing from the dissenter. That is to ensure a true ferment of Ideas. There are, of course, well-defined limits. What is guaranteed is peaceable assembly. One may not advocate disorder in the name of protest, much less preach rebellion under the cloak of dissent. The Constitution frowns on disorder or tumult attending a rally or assembly. resort to force is ruled out and outbreaks of violence to be avoided. The utmost calm though is not required. As pointed out in an early Philippine case, penned in 1907 to be precise, United States v. Apurado: 23 "It is rather to be expected that more or less disorder will mark the public assembly of the people to protest against grievances whether real or imaginary, because on such occasions feeling is always wrought to a high pitch of excitement, and the greater the grievance and the more intense the feeling, the less perfect, as a rule, will be the disciplinary control of the leaders over their irresponsible followers." 24 It bears repeating that for the constitutional right to be invoked, riotous conduct, injury to property, and acts of vandalism must be avoided, To give free rein to one's destructive urges is to call for condemnation. It is to make a mockery of the high estate occupied by intellectual liberty in our scheme of values.

3. There can be no legal objection, absent the existence of a clear and present danger of a substantive evil, on the choice of Luneta as the place where the peace rally would start. The Philippines is committed to the view expressed in the plurality opinion, of 1939 vintage, of Justice

Roberts in Hague v. CIO: 25 Whenever the title of streets and parks may rest, they have immemorially been held in trust for the use of the public and, time out of mind, have been used for purposes of assembly, communicating thoughts between citizens, and discussing public questions. Such use of the streets and public places has, from ancient times, been a part of the privileges, immunities, rights, and liberties of citizens. The privilege of a citizen of the United States to use the streets and parks for communication of views on national questions may be regulated in the interest of all; it is not absolute, but relative, and must be exercised in subordination to the general comfort and convenience, and in consonance with peace and good order; but it must not, in the guise of regulation, be abridged or denied. 26 The above excerpt was quoted with approval in Primicias v. Fugoso. 27 Primicias made explicit what was implicit in Municipality of Cavite v. Rojas," 28 a 1915 decision, where this Court categorically affirmed that plazas or parks and streets are outside the commerce of man and thus nullified a contract that leased Plaza Soledad of plaintiff-municipality. Reference was made to such plaza "being a promenade for public use," 29 which certainly is not the only purpose that it could serve. To repeat, there can be no valid reason why a permit should not be granted for the or oposed march and rally starting from a public dark that is the Luneta.

4. Neither can there be any valid objection to the use of the streets, to the gates of the US Embassy, hardly two block-away at the Roxas Boulevard. Primicias v. Fugoso has resolved any lurking doubt on the matter. In holding that the then Mayor Fugoso of the City of Manila should grant a permit for a public meeting at Plaza Miranda in Quiapo, this Court categorically declared: "Our conclusion finds support in the decision in the case of Willis Cox vs. State of New Hampshire, 312 U.S., 569. In that case, the statute of New Hampshire P. L. chap. 145, section 2, providing that 'no parade or procession upon any ground abutting thereon, shall 'De permitted unless a special license therefor shall first be explained from the selectmen of the town or from licensing committee,' was construed by the Supreme Court of New Hampshire as not conferring upon the licensing board unfettered discretion to refuse to grant the license, and held valid. And the Supreme Court of the United States, in its decision (1941) penned by Chief Justice Hughes affirming the judgment of the State Supreme Court, held that 'a statute requiring persons using the public streets for a parade or procession to procure a special license therefor from the local authorities is not an unconstitutional abridgment of the rights of assembly or of freedom of speech and press, where, as the statute is construed by the state courts, the licensing authorities are strictly limited, in the issuance of licenses, to a consideration of the time, place, and manner of the parade or procession, with a view to conserving the public convenience and of affording an opportunity to provide proper policing, and are not invested with arbitrary discretion to issue or refuse license, ... " 30 Nor should the point made by Chief Justice Hughes in a subsequent portion of the opinion be ignored, "Civil liberties, as guaranteed by the Constitution, imply the existence of an organized society maintaining public order without which liberty itself would be lost in the excesses of unrestricted abuses. The authority of a municipality to impose regulations in order to assure the safety and convenience of the people in the use of public highways has never been regarded as inconsistent with civil liberties but rather as one of the means of safeguarding the good order upon which they ultimately depend. The control of travel on the streets of cities is the most familiar illustration of this recognition of social need. Where a restriction of the use of highways in that relation is designed to promote the public convenience in the interest of all, it cannot be disregarded by the attempted exercise of some civil right which in other circumstances would be entitled to protection." 31

5. There is a novel aspect to this case, If the rally were confined to Luneta, no question, as noted, would have arisen. So, too, if the march would end at another park. As previously mentioned though, there would be a short program upon reaching the public space between the two gates of the United States Embassy at Roxas Boulevard. That would be followed by the handing over of a petition based on the resolution adopted at the closing session of the Anti-Bases Coalition. The Philippines is a signatory of the Vienna Convention on Diplomatic Relations adopted in 1961. It was concurred in by the then Philippine Senate on May 3, 1965 and the instrument of ratification was signed by the President on October 11, 1965, and was thereafter deposited with the Secretary General of the United Nations on November 15. As of that date then, it was binding on the Philippines. The second paragraph of the Article 22 reads: "2. The receiving State is under a special duty to take appropriate

steps to protect the premises of the mission against any intrusion or damage and to prevent any disturbance of the peace of the mission or impairment of its dignity. " 32 The Constitution "adopts the generally accepted principles of international law as part of the law of the land. ..." 33 To the extent that the Vienna Convention is a restatement of the generally accepted principles of international law, it should be a part of the law of the land. 34 That being the case, if there were a clear and present danger of any intrusion or damage, or disturbance of the peace of the mission, or impairment of its dignity, there would be a justification for the denial of the permit insofar as the terminal point would be the Embassy. Moreover, respondent Mayor relied on Ordinance No. 7295 of the City of Manila prohibiting the holding or staging of rallies or demonstrations within a radius of five hundred (500) feet from any foreign mission or chancery and for other purposes. Unless the ordinance is nullified, or declared ultra vires, its invocation as a defense is understandable but not decisive, in view of the primacy accorded the constitutional rights of free speech and peaceable assembly. Even if shown then to be applicable, that question the confronts this Court.

6. There is merit to the observation that except as to the novel aspects of a litigation, the judgment must be confined within the limits of previous decisions. The law declared on past occasions is, on the whole, a safe guide, So it has been here. Hence, as noted, on the afternoon of the hearing, October 25, 1983, this Court issued the minute resolution granting the mandatory injunction allowing the proposed march and rally scheduled for the next day. That conclusion was inevitable ill the absence of a clear and present danger of a substantive, evil to a legitimate public interest. There was no justification then to deny the exercise of the constitutional rights of tree speech and peaceable assembly. These rights are assured by our Constitution and the Universal Declaration of Human Rights. 35 The participants to such assembly, composed primarily of those in attendance at the International Conference for General Disbarmament, World Peace and the Removal of All Foreign Military Bases would start from the Luneta. proceeding through Roxas Boulevard to the gates of the United States Embassy located at the same street. To repeat, it is settled law that as to public places, especially so as to parks and streets, there is freedom of access. Nor is their use dependent on who is the applicant for the permit, whether an individual or a group. If it were, then the freedom of access becomes discriminatory access, giving rise to an equal protection question. The principle under American doctrines was given utterance by Chief Justice Hughes in these words: "The question, if the rights of free speech and peaceable assembly are to be preserved, is not as to the auspices under which the meeting is held but as to its purpose; not as to The relations of the speakers, but whether their utterances transcend the bounds of the freedom of speech which the Constitution protects." 36 There could be danger to public peace and safety if such a gathering were marked by turbulence. That would deprive it of its peaceful character. Even then, only the guilty parties should be held accountable. It is true that the licensing official, here respondent Mayor, is not devoid of discretion in determining whether or not a permit would be granted. It is not, however, unfettered discretion. While prudence requires that there be a realistic appraisal not of what may possibly occur but of what may probably occur, given all the relevant circumstances, still the assumption — especially so where the assembly is scheduled for a specific public — place is that the permit must be for the assembly being held there. The exercise of such a right, in the language of Justice Roberts, speaking for the American Supreme Court, is not to be "abridged on the plea that it may be exercised in some other place." 37

7. In fairness to respondent Mayor, he acted on the belief that Navarro v. Villegas 38 and Pagkakaisa ng Manggagawang Pilipino (PMP.) v. Bagatsing, 39 called for application. While the General rule is that a permit should recognize the right of the applicants to hold their assembly at a public place of their choice, another place may be designated by the licensing authority if it be shown that there is a clear and present danger of a substantive evil if no such change were made. In the Navarro and the Pagkakaisa decisions, this Court was persuaded that the clear and present danger test was satisfied. The present situation is quite different. Hence the decision reached by the Court. The mere assertion that subversives may infiltrate the ranks of the demonstrators does not suffice. Not that it should be overlooked. There was in this case, however, the assurance of General Narciso Cabrera, Superintendent, Western Police District, Metropolitan Police Force, that the police force is in a position to cope with such emergency should it arise That is to comply with its duty to extend protection to the participants of such peaceable assembly. Also from him came the commendable admission that there were the least five previous demonstrations

at the Bayview hotel Area and Plaza Ferguson in front of the United States Embassy where no untoward event occurred. It was made clear by petitioner, through counsel, that no act offensive to the dignity of the United States Mission in the Philippines would take place and that, as mentioned at the outset of this opinion, "all the necessary steps would be taken by it 'to ensure a peaceful march and rally.' " 40 Assistant Solicitor General Montenegro expressed the view that the presence of policemen may in itself be a provocation. It is a sufficient answer that they should stay at a discreet distance, but ever ready and alert to cope with any contingency. There is no need to repeat what was pointed out by Chief Justice Hughes in Cox that precisely, it is the duty of the city authorities to provide the proper police protection to those exercising their right to peaceable assembly and freedom of expression.

8. By way of a summary The applicants for a permit to hold an assembly should inform the licensing authority of the date, the public place where and the time when it will take place. If it were a private place, only the consent of the owner or the one entitled to its legal possession is required. Such application should be filed well ahead in time to enable the public official concerned to appraise whether there may be valid objections to the grant of the permit or to its grant but at another public place. It is an indispensable condition to such refusal or modification that the clear and present danger test be the standard for the decision reached. If he is of the view that there is such an imminent and grave danger of a substantive evil, the applicants must be heard on the matter. Thereafter, his decision, whether favorable or adverse, must be transmitted to them at the earliest opportunity. Thus if so minded, then, can have recourse to the proper judicial authority. Free speech and peaceable assembly, along with the other intellectual freedoms, are highly ranked in our scheme of constitutional values. It cannot be too strongly stressed that on the judiciary, — even more so than on the other departments — rests the grave and delicate responsibility of assuring respect for and deference to such preferred rights. No verbal formula, no sanctifying phrase can, of course, dispense with what has been so felicitiously termed by Justice Holmes "as the sovereign prerogative of judgment." Nonetheless, the presumption must be to incline the weight of the scales of justice on the side of such rights, enjoying as they do precedence and primacy. Clearly then, to the extent that there may be inconsistencies between this resolution and that of Navarro v. Villegas, that case is pro tantomodified. So it was made clear in the original resolution of October 25, 1983.

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

10. Ordinarily, the remedy in cases of this character is to set aside the denial or the modification of the permit sought and order the respondent official, to grant it. Nonetheless, as there was urgency in this case, the proposed march and rally being scheduled for the next day after the hearing, this Court. in the exercise of its conceded authority, granted the mandatory injunction in the resolution of October 25, 1983. It may be noted that the peaceful character of the peace march and rally on October 26 was not marred by any untoward incident. So it has been in other assemblies held elsewhere. It is quite reassuring such that both on the part of the national government and the citizens, reason and moderation have prevailed. That is as it should be.

WHEREFORE, the mandatory injunction prayed for is granted. No costs.

Concepcion, Jr., Guerrero, Melencio-Herrera, Escolin, Relova and Gutierrez, , Jr.,JJ., concur.

De Castro, J, is on leave.

Background[edit]

In 1971, Marvin Miller, an owner/operator of a California mail-order business specializing in

pornographic films and books, sent out a brochure advertising for books and a film that graphically

depicted sexual activity between men and women. The brochure used in the mailing contained

graphic images from the books and the film. Five of the brochures were mailed to a restaurant

in Newport Beach, California. The owner and his mother opened the envelope and seeing the

brochures, called the police.[1]

Miller was arrested and charged with violating California Penal Code 311.2(a) which says in part,

“Every person who knowingly sends or causes to be sent, or brings or causes to be brought, into this

state for sale or distribution, or in this state possesses, prepares, publishes, produces, or prints, with

intent to distribute or to exhibit to others, or who offers to distribute, distributes, or exhibits to others,

any obscene matter is for a first offense, guilty of a misdemeanor."[2] California lawmakers wrote

the statute based on two previous Supreme Court obscenity cases, Memoirs v.

Massachusetts and Roth v. United States.[3]

Miller was tried by jury in the Superior Court of Orange County. At the conclusion of the evidence

phase, the judge instructed the jury to evaluate the evidence by the community standards of

California, i.e., as defined by the statute.[4] The jury returned a guilty verdict.

Miller appealed to the Appellate Division of the Superior Court, arguing that the jury instructions did

not use the standard set inMemoirs v. Massachusetts which said that in order to be judged obscene,

materials must be “utterly without redeeming social value.” Miller argued that only a national

standard for obscenity could be applied.[5] The appellate division rejected the argument and affirmed

the jury verdict. Miller then filed an appeal with the California Court of Appeal for the Third District,

which declined to review. Miller applied to the Supreme Court for certiorari, which was granted. Oral

arguments were heard in January 1972.[6]

Previous Supreme Court decisions on obscenity[edit]

Supreme Court granted certiorari to Miller because the California law was based on its two previous

obscenity cases which the Court wanted to revisit.[7] Chief Justice Warren Burger came to the Court

in 1969 believing that the Court's obscenity jurisprudence was misguided and governments should

be given more leeway to ban obscene materials. In consideration of Miller in May and June 1972,

Burger pushed successfully for a looser definition of "obscenity" which would allow local

prosecutions, while Justice William J. Brennan, Jr., who by now also believed

the Roth and Memoirs tests should be abandoned, led the charge for protecting all "obscenity"

unless distributed to minors or exposed offensively to unconsenting adults. Decision of the case was

contentious, and Miller was put over for reargument for October term 1972, and did not come down

until June 1973, with Burger prevailing with a 5-4 vote. [8] [9] [10]

Since the Court's decision in Roth v. United States, 354 U.S. 476 (1957), the Court had struggled to

define what constituted constitutionally unprotected obscene material. Under the Comstock laws that

prevailed before Roth, articulated most famously in the 1868 English case Regina v. Hicklin, any

material that tended to "deprave and corrupt those whose minds are open to such immoral

influences" was deemed "obscene" and could be banned on that basis. Thus, works

by Balzac, Flaubert, James Joyce, and D. H. Lawrence were banned based on isolated passages

and the effect they might have on children. Roth repudiated the Hicklin test and defined obscenity

more strictly, as material whose "dominant theme taken as a whole appeals to the prurient interest"

to the "average person, applying contemporary community standards." Only material now meeting

this test could be banned as "obscene."

In Memoirs v. Massachusetts, 383 U.S. 413 (1966), a plurality of the Court further redefined

the Roth test by holding unprotected only that which is "patently offensive" and "utterly without

redeeming social value," but no opinion in that case could command a majority of the Court either,

and the state of the law in the obscenity field remained confused.

Supreme Court decision[edit]

Miller had based his appeal in California on Memoirs v. Massachusetts. The Court rejected that

argument. The question before the court was whether the sale and distribution of obscene material

was protected under the First Amendment's guarantee of Freedom of Speech. The Court ruled that it

was not. It indicated that "obscene material is not protected by the First Amendment", especially that

of hardcore pornography, thereby reaffirming part of Roth.[11][12]

However, the Court acknowledged "the inherent dangers of undertaking to regulate any form of

expression," and said that "State statutes designed to regulate obscene materials must be carefully

limited."[13] The Court, in an attempt to set such limits devised a set of three criteria which must be

met in order for a work to be legitimately subject to state regulation:

1. whether the average person, applying contemporary community standards", would find that

the work, taken as a whole, appeals to the prurient interest,

2. whether the work depicts or describes, in an offensive way, sexual conduct or excretory

functions, as specifically defined by applicable state law (the syllabus of the case mentions

only sexual conduct, but excretory functions are explicitly mentioned on page 25 of the

majority opinion); and

3. whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value.[14]

This obscenity test overturns the definition of obscenity set out in the Memoirs decision, which held

that "all ideas having even the slightest redeeming social importance . . . have the full protection of

the guaranties [of the First Amendment]" and that obscenity was that which was "utterly without

redeeming social importance."[15]

The Miller decision vacated the jury verdict and remanded the case back to the California Superior

Court.

Effects of the decision[edit]

This section includes a list of references, but its sources remain

unclear because it has insufficient inline citations. Please help

to improve this article by introducing more precise citations. (April 2013)

Miller provided states greater freedom in prosecuting alleged purveyors of "obscene" material

because, for the first time since Roth, a majority of the Court agreed on a definition of "obscenity."

Hundreds of "obscenity" prosecutions went forward after Miller, and the Supreme Court began

denying review of these state actions after years of reviewing many "obscenity" convictions (over 60

appeared on the Court's docket for the 1971-72 term, pre-Miller). A companion case to Miller, Paris

Adult Theatre I v. Slaton, provided states with greater leeway to shut down adult movie houses.

Controversy arose over Miller's "community standards" analysis, with critics charging that Miller

encouraged forum shopping to prosecute national producers of what some believe to be "obscenity"

in locales where community standards differ substantially from the rest of the nation. For example,

under the "community standards" prong of the Miller test, what might be considered "obscene"

in Massachusetts might not be considered "obscene" in Utah, or the opposite might be true; in any

event, prosecutors tend to bring charges in locales where they believe that they will prevail.

The "community standards" portion of the decision is of particular relevance with the rise of the

Internet, as materials believed by some to be "obscene" can be accessed from anywhere in the

nation, including places where there is a greater concern about "obscenity" than other areas of the

nation.

In the years since Miller, many localities have cracked down on adult theatres and bookstores, as

well as nude dancing, through restrictive zoning ordinances and public nuditylaws. These types of

actions have been upheld by the Supreme Court. Additionally, in 1982's New York v. Ferber, the

Court declared child pornography is unprotected by the First Amendment, upholding the state of

New York's ban on that material. In the 2002 Ashcroft v. Free Speech Coalition case, however, the

Court held that sexually explicit material that appears to depict minors might be constitutionally

protected.

In American Booksellers Foundation for Free Expression v. Strickland, plaintiffs American

Booksellers Foundation for Free Expression, joined by various publishers, retailers, and web site

operators, sued Ohio’s Attorney General and Ohio county prosecutors in United States District Court

for the Southern District of Ohio. Plaintiffs alleged that Ohio Revised Code §2907.01(E) and (J),

which prohibited the dissemination or display of “materials harmful to juveniles,” unconstitutionally

violated both the First Amendment and the Commerce Clause of the Constitution. Plaintiffs

specifically challenged the statute's definition of "harmful to juveniles," as well as the provisions

governing internet dissemination of those materials. The court held the statute unconstitutional

because the statute's definition of "material harmful to minors" did not comply with Miller. Defendants

appealed the decision to the Sixth Circuit.

Basic case law resulting from this case[edit]

Obscenity is not protected by the First Amendment and thus can be regulated by the state. However,

the state must conform to the three-part test of Miller v. California:

1. Whether the average person, applying contemporary community standards, would find that

the work, taken as a whole, appeals to the prurient interest;

2. Whether the work depicts or describes, in an offensive way, sexual conduct or excretory

functions, specifically defined by applicable state law; and

3. Whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific

value.[16]

G.R. No. 85279 July 28, 1989

SOCIAL SECURITY SYSTEM EMPLOYEES ASSOCIATION (SSSEA), DIONISION T. BAYLON, RAMON MODESTO, JUANITO MADURA, REUBEN ZAMORA, VIRGILIO DE ALDAY, SERGIO ARANETA, PLACIDO AGUSTIN, VIRGILIO MAGPAYO, petitioner, vs.THE COURT OF APPEALS, SOCIAL SECURITY SYSTEM (SSS), HON. CEZAR C. PERALEJO, RTC, BRANCH 98, QUEZON CITY, respondents.

Vicente T. Ocampo & Associates for petitioners.

 

CORTES, J:

Primarily, the issue raised in this petition is whether or not the Regional Trial Court can enjoin the Social Security System Employees Association (SSSEA) from striking and order the striking employees to return to work. Collaterally, it is whether or not employees of the Social Security System (SSS) have the right to strike.

The antecedents are as follows:

On June 11, 1987, the SSS filed with the Regional Trial Court of Quezon City a complaint for damages with a prayer for a writ of preliminary injunction against petitioners, alleging that on June 9, 1987, the officers and members of SSSEA staged an illegal strike and baricaded the entrances to the SSS Building, preventing non-striking employees from reporting for work and SSS members from transacting business with the SSS; that the strike was reported to the Public Sector Labor - Management Council, which ordered the strikers to return to work; that the strikers refused to return to work; and that the SSS suffered damages as a result of the strike. The complaint prayed that a writ of preliminary injunction be issued to enjoin the strike and that the strikers be ordered to return to work; that the defendants (petitioners herein) be ordered to pay damages; and that the strike be declared illegal.

It appears that the SSSEA went on strike after the SSS failed to act on the union's demands, which included: implementation of the provisions of the old SSS-SSSEA collective bargaining agreement (CBA) on check-off of union dues; payment of accrued overtime pay, night differential pay and holiday pay; conversion of temporary or contractual employees with six (6) months or more of service into regular and permanent employees and their entitlement to the same salaries, allowances and benefits given to other regular employees of the SSS; and payment of the children's allowance of P30.00, and after the SSS deducted certain amounts from the salaries of the employees and allegedly committed acts of discrimination and unfair labor practices [Rollo, pp. 21-241].

The court a quo, on June 11, 1987, issued a temporary restraining order pending resolution of the application for a writ of preliminary injunction [Rollo, p. 71.] In the meantime, petitioners filed a motion to dismiss alleging the trial court's lack of jurisdiction over the subject matter [Rollo, pp. 72-82.] To this motion, the SSS filed an opposition, reiterating its prayer for the issuance of a writ of injunction [Rollo, pp. 209-222]. On July 22,1987, in a four-page order, the court a quo denied the motion to dismiss and converted the restraining order into an injunction upon posting of a bond, after finding that the strike was illegal [Rollo, pp. 83- 86]. As petitioners' motion for the reconsideration of

the aforesaid order was also denied on August 14, 1988 [Rollo, p. 94], petitioners filed a petition for certiorari and prohibition with preliminary injunction before this Court. Their petition was docketed as G.R. No. 79577. In a resolution dated October 21, 1987, the Court, through the Third Division, resolved to refer the case to the Court of Appeals. Petitioners filed a motion for reconsideration thereof, but during its pendency the Court of Appeals on March 9,1988 promulgated its decision on the referred case [Rollo, pp. 130-137]. Petitioners moved to recall the Court of Appeals' decision. In the meantime, the Court on June 29,1988 denied the motion for reconsideration in G.R. No. 97577 for being moot and academic. Petitioners' motion to recall the decision of the Court of Appeals was also denied in view of this Court's denial of the motion for reconsideration [Rollo, pp. 141- 143]. Hence, the instant petition to review the decision of the Court of Appeals [Rollo, pp. 12-37].

Upon motion of the SSS on February 6,1989, the Court issued a temporary restraining order enjoining the petitioners from staging another strike or from pursuing the notice of strike they filed with the Department of Labor and Employment on January 25, 1989 and to maintain the status quo [Rollo, pp. 151-152].

The Court, taking the comment as answer, and noting the reply and supplemental reply filed by petitioners, considered the issues joined and the case submitted for decision.

The position of the petitioners is that the Regional Trial Court had no jurisdiction to hear the case initiated by the SSS and to issue the restraining order and the writ of preliminary injunction, as jurisdiction lay with the Department of Labor and Employment or the National Labor Relations Commission, since the case involves a labor dispute.

On the other hand, the SSS advances the contrary view, on the ground that the employees of the SSS are covered by civil service laws and rules and regulations, not the Labor Code, therefore they do not have the right to strike. Since neither the DOLE nor the NLRC has jurisdiction over the dispute, the Regional Trial Court may enjoin the employees from striking.

In dismissing the petition for certiorari and prohibition with preliminary injunction filed by petitioners, the Court of Appeals held that since the employees of the SSS, are government employees, they are not allowed to strike, and may be enjoined by the Regional Trial Court, which had jurisdiction over the SSS' complaint for damages, from continuing with their strike.

Thus, the sequential questions to be resolved by the Court in deciding whether or not the Court of Appeals erred in finding that the Regional Trial Court did not act without or in excess of jurisdiction when it took cognizance of the case and enjoined the strike are as follows:

1. Do the employees of the SSS have the right to strike?

2. Does the Regional Trial Court have jurisdiction to hear the case initiated by the SSS and to enjoin the strikers from continuing with the strike and to order them to return to work?

These shall be discussed and resolved seriatim

I

The 1987 Constitution, in the Article on Social Justice and Human Rights, provides that the State "shall guarantee the rights of all workers to self-organization, collective bargaining and negotiations, and peaceful concerted activities, including the right to strike in accordance with law" [Art. XIII, Sec. 31].

By itself, this provision would seem to recognize the right of all workers and employees, including those in the public sector, to strike. But the Constitution itself fails to expressly confirm this impression, for in the Sub-Article on the Civil Service Commission, it provides, after defining the scope of the civil service as "all branches, subdivisions, instrumentalities, and agencies of the Government, including government-owned or controlled corporations with original charters," that "[t]he right to self-organization shall not be denied to government employees" [Art. IX(B), Sec. 2(l) and (50)]. Parenthetically, the Bill of Rights also provides that "[tlhe right of the people, including those employed in the public and private sectors, to form unions, associations, or societies for purposes not contrary to law shall not abridged" [Art. III, Sec. 8]. Thus, while there is no question that the Constitution recognizes the right of government employees to organize, it is silent as to whether such recognition also includes the right to strike.

Resort to the intent of the framers of the organic law becomes helpful in understanding the meaning of these provisions. A reading of the proceedings of the Constitutional Commission that drafted the 1987 Constitution would show that in recognizing the right of government employees to organize, the commissioners intended to limit the right to the formation of unions or associations only, without including the right to strike.

Thus, Commissioner Eulogio R. Lerum, one of the sponsors of the provision that "[tlhe right to self-organization shall not be denied to government employees" [Art. IX(B), Sec. 2(5)], in answer to the apprehensions expressed by Commissioner Ambrosio B. Padilla, Vice-President of the Commission, explained:

MR. LERUM. I think what I will try to say will not take that long. When we proposed this amendment providing for self-organization of government employees, it does not mean that because they have the right to organize, they also have the right to strike. That is a different matter. We are only talking about organizing, uniting as a union. With regard to the right to strike, everyone will remember that in the Bill of Rights, there is a provision that the right to form associations or societies whose purpose is not contrary to law shall not be abridged. Now then, if the purpose of the state is to prohibit the strikes coming from employees exercising government functions, that could be done because the moment that is prohibited, then the union which will go on strike will be an illegal union. And that provision is carried in Republic Act 875. In Republic Act 875, workers, including those from the government-owned and controlled, are allowed to organize but they are prohibited from striking. So, the fear of our honorable Vice- President is unfounded. It does not mean that because we approve this resolution, it carries with it the right to strike. That is a different matter. As a matter of fact, that subject is now being discussed in the Committee on Social Justice because we are trying to find a solution to this problem. We know that this problem exist; that the moment we allow anybody in the government to strike, then what will happen if the members of the Armed Forces will go on strike? What will happen to those people trying to protect us? So that is a matter of discussion in the Committee on Social Justice. But, I repeat, the right to form an organization does not carry with it the right to strike. [Record of the Constitutional Commission, vol. 1, p. 569].

It will be recalled that the Industrial Peace Act (R.A. No. 875), which was repealed by the Labor Code (P.D. 442) in 1974, expressly banned strikes by employees in the Government, including instrumentalities exercising governmental functions, but excluding entities entrusted with proprietary functions:

.Sec. 11. Prohibition Against Strikes in the Government. — The terms and conditions of employment in the Government, including any political subdivision or instrumentality thereof, are governed by law and it is declared to be the policy of this Act that employees therein shall not strike for the purpose of securing changes or modification in their terms and conditions of employment. Such employees may belong to any labor organization which does not impose the obligation to strike or to join in strike:Provided, however, That this section shall apply only to employees employed in governmental functions and not those employed in proprietary functions of the Government including but not limited to governmental corporations.

No similar provision is found in the Labor Code, although at one time it recognized the right of employees of government corporations established under the Corporation Code to organize and bargain collectively and those in the civil service to "form organizations for purposes not contrary to law" [Art. 244, before its amendment by B.P. Blg. 70 in 1980], in the same breath it provided that "[t]he terms and conditions of employment of all government employees, including employees of government owned and controlled corporations, shall be governed by the Civil Service Law, rules and regulations" [now Art. 276]. Understandably, the Labor Code is silent as to whether or not government employees may strike, for such are excluded from its coverage [Ibid]. But then the Civil Service Decree [P.D. No. 807], is equally silent on the matter.

On June 1, 1987, to implement the constitutional guarantee of the right of government employees to organize, the President issued E.O. No. 180 which provides guidelines for the exercise of the right to organize of government employees. In Section 14 thereof, it is provided that "[t]he Civil Service law and rules governing concerted activities and strikes in the government service shall be observed, subject to any legislation that may be enacted by Congress." The President was apparently referring to Memorandum Circular No. 6, s. 1987 of the Civil Service Commission under date April 21, 1987 which, "prior to the enactment by Congress of applicable laws concerning strike by government employees ... enjoins under pain of administrative sanctions, all government officers and employees from staging strikes, demonstrations, mass leaves, walk-outs and other forms of mass action which will result in temporary stoppage or disruption of public service." The air was thus cleared of the confusion. At present, in the absence of any legislation allowing government employees to strike, recognizing their right to do so, or regulating the exercise of the right, they are prohibited from striking, by express provision of Memorandum Circular No. 6 and as implied in E.O. No. 180. [At this juncture, it must be stated that the validity of Memorandum Circular No. 6 is not at issue].

But are employees of the SSS covered by the prohibition against strikes?

The Court is of the considered view that they are. Considering that under the 1987 Constitution "[t]he civil service embraces all branches, subdivisions, instrumentalities, and agencies of the Government, including government-owned or controlled corporations with original charters" [Art. IX(B), Sec. .2(l) see also Sec. 1 of E.O. No. 180 where the employees in the civil service are denominated as "government employees"] and that the SSS is one such government-controlled corporation with an original charter, having been created under R.A. No. 1161, its employees are part of the civil service [NASECO v. NLRC, G.R. Nos. 69870 & 70295, November 24,1988] and are covered by the Civil Service Commission's memorandum prohibiting strikes. This being the case, the strike staged by the employees of the SSS was illegal.

The statement of the Court in Alliance of Government Workers v. Minister of Labor and Employment [G.R. No. 60403, August 3, 1:983, 124 SCRA 11 is relevant as it furnishes the rationale for distinguishing between workers in the private sector and government employees with regard to the right to strike:

The general rule in the past and up to the present is that 'the terms and conditions of employment in the Government, including any political subdivision or instrumentality thereof are governed by law" (Section 11, the Industrial Peace Act, R.A. No. 875, as amended and Article 277, the Labor Code, P.D. No. 442, as amended). Since the terms and conditions of government employment are fixed by law, government workers cannot use the same weapons employed by workers in the private sector to secure concessions from their employers. The principle behind labor unionism in private industry is that industrial peace cannot be secured through compulsion by law. Relations between private employers and their employees rest on an essentially voluntary basis. Subject to the minimum requirements of wage laws and other labor and welfare legislation, the terms and conditions of employment in the unionized private sector are settled through the process of collective bargaining. In government employment, however, it is the legislature and, where properly given delegated power, the administrative heads of government which fix the terms and conditions of employment. And this is effected through statutes or administrative circulars, rules, and regulations, not through collective bargaining agreements. [At p. 13; Emphasis supplied].

Apropos is the observation of the Acting Commissioner of Civil Service, in his position paper submitted to the 1971 Constitutional Convention, and quoted with approval by the Court in Alliance, to wit:

It is the stand, therefore, of this Commission that by reason of the nature of the public employer and the peculiar character of the public service, it must necessarily regard the right to strike given to unions in private industry as not applying to public employees and civil service employees. It has been stated that the Government, in contrast to the private employer, protects the interest of all people in the public service, and that accordingly, such conflicting interests as are present in private labor relations could not exist in the relations between government and those whom they employ. [At pp. 16-17; also quoted in National Housing Corporation v. Juco, G.R. No. 64313, January 17,1985,134 SCRA 172,178-179].

E.O. No. 180, which provides guidelines for the exercise of the right to organize of government employees, while clinging to the same philosophy, has, however, relaxed the rule to allow negotiation where the terms and conditions of employment involved are not among those fixed by law. Thus:

.SECTION 13. Terms and conditions of employment or improvements thereof, except those that are fixed by law, may be the subject of negotiations between duly recognized employees' organizations and appropriate government authorities.

The same executive order has also provided for the general mechanism for the settlement of labor disputes in the public sector to wit:

.SECTION 16. The Civil Service and labor laws and procedures, whenever applicable, shall be followed in the resolution of complaints, grievances and cases involving government employees. In case any dispute remains unresolved after exhausting all the available remedies under existing laws and procedures, the parties may jointly refer the dispute to the [Public Sector Labor- Management] Council for appropriate action.

Government employees may, therefore, through their unions or associations, either petition the Congress for the betterment of the terms and conditions of employment which are within the ambit of legislation or negotiate with the appropriate government agencies for the improvement of those which are not fixed by law. If there be any unresolved grievances, the dispute may be referred to the Public Sector Labor - Management Council for appropriate action. But employees in the civil service may not resort to strikes, walk-outs and other temporary work stoppages, like workers in the private sector, to pressure the Govemment to accede to their demands. As now provided under Sec. 4, Rule III of the Rules and Regulations to Govern the Exercise of the Right of Government- Employees to Self- Organization, which took effect after the instant dispute arose, "[t]he terms and conditions of employment in the government, including any political subdivision or instrumentality thereof and government- owned and controlled corporations with original charters are governed by law and employees therein shall not strike for the purpose of securing changes thereof."

II

The strike staged by the employees of the SSS belonging to petitioner union being prohibited by law, an injunction may be issued to restrain it.

It is futile for the petitioners to assert that the subject labor dispute falls within the exclusive jurisdiction of the NLRC and, hence, the Regional Trial Court had no jurisdiction to issue a writ of injunction enjoining the continuance of the strike. The Labor Code itself provides that terms and conditions of employment of government employees shall be governed by the Civil Service Law, rules and regulations [Art. 276]. More importantly, E.O. No. 180 vests the Public Sector Labor - Management Council with jurisdiction over unresolved labor disputes involving government employees [Sec. 16]. Clearly, the NLRC has no jurisdiction over the dispute.

This being the case, the Regional Trial Court was not precluded, in the exercise of its general jurisdiction under B.P. Blg. 129, as amended, from assuming jurisdiction over the SSS's complaint for damages and issuing the injunctive writ prayed for therein. Unlike the NLRC, the Public Sector Labor - Management Council has not been granted by law authority to issue writs of injunction in labor disputes within its jurisdiction. Thus, since it is the Council, and not the NLRC, that has jurisdiction over the instant labor dispute, resort to the general courts of law for the issuance of a writ of injunction to enjoin the strike is appropriate.

Neither could the court a quo be accused of imprudence or overzealousness, for in fact it had proceeded with caution. Thus, after issuing a writ of injunction enjoining the continuance of the strike to prevent any further disruption of public service, the respondent judge, in the same order, admonished the parties to refer the unresolved controversies emanating from their employer- employee relationship to the Public Sector Labor - Management Council for appropriate action [Rollo, p. 86].

III

In their "Petition/Application for Preliminary and Mandatory Injunction," and reiterated in their reply and supplemental reply, petitioners allege that the SSS unlawfully withheld bonuses and benefits due the individual petitioners and they pray that the Court issue a writ of preliminary prohibitive and mandatory injunction to restrain the SSS and its agents from withholding payment thereof and to compel the SSS to pay them. In their supplemental reply, petitioners annexed an order of the Civil Service Commission, dated May 5, 1989, which ruled that the officers of the SSSEA who are not preventively suspended and who are reporting for work pending the resolution of the administrative cases against them are entitled to their salaries, year-end bonuses and other fringe benefits and affirmed the previous order of the Merit Systems Promotion Board.

The matter being extraneous to the issues elevated to this Court, it is Our view that petitioners' remedy is not to petition this Court to issue an injunction, but to cause the execution of the aforesaid order, if it has already become final.

WHEREFORE, no reversible error having been committed by the Court of Appeals, the instant petition for review is hereby DENIED and the decision of the appellate court dated March 9, 1988 in CA-G.R. SP No. 13192 is AFFIRMED. Petitioners' "Petition/Application for Preliminary and Mandatory Injunction" dated December 13,1988 is DENIED.

SO ORDERED.

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

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

x-------------------------x

G.R. No. 169659             April 20, 2006

BAYAN MUNA represented by DR. REYNALDO LESACA, JR., Rep. SATUR OCAMPO, Rep. CRISPIN BELTRAN, Rep. RAFAEL MARIANO, Rep. LIZA MAZA, Rep. TEODORO CASINO, Rep. JOEL VIRADOR, COURAGE represented by FERDINAND GAITE, and COUNSELS FOR THE DEFENSE OF LIBERTIES (CODAL) represented by ATTY. REMEDIOS BALBIN, Petitioners, vs.EDUARDO ERMITA, in his capacity as Executive Secretary and alter-ego of President Gloria Macapagal-Arroyo, Respondent.

x-------------------------x

G.R. No. 169660             April 20, 2006

FRANCISCO I. CHAVEZ, Petitioner, vs.EDUARDO R. ERMITA, in his capacity as Executive Secretary, AVELINO J. CRUZ, JR., in his capacity as Secretary of Defense, and GENEROSO S. SENGA, in his capacity as AFP Chief of Staff, Respondents.

x-------------------------x

G.R. No. 169667             April 20, 2006

ALTERNATIVE LAW GROUPS, INC. (ALG), Petitioner, vs.HON. EDUARDO R. ERMITA, in his capacity as Executive Secretary, Respondent.

x-------------------------x

G.R. No. 169834             April 20, 2006

PDP- LABAN, Petitioner, vs.EXECUTIVE SECRETARY EDUARDO R. ERMITA, Respondent.

x-------------------------x

G.R. No. 171246             April 20, 2006

JOSE ANSELMO I. CADIZ, FELICIANO M. BAUTISTA, ROMULO R. RIVERA, JOSE AMOR AMORANDO, ALICIA A. RISOS-VIDAL, FILEMON C. ABELITA III, MANUEL P. LEGASPI, J. B. JOVY C. BERNABE, BERNARD L. DAGCUTA, ROGELIO V. GARCIA, and the INTEGRATED BAR FOR THE PHILIPPINES,Petitioners, vs.HON. EXECUTIVE SECRETARY EDUARDO R. ERMITA, Respondent.

D E C I S I O N

CARPIO MORALES, J.:

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

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

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

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

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

On September 21 to 23, 2005, the Committee of the Senate as a whole issued invitations to various officials of the Executive Department for them to appear on September 29, 2005 as resource speakers in a public hearing on the railway project of the North Luzon Railways Corporation with the China National Machinery and Equipment Group (hereinafter North Rail Project). The public hearing

was sparked by a privilege speech of Senator Juan Ponce Enrile urging the Senate to investigate the alleged overpricing and other unlawful provisions of the contract covering the North Rail Project.

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

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

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

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

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

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

SECTION 1. Appearance by Heads of Departments Before Congress. – In accordance with Article VI, Section 22 of the Constitution and to implement the Constitutional provisions on the separation of powers between co-equal branches of the government, all heads of departments of the Executive

Branch of the government shall secure the consent of the President prior to appearing before either House of Congress.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Such other officers as may be determined by the President.

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

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

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

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

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

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

In G.R. No. 169659, petitioners party-list Bayan Muna, House of Representatives Members Satur Ocampo, Crispin Beltran, Rafael Mariano, Liza Maza, Joel Virador and Teodoro Casino, Courage, an organization of government employees, and Counsels for the Defense of Liberties (CODAL), a group of lawyers dedicated to the promotion of justice, democracy and peace, all claiming to have standing to file the suit because of the transcendental importance of the issues they posed, pray, in their petition that E.O. 464 be declared null and void for being unconstitutional; that respondent Executive Secretary Ermita, in his capacity as Executive Secretary and alter-ego of President Arroyo, be prohibited from imposing, and threatening to impose sanctions on officials who appear before Congress due to congressional summons. Additionally, petitioners claim that E.O. 464 infringes on their rights and impedes them from fulfilling their respective obligations. Thus, Bayan Muna alleges that E.O. 464 infringes on its right as a political party entitled to participate in

governance; Satur Ocampo, et al. allege that E.O. 464 infringes on their rights and duties as members of Congress to conduct investigation in aid of legislation and conduct oversight functions in the implementation of laws; Courage alleges that the tenure of its members in public office is predicated on, and threatened by, their submission to the requirements of E.O. 464 should they be summoned by Congress; and CODAL alleges that its members have a sworn duty to uphold the rule of law, and their rights to information and to transparent governance are threatened by the imposition of E.O. 464.

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

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

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

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

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

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

In the budget hearings set by the Senate on February 8 and 13, 2006, Press Secretary and Presidential Spokesperson Ignacio R. Bunye,19 DOJ Secretary Raul M. Gonzalez20 and Department

of Interior and Local Government Undersecretary Marius P. Corpus21 communicated their inability to attend due to lack of appropriate clearance from the President pursuant to E.O. 464. During the February 13, 2005 budget hearing, however, Secretary Bunye was allowed to attend by Executive Secretary Ermita.

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

All the petitions pray for the issuance of a Temporary Restraining Order enjoining respondents from implementing, enforcing, and observing E.O. 464.

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

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

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

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

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

Art. VI, Sec. 2130

Art. VI, Sec. 2231

Art. VI, Sec. 132

Art. XI, Sec. 133

Art. III, Sec. 734

Art. III, Sec. 435

Art. XIII, Sec. 16 36

Art. II, Sec. 2837

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

The Court synthesizes the issues to be resolved as follows:

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

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

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

Essential requisites for judicial review

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

Like almost all powers conferred by the Constitution, the power of judicial review is subject to limitations, to wit: (1) there must be an actual case or controversy calling for the exercise of judicial power; (2) the person challenging the act must have standing to challenge the validity of the subject act or issuance; otherwise stated, he must have a personal and substantial interest in the case such that he has sustained, or will sustain, direct injury as a result of its enforcement; (3) the question of constitutionality must be raised at the earliest opportunity; and (4) the issue of constitutionality must be the very lis mota of the case.39

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

Standing

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

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

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

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

Invoking this Court’s ruling in National Economic Protectionism Association v. Ongpin42 and Valmonte v. Philippine Charity Sweepstakes Office,43 respondents assert that to be considered a proper party, one must have a personal and substantial interest in the case, such that he has sustained or will sustain direct injury due to the enforcement of E.O. 464.44

That the Senate of the Philippines has a fundamental right essential not only for intelligent public decision-making in a democratic system, but more especially for sound legislation45 is not disputed. E.O. 464, however, allegedly stifles the ability of the members of Congress to access information that is crucial to law-making.46 Verily, the Senate, including its individual members, has a substantial and direct interest over the outcome of the controversy and is the proper party to assail the constitutionality of E.O. 464. Indeed, legislators have standing to maintain inviolate the prerogative, powers and privileges vested by the Constitution in their office and are allowed to sue to question the validity of any official action which they claim infringes their prerogatives as legislators.47

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

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

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

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

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

involves the assertion of a public right, the mere fact that he is a citizen satisfies the requirement of personal interest.

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

Actual Case or Controversy

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

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

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

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

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

Constitutionality of E.O. 464

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

The power of inquiry

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

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

This provision is worded exactly as Section 8 of Article VIII of the 1973 Constitution except that, in the latter, it vests the power of inquiry in the unicameral legislature established therein – the Batasang Pambansa – and its committees.

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

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

Although there is no provision in the Constitution expressly investing either House of Congress with power to make investigations and exact testimony to the end that it may exercise its legislative functions advisedly and effectively, such power is so far incidental to the legislative function as to be implied. In other words, the power of inquiry – with process to enforce it – is an essential and appropriate auxiliary to the legislative function. A legislative body cannot legislate wisely or effectively in the absence of information respecting the conditions which the legislation is intended to affect or change; and where the legislative body does not itself possess the requisite information – which is not infrequently true – recourse must be had to others who do possess it. Experience has shown that mere requests for such information are often unavailing, and also that information which is volunteered is not always accurate or complete; so some means of compulsion is essential to obtain what is needed.59 . . . (Emphasis and underscoring supplied)

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

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

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

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

As evidenced by the American experience during the so-called "McCarthy era," however, the right of Congress to conduct inquiries in aid of legislation is, in theory, no less susceptible to abuse than executive or judicial power. It may thus be subjected to judicial review pursuant to the Court’s certiorari powers under Section 1, Article VIII of the Constitution.

For one, as noted in Bengzon v. Senate Blue Ribbon Committee,61 the inquiry itself might not properly be in aid of legislation, and thus beyond the constitutional power of Congress. Such inquiry could not usurp judicial functions. Parenthetically, one possible way for Congress to avoid such a result as occurred in Bengzon is to indicate in its invitations to the public officials concerned, or to any person for that matter, the possible needed statute which prompted the need for the inquiry. Given such statement in its invitations, along with the usual indication of the subject of inquiry and the questions relative to and in furtherance thereof, there would be less room for speculation on the part of the person invited on whether the inquiry is in aid of legislation.

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

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

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

Executive privilege

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

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

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

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

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

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

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

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

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

The leading case on executive privilege in the United States is U.S. v. Nixon, 72 decided in 1974. In issue in that case was the validity of President Nixon’s claim of executive privilege against a subpoena issued by a district court requiring the production of certain tapes and documents relating to the Watergate investigations. The claim of privilege was based on the President’s general interest

in the confidentiality of his conversations and correspondence. The U.S. Court held that while there is no explicit reference to a privilege of confidentiality in the U.S. Constitution, it is constitutionally based to the extent that it relates to the effective discharge of a President’s powers. The Court, nonetheless, rejected the President’s claim of privilege, ruling that the privilege must be balanced against the public interest in the fair administration of criminal justice. Notably, the Court was careful to clarify that it was not there addressing the issue of claims of privilege in a civil litigation or against congressional demands for information.

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

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

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

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

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

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

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

Validity of Section 1

Section 1 is similar to Section 3 in that both require the officials covered by them to secure the consent of the President prior to appearing before Congress. There are significant differences between the two provisions, however, which constrain this Court to discuss the validity of these provisions separately.

Section 1 specifically applies to department heads. It does not, unlike Section 3, require a prior determination by any official whether they are covered by E.O. 464. The President herself has, through the challenged order, made the determination that they are. Further, unlike also Section 3, the coverage of department heads under Section 1 is not made to depend on the department heads’ possession of any information which might be covered by executive privilege. In fact, in marked contrast to Section 3 vis-à-vis Section 2, there is no reference to executive privilege at all. Rather, the required prior consent under Section 1 is grounded on Article VI, Section 22 of the Constitution on what has been referred to as the question hour.

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

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

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

I want to be clarified on a statement made by Commissioner Suarez when he said that the fact that the Cabinet ministers may refuse to come to the House of Representatives or the Senate [when

requested under Section 22] does not mean that they need not come when they are invited or subpoenaed by the committee of either House when it comes to inquiries in aid of legislation or congressional investigation. According to Commissioner Suarez, that is allowed and their presence can be had under Section 21. Does the gentleman confirm this, Madam President?

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

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

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

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

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

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

THE PRESIDING OFFICER. What does the committee say?

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

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

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

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

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

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

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

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

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

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

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

since it depends for its effectiveness solely upon information parceled out ex gratia by the executive.89 (Emphasis and underscoring supplied)

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

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

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

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

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

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

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

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

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

Section 1 cannot, however, be applied to appearances of department heads in inquiries in aid of legislation. Congress is not bound in such instances to respect the refusal of the department head to appear in such inquiry, unless a valid claim of privilege is subsequently made, either by the President herself or by the Executive Secretary.

Validity of Sections 2 and 3

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

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

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

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

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

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

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

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

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

The letter does not explicitly invoke executive privilege or that the matter on which these officials are being requested to be resource persons falls under the recognized grounds of the privilege to justify their absence. Nor does it expressly state that in view of the lack of consent from the President under E.O. 464, they cannot attend the hearing.

Significant premises in this letter, however, are left unstated, deliberately or not. The letter assumes that the invited officials are covered by E.O. 464. As explained earlier, however, to be covered by the order means that a determination has been made, by the designated head of office or the President, that the invited official possesses information that is covered by executive privilege. Thus, although it is not stated in the letter that such determination has been made, the same must be deemed implied. Respecting the statement that the invited officials have not secured the consent of the President, it only means that the President has not reversed the standing prohibition against their appearance before Congress.

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

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

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

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

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

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

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

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

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

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

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

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

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

that the evaluation and classification of claimant’s products was a matter of internal policy formulation, an assumption in which this Court is unwilling to indulge sua sponte.98 (Emphasis and underscoring supplied)

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Right to Information

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

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

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

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

It is in the interest of the State that the channels for free political discussion be maintained to the end that the government may perceive and be responsive to the people’s will. Yet, this open dialogue can be effective only to the extent that the citizenry is informed and thus able to formulate its will intelligently. Only when the participants in the discussion are aware of the issues and have access to information relating thereto can such bear fruit.107(Emphasis and underscoring supplied)

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

Implementation of E.O. 464 prior to its publication

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

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

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

Conclusion

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

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

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

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

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

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

SO ORDERED.

FRANCISCO I. CHAVEZ, petitioner, vs. PRESIDENTIAL COMMISSION ON GOOD GOVERNMENT (PCGG) and MAGTANGGOL GUNIGUNDO, (in his capacity as chairman of the PCGG), respondents. GLORIA A. JOPSON, CELNAN A. JOPSON, SCARLET A. JOPSON, and TERESA A. JOPSON, petitioners-in-intervention.

D E C I S I O N

PANGANIBAN, J:

Petitioner asks this Court to define the nature and the extent of the people’s constitutional right to information on matters of public concern.  Does this right include access to the terms of government negotiations prior to their consummation or conclusion?  May the government, through the Presidential Commission on Good Government (PCGG), be required to reveal the proposed terms of a compromise agreement with the Marcos heirs as regards their alleged ill-gotten wealth?  More specifically, are the “General Agreement” and “Supplemental Agreement,” both dated December 28, 1993 and executed between the PCGG and the Marcos heirs, valid and binding?

The Case

These are the main questions raised in this original action seeking (1) to prohibit and “[e]njoin respondents [PCGG and its chairman] from privately entering into, perfecting and/or executing any agreement with the heirs of the late President Ferdinand E. Marcos  x x x  relating to and concerning the properties and assets of  Ferdinand Marcos located in the Philippines and/or abroad -- including the so-called Marcos gold hoard”; and (2) to “[c]ompel respondent[s] to make public all negotiations and agreement, be they ongoing or perfected, and all documents related to or relating to such negotiations and agreement between the PCGG and the Marcos heirs.”[1]

The Facts

Petitioner Francisco I. Chavez, as “taxpayer, citizen and former government official who initiated the prosecution of the Marcoses and their cronies who committed unmitigated plunder of the public treasury and the systematic subjugation of the country’s economy,” alleges that what impelled him to bring this action were several news reports [2] bannered in a number of broadsheets sometime in September 1997.  These news items referred to (1) the alleged discovery of billions of dollars of Marcos assets deposited in various coded accounts in Swiss banks; and (2) the reported execution of a compromise, between the government (through PCGG) and the Marcos heirs, on how to split or share these assets.

Petitioner, invoking his constitutional right to information[3] and the correlative duty of the state to disclose publicly all its transactions involving the national interest, [4] demands that

respondents make public any and all negotiations and agreements pertaining to PCGG’s task of recovering the Marcoses’ ill-gotten wealth.  He claims that any compromise on the alleged billions of ill-gotten wealth involves an issue of “paramount public interest,” since it has a “debilitating effect on the country’s economy” that would be greatly prejudicial to the national interest of the Filipino people.  Hence, the people in general have a right to know the transactions or deals being contrived and effected by the government.

Respondents, on the other hand, do not deny forging a compromise agreement with the Marcos heirs.  They claim, though, that petitioner’s action is premature, because there is no showing that he has asked the PCGG to disclose the negotiations and the Agreements.  And even if he has, PCGG may not yet be compelled to make any disclosure, since the proposed terms and conditions of the Agreements have not become effective and binding.

Respondents further aver that the Marcos heirs have submitted the subject Agreements to the Sandiganbayan for its approval in Civil Case No. 141, entitled Republic v. Heirs of Ferdinand E. Marcos, and that the Republic opposed such move on the principal grounds that (1) said Agreements have not been ratified by or even submitted to the President for approval, pursuant to Item No. 8 of the General Agreement; and (2) the Marcos heirs have failed to comply with their undertakings therein, particularly the collation and submission of an inventory of their assets.  The Republic also cited an April 11, 1995 Resolution in Civil Case No. 0165, in which the Sandiganbayan dismissed a similar petition filed by the Marcoses’ attorney-in-fact.

Furthermore, then President Fidel V. Ramos, in his May 4, 1998 Memorandum[5] to then PCGG Chairman Magtanggol Gunigundo, categorically stated:

“This is to reiterate my previous position embodied in the Palace Press Release of 6 April 1995 that I have not authorized you to approve the Compromise Agreements of December 28, 1993 or any agreement at all with the Marcoses, and would have disapproved them had they been submitted to me.

“The Full Powers of Attorney of March 1994 and July 4, 1994, did not authorize you to approve said Agreements, which I reserve for myself as President of the Republic of the Philippines.”

The assailed principal Agreement[6] reads:

“GENERAL AGREEMENT

KNOW ALL MEN BY THESE PRESENTS:

This Agreement entered into this 28th day of December, 1993, by and between -

The Republic of the Philippines, through the Presidential Commission on Good Government (PCGG), a governmental agency vested with authority defined under Executive Orders Nos. 1, 2 and 14, with offices at the

Philcomcen Building, Pasig, Metro Manila, represented by its Chairman referred to as the FIRST PARTY,

--  and  --

Estate of Ferdinand E. Marcos, represented by Imelda Romualdez Marcos and Ferdinand R. Marcos, Jr., all of legal age, and with address at c/o No. 154 Lopez Rizal St., Mandaluyong, Metro Manila, and Imelda Romualdez Marcos, Imee Marcos Manotoc, Ferdinand E. Marcos, Jr., and Irene Marcos Araneta, hereinafter collectively referred to as the PRIVATE PARTY.

W I T N E S S E T H:

WHEREAS, the PRIVATE PARTY has been impelled by their sense of nationalism and love of country and of the entire Filipino people, and their desire to set up a foundation and finance impact projects like installation of power plants in selected rural areas and initiation of other community projects for the empowerment of the people;

WHEREAS, the FIRST PARTY has obtained a judgment from the Swiss Federal Tribunal of December 21, 1990, that the $356 million belongs in principle to the Republic of the Philippines provided certain conditionalities are met, but even after 7 years, the FIRST PARTY has not been able to procure a final judgment of conviction against the PRIVATE PARTY;

WHEREAS, the FIRST PARTY is desirous of avoiding a long-drawn out litigation which, as proven by the past 7 years, is consuming money, time and effort, and is counter-productive and ties up assets which the FIRST PARTY could otherwise utilize for its Comprehensive Agrarian Reform Program, and other urgent needs;

WHEREAS, His Excellency, President Fidel V. Ramos, has adopted a policy of unity and reconciliation in order to bind the nation’s wounds and start the process of rebuilding this nation as it goes on to the twenty-first century;

WHEREAS, this Agreement settles all claims and counterclaims which the parties may have against one another, whether past, present, or future, matured or inchoate.

NOW, THEREFORE, for and in consideration of the mutual covenants set forth herein, the parties agree as follows:

1.  The parties will collate all assets presumed to be owned by, or held by other parties for the benefit of, the PRIVATE PARTY for purposes of determining the totality of the assets covered by the settlement.  The subject assets shall be classified by the nature thereof,

namely:  (a) real estate; (b) jewelry; (c) paintings and other works of art; (d) securities; (e) funds on deposit; (f) precious metals, if any, and (g) miscellaneous assets or assets which could not appropriately fall under any of the preceding classification.  The list shall be based on the full disclosure of the PRIVATE PARTY to insure its accuracy.

2.  Based on the inventory, the FIRST PARTY shall determine which shall be ceded to the FIRST PARTY, and which shall be assigned to/retained by the PRIVATE PARTY.  The assets of the PRIVATE PARTY shall be net of, and exempt from, any form of taxes due the Republic of the Philippines.  However, considering the unavailability of all pertinent and relevant documents and information as to balances and ownership, the actual specification of assets to be retained by the PRIVATE PARTY shall be covered by supplemental agreements which shall form part of this Agreement.

3.  Foreign assets which the PRIVATE PARTY shall fully disclose but which are held by trustees, nominees, agents or foundations are hereby waived over by the PRIVATE PARTY in favor of the FIRST PARTY.  For this purpose, the parties shall cooperate in taking the appropriate action, judicial and/or extrajudicial, to recover the same for the FIRST PARTY.

4.  All disclosures of assets made by the PRIVATE PARTY shall not be used as evidence by the FIRST PARTY in any criminal, civil, tax or administrative case, but shall be valid and binding against said PARTY for use by the FIRST PARTY in withdrawing any account and/or recovering any asset.  The PRIVATE PARTY withdraws any objection to the withdrawal by and/or release to the FIRST PARTY by the Swiss banks and/or Swiss authorities of the $356 million, its accrued interests, and/or any other account; over which the PRIVATE PARTY waives any right, interest or participation in favor of the FIRST PARTY. However, any withdrawal or release of any account aforementioned by the FIRST PARTY shall be made in the presence of any authorized representative of the PRIVATE PARTY.

5.  The trustees, custodians, safekeepers, depositaries, agents, nominees, administrators, lawyers, or any other party acting in similar capacity in behalf of the PRIVATE PARTY are hereby informed through this General Agreement to insure that it is fully implemented and this shall serve as absolute authority from both parties for full disclosure to the FIRST PARTY of said assets and for the FIRST PARTY to withdraw said account and/or assets and any other assets which the FIRST PARTY on its own or through the help of the PRIVATE PARTY/their trustees, etc., may discover.

6.  Any asset which may be discovered in the future as belonging to the PRIVATE PARTY or is being held by another for the benefit of the PRIVATE PARTY and which is not included in the list per No. 1 for whatever reason shall automatically belong to the FIRST PARTY, and the PRIVATE PARTY in accordance with No. 4 above, waives any right thereto.

7.  This Agreement shall be binding on, and inure to the benefit of, the parties and their respective legal representatives, successors and assigns and shall supersede any other prior agreement.

8.  The PARTIES shall submit this and any other implementing Agreements to the President of the Philippines for approval.  In the same manner, the PRIVATE PARTY shall provide the FIRST PARTY assistance by way of testimony or deposition on any information it may have that could shed light on the cases being pursued by the FIRST PARTY against other parties.  The FIRST PARTY shall desist from instituting new suits already subject of this Agreement against the PRIVATE PARTY and cause the dismissal of all other cases pending in the Sandiganbayan and in other courts.

9.  In case of violation by the PRIVATE PARTY of any of the conditions herein contained, the PARTIES shall be restored automatically to the status quo ante the signing of this Agreement.

For purposes of this Agreement, the PRIVATE PARTY shall be represented by Atty. Simeon M. Mesina, Jr., as their only Attorney-in-Fact.

IN WITNESS WHEREOF, the parties have signed this instrument this 28th day of December, 1993, in Makati, Metro Manila.

PRESIDENTIAL COMMISSION ONGOOD GOVERNMENT

By:

[Sgd.] MAGTANGGOL C. GUNIGUNDO

Chairman

ESTATE OF FERDINAND E. MARCOS, IMELDA R. MARCOS, MA. IMELDA MARCOS-MANOTOC, FERDINAND R. MARCOS, JR., & IRENE MARCOS-ARANETA

By:

[Sgd.]IMELDA ROMUALDEZ-MARCOS

[Sgd.] MA. IMELDA MARCOS-MANOTOC

FERDINAND R. MARCOS, JR.[7]

[Sgd.] IRENE MARCOS-ARANETA

Assisted by:

[Sgd.] ATTY. SIMEON M. MESINA, JR.Counsel & Attorney-in-Fact”

Petitioner also denounces this supplement to the above Agreement: [8]

“SUPPLEMENTAL AGREEMENT

This Agreement entered into this 28th day of December, 1993, by and between --

The Republic of the Philippines, through the Presidential Commission on Good Government (PCGG), a governmental agency vested with authority defined under Executive Orders Nos. 1, 2 and 14, with offices at the Philcomcen Building, Pasig, Metro Manila, represented by its Chairman Magtanggol C. Gunigundo, hereinafter referred to as the FIRST PARTY,

-- and --

Estate of Ferdinand E. Marcos, represented by Imelda Romualdez Marcos and Ferdinand R. Marcos, Jr., all of legal age, and with address at c/o No. 154 Lopez Rizal St., Mandaluyong, Metro Manila, and Imelda Romualdez Marcos, Imee Marcos Manotoc, Ferdinand E. Marcos, Jr., and Irene Marcos Araneta, hereinafter collectively referred to as the PRIVATE PARTY.

W I T N E S S E T H:

The parties in this case entered into a General Agreement dated Dec. 28, 1993;

The PRIVATE PARTY expressly reserve their right to pursue their interest and/or sue over local assets located in the Philippines against parties other than the FIRST PARTY.

The parties hereby agree that all expenses related to the recovery and/or withdrawal of all assets including lawyers’ fees, agents’ fees, nominees’ service fees, bank charges, traveling expenses and all other expenses related thereto shall be for the account of the PRIVATE PARTY.

In consideration of the foregoing, the parties hereby agree that the PRIVATE PARTY shall be entitled to the equivalent of 25% of the amount that may be eventually withdrawn from said $356 million Swiss deposits.

IN WITNESS WHEREOF, the parties have signed this instrument this 28th day of December, 1993, in Makati, Metro Manila.

PRESIDENTIAL COMMISSION ONGOOD GOVERNMENT

By:

[Sgd.] MAGTANGGOL C. GUNIGUNDO

Chairman

ESTATE OF FERDINAND E. MARCOS, IMELDA R. MARCOS, MA. IMELDA MARCOS-MANOTOC, FERDINAND R. MARCOS, JR., & IRENE MARCOS-ARANETA

By:

[Sgd.] IMELDA ROMUALDEZ-MARCOS

[Sgd.] MA. IMELDA MARCOS-MANOTOC

FERDINAND R. MARCOS, JR.[9]

[Sgd.] IRENE MARCOS-ARANETA

Assisted by:

[Sgd.] ATTY. SIMEON M. MESINA, JR.  Counsel & Attorney-in-Fact”

Acting on a motion of petitioner, the Court issued a Temporary Restraining Order [10] dated March 23, 1998, enjoining respondents, their agents and/or representatives from “entering into, or perfecting and/or executing any agreement with the heirs of the late President Ferdinand E. Marcos relating to and concerning their ill-gotten wealth.”

Issues

The Oral Argument, held on March 16, 1998, focused on the following issues:

“(a)  Procedural:

(1)  Whether or not the petitioner has the personality or legal standing to file the instant petition; and

(2)  Whether or not this Court is the proper court before which this action may be filed.

(b)  Substantive:

(1)  Whether or not this Court could require the PCGG to disclose to the public the details of any agreement, perfected or not, with the Marcoses; and

(2)  Whether or not there exist any legal restraints against a compromise agreement between the Marcoses and the PCGG relative to the Marcoses’ ill-gotten wealth.”[11]

After their oral presentations, the parties filed their respective memoranda.

On August 19, 1998, Gloria, Celnan, Scarlet and Teresa, all surnamed Jopson, filed before the Court a Motion for Intervention, attaching thereto their Petition in Intervention.  They aver that they are “among the 10,000 claimants whose right to claim from the Marcos Family and/or the Marcos Estate is recognized by the decision in In re Estate of Ferdinand Marcos, Human Rights Litigation, Maximo Hilao, et al., Class Plaintiffs No. 92-15526, U.S. Court of Appeals  for the 9th Circuit  US App. Lexis 14796, June 16, 1994 and the Decision of the Swiss Supreme Court of December 10, 1997.”  As such, they claim to have personal and direct interest in the subject matter of the instant case, since a distribution or disposition of the Marcos properties may adversely affect their legitimate claims.  In a minute Resolution issued on August 24, 1998, the Court granted their motion to intervene and required the respondents to comment thereon.  The September 25, 1998 Comment[12] of the solicitor general on said motion merely reiterated his aforecited arguments against the main petition.[13]

The Court’s Ruling

The petition is imbued with merit.

First Procedural Issue:  Petitioner’s Standing

Petitioner, on the one hand, explains that as a taxpayer and citizen, he has the legal personality to file the instant petition.  He submits that since ill-gotten wealth “belongs to the Filipino people and [is], in truth and in fact, part of the public treasury,” any compromise in relation to it would constitute a diminution of the public funds, which can be enjoined by a taxpayer whose interest is for a full, if not substantial, recovery of such assets. 

Besides, petitioner emphasizes, the matter of recovering the ill-gotten wealth of the Marcoses is an issue “of transcendental importance to the public.”  He asserts that ordinary taxpayers have a right to initiate and prosecute actions questioning the validity of acts or orders of government agencies or instrumentalities, if the issues raised are “of paramount public interest;” and if they “immeasurably affect the social, economic, and moral well-being of the people.” 

Moreover, the mere fact that he is a citizen satisfies the requirement of personal interest, when the proceeding involves the assertion of a public right, [14] such as in this case.  He invokes several decisions[15] of this Court which have set aside the procedural matter of locus standi, when the subject of the case involved public interest.

On the other hand, the solicitor general, on behalf of respondents, contends that petitioner has no standing to institute the present action, because no expenditure of public funds is involved and said petitioner has no actual interest in the alleged agreement.  Respondents further insist

that the instant petition is premature, since there is no showing that petitioner has requested PCGG to disclose any such negotiations and agreements; or that, if he has, the Commission has refused to do so.

Indeed, the arguments cited by petitioner constitute the controlling decisional rule as regards his legal standing to institute the instant petition.  Access to public documents and records is a public right, and the real parties in interest are the people themselves.[16]

In Tañada v. Tuvera,[17] the Court asserted that when the issue concerns a public right and the object of mandamus is to obtain the enforcement of a public duty, the people are regarded as the real parties in interest; and because it is sufficient that petitioner is a citizen and as such is interested in the execution of the laws, he need not show that he has any legal or special interest in the result of the action.[18] In the aforesaid case, the petitioners sought to enforce their right to be informed on matters of public concern, a right then recognized in Section 6, Article IV of the 1973 Constitution,[19] in connection with the rule that laws in order to be valid and enforceable must be published in the Official Gazette or otherwise effectively promulgated.  In ruling for the petitioners’ legal standing, the Court declared that the right they sought to be enforced “is a public right recognized by no less than the fundamental law of the land.”

Legaspi v. Civil Service Commission,[20] while reiterating Tañada, further declared that “when a mandamus proceeding involves the assertion of a public right, the requirement of personal interest is satisfied by the mere fact that petitioner is a citizen and, therefore, part of the general ‘public’ which possesses the right.”[21]

Further, in Albano v. Reyes,[22] we said that while expenditure of public funds may not have been involved under the questioned contract for the development, the management and the operation of the Manila International Container Terminal, “public interest [was] definitely involved considering the important role [of the subject contract]  x x x  in the economic development of the country and the magnitude of the financial consideration involved.”  We concluded that, as a consequence, the disclosure provision in the Constitution would constitute sufficient authority for upholding the petitioner’s standing.

Similarly, the instant petition is anchored on the right of the people to information and access to official records, documents and papers -- a right guaranteed under Section 7, Article III of the 1987 Constitution.  Petitioner, a former solicitor general, is a Filipino citizen.  Because of the satisfaction of the two basic requisites laid down by decisional law to sustain petitioner’s legal standing, i.e. (1) the enforcement of a public right (2) espoused by a Filipino citizen,  we rule that the petition at bar should be allowed.

In any event, the question on the standing of Petitioner Chavez is rendered moot by the intervention of the Jopsons, who are among the legitimate claimants to the Marcos wealth.  The standing of the Jopsons is not seriously contested by the solicitor general.  Indeed, said petitioners-intervenors have a legal interest in the subject matter of the instant case, since a distribution or disposition of the Marcoses’ ill-gotten properties may adversely affect the satisfaction of their claims.

Second Procedural Issue:The Court’s Jurisdiction

Petitioner asserts that because this petition is an original action for mandamus and one that is not intended to delay any proceeding in the Sandiganbayan, its having been filed before this Court was proper.  He invokes Section 5, Article VIII of the Constitution, which confers upon the Supreme Court original jurisdiction over petitions for prohibition and mandamus.

The solicitor general, on the other hand, argues that the petition has been erroneously brought before this Court, since there is neither a justiciable controversy nor a violation of petitioner’s rights by the PCGG.  He alleges that the assailed agreements are already the very lis mota in Sandiganbayan Civil Case No. 0141, which has yet to dispose of the issue; thus, this petition is premature.  Furthermore, respondents themselves have opposed the Marcos heirs’ motion, filed in the graft court, for the approval of the subject Agreements.  Such opposition belies petitioner’s claim that the government, through respondents, has concluded a settlement with the Marcoses as regards their alleged ill-gotten assets.

In Tañada and Legaspi, we upheld therein petitioners’ resort to a mandamus proceeding, seeking to enforce a public right as well as to compel performance of a public duty mandated by no less than the fundamental law.[23] Further, Section 5, Article VIII of the Constitution, expressly confers upon the Supreme Court original jurisdiction over petitions for certiorari, prohibition, mandamus, quo warrantoand habeas corpus.

Respondents argue that petitioner should have properly sought relief before the Sandiganbayan, particularly in Civil Case No. 0141, in which the enforcement of the compromise Agreements is pending resolution.  There may seem to be some merit in such argument, if petitioner is merely seeking to enjoin the enforcement of the compromise and/or to compel the PCGG to disclose to the public the terms contained in said Agreements.  However, petitioner is here seeking the public disclosure of “all negotiations and agreement, be they ongoing or perfected, and documents related to or relating to such negotiations and agreement between the PCGG and the Marcos heirs.” 

In other words, this petition is not confined to the Agreements that have already been drawn, but likewise to any other ongoing or future undertaking towards any settlement on the alleged Marcos loot. Ineluctably, the core issue boils down to the precise interpretation, in terms of scope, of the twin constitutional provisions on “public transactions.”  This broad and prospective relief sought by the instant petition brings it out of the realm of Civil Case No. 0141.

First Substantive Issue:Public Disclosure of Terms of Any Agreement, Perfected or Not

In seeking the public disclosure of negotiations and agreements pertaining to a compromise settlement with the Marcoses as regards their alleged ill-gotten wealth, petitioner invokes the following provisions of the Constitution:

“Sec. 7 [Article III].  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.”

“Sec. 28 [Article II].  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.”

Respondents’ opposite view is that the above constitutional provisions refer to completed and operative official acts, not to those still being considered.  As regards the assailed Agreements entered into by the PCGG with the Marcoses, there is yet no right of action that has accrued, because said Agreements have not been approved by the President, and the Marcos heirs have failed to fulfill their express undertaking therein.  Thus, the Agreements have not become effective.  Respondents add that they are not aware of any ongoing negotiation for another compromise with the Marcoses regarding their alleged ill-gotten assets.

The “information” and the “transactions” referred to in the subject provisions of the Constitution have as yet no defined scope and extent.  There are no specific laws prescribing the exact limitations within which the right may be exercised or the correlative state duty may be obliged.  However, the following are some of the recognized restrictions:  (1) national security matters and intelligence information, (2) trade secrets and banking transactions, (3) criminal matters, and (4) other confidential information.

Limitations to the Right: (1) National Security Matters

At the very least, 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.[24] But where there is no need to protect such state secrets, the privilege may not be invoked to withhold documents and other information,[25] provided that they are examined “in strict confidence” and given “scrupulous protection.”

Likewise, information on inter-government exchanges prior to the conclusion of treaties and executive agreements may be subject to reasonable safeguards for the sake of national interest.[26]

(2)  Trade Secrets and Banking Transactions

The drafters of the Constitution also unequivocally affirmed that, aside from national security matters and intelligence information, trade or industrial secrets (pursuant to the Intellectual Property Code[27] and other related laws) as well as banking transactions (pursuant to the Secrecy of Bank Deposits Act[28]) are also exempted from compulsory disclosure.[29]

(3) Criminal Matters

Also excluded are classified law enforcement matters, such as those relating to the apprehension, the prosecution and the detention of criminals, [30] which courts may not inquire into prior to such arrest, detention and prosecution.  Efforts at effective law enforcement would be seriously jeopardized by free public access to, for example, police information regarding rescue operations, the whereabouts of fugitives, or leads on covert criminal activities.

(4) Other Confidential Information

The Ethical Standards Act[31] further prohibits public officials and employees from using or divulging “confidential or classified information officially known to them by reason of their office and not made available to the public.”[32]

Other acknowledged limitations to information access include diplomatic correspondence, closed door Cabinet meetings and executive sessions of either house of Congress, as well as the internal deliberations of the Supreme Court.[33]

Scope:  Matters of Public Concern and Transactions Involving Public Interest

In Valmonte v. Belmonte Jr.,[34] the Court emphasized that the information sought must be “matters of public concern,” access to which may be limited by law.  Similarly, the state policy of full public disclosure extends  only  to  “transactions  involving public interest” and may also be “subject to reasonable conditions prescribed by law.”  As to the meanings of the terms “public interest” and “public concern,” the Court, in Legaspi v. Civil Service Commission,[35] elucidated:

“In determining whether or not a particular information is of public concern there is no rigid test which can be applied.  ‘Public concern’ like ‘public interest’ is a term that eludes exact definition.  Both terms embrace a broad spectrum of subjects which the public may want to know, either because these directly affect their lives, or simply because such matters naturally arouse the interest of an ordinary citizen.  In the final analysis, it is for the courts to determine on a case by case basis whether the matter at issue is of interest or importance, as it relates to or affects the public.”

Considered a public concern in the above-mentioned case was the “legitimate concern of citizens to ensure that government positions requiring civil service eligibility are occupied only by persons who are eligibles.”  So was the need to give the general public adequate notification of various laws that regulate and affect the actions and conduct of citizens, as held in Tañada.  Likewise did the “public nature of the loanable funds of the GSIS and the public office held by the alleged borrowers (members of the defunct Batasang Pambansa)” qualify the information sought in Valmonte as matters of public interest and concern.  In Aquino-Sarmiento v. Morato,[36] the Court also held that official acts of public officers done in pursuit of their official functions are public in character; hence, the records pertaining to such official acts and decisions are within the ambit of the constitutional right of access to public records.

Under Republic Act No. 6713, public officials and employees are mandated to “provide information on their policies and procedures in clear and understandable language, [and] ensure openness of information, public consultations and hearings whenever appropriate  x x x,” except when “otherwise provided by law or when  required  by  the public interest.”  In particular, the law mandates free public access, at reasonable hours, to the annual performance reports of offices and agencies of government and government-owned or controlled corporations; and the statements of assets, liabilities and financial disclosures of all public officials and employees.[37]

In general, writings coming into the hands of public officers in connection with their official functions must be accessible to the public, consistent with the policy of transparency of governmental affairs. This principle is aimed at affording the people an opportunity to determine whether those to whom they have entrusted the affairs of the government are honestly, faithfully and competently performing their functions as public servants.[38] Undeniably, the essence of democracy lies in the free flow of thought;[39] but thoughts and ideas must be well-informed so that the public would gain a better perspective of vital issues confronting them and, thus, be able to criticize as well as participate in the affairs of the government in a responsible, reasonable and effective manner.  Certainly, 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.[40]

The Nature of the Marcoses’ Alleged Ill-Gotten Wealth

We now come to the immediate matter under consideration.

Upon the departure from the country of the Marcos family and their cronies in February 1986, the new government headed by President Corazon C. Aquino was specifically mandated to “[r]ecover ill-gotten properties amassed by the leaders and supporters of the previous regime and [to] protect the interest of the people through orders of sequestration or freezing of assets or accounts.”[41] Thus, President Aquino’s very first executive orders (which partook of the nature of legislative enactments) dealt with the recovery of these alleged ill-gotten properties. 

Executive Order No. 1, promulgated on February 28, 1986, only two (2) days after the Marcoses fled the country, created the PCGG which was primarily tasked to assist the President in the recovery of vast government resources allegedly amassed by former President Marcos, his immediate family, relatives and close associates both here and abroad. 

Under Executive Order No. 2, issued twelve (12) days later, all persons and entities who had knowledge or possession of ill-gotten assets and properties were warned and, under pain of penalties prescribed by law, prohibited from concealing, transferring or dissipating them or from otherwise frustrating or obstructing the recovery efforts of the government. 

On May 7, 1986, another directive (EO No. 14) was issued giving additional powers to the PCGG which, taking into account the overriding considerations of national interest and national survival, required it to achieve expeditiously and effectively its vital task of recovering ill-gotten wealth.

With such pronouncements of our government, whose authority emanates from the people, there is no doubt that the recovery of the Marcoses’ alleged ill-gotten wealth is a matter of public

concern and imbued with public interest.[42] We may also add that “ill-gotten wealth,” by its very nature, assumes a public character.  Based on the aforementioned Executive Orders, “ill-gotten wealth” refers to assets and properties purportedly acquired, directly or indirectly, by former President Marcos, his immediate family, relatives and close associates through or as a result of their improper or illegal use of government funds or properties; or their having taken undue advantage of their public office; or their use of powers, influences or relationships, “resulting in their unjust enrichment and causing grave damage and prejudice to the Filipino people and the Republic of the Philippines.”  Clearly, the assets and properties referred to supposedly originated from the government itself.  To all intents and purposes, therefore, they belong to the people.  As such, upon reconveyance they will be returned to the public treasury, subject only to the satisfaction of positive claims of certain persons as may be adjudged by competent courts.  Another declared  overriding  consideration for the expeditious recovery of ill-gotten wealth is that it may be used for national economic recovery.

We believe the foregoing disquisition settles the question of whether petitioner has a right to respondents’ disclosure of any agreement that may be arrived at concerning the Marcoses’ purported ill-gotten wealth.

Access to Information on Negotiating Terms

But does the constitutional provision likewise guarantee access to information regarding ongoing negotiations or proposals prior to the final agreement?  This same clarification was sought and clearly addressed by the constitutional commissioners during their deliberations, which we quote hereunder:[43]

“MR. SUAREZ.  And when we say ‘transactions’ which should be distinguished from contracts, agreements, or treaties or whatever, does the Gentleman refer to the steps leading to the consummation of the contract, or does he refer to the contract itself?

“MR. OPLE.  The ‘transactions’ used here, I suppose, is generic and, therefore, it can cover both steps leading to a contract, and already a consummated contract, Mr. Presiding Officer.

“MR. SUAREZ.  This contemplates inclusion of negotiations leading to the consummation of the transaction?

 “MR. OPLE.  Yes, subject to reasonable safeguards on the national interest.”

Considering the intent of the framers of the Constitution, we believe that it is incumbent upon the PCGG and its officers, as well as other government representatives, to disclose sufficient public information on any proposed settlement they have decided to take up with the ostensible owners and holders of ill-gotten wealth.  Such information, though, must pertain to definite propositions of the government, not necessarily to intra-agency or inter-agency recommendations or communications[44] during the stage when common assertions are

still in the process of being formulated or are in the “exploratory” stage.  There is a need, of course, to observe the same restrictions on disclosure of information in general, as discussed earlier -- such as on matters involving national security, diplomatic or foreign relations, intelligence and other classified information.

Second Substantive Issue: Legal Restraints on a Marcos-PCGG Compromise

Petitioner lastly contends that any compromise agreement between the government and the Marcoses will be a virtual condonation of all the alleged wrongs done by them, as well as an unwarranted permission to commit graft and corruption.

Respondents, for their part, assert that there is no legal restraint on entering into a compromise with the Marcos heirs, provided the agreement does not violate any law.

Prohibited Compromises

In general, the law encourages compromises in civil cases, except with regard to the following matters:  (1) the civil status of persons, (2) the validity of a marriage or a legal separation, (3) any ground for legal separation, (4) future support, (5) the jurisdiction of courts, and (6) future legitime.[45] And like any other contract, the terms and conditions of a compromise must not be contrary to law, morals, good customs, public policy or public order.[46] A compromise is binding and has the force of law between the parties, [47] unless the consent of a party is vitiated -- such as by mistake, fraud, violence, intimidation or undue influence -- or when there is forgery, or if the terms of the settlement are so palpably unconscionable.  In the latter instances, the agreement may be invalidated by the courts.[48]

Effect of Compromise on Civil Actions

One of the consequences of a compromise, and usually its primary object, is to avoid or to end a litigation.[49] In fact, the law urges courts to persuade the parties in a civil case to agree to a fair settlement.[50] As an incentive, a court may mitigate damages to be paid by a losing party who shows a sincere desire to compromise.[51]

In Republic & Campos Jr. v. Sandiganbayan,[52] which affirmed the grant by the PCGG of civil and criminal immunity to Jose Y. Campos and family, the Court held that in the absence of an express prohibition, the rule on compromises in civil actions under the Civil Code is applicable to PCGG cases.  Such principle is pursuant to the objectives of EO No. 14, particularly the just and expeditious recovery of ill-gotten wealth, so that it may be used to hasten economic recovery.  The same principle was upheld in Benedicto v. Board of Administrators of Television Stations RPN, BBC and IBC [53] andRepublic v. Benedicto,[54] which ruled in favor of the validity of the PCGG compromise agreement with Roberto S. Benedicto.

Immunity from Criminal Prosecution

However,  any compromise relating to the civil liability arising from an offense does  not  automatically terminate the criminal proceeding against or extinguish the criminal liability of the malefactor.[55] While a compromise in civil suits is expressly authorized by law, there is no similar general sanction as regards criminal liability.  The authority must be specifically conferred.  In the present case, the power to grant criminal immunity was conferred on PCGG by Section 5 of EO No. 14, as amended by EO No. 14-A, which provides:

“SECTION 5.  The Presidential Commission on Good Government is authorized to grant immunity from criminal prosecution to any person who provides information or testifies in any investigation conducted by such Commission to establish the unlawful manner in which any respondent, defendant or accused has acquired or accumulated the property or properties in question in any case where such information or testimony is necessary to ascertain or prove the latter’s guilt or his civil liability.  The immunity thereby granted shall be continued to protect the witness who repeats such testimony before the Sandiganbayan when required to do so by the latter or by the Commission.”

The above provision specifies that the PCGG may exercise such authority under these conditions:  (1) the person to whom criminal immunity  is  granted  provides  information or testifies in an investigation conducted by the Commission; (2) the information or testimony pertains to the unlawful manner in which the respondent, defendant or accused acquired or accumulated ill-gotten property; and (3) such information or testimony is necessary to ascertain or prove guilt or civil liability of such individual.  From the wording of the law, it can be easily deduced that the  person referred to is a witness in the proceeding, not the principal respondent, defendant or accused.

Thus, in the case of Jose Y. Campos, the grant of both civil and criminal immunity to him and his family was “[i]n consideration of the full cooperation of Mr. Jose Y. Campos [with] this Commission, his voluntary surrender of the properties and assets [--] disclosed and declared by him to belong to deposed President Ferdinand E. Marcos [--] to the Government of the Republic of the Philippines[;] his full, complete and truthful disclosures[;] and his commitment to pay a sum of money as determined by the Philippine Government.” [56] Moreover, the grant of criminal immunity to the Camposes and the Benedictos was limited to acts and omissions prior to February 25, 1996.  At the time such immunity was granted, no criminal cases have yet been filed against them before the competent courts.

Validity of the PCGG-Marcos Compromise Agreements

Going now to the subject General and Supplemental Agreements between the PCGG and the Marcos heirs, a cursory perusal thereof reveals serious legal flaws.  First, the Agreements do not conform to the above requirements of EO Nos. 14 and 14-A.  We believe that criminal immunity under Section 5 cannot be granted to the Marcoses, who are the principal defendants in the spate of ill-gotten wealth cases now pending before the

Sandiganbayan.  As stated earlier, the provision is applicable mainly to witnesses who provide information or testify against a respondent, defendant or accused in an ill-gotten wealth case. 

While the General Agreement states that the Marcoses “shall provide the [government] assistance by way of testimony or deposition on any information [they] may have that could shed light on the cases being pursued by the [government] against other parties,” [57] the clause does not fully comply with the law.  Its inclusion in the Agreement may have been only an afterthought, conceived in pro formacompliance with Section 5 of EO  No.  14,  as  amended.  There is no indication whatsoever that any of the Marcos heirs has indeed provided vital information against any respondent or defendant as to the manner in which the latter may have unlawfully acquired public property.

Second, under Item No. 2 of the General Agreement, the PCGG commits to exempt from all forms of taxes the properties to be retained by the Marcos heirs.  This is a clear violation of the Constitution. The power to tax and to grant tax exemptions is vested in the Congress and, to a certain extent, in the local legislative bodies.[58] Section 28 (4), Article VI of the Constitution, specifically provides:  “No law granting any tax exemption shall be passed without the concurrence of a majority of all the Members of the Congress.”  The PCGG has absolutely no power to grant tax exemptions, even under the cover of its authority to compromise ill-gotten wealth cases.

Even granting that Congress enacts a law exempting the Marcoses from paying taxes on their properties, such law will definitely not pass the test of the equal protection clause under the Bill of Rights. Any special grant of tax exemption in favor only of the Marcos heirs will constitute class legislation.  It will also violate the constitutional rule that “taxation shall be uniform and equitable.”[59]

Neither can the stipulation be construed to fall within the power of the commissioner of internal revenue to compromise taxes.  Such authority may be exercised only when (1) there is reasonable  doubt as  to  the  validity of  the claim  against the taxpayer, and (2) the taxpayer’s financial position demonstrates a clear inability to pay.[60] Definitely, neither requisite is present in the case of the Marcoses, because under the Agreement they are effectively conceding the validity of the claims against their properties, part of which they will be allowed to retain.   Nor can the PCGG grant of tax exemption fall within the power of the commissioner to abate or cancel a tax liability.  This power can be exercised only when (1) the tax appears to be unjustly or excessively assessed, or (2) the administration and collection costs involved do not justify the collection of the tax due.[61] In this instance, the cancellation of tax liability is done even before the determination of the amount due.  In any event, criminal violations of the Tax Code, for which legal actions have been filed in court or in which fraud is involved, cannot be compromised.[62]

Third, the government binds itself to cause the dismissal of all cases against the Marcos heirs, pending before the Sandiganbayan and other courts.[63] This is a direct encroachment on judicial powers, particularly in regard to criminal jurisdiction.  Well-settled is the doctrine that once a case has been filed before a court of competent jurisdiction, the matter of its dismissal or pursuance lies within the full discretion and control of the judge.  In a criminal case, the manner in which the prosecution is handled, including the matter of whom to present as witnesses, may lie within the sound discretion of the government prosecutor; [64] but the court decides, based on the evidence proffered, in what manner it will dispose of the case.  Jurisdiction, once acquired by

the trial court, is not lost despite a resolution, even by the justice secretary, to withdraw the information or to dismiss the complaint.[65] The prosecution’s motion to withdraw or to dismiss is not the least binding upon the court.  On the contrary, decisional rules require the trial court to make its own evaluation of the merits of the case, because granting such motion is equivalent to effecting a disposition of the case itself.[66]

Thus, the PCGG, as the government prosecutor of ill-gotten wealth cases, cannot guarantee the dismissal of all such criminal cases against the Marcoses pending in the courts, for said dismissal is not within its sole power and discretion.

Fourth, the government also waives all claims and counterclaims, “whether past, present, or future, matured or inchoate,” against the Marcoses.[67] Again, this all-encompassing stipulation is contrary to law.  Under the Civil Code, an action for future fraud may not be waived. [68] The stipulation in the Agreement does not specify the exact scope of future claims against the Marcoses that the government thereby relinquishes.  Such vague and broad statement  may  well be interpreted to include all future illegal acts of any of the Marcos heirs, practically giving them a license to perpetrate fraud against the government without any liability at all.   This is a palpable violation of the due process and equal protection guarantees of the Constitution.  It effectively ensconces the Marcoses beyond the reach of the law. It also sets a dangerous precedent for public accountability.  It is a virtual warrant for public officials to amass public funds illegally, since there is an open option to compromise their liability in exchange for only a portion of their ill-gotten wealth.

Fifth, the Agreements do not provide for a definite or determinable period within which the parties shall fulfill their respective prestations.  It may take a lifetime before the Marcoses submit an inventory of their total assets.

Sixth, the Agreements do not state with specificity the standards for determining which assets shall be forfeited by the government and which shall be retained by the Marcoses.  While the Supplemental Agreement provides that the Marcoses shall be entitled to 25 per cent of the $356 million Swiss deposits (less government recovery expenses), such sharing arrangement pertains only to the said deposits.  No similar splitting scheme is defined with respect to the other properties.  Neither is there, anywhere in the Agreements, a statement of the basis for the 25-75 percent sharing ratio.  Public officers entering into an arrangement appearing to be manifestly and grossly disadvantageous to the government, in violation of the Anti-Graft and Corrupt Practices Act,[69] invite their indictment for corruption under the said law.

Finally, the absence of then President Ramos’ approval of the principal Agreement, an express condition therein, renders the compromise incomplete and unenforceable.  Nevertheless, as detailed above, even if such approval were obtained, the Agreements would still not be valid.

From the foregoing disquisition, it is crystal clear to the Court that the General and Supplemental Agreements, both dated December 28, 1993, which the PCGG entered into with the Marcos heirs, are violative of the Constitution and the laws aforementioned.

WHEREFORE, the petition is GRANTED.  The General and Supplemental Agreements dated December 28, 1993, which PCGG and the Marcos heirs entered into are hereby declared NULL  AND VOIDfor being contrary to law and the Constitution.  Respondent PCGG, its officers and all government functionaries and officials who are or may be directly  or  indirectly  involved  in  the  recovery  of  the alleged ill-gotten wealth of the

Marcoses and their associates are DIRECTED to disclose to the public the terms of any proposed compromise settlement, as well as the final agreement, relating to such alleged ill-gotten wealth, in accordance with the discussions embodied in this Decision.  No pronouncement as to costs. 

SO ORDERED.

MIRIAM COLLEGE FOUNDATION, INC., petitioner, vs. HON. COURT OF APPEALS, JASPER BRIONES, JEROME GOMEZ, RELLY CARPIO, ELIZABETH VALDEZCO, JOSE MARI RAMOS, CAMILLE PORTUGAL, JOEL TAN and GERALD GARY RENACIDO, respondents.

D E C I S I O N

KAPUNAN, J.:

“Obscene,” “vulgar,” “indecent,” “gross,” “sexually explicit,” “injurious to young readers,” and devoid of all moral values.”[1] This was how some members of the Miriam College community allegedly described the contents of the September-October 1994 issue (Vol. 41, No. 14) of Miriam College’s school paper (Chi-Rho), and magazine (Ang Magasing Pampanitikan ng Chi-Rho).  The articles in the Chi-Rho included:

xxx a story, clearly fiction, entitled ‘Kaskas’ written by one Gerald Garry Renacido xxx.

Kaskas, written in Tagalog, treats of the experience of a group of young, male, combo players who, one evening, after their performance went to see a bold show in a place called “Flirtation”.  This was the way the author described the group’s exposure during that stage show:

“Sige, sa Flirtation tayo.  Happy hour na halos…. he! he! he!  sambit ng kanilang bokalistang kanina pa di maitago ang pagkahayok sa karneng babae na kanyang pinananabikan nuong makalawa pa, susog naman ang tropa.

"x x x Pumasok ang unang mananayaw.  Si ‘Red Raven’ ayon sa emcee.  Nakasuot lamang ng bikining pula na may palamuting dilaw sa gilid-gilid at sa bandang utong.  Nagsimula siya sa kanyang pag-giling nang tumugtog na ang unang tono ng “Goodbye” ng Air Supply.  Dahan-dahan ang kanyang mga malalantik at mapang-akit na galaw sa una.  Mistulang sawa na nililingkis ang hangin, paru-parong padapo-dapo sa mga bulaklak na lamesa, di-upang umamoy o kumuha ng nektar, ngunit para ipaglantaran ang sariling bulaklak at ang angkin nitong malansang nektar.

“Kaskas mo babe, sige … kaskas.”

Napahaling ang tingin ng balerinang huwad kay Mike.  Mistulang natipuhan, dahil sa harap niya’y nagtagal.  Nag-akmang mag-aalis ng pangitaas na kapirasong tela.  Hindi nakahinga si Mike, nanigas sa kanyang kinauupuan,

nanigas pati ang nasa gitna ng kanyang hita.  Ang mga mata niya’y namagnet sa kayamanang ngayo’y halos isang pulgada lamang mula sa kanyang naglalaway na bunganga.  Naputol-putol ang kanyang hininga nang kandungan ni ‘Red Raven’ ang kanyang kanang hita.  Lalo naghingalo siya nang kabayuhin ito ng dahan-dahan… Pabilis ng pabilis.’

The author further described Mike’s responses to the dancer as follows (quoted in part):

x x x Nagsimulang lumaban na ng sabayan si Mike sa dancer.  Hindi nagpatalo ang ibong walang pakpak, inipit ng husto ang hita ni Mike at pinag-udyukan ang kanyang dibdib sa mukha nito.

“Kaskas mo pa, kaskas mo pa!”

Palpakan at halagpakan na tawanan ang tumambad sa kanya ng biglang halikan siya nito sa labi at iniwang bigla, upang kanyang muniin ang naudlot niyang pagtikim ng karnal na nektar. Hindi niya maanto kung siya ay nanalo o natalo sa nangyaring sagupaan ng libog.  Ang alam lang niya ay nanlata na siya.”

After the show the group went home in a car with the bokalista driving.  A pedestrian happened to cross the street and the driver deliberately hit him with these words:

“Pare tingnan natin kung immortal itong baboy na ito.  He! He! He! He! Sabad ng sabog nilang drayber/bokalista.”

The story ends (with their car about to hit a truck) in these words: …  “Pare… trak!!!  Put….!!!!

Ang Magasing Pampanitikan, October, 1994 issue, was in turn, given the cover title of “Libog at iba pang tula.”

In his foreword which Jerome Gomez entitled “Foreplay”, Jerome wrote:  “Alam ko, nakakagulat ang aming pamagat.”   Jerome then proceeded to write about previous reactions of readers to women-writers writing about matters erotic and to gay literature.  He justified the Magazine’s erotic theme on the ground that many of the poems passed on to the editors were about “sekswalidad at iba’t ibang karanasan nito.” Nakakagulat ang tapang ng mga manunulat… tungkol sa maselang usaping ito xxx at sa isang institusyon pang katulad ng Miriam!”

Mr. Gomez quoted from a poem entitled “Linggo” written by himself:

may mga palangganang nakatiwangwang –

mga putang biyak na sa gitna,

‘di na puwedeng paglabhan,

‘di na maaaring pagbabaran…”

Gomez stated that the poems in the magazine are not “garapal” and “sa mga tulang ito namin maipagtatanggol ang katapangan (o pagka-sensasyonal) ng pamagat na “Libog at iba pang Tula.”  He finished “Foreplay” with these words:  “Dahil para saan pa ang libog kung hindi ilalabas?”

The cover title in question appears to have been taken from a poem written by Relly Carpio of the same title.  The poem dealt on a woman and a man who met each other, gazed at each other, went up close and “Naghalikan, Shockproof.”  The poem contained a background drawing of a woman with her two mamaries and nipples exposed and with a man behind embracing her with the woman in a pose of passion-filled mien.

Another poem entitled ‘Virgin Writes Erotic’ was about a man having fantasies in his sleep.  The last verse said:  “At zenith I pull it out and find myself alone in this fantasy.”  Opposite the page where this poem appeared was a drawing of a man asleep and dreaming of a naked woman (apparently of his dreams) lying in bed on her buttocks with her head up (as in a hospital bed with one end rolled up).  The woman’s right nipple can be seen clearly.  Her thighs were stretched up with her knees akimbo on the bed.

In the next page (page 29) one finds a poem entitled “Naisip ko Lang” by Belle Campanario.  It was about a young student who has a love-selection problem:  “…Kung sinong pipiliin: ang teacher kong praning, o ang boyfriend kong bading.” The word “praning” as the court understands it, refers to a paranoid person; while the word “bading” refers to a sward or “bakla” or “badidang”.  This poem also had an illustration behind it:  of a young girl with large eyes and sloping hair cascading down her curves and holding a peeled banana whose top the illustrator shaded up with downward-slanting strokes.  In the poem, the girl wanted to eat banana topped by peanut butter.  In line with Jerome’s “Foreplay” and by the way it was drawn that banana with peanut butter top was meant more likely than not, to evoke a spiritedly mundane, mental reaction from a young audience.

Another poem entitled “Malas ang Tatlo” by an unknown author went like this:

“Na picture mo na ba

no’ng magkatabi tayong dalawa

sa pantatluhang sofa—

ikaw, the legitimate asawa

at ako, biro mo, ang kerida?

tapos, tumabi siya, shit!

kumpleto na:

ikaw, ako at siya

kulang na lang, kamera.”

A poem “Sa Gilid ng Itim” by Gerald Renacido in the Chi-Rho broadsheet spoke of a fox (lobo) yearning for “karneng sariwa, karneng bata, karneng may kalambutan…. isang bahid ng dugong dalaga, maamo’t malasa, ipahid sa mga labing sakim sa romansa’ and ended with ‘hinog na para himukin bungang bibiyakin.”[2]

Following the publication of the paper and the magazine, the members of the editorial board,[3] and Relly Carpio, author of Libog, all students of Miriam College, received a letter signed by Dr. Aleli Sevilla, Chair of the Miriam College Discipline Committee.  The Letter dated 4 November 1994 stated:

This is to inform you that the letters of complain filed against you by members of the Miriam Community and a concerned Ateneo grade five student have been forwarded to the Discipline Committee for inquiry and investigation.  Please find enclosed complaints.

As expressed in their complaints you have violated regulations in the student handbook specifically Section 2 letters B and R, pages 30 and 32, Section 4 (Major offenses) letter j, page 36 letters m, n, and p, page 37 and no. 2 (minor offenses) letter a, page 37.

You are required to submit a written statement in answer to the charge/s on or before the initial date of hearing to be held on November 15, 1994, Tuesday, 1:00 in the afternoon at the DSA Conference Room.[4]

None of the students submitted their respective answers.  They instead requested Dr. Sevilla to transfer the case to the Regional Office of the Department of Education, Culture and Sports (DECS) which under Rule XII of DECS Order No. 94, Series of 1992, supposedly had jurisdiction over the case.[5]

In a Letter dated 21 November 1994, Dr. Sevilla again required the students to file their written answers.

In response, Atty. Ricardo Valmonte, lawyer for the students, submitted a letter [6] to the Discipline Committee reiterating his clients’ position that said Committee had no jurisdiction over them.  According to Atty. Valmonte, the Committee was “trying to impose discipline on [his clients] on account of their having written articles and poems in their capacity as campus journalists.” Hence, he argued that “what applies is Republic Act No. 7079 [The Campus Journalism Act] and its implementing rules and regulations.” He also questioned the partiality of the members of said Committee who allegedly “had already articulated their position” against his clients.

The Discipline Committee proceeded with its investigation ex parte.  Thereafter, the Discipline Board, after a review of the Discipline Committee’s report, imposed disciplinary sanctions upon the students, thus:

1.  Jasper Briones             Expulsion. Briones is the Editor-in-Chief of Chi-Rho and a 4th year student;

2.  Daphne Cowper           suspension up to (summer) March, 1995;

3.  Imelda Hilario                suspension for two (2) weeks to expire on February 2, 1995;

4.  Deborah Ligon              suspension up to May, 1995.  Miss Ligon is a 4th year student and could graduate as summa cum laude;

5.  Elizabeth Valdezco     suspension up to (summer) March, 1995;

6.  Camille Portugal          graduation privileges withheld, including diploma.  She is an Octoberian;

7.  Joel Tan                          suspension for two (2) weeks to expire on February 2, 1995;

8.  Gerald Gary Renacido             Expelled and given transfer credentials.  He is a 2nd year student.   He wrote the fiction story “Kaskas”;

9.  Relly Carpio                   Dismissed and given transfer credentials.  He is in 3rd year and wrote the poem “Libog”;

10.  Jerome Gomez           Dismissed and given transfer credentials.  He is in 3rd year.  He wrote the foreword “Foreplay” to the questioned Anthology of Poems; and

11.  Jose Mari Ramos     Expelled and given transfer papers.  He is a 2nd year student and art editor of Chi-Rho.[7]

The above students thus filed a petition for prohibition and certiorari with preliminary injunction/restraining order before the Regional Trial Court of Quezon City questioning the jurisdiction of the Discipline Board of Miriam College over them.

On 17 January 1995, the Regional Trial Court, Branch CIII, presided by Judge Jaime N. Salazar, Jr., issued an order denying the plaintiffs’ prayer for a Temporary Restraining Order.  It held:

There is nothing in the DECS Order No. 94, S. 1992 dated August 19, 1992 that excludes school Administrators from exercising jurisdiction over cases of the nature involved in the instant petition. R.A. 7079 also does not state anything on the matter of jurisdiction.  The DECS undoubtedly cannot determine the extent of the nature of jurisdiction of schools over disciplinary cases.  Moreover, as this Court reads that DECS Order No. 94, S. of 1992, it merely prescribes for purposes of internal administration which DECS officer or body shall hear cases arising from R.A. 7079 if and when brought to it for resolution.  The said order never mentioned that it has exclusive jurisdiction over cases falling under R.A. 707.[8]

The students thereafter filed a “Supplemental Petition and Motion for Reconsideration.” The College followed with its Answer.

Subsequently, the RTC issued an Order dated 10 February 1995 granting the writ of preliminary injunction.

ACCORDINGLY, so as not to render the issues raised moot and academic, let a writ of preliminary injunction issue enjoining the defendants, including the officers and members of the Disciplinary Committee, the Disciplinary Board, or any similar body and their agents, and the officers and members of the Security Department, Division, or Security Agency securing the premises and campus of Miriam College Foundation, Inc. from:

1.  Enforcing and/or implementing the expulsion or dismissal resolutions or orders complained of against herein plaintiffs (a) Jasper Briones; (b) Gerald Gary Renacido; (c) Relly Carpio; (d) Jerome Gomez; and (e) Jose Mari Ramos, but otherwise allowing the defendants to impose lesser sanctions on aforementioned plaintiffs; and

2.  Disallowing, refusing, barring or in any way preventing the herein plaintiffs (all eleven of them) from taking tests or exams and entering the Miriam campus for such purpose as extended to all students of Miriam College Foundation, Inc.; neither should their respective course or subject teachers or professors withhold their grades, including final grades, if and when they meet the requirements similarly prescribed for all other students, this current 2nd Semester of 1994-95.

The sanctions imposed on the other plaintiffs, namely, Deborah Ligon, Imelda Hilario, Elizabeth Valdezco, Camille Portugal and Daphne Cowper, shall remain in force and shall not be covered by this Injunction:  Provided, that Camille Portugal now a graduate, shall have the right to receive her diploma, but defendants are not hereby prevented from refusing her the privilege of walking on the graduation stage so as to prevent any likely public tumults.

The plaintiffs are required to post an injunction bond in the sum of Four Thousand Pesos (P4,000.00) each.

SO ORDERED.[9]

Both parties moved for a reconsideration of the above order.  In an Order dated 22 February 1995, the RTC dismissed the petition, thus:

4.  On the matter raised by both parties that it is the DECS which has jurisdiction, inasmuch as both parties do not want this court to assume jurisdiction here then this court will not be more popish than the Pope and in fact is glad that it will have one more case out of its docket.

ACCORDINGLY, the instant case is hereby DISMISSED without prejudice to the parties going to another forum.

All orders heretofore issued here are hereby recalled and set aside.

SO ORDERED.[10]

The students, excluding Deborah Ligon, Imelda Hilario and Daphne Cowper, sought relief in this Court through a petition for certiorari and prohibition of preliminary injunction/restraining order[11] questioning the Orders of the RTC dated 10 and 24 February 1995.

On 15 March 1995, the Court resolved to refer the case to the Court of Appeals (CA) for disposition.[12] On 19 May 1995, the CA issued a resolution stating:

The respondents are hereby required to file comment on the instant petition and to show cause why no writ of preliminary injunction should be issued, within ten (10) days from notice hereof, and the petitioners may file reply thereto within five (5) days from receipt of former’s comment.

In order not to render ineffectual the instant petition, let a Temporary Restraining Order be issued enjoining the public respondents from enforcing letters of dismissal/suspension dated January 19, 1995.

SO ORDERED.[13]

In its Decision dated 26 September 1996, respondent court granted the students’ petition.  The CA declared the RTC Order dated 22 February 1995, as well as the students’ suspension and dismissal, void.

Hence, this petition by Miriam College.

We limit our decision to the resolution of the following issues:

(1)               The alleged moot character of the case.

(2)               The jurisdiction of the trial court to entertain the petition for certiorari filed by the students.

(3)               The power of petitioner to suspend or dismiss respondent students.

(4)               The jurisdiction of petitioner over the complaints against the students.

We do not tackle the alleged obscenity of the publication, the propriety of the penalty imposed or the manner of the imposition thereof.  These issues, though touched upon by the parties in the proceedings below, were not fully ventilated therein.

I

Petitioner asserts the Court of Appeals found the case moot thus:

While this petition may be considered moot and academic since more than one year have passed since May 19, 1995 when this court issued a temporary restraining order enjoining respondents from enforcing the dismissal and suspension on petitioners….[14]

Since courts do not adjudicate moot cases, petitioner argues that the CA should not have proceeded with the adjudication of the merits of the case.

We find that the case is not moot.

It may be noted that what the court issued in 19 May 1995 was a temporary restraining order, not a preliminary injunction.  The records do not show that the CA ever issued a preliminary injunction.

Preliminary injunction is an order granted at any stage of an action or proceeding prior to the judgment or final order, requiring a party or a court, agency or a person to perform to refrain from performing a particular act or acts. [15] As an extraordinary remedy, injunction is calculated to preserve or maintain the status quo of things and is generally availed of to prevent actual or threatened acts, until the merits of the case can be heard.[16] A preliminary injunction persists until it is dissolved or until the termination of the action without the court issuing a final injunction.

The basic purpose of restraining order, on the other hand, is to preserve the status quo until the hearing of the application for preliminary injunction. [17] Under the former §5, Rule 58 of the Rules of Court, as amended by §5, Batas Pambansa Blg. 224, a judge (or justice) may issue a temporary restraining order with a limited life of twenty days from date of issue.[18] If before the expiration of the 20-day period the application for preliminary injunction is denied, the temporary order would thereby be deemed automatically vacated.  If no action is taken by the judge on the application for preliminary injunction within the said 20 days, the temporary restraining order would automatically expire on the 20th day by the sheer force of law, no judicial declaration to that effect being necessary.[19] In the instant case, no such preliminary injunction was issued; hence, the TRO earlier issued automatically expired under the aforesaid provision of the Rules of Court.[20]

This limitation as to the duration of the temporary restraining order was the rule prevailing when the CA issued its TRO dated 19 May 1995. [21] By that time respondents Elizabeth Valdezco and Joel Tan had already served their respective suspensions.  The TRO was applicable only to respondents Jasper Briones, Jerome Gomez, Relly Carpio, Jose Mari Ramos and Gerald Gary Renacido all of whom were dismissed, and respondent Camille Portugal whose graduation privileges were withheld.  The TRO, however, lost its effectivity upon the lapse of the twenty days.  It can hardly be said that in that short span of time, these students had already graduated as to render the case moot.

Either the CA was of the notion that its TRO was effective throughout the pendency of the case or that what is issued was a preliminary injunction.  In either case, it was error on the part of the CA to assume that its order supposedly enjoining Miriam from enforcing the dismissal and suspension was complied with.  A case becomes moot and academic when there is no more actual controversy between the parties or no useful purpose can be served in passing upon the merits.[22] To determine the moot character of a question before it, the appellate court may receive proof or take notice of facts appearing outside the record.[23] In the absence of such proof or notice of facts, the Court of Appeals should not have assumed that its TRO was enforced, and that the case was rendered moot by the mere lapse of time.

Indeed, private respondents in their Comment herein[24] deny that the case has become moot since Miriam refused them readmission in violation of the TRO.  This fact is unwittingly conceded by Miriam itself when, to counter this allegation by the students, it says that private respondents never sought readmission after the restraining order was issued.[25] In truth, Miriam relied on legal technicalities to subvert the clear intent of said order, which states:

In order not to render ineffectual the instant petition, let a Temporary Restraining Order be issued enjoining the public respondents from enforcing letters of dismissal/suspension dated January 19, 1995.

Petitioner says that the above order is “absurd” since the order “incorrectly directs public respondent, the Hon. Jaime Salazar, presiding judge of the Regional Trial Court of Quezon City not to dismiss or suspend the students.”[26]

We do not agree.  Padua vs. Robles[27]lays down the rules in construing judgments.  We find these rules to be applicable to court orders as well:

[T]he sufficiency and efficacy of a judgment must be tested by its substance rather than its form.   In construing a judgment, its legal effects including such effects that necessarily follow because of legal implications, rather than the language used, govern.   Also, its meaning, operation, and consequences must be ascertained like any other written instrument.   Thus, a judgment rests on the intent of the Court as gathered from every part thereof, including the situation to which it applies and attendant circumstances.  (Underscoring supplied.)

Tested by such standards, we find that the order was indeed intended for private respondents (in the appellate court) Miriam College, et al., and not public respondent Judge.  In dismissing the case, the trial judge recalled and set aside all orders it had previously issued, including the writ of preliminary injunction.  In doing so, the trial court allowed the dismissal and suspension of the students to remain in force.  Thus, it would indeed be absurd to construe the order as being directed to the RTC.  Obviously, the TRO was intended for Miriam College.

True, respondent-students should have asked for a clarification of the above order.  They did not.  Nevertheless, if Miriam College found the order “absurd,” then it should have sought a clarification itself so the Court of Appeals could have cleared up any confusion.  It chose not to.  Instead, it took advantage of the supposed vagueness of the order and used the same to justify its refusal to readmit the students.

As Miriam never readmitted the students, the CA’s ruling that the case is moot has no basis.  How then can Miriam argue in good faith that the case had become moot when it knew all along that the facts on which the purported moot character of the case were based did not exist?  Obviously, Miriam is clutching to the CA’s wrongful assumption that the TRO it issued was enforced to justify the reversal of the CA’s decision.

Accordingly, we hold that the case is not moot, Miriam’s pretensions to the contrary notwithstanding.

II

“To uphold and protect the freedom of the press even at the campus level and to promote the development and growth of campus journalism as a means of strengthening ethical values, encouraging critical and creative thinking, and developing

moral character and personal discipline of the Filipino youth,” [28] Congress enacted in 1991 Republic Act No. 7079.

Entitled “AN ACT PROVIDING FOR THE DEVELOPMENT AND PROMOTION OF CAMPUS JOURNALISM AND FOR OTHER PURPOSES,”[29] the law contains provisions for the selection of the editorial board[30] and publication adviser,[31] the funding of the school publication,[32] and the grant of exemption to donations used actually, directly and exclusively for the promotion of campus journalism from donor’s or gift tax.[33]

Noteworthy are provisions clearly intended to provide autonomy to the editorial board and its members.  Thus, the second paragraph of Section 4 states that “(o)nce the publication is established, its editorial board shall freely determine its editorial policies and manage the publication’s funds.”

Section 7, in particular, provides:

A member of the publication staff must maintain his or her status as student in order to retain membership in the publication staff.  A student shall not be expelled or suspended solely on the basis of articles he or she has written, or on the basis of the performance of his or her duties in the student publication.

Section 9 of the law mandates the DECS to “promulgate the rules and regulations necessary for the effective implementation of this Act.”[34] Pursuant to said authority, then DECS Secretary Armand Fabella, issued DECS Order No. 94, Series of 1992, providing under Rule XII that:

GENERAL PROVISIONS

SECTION 1.  The Department of Education, Culture and Sports (DECS) shall help ensure and facilitate the proper carrying out of the Implementing Rules and Regulations of Republic Act No. 7079.  It shall also act on cases on appeal brought before it.

The DECS regional office shall have the original jurisdiction over cases as a result of the decisions, actions and policies of the editorial board of a school within its area of administrative responsibility.  It shall conduct investigations and hearings on the these cases within fifteen (15) days after the completion of the resolution of each case.  (Underscoring supplied.)

The latter two provisions of law appear to be decisive of the present case.

It may be recalled that after the Miriam Disciplinary Board imposed disciplinary sanctions upon the students, the latter filed a petition for certiorari and prohibition in the Regional Trial Court raising, as grounds therefor, that:

I

DEFENDANT‘S DISCIPLINARY COMMITTEE AND DISCIPLINARY BOARD OF DEFENDANT SCHOOL HAVE NO JURISDICTION OVER THE CASE. [35]

II

DEFENDANT SCHOOL’S DISCIPLINARY COMMITTEE AND THE DISCIPLINARY BOARD DO NOT HAVE THE QUALIFICATION OF AN IMPARTIAL AND NEUTRAL ARBITER AND, THEREFORE THEIR TAKING COGNIZANCE OF THE CASE AGAINST PLAINTIFFS WILL DENY THE LATTER OF THEIR RIGHT TO DUE PROCESS. [36]

Anent the first ground, the students theorized that under Rule XII of the Rules and Regulations for the Implementation of R.A. No. 7079, the DECS Regional Office, and not the school, had jurisdiction over them.  The second ground, on the other hand, alleged lack of impartiality of the Miriam Disciplinary Board, which would thereby deprive them of due process.  This contention, if true, would constitute grave abuse of discretion amounting to lack or excess of jurisdiction on the part of the trial court.  These were the same grounds invoked by the students in their refusal to answer the charges against them.  The issues were thus limited to the question of jurisdiction – a question purely legal in nature and well within the competence and the jurisdiction of the trial court, not the DECS Regional Office.  This is an exception to the doctrine of primary jurisdiction.  As the Court held in Phil. Global Communications, Inc. vs. Relova.[37]

Absent such clarity as to the scope and coverage of its franchise, a legal question arises which is more appropriate for the judiciary than for an administrative agency to resolve.  The doctrine of primary jurisdiction calls for application when there is such competence to act on the part of an administrative body.  Petitioner assumes that such is the case.  That is to beg the question.  There is merit, therefore, to the approach taken by private respondents to seek judicial remedy as to whether or not the legislative franchise could be so interpreted as to enable the National Telecommunications Commission to act on the matter.  A jurisdictional question thus arises and calls for an answer.

However, when Miriam College in its motion for reconsideration contended that the DECS Regional Office, not the RTC, had jurisdiction, the trial court, refusing to "be more popish than the Pope," dismissed the case.  Indeed, the trial court could hardly contain its glee over the fact that "it will have one more case out of its docket." We remind the trial court that a court having jurisdiction of a case has not only the right and the power or authority, but also the duty, to exercise that jurisdiction and to render a decision in a case properly submitted to it.[38]Accordingly, the trial court should not have dismissed the petition without settling the issues presented before it.

III

Before we address the question of which between the DECS Regional Office and Miriam College has jurisdiction over the complaints against the students, we first delve into the power of either to impose disciplinary sanctions upon the students.  Indeed, the resolution of the issue of jurisdiction would be reduced to an academic exercise if neither the DECS Regional Office nor Miriam College had the power to impose sanctions upon the students.

Recall, for purposes of this discussion, that Section 7 of the Campus Journalism Act prohibits the expulsion or suspension of a student solely on the basis of articles he or she has written.

A.

Section 5 (2), Article XIV of the Constitution guarantees all institutions of higher learning academic freedom.  This institutional academic freedom includes the right of the school or college to decide for itself, its aims and objectives, and how best to attain them free from outside coercion or interference save possibly when the overriding public welfare calls for some restraint.[39] The essential freedoms subsumed in the term "academic freedom" encompasses the freedom to determine for itself on academic grounds:

(1)               Who may teach,

(2)               What may be taught,

(3)               How it shall be taught, and

(4)               Who may be admitted to study.[40]

The right of the school to discipline its students is at once apparent in the third freedom, i.e., "how it shall be taught." A school certainly cannot function in an atmosphere of anarchy.

Thus, there can be no doubt that the establishment of an educational institution requires rules and regulations necessary for the maintenance of an orderly educational program and the creation of an educational environment conducive to learning.  Such rules and regulations are equally necessary for the protection of the students, faculty, and property.[41]

Moreover, the school has an interest in teaching the student discipline, a necessary, if not indispensable, value in any field of learning.  By instilling discipline, the school teaches discipline.  Accordingly, the right to discipline the student likewise finds basis in the freedom "what to teach."

Incidentally, the school not only has the right but the duty to develop discipline in its students.  The Constitution no less imposes such duty.

[All educational institutions] shall inculcate patriotism and nationalism, foster love of humanity, respect for human rights, appreciation of the role of national heroes in the historical development of the country, teach the rights and duties of citizenship, strengthen ethical and spiritual values, develop moral character and personal discipline, encourage critical and creative thinking, broaden scientific and technological knowledge, and promote vocational efficiency.[42]

In Angeles vs. Sison, we also said that discipline was a means for the school to carry out its responsibility to help its students "grow and develop into mature, responsible, effective and worthy citizens of the community."[43]

Finally, nowhere in the above formulation is the right to discipline more evident than in "who may be admitted to study." If a school has the freedom to determine whom to admit, logic dictates that it also has the right to determine whom to exclude or expel, as well as upon whom to impose lesser sanctions such as suspension and the withholding of graduation privileges.

Thus, in Ateneo de Manila vs. Capulong,[44] the Court upheld the expulsion of students found guilty of hazing by petitioner therein, holding that:

No one can be so myopic as to doubt that the immediate reinstatement of respondent students who have been investigated and found guilty by the Disciplinary Board to have violated petitioner university's disciplinary rules and standards will certainly undermine the authority of the administration of the school.  This we would be most loathe to do.

More importantly, it will seriously impair petitioner university's academic freedom which has been enshrined in the 1935, 1973 and the present 1987 Constitution.[45]

Tracing the development of academic freedom, the Court continued:

Since Garcia vs. Loyola School of Theology, we have consistently upheld the salutary proposition that admission to an institution of higher learning is discretionary upon a school, the same being a privilege on the part of the student rather than a right.  While under the Education Act of 1982, students have a right "to freely choose their field of study, subject to existing curricula and to continue their course therein up to graduation," such right is subject, as all rights are, to the established academic and disciplinary standards laid down by the academic institution.

"For private schools have the right to establish reasonable rules and regulations for the admission, discipline and promotion of students.  This right … extends as well to parents… as parents under a social and moral (if not legal) obligation, individually and collectively, to assist and cooperate with the schools."

Such rules are "incident to the very object of incorporation and indispensable to the successful management of the college.  The rules may include those governing student discipline." Going a step further, the establishment of the rules governing university-student relations, particularly those pertaining to student discipline, may be regarded as vital, not merely to the smooth and efficient operation of the institution, but to its very survival.

Within memory of the current generation is the eruption of militancy in the academic groves as collectively, the students demanded and plucked for themselves from the panoply of academic freedom their own rights encapsulized under the rubric of "right to education" forgetting that, In Hohfeldian terms, they have the concomitant duty, and that is, their duty to learn under the rules laid down by the school.

xxx.  It must be borne in mind that universities are established, not merely to develop the intellect and skills of the studentry, but to inculcate lofty values, ideals and attitudes; may, the development, or flowering if you will, of the total man.

In essence, education must ultimately be religious -- not in the sense that the founders or charter members of the institution are sectarian or profess a religious ideology.  Rather, a religious education, as the renowned philosopher Alfred North Whitehead said, is 'an education which inculcates duty and reverence.' It appears that the particular brand of religious education offered by the Ateneo de Manila University has been lost on the respondent students.

Certainly, they do not deserve to claim such a venerable institution as the Ateneo de Manila University as their own a minute longer, for they may foreseeably cast a malevolent influence on the students currently enrolled, as well as those who come after them.

Quite applicable to this case is our pronouncement in Yap Chin Fah v. Court of Appeals that:  "The maintenance of a morally conducive and orderly educational environment will be seriously imperilled, if, under the circumstances of this case, Grace Christian is forced to admit petitioner's

children and to reintegrate them to the student body." Thus, the decision of petitioner university to expel them is but congruent with the gravity of their misdeeds.[46]

B.

Section 4 (1), Article XIV of the Constitution recognizes the State's power to regulate educational institution:

The State recognizes the complementary roles of public and private institutions in the educational system and shall exercise reasonable supervision and regulation of all educational institutions.

As may be gleaned from the above provision, such power to regulate is subject to the requirement of reasonableness.  Moreover, the Constitution allows merely the regulation andsupervision of educational institutions, not the deprivation  of their rights.

C.

In several cases, this Court has upheld the right of the students to free speech in school premises.  In the landmark case of Malabanan vs. Ramento,[47] students of the Gregorio Araneta University Foundation, believing that the merger of the Institute of Animal Science with the Institute of Agriculture would result in the increase in their tuition, held a demonstration to protest the proposed merger.  The rally however was held at a place other than that specified in the school permit and continued longer than the time allowed.  The protest, moreover, disturbed the classes and caused the stoppage of the work of non-academic personnel.  For the illegal assembly, the university suspended the students for one year.  In affirming the students' rights to peaceable assembly and free speech, the Court through Mr. Chief Justice Enrique Fernando, echoed the ruling of the US Supreme Court in Tinker v. Des Moines School District.[48]

Petitioners invoke their rights to peaceable assembly and free speech.  They are entitled to do so.  They enjoy like the rest of the citizens the freedom to express their views and communicate their thoughts to those disposed to listen in gatherings such as was held in this case.  They do not, to borrow from the opinion of Justice Fortas in Tinker v. Des Moines Community School District, 'shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.' While, therefore, the authority of educational institutions over the conduct of students must be recognized, it cannot go so

far as to be violative of constitutional safeguards.  On a more specific level there is persuasive force to this Fortas opinion.  "The principal use to which the schools are dedicated is to accommodate students during prescribed hours for the purpose of certain types of activities.  Among those activities is personal intercommunication among the students.  This is not only inevitable part of the educational process.  A student's rights, therefore, do not embrace merely the classroom hours.  When he is in the cafeteria, or on the playing field, or on the campus during the authorized hours, he may express his opinions, even on controversial subjects like the conflict in Vietnam, if he does so without 'materially and substantially interfer[ing] with the requirements of appropriate discipline in the operation of the  school' and without colliding with the rights of others. * * * But conduct by the student, in class or out of it, which for any reason - whether it stems from time, place, or type of behavior -- materially disrupts classwork or involves substantial disorder or invasion of the rights of others is, of course, not immunized by the constitutional guarantee of freedom of speech.[49]

The Malabanan ruling was followed in Villar vs. Technological Institute of the Philippines,[50] Arreza vs. Gregorio Araneta University Foundation,[51] and Non vs. Dames II.[52]

The right of the students to free speech in school premises, however, is not absolute.  The right to free speech must always be applied in light of the special characteristics of the school environment.[53] Thus, while we upheld the right of the students to free expression in these cases, we did not rule out disciplinary action by the school for "conduct by the student, in class or out of it, which for any reason - whether it stems from time, place, or type of behavior - which materially disrupts classwork or involves substantial disorder or invasion of the rights of others." [54] Thus, in Malabanan, we held:

6.  Objection is made by private respondents to the tenor of the speeches by the student leaders.  That there would be a vigorous presentation of view opposed to the proposed merger of the Institute of Animal Science with the Institute of Agriculture was to be expected.  There was no concealment of the fact that they were against such a move as it confronted them with a serious problem ('isang malaking suliranin.") They believed that such a merger would result in the increase in tuition fees, an additional headache for their parents ('isa na naman sakit sa ulo ng ating mga magulang.") If in the course of such demonstration, with an enthusiastic audience goading them on, utterances extremely critical at times, even vitriolic, were let loose, that is quite understandable.  Student leaders are hardly the timid, diffident types.  They are likely to be assertive and dogmatic.  They would be ineffective if during a rally they speak in the guarded and judicious language of the academe.  At

any rate, even a sympathetic audience is not disposed to accord full credence to their fiery exhortations.  They take into account the excitement of the occasion, the propensity of speakers to exaggerate, the exuberance of youth.  They may give the speakers the benefit of their applause, but with the activity taking place in the school premises and during the daytime, no clear and present danger of public disorder is discernible.  This is without prejudice to the taking of disciplinary action for conduct, which, to borrow from Tinker, "materially disrupts classwork or involves substantial disorder or invasion of the rights of others."[55]

It is in the light of this standard that we read Section 7 of the Campus Journalism Act.  Provisions of law should be construed in harmony with those of the Constitution; acts of the legislature should be construed, wherever possible, in a manner that would avoid their conflicting with the fundamental law.[56] A statute should not be given a broad construction if its validity can be saved by a narrower one. [57] Thus, Section 7 should be read in a manner as not to infringe upon the school's right to discipline its students.  At the same time, however, we should not construe said provision as to unduly restrict the right of the students to free speech.  Consistent with jurisprudence, we read Section 7 of the Campus Journalism Act to mean that the school cannot suspend or expel a student solely on the basis of the articles he or she has written, except when such articles materially disrupt class work or involve substantial disorder or invasion of the rights of others.

IV.

From the foregoing, the answer to the question of who has jurisdiction over the cases filed against respondent students becomes self-evident.  The power of the school to investigate is an adjunct of its power to suspend or expel.  It is a necessary corollary to the enforcement of rules and regulations and the maintenance of a safe and orderly educational environment conducive to learning.[58] That power, like the power to suspend or expel, is an inherent part of the academic freedom of institutions of higher learning guaranteed by the Constitution.  We therefore rule that Miriam College has the authority to hear and decide the cases filed against respondent students.

WHEREFORE, the decision of the Court of Appeals is REVERSED and SET ASIDE.  Petitioner Miriam College is ordered to READMIT private respondent Joel Tan whose suspension has long lapsed.

SO ORDERED.

Davide, Jr., C.J., (Chairman), Pardo, and Ynares-Santiago, JJ., concur.Puno, J., no part, knows some parties.

WRIT OF KLIKASAN

A writ of kalikasan (nature) is a legal remedy under Philippine law for persons whose constitutional right to “a balanced and healthful ecology” is violated by an unlawful act or omission of a public official, employee, or private individual or entity.

It draws its mandate from Article II Section 16 of the 1987 Constitution, which says that the “state shall protect and advance the right of the people to a balanced and healthful ecology in accord with the rhythm and harmony of nature.”

In 2009, the Supreme Court held a forum on environmental protection in Baguio City where difficulties in the prosecution of ecology-related crimes and the huge backlog pending in the courts were identified as among the issues affecting the implementation of environmental laws.

The high court then came out with the writ of kalikasan the following year when it issued the rules of procedure for environmental cases as a special civil action to deal with environmental damage of such magnitude that it threatens life, health or property of inhabitants in two or more cities or provinces.

Philippine-made

Then Chief Justice Reynato Puno said that while the writ of habeas corpus originated in England as a legal recourse for those wrongly detained and the writ of amparo came from Latin America to address its own brush with human rights violations, the writ of kalikasan is proudly Philippine-made to deal with cases in the realm of ecology.

In April last year, environmentalist and activist groups filed a petition for a writ of kalikasan in the Supreme Court for the 2013 destruction of a section of the Tubbataha Reef when a United States Navy minesweeper ran aground.

The USS Guardian ran aground some 130 kilometers southeast of Palawan province after completing a port call at the former US naval base of Subic Bay, Olongapo City. It was en route to its next port of call in Indonesia. The vessel was extricated after 73 days at a cost of $45 million.

The petitioners have asked the court to grant to the government “primary and exclusive jurisdiction” over American officials they considered liable for the Jan. 17, 2013, incident. The US officials held accountable for the reef’s destruction included US Vice Adm. Scott Smith, commander of the US 7th Fleet, and Lt. Cmdr. Mark Rice, commanding officer of the Guardian.

P58M fine

They also demanded a fine more than 10 times the Philippine government’s assessment. The Philippines fined the United States P58 million for damaging the reef but laid no criminal charges.

The writ of kalikasan petition says “the unauthorized entry, grounding, salvage and ongoing post-salvage operations of the Guardian violate the constitutional rights of the residents of the provinces surrounding the Tubbataha Reef on the Sulu Sea—Palawan, Antique, Aklan, Guimaras, Iloilo, Negros Occidental, Negros Oriental, Zamboanga del Norte, Basilan, Sulu and Tawi-Tawi—to a balanced and healthful ecology.”

“The USS Guardian did not have a permit to enter [the Tubbataha Reefs Natural Park],” the petition said. “The vessel did not inform the marine park rangers of its presence and situation and was later discovered only through radar at 4 a.m. on [Jan. 17, 2013].”

The United Nations Convention on the Law of the Sea (UNCLOS), also called the Law of the

Sea Convention or the Law of the Sea treaty, is the international agreement that resulted from the

third United Nations Conference on the Law of the Sea (UNCLOS III), which took place between

1973 and 1982. The Law of the Sea Convention defines the rights and responsibilities of nations

with respect to their use of the world's oceans, establishing guidelines for businesses, the

environment, and the management of marine natural resources. The Convention, concluded in 1982,

replaced four 1958 treaties. UNCLOS came into force in 1994, a year after Guyana became the 60th

nation to sign the treaty.[1] As of January 2015, 166 countries and the European Union have joined in

the Convention. However, it is uncertain as to what extent the Convention codifies customary

international law.

While the Secretary General of the United Nations receives instruments of ratification and accession

and the UN provides support for meetings of states party to the Convention, the UN has no direct

operational role in the implementation of the Convention. There is, however, a role played by

organizations such as the International Maritime Organization, the International Whaling

Commission, and the International Seabed Authority (ISA). (The ISA was established by the UN

Convention.)