A.M. No.

MTJ-10-1770               July 18, 2012

(Formerly A.M. OCA IPI No. 10-2255-MTJ)

OFFICE OF ADMINISTRATIVE SERVICES-OFFICE OF THE COURT

ADMINISTRATOR, Complainant,
vs.
JUDGE IGNACIO B. MACARINE, Municipal Circuit Trial Court, Gen. Luna, Surigao del
Norte, Respondent.

DECISION

BRION, J.:

The Office of the Court Administrator (OCA) filed the present administrative case against Judge
Ignacio B. Macarine (respondent) for violation of OCA Circular No. 49-2003 dated May 20, 2003.
1 

OCA Circular No. 49-2003 requires that all foreign travels of judges and court personnel, regardless
of the number of days, must be with prior permission from the Court. A travel authority must be
secured from the OCA Judges must submit the following requirements:

(1.) application or letter-request addressed to the Court Administrator stating the purpose of
the travel abroad;

(2.) application for leave covering the period of the travel abroad, favorably recommended by
the Executive Judge; and

(3.) certification from the Statistics Division, Court Management Office, OCA as to the
condition of the docket.2

The complete requirements should be submitted to and received by the OCA at least two weeks
before the intended time of travel. No action shall be taken on requests for travel authority with
incomplete requirements. 3

Judges and personnel who shall leave the country without travel authority issued by the OCA shall
be subject to disciplinary action. 4

On August 13, 2009, the respondent wrote then Court Administrator, now Associate Justice Jose
Portugal Perez, requesting for authority to travel to Hongkong with his family for the period of
September 10 - 14, 2009 where he would celebrate his 65th birthday. The respondent stated that his
travel abroad shall be charged to his annual forced leave. However, he did not submit the
corresponding application for leave. For his failure to submit the complete requirements, his request
for authority to travel remained unacted upon. The respondent proceeded with his travel abroad
without the required travel authority from the OCA.

On January 28, 2010, the respondent was informed by the OCA that his leave of absence for the
5 

period of September 9-15, 2009 had been disapproved and his travel considered unauthorized by
the Court. His absences shall not be deducted from his leave credits but from his salary
corresponding to the seven (7) days that he was absent, pursuant to Section 50 of the Omnibus
Rules on Leave. The respondent was also required to submit his explanation on his failure to comply
6 

with OCA Circular No. 49-2003.

In his letter-explanation dated February 25, 2010, the respondent narrated that his daughter, a nurse
working in New Jersey, USA, gave him a trip to Hongkong as a gift for his 65th birthday. In the first
week of September 2009, he received a call from his daughter that she had already booked him,
together with his wife and two sons, in a hotel in Hongkong from September 13 to 15, 2009. They
flew in to Manila from Surigao City on September 9, 2009, intending to prepare the necessary
papers for his authority to travel at the Supreme Court the following day. However, sensing time
constraint and thinking of the futility of completing the requirements before their scheduled flight, he
opted not to immediately complete the requirements and simply went ahead with their travel abroad.
He thought of submitting his compliance upon his return to Manila. He acknowledged his mistake
and regretted his failure to comply with OCA Circular No. 49-2003. He promised not to commit the
same infraction again. He further requested for reconsideration of the OCA’s intended action to
deduct his salary corresponding to the seven (7) days that he was absent, instead of charging his
absences to his leave credits.

In an Evaluation Report dated September 6, 2010, the OCA found the respondent guilty of violation
of OCA Circular No. 49-2003 for traveling out of the country without filing the necessary application
for leave and without first securing a travel authority from the Court. The OCA recommended:

a) this matter be RE-DOCKETED as a regular administrative matter;

b) Judge Ignacio B. Macarine, MCTC, Gen. Luna, Surigao del Norte, be FINED in the
amount of P5,000.00 for Violation for Circular No. 49-2003 dated May 20, 2003; and c) the
Financial Management Office, Finance Division, OCA, be DIRECTED to DEDUCT the
amount equivalent to the seven (7) days salary of Judge Ignacio Macarine as a result of his
disapproved and unauthorized leave of absence pursuant to Section 50, Omnibus Rules on
Leave, without deducting his leave credits thereof. [emphases supplied]

True, the right to travel is guaranteed by the Constitution.  However, the exercise of such right is not
1âwphi1

absolute. Section 6, Article III of the 1987 Constitution allows restrictions on one’s right to travel
provided that such restriction is in the interest of national security, public safety or public health as
may be provided by law. This, however, should by no means be construed as limiting the Court’s
inherent power of administrative supervision over lower courts. OCA Circular No. 49-2003 does not
restrict but merely regulates, by providing guidelines to be complied by judges and court personnel,
before they can go on leave to travel abroad. To "restrict" is to restrain or prohibit a person from
doing something; to "regulate" is to govern or direct according to rule.

To ensure management of court dockets and to avoid disruption in the administration of justice, OCA
Circular No. 49-2003 requires a judge who wishes to travel abroad to submit, together with his
application for leave of absence duly recommended for approval by his Executive Judge, a
certification from the Statistics Division, Court Management Office of the OCA, as to the condition of
his docket, based on his Certificate of Service for the month immediately preceding the date of his
intended travel, that he has decided and resolved all cases or incidents within three (3) months from
date of submission, pursuant to Section 15(1) and (2), Article VIII of the 1987 Constitution. 7

For traveling abroad without having been officially allowed by the Court, the respondent is guilty of
violation of OCA Circular No. 49-2003. Under Section 9(4), Rule 140 of the Revised Rules of Court,
violation of Supreme Court directives and circular is considered a less serious charge and, therefore,
punishable by suspension from office without salary and other benefits for not less than one (1)
month nor more than three (3) months; or a fine of more than P10,000.00 but not exceeding
P20,000.00. 8
Section 53, Rule IV of the Revised Rules on Administrative Cases in the Civil Service grants the
disciplining authority the discretion to consider mitigating circumstances in the imposition of the
proper penalty. The Court had in several instances refrained from imposing the actual penalties in
the presence of mitigating facts, such as the employee’s length of service, acknowledgement of his
or her infractions and feelings of remorse for the same, advanced age, family circumstances, and
other humanitarian and equitable considerations.

In the present case, the respondent, after learning that his daughter had already booked him and his
family in a hotel in Hongkong, immediately went to Manila to secure his travel authority from the
Court. However, with the short period of time from their arrival in Manila on September 9, 2009 up to
the time of their booking in Hongkong from September 13 to 15, 2009, he was pressed for time and
opted not to complete the required travel authority, with the intention of securing one after his travel.
The respondent regretted his failure to comply with the requirements of OCA Circular No. 49-2003.
He acknowledged his mistake and promised not to commit the same infraction in the future.

We consider the outlined circumstances as mitigating. Following judicial precedents, the respondent
deserves some degree of leniency in imposing upon him the appropriate penalty.

WHEREFORE, respondent Judge Ignacio B. Macarine, Municipal Circuit Trial Court, Gen. Luna,
Surigao del Norte, is hereby given the ADMONITION that he acted irresponsibly when he opted not
to immediately secure a travel authority and is saved only from the full force that his violation carries
by the attendant mitigating circumstances. He is also WARNED that the commission of a similar
violation in the future will merit a more severe penalty. The recommendation of the Office of the
Court Administration that his absences, which were unauthorized, shall not be deducted from his
leave credits but from his salary is hereby APPROVED.

SO ORDERED.
G.R. Nos. 99289-90 January 27, 1993

MIRIAM DEFENSOR-SANTIAGO, petitioner,
vs.
CONRADO M. VASQUEZ, Ombudsman; GUALBERTO J. DE LA LLANA, Special Prosecutor;
SANDIGANBAYAN and REGIONAL TRIAL COURT OF MANILA, respondents.

Marciano P. Defensor for petitioner.

Nestor P. Ifurong for Maria S. Tatoy.

Danilo C. Cunanan for respondents.

RESOLUTION

REGALADO, J.:

Filed directly with the Court, ostensibly as an incident in the present special civil action, is petitioner's
so-called "Motion to Restrain the Sandiganbayan from Enforcing its Hold Departure Order with
Prayer for the Issuance of a Temporary Restraining Order and/or Preliminary Injunction, with Motion
to Set Pending Incident for Hearing." Despite the impropriety of the mode adopted in elevating the
issue to us, as will hereinafter be discussed, we will disregard the procedural gaffe in the interest of
an early resolution hereof.

The chronology of events preceding the instant motion is best summarized to readily provide a clear
understanding and perspective of our disposition of this matter, thus:

1. On May 13, 1991, an information dated May 9, 1991 and docketed as Criminal Case No. 16698
was filed against petitioner with the Sandiganbayan for alleged violation of Section 3(e), Republic
Act No. 3019, otherwise known as the Anti-Graft and Corrupt Practices Act.

2. On May 14, 1991, an order of arrest was issued in said case against herein petitioner by Presiding
Justice Francis E. Garchitorena of the Sandiganbayan, with bail for the release of the accused fixed
at P15,000.00.  1

3. On even date, petitioner filed an "Urgent Ex-parte Motion for Acceptance of Cash Bail Bond for
and in Behalf of Dr. Miriam Defensor-Santiago,"   which pertinently states in part:
2

xxx xxx xxx

3. As a result of the vehicular collision, she suffered extensive physical injuries which
required surgical intervention. As of this time, her injuries, specifically in the jaw or
gum area of the mouth, prevents her to speak (sic) because of extreme pain. Further,
she cannot for an extended period be on her feet because she is still in physical pain.
....

4. On the other hand, the accused Miriam Defensor Santiago seeks leave of this
Honorable Court that she be considered as having placed herself under the
 jurisdiction of this Honorable Court, for purposes of the required trial and other
proceedings and further seeks leave of this Honorable Court that the recommended
bail bond of P15,000.00 that she is posting in cash be accepted.

xxx xxx xxx

WHEREFORE, it is respectfully prayed of this Honorable Court that the bail bond she
is posting in the amount of P15,000.00 be duly accepted, and that by this motion, she
be considered as having placed herself under the custody of this Honorable Court
and dispensing of her personal appearance for now until such time she will (sic) have
recovered sufficiently from her recent near fatal accident.

Further, on the above basis, it is also respectfully prayed that the warrant for her
arrest be immediately recalled.

x x x           x x x          x x x

4. Also on the same day, the Sandiganbayan issued a resolution  authorizing petitioner to post a
3

cash bond for her provisional liberty without need for her physical appearance until June 5, 1991 at
the latest, unless by that time her condition does not yet permit her physical appearance before said
court. On May 15, 1991, petitioner filed a cash bond in the amount of P15,000.00, aside from the
other legal fees.
4

5. On May 21, 1991, respondent Ombudsman Conrado M. Vasquez filed with the Sandiganbayan a
manifestation "that accused Miriam Defensor-Santiago appeared in his office in the second floor of
the Old NAWASA Building located in Arroceros Street, Ermita, Manila at around 3:30 o'clock in the
afternoon of May 20, 1991. She was accompanied by a brother who represented himself to be Atty.
Arthur Defensor and a lady who is said to be a physician. She came and left unaided, after staying
for about fifteen minutes. 
5

6. Acting on said manifestation, the Sandiganbayan issued a resolution also on May 21, 1991,
setting the arraignment of the accused for May 27, 1991, and setting aside the court's resolution of
May 14, 1991 which ordered her appearance before the deputy clerk of the First Division of said
court on or before June 5, 1991. 6

7. In a motion dated May 22, 1991, petitioner asked that her cash bond be cancelled and that she be
allowed provisional liberty upon a recognizance. She contended that for her to continue remaining
under bail bond may imply to other people that she has intentions of fleeing, an intention she would
like to prove as baseless.7

8. Likewise on May 24, 1991, petitioner filed with this Court a petition for certiorari and prohibition
with preliminary injunction, and a subsequent addendum thereto, seeking to enjoin the
Sandiganbayan and the Regional Trial Court of Manila from proceeding with Criminal Cases Nos.
12298 (for violation of Section 3[e] of Republic Act No. 3019), 91-94555 (violation of Presidential
Decree No. 46), and 91-94897 (for libel), respectively. Consequently, a temporary restraining order
was issued by this Court on May 24, 1991, enjoining the Sandiganbayan and the Regional Trial
Court of Manila, Branch 3, from proceeding with the criminal cases pending before them. This Court,
in issuing said order, took into consideration the fact that according to petitioner, her arraignment,
originally set for June 5, 1991, was inexplicably advanced to May 27, 1991, hence the advisability of
conserving and affording her the opportunity to avail herself of any remedial right to meet said
contingency.
9. On May 27, 1991, the Sandiganbayan issued an order deferring: (a) the arraignment of petitioner
until further advice from the Supreme Court; and (b) the consideration of herein petitioner's motion to
cancel her cash bond until further initiative from her through counsel. 8

10. On January 18, 1992, this Court rendered a decision dismissing the petition for certiorari and
lifting and setting aside the temporary restraining order previously issued.   The motion for
9

reconsideration filed by petitioner was eventually denied with finality in this Court's resolution dated
September 10, 1992.

11. Meanwhile, in a resolution adopted on July 6, 1992, the Sandiganbayan issued a hold departure
order against petitioner which reads as follows:

Considering the information in media to the effect that accused Santiago intends to
leave the country soon for an extended stay abroad for study purposes, considering
the recent decision of the Supreme Court dismissing her petition promulgated on
January 13, 1992, although the same is still subject of a Motion for Reconsideration
from the accused, considering that the accused has not yet been arraigned, nor that
she has not (sic) even posted bail the same having been by reason of her earlier
claim of being seriously indisposed, all of which were overtaken by a restraining
order issued by the Supreme Court in G.R. No. 99289 and No. 99290 dated May 24,
1991, the accused is ordered not to leave the country and the Commission on
Immigration and Deportation is ordered not to allow the departure of the accused
unless authorized from (sic) this Court. 10

The hold departure order was issued by reason of the announcement made by petitioner, which was
widely publicized in both print and broadcast media, that she would be leaving for the United States
to accept a fellowship supposedly offered by the John F. Kennedy School of Government at Harvard
University. Petitioner likewise disclosed that she would be addressing Filipino communities in the
United States in line with her crusade against election fraud and other aspects of graft and
corruption.

In the instant motion submitted for our resolution, petitioner argues that:

1. The Sandiganbayan acted without or in excess of jurisdiction and with grave

abuse of discretion in issuing the hold departure order considering that it had not
acquired jurisdiction over the person of the petitioner.

2. The Sandiganbayan blatantly disregarded basic principles of judicial comity and

due deference owing to a superior tribunal when it issued the hold departure order
despite the pendency of petitioner's motion for reconsideration with this Honorable
Court.

3. The right to due process of law, the right to travel and the right to freedom of
speech are preferred, pre-eminent rights enshrined not only in the Constitution but
also in the Universal Declaration of Human Rights which can be validly impaired only
under stringent criteria which do not obtain in the instant case.

4. The hold departure order in the instant case was issued under disturbing
circumstances which suggest political harassment and persecution.
 5. On the basis of petitioner's creditable career in the bench and bar and her
characteristic transparency and candor, there is no reasonable ground to fear that
petitioner will surreptitiously flee the country to evade judicial processes.
11

I. Petitioner initially postulates that respondent court never acquired jurisdiction over her person
considering that she has neither been arrested nor has she voluntarily surrendered, aside from the
fact that she has not validly posted bail since she never personally appeared before said court. We
reject her thesis for being factually and legally untenable.

It has been held that where after the filing of the complaint or information a warrant for the arrest of
the accused is issued by the trial court and the accused either voluntarily submitted himself to the
court or was duly arrested, the court thereby acquires jurisdiction over the person of the
accused.  The voluntary appearance of the accused, whereby the court acquires jurisdiction over his
12

person, is accomplished either by his pleading to the merits (such as by filing a motion to quash or
other pleadings requiring the exercise of the court's jurisdiction thereover, appearing for arraignment,
entering trial) or by filing bail. On the matter of bail, since the same is intended to obtain the
provisional liberty of the accused, as a rule the same cannot be posted before custody of the
accused has been acquired by the judicial authorities either by his arrest or voluntary surrender. 13

In the case at bar, it becomes essential, therefore, to determine whether respondent court acquired
jurisdiction over the person of herein petitioner and, correlatively, whether there was a valid posting
of bail bond.

We find and so hold that petitioner is deemed to have voluntarily submitted herself to the jurisdiction
of respondent court upon the filing of her aforequoted "Urgent Ex-parte Motion for Acceptance of
Cash Bail Bond for and in behalf of Dr. Miriam Defensor-Santiago" wherein she expressly sought
leave "that she be considered as having placed herself under the jurisdiction of (the Sandiganbayan)
for purposes of the required trial and other proceedings," and categorically prayed "that the bail bond
she is posting in the amount of P15,000.00 be duly accepted" and that by said motion "she be
considered as having placed herself under the custody" of said court. Petitioner cannot now be
heard to claim otherwise for, by her own representations, she is effectively estopped from asserting
the contrary after she had earlier recognized the jurisdiction of the court and caused it to exercise
that jurisdiction over the aforestated pleadings she filed therein.

It cannot be denied that petitioner has posted a cash bail bond of P15,000.00 for her provisional
release as evidenced by Official Receipt No. 4292925 dated May 15, 1991 and which is even
attached as Annex C-2 to her own motion now under consideration. This is further buttressed by the
fact that petitioner thereafter also filed a motion for the cancellation of said cash bond and for the
court to allow her provisional liberty upon the security of a recognizance. With the filing of the
foregoing motions, petitioner should accordingly and necessarily admit her acquiescence to and
acknowledgment of the propriety of the cash bond she posted, instead of adopting a stance which
ignores the injunction for candor and sincerity in dealing with the courts of justice.

Petitioner would also like to make capital of the fact that she did not personally appear before
respondent court to file her cash bond, thereby rendering the same ineffectual. Suffice it to say that
in this case, it was petitioner herself, in her motion for the acceptance of the cash bond, who
requested respondent court to dispense with her personal appearance until she shall have
recovered sufficiently from her vehicular accident. It is distressing that petitioner should now turn
around and fault respondent court for taking a compassionate stand on the matter and
accommodating her own request for acceptance of the cash bond posted in her absence.
II. Petitioner argues that the Sandiganbayan disregarded the rule of judicial comity when it issued
the hold departure order despite the pendency of her motion for reconsideration of the decision of
this Court which dismissed her petition. She claims that if the principle of judicial comity applies to
prevent a court from interfering with the proceedings undertaken by a coordinate court, with more
reason should it operate to prevent an inferior court, such as the Sandiganbayan, from interfering
with the instant case where a motion for reconsideration was still pending before this Court. She
contends further that the hold departure order contravenes the temporary restraining order
previously issued by this court enjoining the Sandiganbayan from proceeding with the criminal case
pending before it.

It will be remembered that the Court rendered a decision in the present case on January 18, 1992
dismissing the petition for certiorari filed in this case and lifting and setting aside the temporary
restraining order it previously issued. It is petitioner's submission that the filing of her motion for
reconsideration stayed the lifting of the temporary restraining order, hence respondent court
continued to be enjoined from acting on and proceeding with the case during the pendency of the
motion for reconsideration. We likewise reject this contention which is bereft of merit.

Section 4, Rule 39 of the Rules of Court provides that, unless otherwise ordered by the court, a
judgment in an action for injunction shall not be stayed after its rendition and before an appeal is
taken or during the pendency of an appeal. And, the rule is that the execution of a judgment
decreeing the dissolution of a writ of preliminary injunction shall not be stayed before an appeal is
taken or during the pendency of an appeal,  and we see no reason why the foregoing considerations
14

should not apply to a temporary restraining order. The rationale therefor is that even in cases where
an appeal is taken from a judgment dismissing an action on the merits, the appeal does not suspend
the judgment, hence the general rule applies that a temporary injunction terminates automatically on
the dismissal of the action. 15

It has similarly been held that an order of dissolution of an injunction may be immediately effective,
even though it is not final.  A dismissal, discontinuance, or non-suit of an action in which a
16

restraining order or temporary injunction has been granted operates as a dissolution of the
restraining order or temporary injunction  and no formal order of dissolution is necessary to effect
17

such dissolution.  Consequently, a special order of the court is necessary for the reinstatement of an
18

injunction.  There must be a new exercise of .judicial power.

19 20

The reason advanced in support of the general rule has long since been duly explained, to wit:

. . . The court of this State, relying upon the last of the two clauses quoted, held that
an appeal from an order dissolving an injunction continued the injunction in force.
The evils which would result from such a holding are forcibly pointed out by Judge
Mitchell in a dissenting opinion. He said: "Although a plaintiff's papers are so
insufficient on their face or so false in their allegations that if he should apply on
notice for an injunction, any court would, on a hearing, promptly refuse to grant one,
yet, if he can find anywhere in the State a judge or court commissioner who will
improvidently grant one ex parte, which the court on the first and only hearing ever
had dissolves, he can, by appealing and filing a bond, make the ex parte injunction
impervious to all judicial interference until the appeal is determined in this court." . . .
Such a result is so unjust and so utterly inconsistent with all known rules of equity
practice that no court should adopt such a construction unless absolutely shut up to it
by the clear and unequivocal language of the statute. . . . . 21

This ruling has remained undisturbed over the decades and was reiterated in a case squarely in
point and of more recent vintage:
 The SEC's orders dated June 27, 1989 and July 21, 1989 (directing the secretary of
UDMC to call a stockholders' meeting, etc.) are not premature, despite the
petitioners then pending motion for reconsideration of the decision of the Court of
Appeals. The lifting by the Court of Appeals of its writ of preliminary injunction in
C.A.-G.R. SP No. 17435 cleared the way for the implementation by the SEC's en
banc resolution in SEC EB Case No. 191. The SEC need not wait for the Court of
Appeals to resolve the petitioner's motion for reconsideration for a judgment
decreeing the dissolution of a preliminary injunction is immediately executory. It shall
not be stayed after its rendition and before an appeal is taken or during the pendency
of an appeal. . . . .22

On the bases of the foregoing pronouncements, there is no question that with the dismissal of the
petition for certiorari and the lifting of the restraining order, nothing stood to hinder the
Sandiganbayan from acting on and proceeding with the criminal cases filed against herein petitioner.
At any rate, as we have earlier mentioned, the motion for reconsideration filed by petitioner was
denied with finality in our resolution dated September 10, 1992.

Petitioner further posits, however, that the filing of the instant special civil action
for certiorari divested the Sandiganbayan of its jurisdiction over the case therein. Whether generated
by misconception or design, we shall address this proposition which, in the first place, had no reason
for being and should not hereafter be advanced under like or similar procedural scenarios.

The original and special civil action filed with this Court is, for all intents and purposes, an invocation
for the exercise of its supervisory powers over the lower courts. It does not have the effect of
divesting the inferior courts of jurisdiction validly acquired over the case pending before them. It is
elementary that the mere pendency of a special civil action for certiorari, commenced in relation to a
case pending before a lower court, does not even interrupt the course of the latter when there is no
writ of injunction restraining it.  The inevitable conclusion is that for as long as no writ of injunction or
23

restraining order is issued in the special civil action for certiorari, no impediment exists and there is
nothing to prevent the lower court from exercising its jurisdiction and proceeding with the case
pending before it. And, even if such injunctive writ or order is issued, the lower court nevertheless
continues to retain its jurisdiction over the principal action.

III. It is further submitted by petitioner that the hold departure order violates her right to due process,
right to travel and freedom of speech.

First, it is averred that the hold departure order was issued without notice and hearing. Much is
made by petitioner of the fact that there was no showing that a motion to issue a hold departure
order was filed by the prosecution and, instead, the same was issued ex mero motu by the
Sandiganbayan. Petitioner is in error.

Courts possess certain inherent powers which may be said to be implied from a general grant of
jurisdiction, in addition to those expressly conferred on them.  These inherent powers are such
24

powers as are necessary for the ordinary and efficient exercise of jurisdiction;  or essential to the
25

existence, dignity and functions of the courts,  as well as to the due administration of justice;  or are
26 27

directly appropriate, convenient and suitable to the execution of their granted powers;  and include
28

the power to maintain the court's jurisdiction and render it effective in behalf of the litigants.29

Therefore, while a court may be expressly granted the incidental powers necessary to effectuate its
jurisdiction, a grant of jurisdiction, in the absence of prohibitive legislation, implies the necessary and
usual incidental powers essential to effectuate it, and, subject to existing laws and constitutional
provisions, every regularly constituted court has the power to do all things that are reasonably
necessary for the administration of justice within the scope of its jurisdiction. Hence, demands,
matters, or questions ancillary or incidental to, or growing out of, the main action, and coming within
the above principles, may be taken cognizance of by the court and determined, since such
jurisdiction is in aid of its authority over the principal matter, even though the court may thus be
called on to consider and decide matters which, as original causes of action, would not be within its
cognizance.

Furthermore, a court has the inherent power to make interlocutory orders necessary to protect its
jurisdiction.  Such being the case, with more reason may a party litigant be subjected to proper
30

coercive measures where he disobeys a proper order, or commits a fraud on the court or the
opposing party, the result of which is that the jurisdiction of the court would be ineffectual. What
ought to be done depends upon the particular circumstances.  31

Turning now to the case at bar, petitioner does not deny and, as a matter of fact, even made a public
statement that she had every intention of leaving the country allegedly to pursue higher studies
abroad. We uphold the course of action adopted by the Sandiganbayan in taking judicial notice of
such fact of petitioner's plan to go abroad and in thereafter issuing sua sponte the hold departure
order, in justified consonance with our preceding disquisition. To reiterate, the hold departure order
is but an exercise of respondent court's inherent power to preserve and to maintain the effectiveness
of its jurisdiction over the case and the person of the accused.

Second, petitioner asseverates that considering that she is leaving for abroad to pursue further
studies, there is no sufficient justification for the impairment of her constitutional right to travel; and
that under Section 6, Article III of the 1987 Constitution, the right to travel may be impaired only
when so required in the interest of national security, public safety or public health, as may be
provided by law.

It will be recalled that petitioner has posted bail which we have declared legally valid and complete
despite the absence of petitioner at the time of filing thereof, by reason of the peculiar circumstances
and grounds hereinbefore enunciated and which warrant a relaxation of the aforecited doctrine
in Feliciano. Perforce, since under the obligations assumed by petitioner in her bail bond she holds
herself amenable at all times to the orders and processes of the court, she may legally be prohibited
from leaving the country during the pendency of the case. This was the ruling we handed down
in Manotoc, Jr. vs. Court of Appeals, et al.,  to the effect that:
32

A court has the power to prohibit a person admitted to bail from leaving the
Philippines. This is a necessary consequence of the nature and function of a bail
bond.

Rule 114, Section 1 of the Rules of Court defines bail as the security required and
given for the release of a person who is in custody of the law, that he will appear
before any court in which his appearance may be required as stipulated in the bail
bond or recognizance.

Its object is to relieve the accused of imprisonment and the state of the burden of
keeping him, pending the trial, and at the same time, to put the accused as much
under the power of the court as if he were in custody of the proper officer, and to
secure the appearance of the accused so as to answer the call of the court and do
what the law may require of him.
 The condition imposed upon petitioner to make himself available at all times
whenever the court requires his presence operates as a valid restriction on his right
to travel. As we have held in People vs. Uy Tuising, 61 Phil. 404 (1935):

. . . the result of the obligation assumed by appellee (surety) to hold

the accused amenable at all times to the orders and processes of the
lower court, was to prohibit said accused from leaving the jurisdiction
of the Philippines, because, otherwise, said orders and processes will
be nugatory, and inasmuch as the jurisdiction of the courts from
which they issued does not extend beyond that of the Philippines
they would have no binding force outside of said jurisdiction.

Indeed, if the accused were allowed to leave the Philippines without sufficient
reason, he may be placed beyond the reach of the courts.

This was reiterated in a more recent case where we held:

Petitioner thus theorizes that under the 1987 Constitution, Courts can impair the right
to travel only on the grounds of "national security, public safety, or public health."

The submission is not well taken.

Article III, Section 6 of the 1987 Constitution should be interpreted to mean that while
the liberty of travel may be impaired even without Court Order, the appropriate
executive officers or administrative authorities are not armed with arbitrary discretion
to impose limitations. They can impose limits only on the basis of "national security,
public safety, or public health" and "as may be provided by law," a limitive phrase
which did not appear in the 1973 text (The Constitution, Bernas, Joaquin, G., S.J.,
Vol. I, First Edition, 197, p. 263). Apparently, the phraseology in the 1987
Constitution was a reaction to the ban on international travel imposed under the
previous regime when there was a Travel Processing Center, which issued
certificates of eligibility to travel upon application of an interested party (See Salonga
v. Hermoso & Travel Processing Center, No. 53622, 25 April 1980, 97 SCRA 121).

Article III, Section 6 of the 1987 Constitution should by no means be construed as

delimiting the inherent power of the Courts to use all means necessary to carry their
orders into effect in criminal cases pending before them. When by law jurisdiction is
conferred on a Court or judicial officer, all auxiliary writs, processes and other means
necessary to carry it into effect may be employed by such Court or officer (Rule 135,
Section 6, Rules of Court).

xxx xxx xxx

. . . Holding an accused in a criminal case within the reach of the Courts by

preventing his departure from the Philippines must be considered as a valid
restriction on his right to travel so that he may be dealt with in accordance with law.
The offended party in any criminal proceeding is the People of the Philippines. It is to
their best interest that criminal prosecutions should run their course and proceed to
finality without undue delay, with an accused holding himself amenable at all times to
Court Orders and processes. 33
One final observation. We discern in the proceedings in this case a propensity on the part of
petitioner, and, for that matter, the same may be said of a number of litigants who initiate recourses
before us, to disregard the hierarchy of courts in our judicial system by seeking relief directly from
this Court despite the fact that the same is available in the lower courts in the exercise of their
original or concurrent jurisdiction, or is even mandated bylaw to be sought therein. This practice
must be stopped, not only because of the imposition upon the precious time of this Court but also
because of the inevitable and resultant delay, intended or otherwise, in the adjudication of the case
which often has to be remanded or referred to the lower court as the proper forum under the rules of
procedure, or as better equipped to resolve the issues since this Court is not a trier of facts. We,
therefore, reiterate the judicial policy that this Court will not entertain direct resort to it unless the
redress desired cannot be obtained in the appropriate courts or where exceptional and compelling
circumstances justify availment of a remedy within and calling for the exercise of our primary
jurisdiction.

For the guidance of the bench and the bar, we elucidate that such policy includes the matter of
petitions or motions involving hold departure orders of the trial or lower courts. Parties with pending
cases therein should apply for permission to leave the country from the very same courts which, in
the first instance, are in the best position to pass upon such applications and to impose the
appropriate conditions therefor since they are conversant with the facts of the cases and the
ramifications or implications thereof. Where, as in the present case, a hold departure order has been
issued ex parte or motu propio by said court, the party concerned must first exhaust the appropriate
remedies therein, through a motion for reconsideration or other proper submissions, or by the filing
of the requisite application for travel abroad. Only where all the conditions and requirements for the
issuance of the extraordinary writs of certiorari, prohibition or mandamus indubitably obtain against a
disposition of the lower courts may our power of supervision over said tribunals be invoked through
the appropriate petition assailing on jurisdictional or clearly valid grounds their actuations therein.

WHEREFORE, with respect to and acting on the motion now before us for resolution, the same is
hereby DENIED for lack of merit.

SO ORDERED.
G.R. No. L-62100 May 30, 1986

RICARDO L. MANOTOC, JR., petitioner,

vs.
THE COURT OF APPEALS, HONS. SERAFIN E. CAMILON and RICARDO L. PRONOVE, JR., as
Judges of the Court of First Instance of Rizal, Pasig branches, THE PEOPLE OF THE
PHILIPPINES, the SECURITIES & EXCHANGE COMISSION, HON. EDMUNDO M. REYES, as
Commissioner of Immigration, and the Chief of the Aviation Security Command
(AVSECOM), respondents.

FERNAN, J.:

The issue posed for resolution in this petition for review may be stated thus: Does a person facing a
criminal indictment and provisionally released on bail have an unrestricted right to travel?

Petitioner Ricardo L. Manotoc, Jr., is one of the two principal stockholders of Trans-Insular
Management, Inc. and the Manotoc Securities, Inc., a stock brokerage house. Having transferred the
management of the latter into the hands of professional men, he holds no officer-position in said
business, but acts as president of the former corporation.

Following the "run" on stock brokerages caused by stock broker Santamaria's flight from this
jurisdiction, petitioner, who was then in the United States, came home, and together with his co-
stockholders, filed a petition with the Securities and Exchange Commission for the appointment of a
management committee, not only for Manotoc Securities, Inc., but likewise for Trans-Insular
Management, Inc. The petition relative to the Manotoc Securities, Inc., docketed as SEC Case No.
001826, entitled, "In the Matter of the Appointment of a Management Committee for Manotoc
Securities, Inc., Teodoro Kalaw, Jr., Ricardo Manotoc, Jr., Petitioners", was granted and a
management committee was organized and appointed.

Pending disposition of SEC Case No. 001826, the Securities and Exchange Commission requested
the then Commissioner of Immigration, Edmundo Reyes, not to clear petitioner for departure and a
memorandum to this effect was issued by the Commissioner on February 4, 1980 to the Chief of the
Immigration Regulation Division.

When a Torrens title submitted to and accepted by Manotoc Securities, Inc. was suspected to be a
fake, six of its clients filed six separate criminal complaints against petitioner and one Raul Leveriza,
Jr., as president and vice-president, respectively, of Manotoc Securities, Inc. In due course,
corresponding criminal charges for estafa were filed by the investigating fiscal before the then Court
of First Instance of Rizal, docketed as Criminal Cases Nos. 45399 and 45400, assigned to
respondent Judge Camilon, and Criminal Cases Nos. 45542 to 45545, raffled off to Judge Pronove.
In all cases, petitioner has been admitted to bail in the total amount of P105,000.00, with FGU
Instance Corporation as surety.

On March 1, 1982, petitioner filed before each of the trial courts a motion entitled, "motion for
permission to leave the country," stating as ground therefor his desire to go to the United States,
"relative to his business transactions and opportunities."  The prosecution opposed said motion and
1
after due hearing, both trial judges denied the same. The order of Judge Camilon dated March 9,
1982, reads:

Accused Ricardo Manotoc Jr. desires to leave for the United States on the all
embracing ground that his trip is ... relative to his business transactions and
opportunities.

The Court sees no urgency from this statement. No matter of any magnitude is
discerned to warrant judicial imprimatur on the proposed trip.

In view thereof, permission to leave the country is denied Ricardo Manotoc, Jr. now
or in the future until these two (2) cases are terminated . 2

On the other hand, the order of Judge Pronove dated March 26, 1982, reads in part:

6.-Finally, there is also merit in the prosecution's contention that if the Court would
allow the accused to leave the Philippines the surety companies that filed the bail
bonds in his behalf might claim that they could no longer be held liable in their
undertakings because it was the Court which allowed the accused to go outside the
territorial jurisdiction of the Philippine Court, should the accused fail or decide not to
return.

WHEREFORE, the motion of the accused is DENIED.  3

It appears that petitioner likewise wrote the Immigration Commissioner a letter requesting the recall
or withdrawal of the latter's memorandum dated February 4, 1980, but said request was also denied
in a letter dated May 27, 1982.

Petitioner thus filed a petition for certiorari and mandamus before the then Court of
Appeals   seeking to annul the orders dated March 9 and 26, 1982, of Judges Camilon and Pronove,
4

respectively, as well as the communication-request of the Securities and Exchange Commission,

denying his leave to travel abroad. He likewise prayed for the issuance of the appropriate writ
commanding the Immigration Commissioner and the Chief of the Aviation Security Command
(AVSECOM) to clear him for departure.

On October 5, 1982, the appellate court rendered a decision   dismissing the petition for lack of
5

merit.

Dissatisfied with the appellate court's ruling, petitioner filed the instant petition for review on
certiorari. Pending resolution of the petition to which we gave due course on April 14,
1983   petitioner filed on August 15, 1984 a motion for leave to go abroad pendente lite.  In his
6 7

motion, petitioner stated that his presence in Louisiana, U.S.A. is needed in connection "with the
obtention of foreign investment in Manotoc Securities, Inc."  He attached the letter dated August 9,
8

1984 of the chief executive officer of the Exploration Company of Louisiana, Inc., Mr. Marsden W.
Miller  requesting his presence in the United States to "meet the people and companies who would
9

be involved in its investments." Petitioner, likewise manifested that on August 1, 1984, Criminal
Cases Nos. 4933 to 4936 of the Regional Trial Court of Makati (formerly Nos. 45542-45545) had
been dismissed as to him "on motion of the prosecution on the ground that after verification of the
records of the Securities and Exchange Commission ... (he) was not in any way connected with the
Manotoc Securities, Inc. as of the date of the commission of the offenses imputed to him."   Criminal
10

Cases Nos. 45399 and 45400 of the Regional Trial Court of Makati, however, remained pending as
Judge Camilon, when notified of the dismissal of the other cases against petitioner, instead of
dismissing the cases before him, ordered merely the informations amended so as to delete the
allegation that petitioner was president and to substitute that he was "controlling/majority
stockholder,''   of Manotoc Securities, Inc. On September 20, 1984, the Court in a resolution en
11

banc denied petitioner's motion for leave to go abroad pendente lite.  12

Petitioner contends that having been admitted to bail as a matter of right, neither the courts which
granted him bail nor the Securities and Exchange Commission which has no jurisdiction over his
liberty, could prevent him from exercising his constitutional right to travel.

Petitioner's contention is untenable.

A court has the power to prohibit a person admitted to bail from leaving the Philippines. This is a
necessary consequence of the nature and function of a bail bond.

Rule 114, Section 1 of the Rules of Court defines bail as the security required and given for the
release of a person who is in the custody of the law, that he will appear before any court in which his
appearance may be required as stipulated in the bail bond or recognizance.

Its object is to relieve the accused of imprisonment and the state of the burden of
keeping him, pending the trial, and at the same time, to put the accused as much
under the power of the court as if he were in custody of the proper officer, and to
secure the appearance of the accused so as to answer the call of the court and do
what the law may require of him. 13

The condition imposed upon petitioner to make himself available at all times whenever the court
requires his presence operates as a valid restriction on his right to travel. As we have held in People
vs. Uy Tuising, 61 Phil. 404 (1935).

... the result of the obligation assumed by appellee (surety) to hold the accused
amenable at all times to the orders and processes of the lower court, was to prohibit
said accused from leaving the jurisdiction of the Philippines, because, otherwise, said
orders and processes will be nugatory, and inasmuch as the jurisdiction of the courts
from which they issued does not extend beyond that of the Philippines they would
have no binding force outside of said jurisdiction.

Indeed, if the accused were allowed to leave the Philippines without sufficient reason, he may be
placed beyond the reach of the courts.

The effect of a recognizance or bail bond, when fully executed or filed of record, and
the prisoner released thereunder, is to transfer the custody of the accused from the
public officials who have him in their charge to keepers of his own selection. Such
custody has been regarded merely as a continuation of the original imprisonment.
The sureties become invested with full authority over the person of the principal and
have the right to prevent the principal from leaving the state.
14

If the sureties have the right to prevent the principal from leaving the state, more so then has the
court from which the sureties merely derive such right, and whose jurisdiction over the person of the
principal remains unaffected despite the grant of bail to the latter. In fact, this inherent right of the
court is recognized by petitioner himself, notwithstanding his allegation that he is at total liberty to
leave the country, for he would not have filed the motion for permission to leave the country in the
first place, if it were otherwise.

To support his contention, petitioner places reliance upon the then Court of Appeals' ruling in People
vs. Shepherd (C.A.-G.R. No. 23505-R, February 13, 1980) particularly citing the following passage:

... The law obliges the bondsmen to produce the person of the appellants at the
pleasure of the Court. ... The law does not limit such undertaking of the bondsmen as
demandable only when the appellants are in the territorial confines of the Philippines
and not demandable if the appellants are out of the country. Liberty, the most
important consequence of bail, albeit provisional, is indivisible. If granted at all, liberty
operates as fully within as without the boundaries of the granting state. This principle
perhaps accounts for the absence of any law or jurisprudence expressly declaring
that liberty under bail does not transcend the territorial boundaries of the country.

The faith reposed by petitioner on the above-quoted opinion of the appellate court is misplaced. The
rather broad and generalized statement suffers from a serious fallacy; for while there is, indeed,
neither law nor jurisprudence expressly declaring that liberty under bail does not transcend the
territorial boundaries of the country, it is not for the reason suggested by the appellate court.

Also, petitioner's case is not on all fours with the Shepherd case. In the latter case, the accused was
able to show the urgent necessity for her travel abroad, the duration thereof and the conforme of her
sureties to the proposed travel thereby satisfying the court that she would comply with the conditions
of her bail bond. in contrast, petitioner in this case has not satisfactorily shown any of the above. As
aptly observed by the Solicitor General in his comment:

A perusal of petitioner's 'Motion for Permission to Leave the Country' will show that it
is solely predicated on petitioner's wish to travel to the United States where he will,
allegedly attend to some business transactions and search for business
opportunities. From the tenor and import of petitioner's motion, no urgent or
compelling reason can be discerned to justify the grant of judicial imprimatur thereto.
Petitioner has not sufficiently shown that there is absolute necessity for him to travel
abroad. Petitioner's motion bears no indication that the alleged business transactions
could not be undertaken by any other person in his behalf. Neither is there any hint
that petitioner's absence from the United States would absolutely preclude him from
taking advantage of business opportunities therein, nor is there any showing that
petitioner's non-presence in the United States would cause him irreparable damage
or prejudice. 15

Petitioner has not specified the duration of the proposed travel or shown that his surety has agreed
to it. Petitioner merely alleges that his surety has agreed to his plans as he had posted cash
indemnities. The court cannot allow the accused to leave the country without the assent of the surety
because in accepting a bail bond or recognizance, the government impliedly agrees "that it will not
take any proceedings with the principal that will increase the risks of the sureties or affect their
remedies against him. Under this rule, the surety on a bail bond or recognizance may be discharged
by a stipulation inconsistent with the conditions thereof, which is made without his assent. This result
has been reached as to a stipulation or agreement to postpone the trial until after the final disposition
of other cases, or to permit the principal to leave the state or country."   Thus, although the order of
16

March 26, 1982 issued by Judge Pronove has been rendered moot and academic by the dismissal
as to petitioner of the criminal cases pending before said judge, We see the rationale behind said
order.
As petitioner has failed to satisfy the trial courts and the appellate court of the urgency of his travel,
the duration thereof, as well as the consent of his surety to the proposed travel, We find no abuse of
judicial discretion in their having denied petitioner's motion for permission to leave the country, in
much the same way, albeit with contrary results, that We found no reversible error to have been
committed by the appellate court in allowing Shepherd to leave the country after it had satisfied itself
that she would comply with the conditions of her bail bond.

To our mind, the order of the trial court releasing petitioner on bail constitutes such lawful order as
contemplated by the above-quoted constitutional provision.

Finding the decision of the appellate court to be in accordance with law and jurisprudence, the Court
finds that no gainful purpose will be served in discussing the other issues raised by petitioner.

WHEREFORE, the petition for review is hereby dismissed, with costs against petitioner.

SO ORDERED.
G.R. No. 94284             April 8, 1991

RICARDO C. SILVERIO, petitioner,
vs.
THE COURT OF APPEALS, HON. BENIGNO G. GAVIOLA, as Judge of the Regional Trial Court
of Cebu City, Branch IX, and PEOPLE OF THE PHILIPPINES, respondents.

Quisumbing, Torres & Evangelista for petitioner.

MELENCIO-HERRERA, J.:

This is a Petition for Review on Certiorari under Rule 45 of the Rules of Court praying that the
Decision of respondent Court of Appeals in CA-G.R. SP No. 15827, entitled "Ricardo C. Silverio vs.
Hon. Benigno C. Gaviola, etc., et al.," dated 31 January 1990, as well as the Resolution of 29 June
1990 denying reconsideration, be set aside.

On 14 October 1985, Petitioner was charged with violation of Section 20 (4) of the Revised
Securities Act in Criminal Case No. CBU-6304 of the Regional Trial Court of Cebu. In due time, he
posted bail for his provisional liberty.

On 26 January 1988, or more than two (2) years after the filing of the Information, respondent
People of the Philippines filed an Urgent ex parte Motion to cancel the passport of and to issue a
hold-departure Order against accused-petitioner on the ground that he had gone abroad several
times without the necessary Court approval resulting in postponements of the arraignment and
scheduled hearings.

Overruling opposition, the Regional Trial Court, on 4 April 1988, issued an Order directing the
Department of Foreign Affairs to cancel Petitioner's passport or to deny his application therefor, and
the Commission on Immigration to prevent Petitioner from leaving the country. This order was based
primarily on the Trial Court's finding that since the filing of the Information on 14 October 1985, "the
accused has not yet been arraigned because he has never appeared in Court on the dates
scheduled for his arraignment and there is evidence to show that accused Ricardo C. Silverio, Sr.
has left the country and has gone abroad without the knowledge and permission of this Court"
(Rollo, p. 45). Petitioner's Motion for Reconsideration was denied on 28 July 1988.

Petitioner's Certiorari Petition before the Court of Appeals met a similar fate on 31 January 1990.
Hence, this Petition for Review filed on 30 July 1990.

After the respective pleadings required by the Court were filed, we resolved to give due course and
to decide the case.

Petitioner contends that respondent Court of Appeals erred in not finding that the Trial Court
committed grave abuse of discretion amounting to lack of jurisdiction in issuing its Orders, dated 4
April and 28 July 1988, (1) on the basis of facts allegedly patently erroneous, claiming that the
scheduled arraignments could not be held because there was a pending Motion to Quash the
Information; and (2) finding that the right to travel can be impaired upon lawful order of the Court,
even on grounds other than the "interest of national security, public safety or public health."
We perceive no reversible error.

1) Although the date of the filing of the Motion to Quash has been omitted by Petitioner, it is
apparent that it was filed long after the filing of the Information in 1985 and only after several
arraignments had already been scheduled and cancelled due to Petitioner's non-appearance. In fact,
said Motion to Quash was set for hearing only on 19 February 1988. Convincingly shown by the Trial
Court and conformed to by respondent Appellate Court is the concurrence of the following
circumstances:

1. The records will show that the information was filed on October 14, 1985. Until this date
(28 July 1988), the case had yet to be arraigned. Several scheduled arraignments were
cancelled and reset, mostly due to the failure of accused Silverio to appear. The reason for
accused Silverio's failure to appear had invariably been because he is abroad in the United
States of America;

2. Since the information was filed, until this date, accused Silverio had never appeared in
person before the Court;

3. The bond posted by accused Silverio had been cancelled twice and warrants of arrest had
been issued against him all for the same reason –– failure to appear at scheduled
arraignments.

In all candidness, the Court makes the observation that it has given accused Silverio more
than enough consideration. The limit had long been reached (Order, 28 July 1988, Crim.
Case No. CBU-6304, RTC, Cebu, p. 5; Rollo, p. 73).

Patently, therefore, the questioned RTC Orders, dated 4 April 1988 and 28 July 1988, were not
based on erroneous facts, as Petitioner would want this Court to believe. To all appearances, the
pendency of a Motion to Quash came about only after several settings for arraignment had been
scheduled and cancelled by reason of Petitioner's non-appearance.

2) Petitioner's further submission is that respondent Appellate Court "glaringly erred" in finding that
the right to travel can be impaired upon lawful order of the Court, even on grounds other than the
"interest of national security, public safety or public health."

To start with, and this has not been controverted by Petitioner, the bail bond he had posted had
been cancelled and Warrants of Arrest had been issued against him by reason, in both instances, of
his failure to appear at scheduled arraignments. Warrants of Arrest having been issued against him
for violation of the conditions of his bail bond, he should be taken into custody. "Bail is the security
given for the release of a person in custody of the law, furnished by him or a bondsman, conditioned
upon his appearance before any court when so required by the Court or the Rules (1985 Rules on
Criminal Procedure, as amended, Rule 114, Secs. 1 and 2).

The foregoing condition imposed upon an accused to make himself available at all times whenever
the Court requires his presence operates as a valid restriction of his right to travel (Manotoc, Jr. vs.
Court of Appeals, et al. No. 62100, 30 May 1986, 142 SCRA 149). A person facing criminal charges
may be restrained by the Court from leaving the country or, if abroad, compelled to return
(Constitutional Law, Cruz, Isagani A., 1987 Edition, p. 138). So it is also that "An accused released
on bail may be re-arrested without the necessity of a warrant if he attempts to depart from the
Philippines without prior permission of the Court where the case is pending (ibid., Sec. 20 [2nd
par. ]).
Petitioner takes the posture, however, that while the 1987 Constitution recognizes the power of the
Courts to curtail the liberty of abode within the limits prescribed by law, it restricts the allowable
impairment of the right to travel only on grounds of interest of national security, public safety or
public health, as compared to the provisions on freedom of movement in the 1935 and 1973
Constitutions.

Under the 1935 Constitution, the liberty of abode and of travel were treated under one
provision.  Article III, Section 1(4) thereof reads:
1âwphi1

The liberty of abode and of changing the same within the limits prescribed by law shall not
be impaired.

The 1973 Constitution altered the 1935 text by explicitly including the liberty of travel, thus:

The liberty of abode and of travel shall not be impaired except upon lawful order of the court
or when necessary in the interest of national security, public safety, or public health (Article
IV, Section 5).

The 1987 Constitution has split the two freedoms into two distinct sentences and treats them
differently, to wit:

Sec. 6. The liberty of abode and of changing the same within the limits prescribed by law
shall not be impaired except upon lawful order of the court. Neither shall the right to travel be
impaired except in the interest of national security, public safety, or public health, as may be
provided by law.

Petitioner thus theorizes that under the 1987 Constitution, Courts can impair the right to travel only
on the grounds of "national security, public safety, or public health."

The submission is not well taken.

Article III, Section 6 of the 1987 Constitution should be interpreted to mean that while the liberty of
travel may be impaired even without Court Order, the appropriate executive officers or administrative
authorities are not armed with arbitrary discretion to impose limitations. They can impose limits only
on the basis of "national security, public safety, or public health" and "as may be provided by law," a
limitive phrase which did not appear in the 1973 text (The Constitution, Bernas, Joaquin G.,S.J., Vol.
I, First Edition, 1987, p. 263). Apparently, the phraseology in the 1987 Constitution was a reaction to
the ban on international travel imposed under the previous regime when there was a Travel
Processing Center, which issued certificates of eligibility to travel upon application of an interested
party (See Salonga vs. Hermoso & Travel Processing Center, No. 53622, 25 April 1980, 97 SCRA
121).

Article III, Section 6 of the 1987 Constitution should by no means be construed as delimiting the
inherent power of the Courts to use all means necessary to carry their orders into effect in criminal
cases pending before them. When by law jurisdiction is conferred on a Court or judicial officer, all
auxillary writs, process and other means necessary to carry it into effect may be employed by such
Court or officer (Rule 135, Section 6, Rules of Court).

Petitioner's argument that the ruling in Manotoc, Jr., v. Court of Appeals, et al. (supra), to the effect
that the condition imposed upon an accused admitted to bail to make himself available at all times
whenever the Court requires his presence operates as a valid restriction on the right to travel no
longer holds under the 1987 Constitution, is far from tenable. The nature and function of a bail bond
has remained unchanged whether under the 1935, the 1973, or the 1987 Constitution. Besides,
the Manotoc ruling on that point was but a re-affirmation of that laid down long before in People v.
Uy Tuising, 61 Phil. 404 (1935).

Petitioner is facing a criminal charge. He has posted bail but has violated the conditions thereof by
failing to appear before the Court when required. Warrants for his arrest have been issued. Those
orders and processes would be rendered nugatory if an accused were to be allowed to leave or to
remain, at his pleasure, outside the territorial confines of the country. Holding an accused in a
criminal case within the reach of the Courts by preventing his departure from the Philippines must be
considered as a valid restriction on his right to travel so that he may be dealt with in accordance with
law. The offended party in any criminal proceeding is the People of the Philippines. It is to their best
interest that criminal prosecutions should run their course and proceed to finality without undue
delay, with an accused holding himself amenable at all times to Court Orders and processes.

WHEREFORE, the judgment under review is hereby AFFIRMED. Costs against petitioner, Ricardo
C. Silverio.

SO ORDERED.
G.R. No. L-72119 May 29, 1987

VALENTIN L. LEGASPI, petitioner,
vs.
CIVIL SERVICE COMMISSION, respondent.

CORTES, J.:

The fundamental right of the people to information on matters of public concern is invoked in this
special civil action for mandamus instituted by petitioner Valentin L. Legaspi against the Civil Service
Commission. The respondent had earlier denied Legaspi's request for information on the civil service
eligibilities of certain persons employed as sanitarians in the Health Department of Cebu City. These
government employees, Julian Sibonghanoy and Mariano Agas, had allegedly represented
themselves as civil service eligibles who passed the civil service examinations for sanitarians.

Claiming that his right to be informed of the eligibilities of Julian Sibonghanoy and Mariano Agas, is
guaranteed by the Constitution, and that he has no other plain, speedy and adequate remedy to
acquire the information, petitioner prays for the issuance of the extraordinary writ of mandamus to
compel the respondent Commission to disclose said information.

This is not the first tune that the writ of mandamus is sought to enforce the fundamental right to
information. The same remedy was resorted to in the case of Tanada et. al. vs. Tuvera et. al., (G.R.
No. L-63915, April 24,1985,136 SCRA 27) wherein the people's right to be informed under the 1973
Constitution (Article IV, Section 6) was invoked in order to compel the publication in the Official
Gazette of various presidential decrees, letters of instructions and other presidential issuances. Prior
to the recognition of the right in said Constitution the statutory right to information provided for in the
Land Registration Act (Section 56, Act 496, as amended) was claimed by a newspaper editor in
another mandamus proceeding, this time to demand access to the records of the Register of Deeds
for the purpose of gathering data on real estate transactions involving aliens (Subido vs. Ozaeta, 80
Phil. 383 [1948]).

The constitutional right to information on matters of public concern first gained recognition in the Bill
of Rights, Article IV, of the 1973 Constitution, which states:

Sec. 6. 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, shall be afforded the citizen subject to such
limitations as may be provided by law.

The foregoing provision has been retained and the right therein provided amplified in Article III, Sec.
7 of the 1987 Constitution with the addition of the phrase, "as well as to government research data
used as basis for policy development." The new provision reads:

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
stations as may be provided by law.
These constitutional provisions are self-executing. They supply the rules by means of which the right
to information may be enjoyed (Cooley, A Treatise on the Constitutional Limitations 167 [1927]) by
guaranteeing the right and mandating the duty to afford access to sources of information. Hence, the
fundamental right therein recognized may be asserted by the people upon the ratification of the
constitution without need for any ancillary act of the Legislature. (Id. at, p. 165) What may be
provided for by the Legislature are reasonable conditions and limitations upon the access to be
afforded which must, of necessity, be consistent with the declared State policy of full public
disclosure of all transactions involving public interest (Constitution, Art. 11, Sec. 28). However, it
cannot be overemphasized that whatever limitation may be prescribed by the Legislature, the right
and the duty under Art. III Sec. 7 have become operative and enforceable by virtue of the adoption
of the New Charter. Therefore, the right may be properly invoked in a mandamus proceeding such
as this one.

The Solicitor General interposes procedural objections to Our giving due course to this Petition. He
challenges the petitioner's standing to sue upon the ground that the latter does not possess any
clear legal right to be informed of the civil service eligibilities of the government employees
concerned. He calls attention to the alleged failure of the petitioner to show his actual interest in
securing this particular information. He further argues that there is no ministerial duty on the part of
the Commission to furnish the petitioner with the information he seeks.

1. To be given due course, a Petition for mandamus must have been instituted by a party aggrieved
by the alleged inaction of any tribunal, corporation, board or person which unlawfully excludes said
party from the enjoyment of a legal right. (Ant;-Chinese League of the Philippines vs. Felix, 77 Phil.
1012 [1947]). The petitioner in every case must therefore be an "aggrieved party" in the sense that
he possesses a clear legal right to be enforced and a direct interest in the duty or act to be
performed.

In the case before Us, the respondent takes issue on the personality of the petitioner to bring this
suit. It is asserted that, the instant Petition is bereft of any allegation of Legaspi's actual interest in
the civil service eligibilities of Julian Sibonghanoy and Mariano Agas, At most there is a vague
reference to an unnamed client in whose behalf he had allegedly acted when he made inquiries on
the subject (Petition, Rollo, p. 3).

But what is clear upon the face of the Petition is that the petitioner has firmly anchored his case upon
the right of the people to information on matters of public concern, which, by its very nature, is a
public right. It has been held that:

* * * when the question is one of public right and the object of the mandamus is to
procure the enforcement of a public duty, the people are regarded as the real party in
interest and the relator at whose instigation the proceedings are instituted need not
show that he has any legal or special interest in the result, it being sufficient to show
that he is a citizen and as such interested in the execution of the laws * * * (Tanada
et. al. vs. Tuvera, et. al., G.R. No. L- 63915, April 24, 1985, 136 SCRA 27, 36).

From the foregoing, it becomes apparent that when a mandamus proceeding involves the assertion
of a public right, the requirement of personal interest is satisfied by the mere fact that the petitioner is
a citizen, and therefore, part of the general "public" which possesses the right.

The Court had opportunity to define the word "public" in the Subido case, supra, when it held that
even those who have no direct or tangible interest in any real estate transaction are part of the
"public" to whom "(a)ll records relating to registered lands in the Office of the Register of Deeds shall
be open * * *" (Sec. 56, Act No. 496, as amended). In the words of the Court:
 * * * "Public" is a comprehensive, all-inclusive term. Properly construed, it embraces
every person. To say that only those who have a present and existing interest of a
pecuniary character in the particular information sought are given the right of
inspection is to make an unwarranted distinction. *** (Subido vs. Ozaeta, supra at p.
387).

The petitioner, being a citizen who, as such is clothed with personality to seek redress for the
alleged obstruction of the exercise of the public right. We find no cogent reason to deny his standing
to bring the present suit.

2. For every right of the people recognized as fundamental, there lies a corresponding duty on the
part of those who govern, to respect and protect that right. That is the very essence of the Bill of
Rights in a constitutional regime. Only governments operating under fundamental rules defining the
limits of their power so as to shield individual rights against its arbitrary exercise can properly claim
to be constitutional (Cooley, supra, at p. 5). Without a government's acceptance of the limitations
imposed upon it by the Constitution in order to uphold individual liberties, without an
acknowledgment on its part of those duties exacted by the rights pertaining to the citizens, the Bill of
Rights becomes a sophistry, and liberty, the ultimate illusion.

In recognizing the people's right to be informed, both the 1973 Constitution and the New Charter
expressly mandate the duty of the State and its agents to afford access to official records,
documents, papers and in addition, government research data used as basis for policy development,
subject to such limitations as may be provided by law. The guarantee has been further enhanced in
the New Constitution with the adoption of a policy of full public disclosure, this time "subject to
reasonable conditions prescribed by law," in Article 11, Section 28 thereof, to wit:

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. (Art.
11, Sec. 28).

In the Tanada case, supra, the constitutional guarantee was bolstered by what this Court declared

as an imperative duty of the government officials concerned to publish all important legislative acts
and resolutions of a public nature as well as all executive orders and proclamations of general
applicability. We granted mandamus in said case, and in the process, We found occasion to
expound briefly on the nature of said duty:

* * * That duty must be enforced if the Constitutional right of the people to be

informed on matters of public concern is to be given substance and reality. The law
itself makes a list of what should be published in the Official Gazette. Such listing, to
our mind, leaves respondents with no discretion whatsoever as to what must be in
included or excluded from such publication. (Tanada v. Tuvera, supra, at 39).
(Emphasis supplied).

The absence of discretion on the part of government agencia es in allowing the examination of
public records, specifically, the records in the Office of the Register of Deeds, is emphasized
in Subido vs. Ozaeta, supra:

Except, perhaps when it is clear that the purpose of the examination is unlawful, or
sheer, idle curiosity, we do not believe it is the duty under the law of registration
officers to concern themselves with the motives, reasons, and objects of the person
seeking access to the records. It is not their prerogative to see that the information
which the records contain is not flaunted before public gaze, or that scandal is not
 made of it. If it be wrong to publish the contents of the records, it is the legislature
and not the officials having custody thereof which is called upon to devise a
remedy. *** (Subido v. Ozaeta, supra at 388). (Emphasis supplied).

It is clear from the foregoing pronouncements of this Court that government agencies are without
discretion in refusing disclosure of, or access to, information of public concern. This is not to lose
sight of the reasonable regulations which may be imposed by said agencies in custody of public
records on the manner in which the right to information may be exercised by the public. In
the Subido case, We recognized the authority of the Register of Deeds to regulate the manner in
which persons desiring to do so, may inspect, examine or copy records relating to registered lands.
However, the regulations which the Register of Deeds may promulgate are confined to:

* * * prescribing the manner and hours of examination to the end that damage to or
loss of, the records may be avoided, that undue interference with the duties of the
custodian of the books and documents and other employees may be prevented, that
the right of other persons entitled to make inspection may be insured * * * (Subido vs.
Ozaeta, 80 Phil. 383, 387)

Applying the Subido ruling by analogy, We recognized a similar authority in a municipal judge, to

regulate the manner of inspection by the public of criminal docket records in the case of Baldoza vs.
Dimaano (Adm. Matter No. 1120-MJ, May 5, 1976, 71 SCRA 14). Said administrative case was filed
against the respondent judge for his alleged refusal to allow examination of the criminal docket
records in his sala. Upon a finding by the Investigating Judge that the respondent had allowed the
complainant to open and view the subject records, We absolved the respondent. In effect, We have
also held that the rules and conditions imposed by him upon the manner of examining the public
records were reasonable.

In both the Subido and the Baldoza cases, We were emphatic in Our statement that the authority to
regulate the manner of examining public records does not carry with it the power to prohibit. A
distinction has to be made between the discretion to refuse outright the disclosure of or access to a
particular information and the authority to regulate the manner in which the access is to be afforded.
The first is a limitation upon the availability of access to the information sought, which only the
Legislature may impose (Art. III, Sec. 6, 1987 Constitution). The second pertains to the government
agency charged with the custody of public records. Its authority to regulate access is to be exercised
solely to the end that damage to, or loss of, public records may be avoided, undue interference with
the duties of said agencies may be prevented, and more importantly, that the exercise of the same
constitutional right by other persons shall be assured (Subido vs. Ozaetal supra).

Thus, while the manner of examining public records may be subject to reasonable regulation by the
government agency in custody thereof, the duty to disclose the information of public concern, and to
afford access to public records cannot be discretionary on the part of said agencies. Certainly, its
performance cannot be made contingent upon the discretion of such agencies. Otherwise, the
enjoyment of the constitutional right may be rendered nugatory by any whimsical exercise of agency
discretion. The constitutional duty, not being discretionary, its performance may be compelled by a
writ of mandamus in a proper case.

But what is a proper case for Mandamus to issue? In the case before Us, the public right to be
enforced and the concomitant duty of the State are unequivocably set forth in the Constitution. The
decisive question on the propriety of the issuance of the writ of mandamus in this case is, whether
the information sought by the petitioner is within the ambit of the constitutional guarantee.
3. The incorporation in the Constitution of a guarantee of access to information of public concern is a
recognition of the essentiality of the free flow of ideas and information in a democracy (Baldoza v.
Dimaano, Adm. Matter No. 1120-MJ, May 5, 1976, 17 SCRA 14). In the same way that free
discussion enables members of society to cope with the exigencies of their time (Thornhill vs.
Alabama, 310 U.S. 88,102 [1939]), access to information of general interest aids the people in
democratic decision-making (87 Harvard Law Review 1505 [1974]) by giving them a better
perspective of the vital issues confronting the nation.

But the constitutional guarantee to information on matters of public concern is not absolute. It does
not open every door to any and all information. Under the Constitution, access to official records,
papers, etc., are "subject to limitations as may be provided by law" (Art. III, Sec. 7, second
sentence). The law may therefore exempt certain types of information from public scrutiny, such as
those affecting national security (Journal No. 90, September 23, 1986, p. 10; and Journal No. 91,
September 24, 1986, p. 32, 1986 Constitutional Commission). It follows that, in every case, the
availability of access to a particular public record must be circumscribed by the nature of the
information sought, i.e., (a) being of public concern or one that involves public interest, and, (b) not
being exempted by law from the operation of the constitutional guarantee. The threshold question is,
therefore, whether or not the information sought is of public interest or public concern.

a. This question is first addressed to the government agency having custody of the desired
information. However, as already discussed, this does not give the agency concerned any discretion
to grant or deny access. In case of denial of access, the government agency has the burden of
showing that the information requested is not of public concern, or, if it is of public concern, that the
same has been exempted by law from the operation of the guarantee. To hold otherwise will serve to
dilute the constitutional right. As aptly observed, ". . . the government is in an advantageous position
to marshall and interpret arguments against release . . ." (87 Harvard Law Review 1511 [1974]). To
safeguard the constitutional right, every denial of access by the government agency concerned is
subject to review by the courts, and in the proper case, access may be compelled by a writ of
Mandamus.

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 in a case by case basis whether
the matter at issue is of interest or importance, as it relates to or affects the public.

The public concern invoked in the case of Tanada v. Tuvera, supra, was the need for adequate
notice to the public of the various laws which are to regulate the actions and conduct of citizens.
In Subido vs. Ozaeta, supra, the public concern deemed covered by the statutory right was the
knowledge of those real estate transactions which some believed to have been registered in
violation of the Constitution.

The information sought by the petitioner in this case is the truth of the claim of certain government
employees that they are civil service eligibles for the positions to which they were appointed. The
Constitution expressly declares as a State policy that:

Appointments in the civil service shall be made only according to merit and fitness to
be determined, as far as practicable, and except as to positions which are policy
determining, primarily confidential or highly technical, by competitive examination.
(Art. IX, B, Sec. 2.[2]).
Public office being a public trust, [Const. Art. XI, Sec. 1] it is the legitimate concern of citizens to
ensure that government positions requiring civil service eligibility are occupied only by persons who
are eligibles. Public officers are at all times accountable to the people even as to their eligibilities for
their respective positions.

b. But then, it is not enough that the information sought is of public interest. For mandamus to lie in a
given case, the information must not be among the species exempted by law from the operation of
the constitutional guarantee.

In the instant, case while refusing to confirm or deny the claims of eligibility, the respondent has
failed to cite any provision in the Civil Service Law which would limit the petitioner's right to know
who are, and who are not, civil service eligibles. We take judicial notice of the fact that the names of
those who pass the civil service examinations, as in bar examinations and licensure examinations
for various professions, are released to the public. Hence, there is nothing secret about one's civil
service eligibility, if actually possessed. Petitioner's request is, therefore, neither unusual nor
unreasonable. And when, as in this case, the government employees concerned claim to be civil
service eligibles, the public, through any citizen, has a right to verify their professed eligibilities from
the Civil Service Commission.

The civil service eligibility of a sanitarian being of public concern, and in the absence of express
limitations under the law upon access to the register of civil service eligibles for said position, the
duty of the respondent Commission to confirm or deny the civil service eligibility of any person
occupying the position becomes imperative. Mandamus, therefore lies.

WHEREFORE, the Civil Service Commission is ordered to open its register of eligibles for the
position of sanitarian, and to confirm or deny, the civil service eligibility of Julian Sibonghanoy and
Mariano Agas, for said position in the Health Department of Cebu City, as requested by the
petitioner Valentin L. Legaspi.
G.R. No. 74930 February 13, 1989

RICARDO VALMONTE, OSWALDO CARBONELL, DOY DEL CASTILLO, ROLANDO

BARTOLOME, LEO OBLIGAR, JUN GUTIERREZ, REYNALDO BAGATSING, JUN "NINOY"
ALBA, PERCY LAPID, ROMMEL CORRO and ROLANDO FADUL, petitioners,
vs.
FELICIANO BELMONTE, JR., respondent.

Ricardo C. Valmonte for and in his own behalf and his co-petitioners.

The Solicitor General for respondent.

CORTES, J.:

Petitioners in this special civil action for mandamus with preliminary injunction invoke their right to
information and pray that respondent be directed:

(a) to furnish petitioners the list of the names of the Batasang

Pambansa members belonging to the UNIDO and PDP-Laban who
were able to secure clean loans immediately before the February 7
election thru the intercession/marginal note of the then First Lady
Imelda Marcos; and/or

(b) to furnish petitioners with certified true copies of the documents

evidencing their respective loans; and/or

(c) to allow petitioners access to the public records for the subject
information. (Petition, pp. 4-5; paragraphing supplied.]

The controversy arose when petitioner Valmonte wrote respondent Belmonte the following letter:

June 4, 1986

Hon. Feliciano Belmonte

GSIS General Manager
Arroceros, Manila

Sir:

As a lawyer, member of the media and plain citizen of our Republic, I am requesting
that I be furnished with the list of names of the opposition members of (the) Batasang
Pambansa who were able to secure a clean loan of P2 million each on guarranty
(sic) of Mrs. Imelda Marcos. We understand that OIC Mel Lopez of Manila was one
of those aforesaid MPs. Likewise, may we be furnished with the certified true copies
of the documents evidencing their loan. Expenses in connection herewith shall be
borne by us.
 If we could not secure the above documents could we have access to them?

We are premising the above request on the following provision of the Freedom
Constitution of the present regime.

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, shall be
afforded the citizen subject to such limitation as may be provided by
law. (Art. IV, Sec. 6).

We trust that within five (5) days from receipt hereof we will receive your favorable
response on the matter.

Very truly yours,

(Sgd.)
RICAR
DO C.
VALMO
NTE

[Rollo, p. 7.]

To the aforesaid letter, the Deputy General Counsel of the GSIS replied:

June 17, 1986

Atty. Ricardo C. Valmonte

108 E. Benin Street
Caloocan City

Dear Compañero:

Possibly because he must have thought that it contained serious legal implications,
President & General Manager Feliciano Belmonte, Jr. referred to me for study and
reply your letter to him of June 4, 1986 requesting a list of the opposition members of
Batasang Pambansa who were able to secure a clean loan of P2 million each on
guaranty of Mrs. Imelda Marcos.

My opinion in this regard is that a confidential relationship exists between the GSIS
and all those who borrow from it, whoever they may be; that the GSIS has a duty to
its customers to preserve this confidentiality; and that it would not be proper for the
GSIS to breach this confidentiality unless so ordered by the courts.

As a violation of this confidentiality may mar the image of the GSIS as a reputable
financial institution, I regret very much that at this time we cannot respond positively
to your request.

Very truly yours,

 (Sgd.) MEYNARDO A. TIRO
Deputy General Counsel
[Rollo, p. 40.]

On June 20, 1986, apparently not having yet received the reply of the Government Service and
Insurance System (GSIS) Deputy General Counsel, petitioner Valmonte wrote respondent another
letter, saying that for failure to receive a reply, "(W)e are now considering ourselves free to do
whatever action necessary within the premises to pursue our desired objective in pursuance of
public interest." [Rollo, p. 8.]

On June 26, 1986, Valmonte, joined by the other petitioners, filed the instant suit.

On July 19, 1986, the Daily Express carried a news item reporting that 137 former members of the
defunct interim and regular Batasang Pambansa, including ten (10) opposition members, were
granted housing loans by the GSIS [Rollo, p. 41.]

Separate comments were filed by respondent Belmonte and the Solicitor General. After petitioners
filed a consolidated reply, the petition was given due course and the parties were required to file
their memoranda. The parties having complied, the case was deemed submitted for decision.

In his comment respondent raises procedural objections to the issuance of a writ of mandamus,
among which is that petitioners have failed to exhaust administrative remedies.

Respondent claims that actions of the GSIS General Manager are reviewable by the Board of
Trustees of the GSIS. Petitioners, however, did not seek relief from the GSIS Board of Trustees. It is
therefore asserted that since administrative remedies were not exhausted, then petitioners have no
cause of action.

To this objection, petitioners claim that they have raised a purely legal issue, viz., whether or not
they are entitled to the documents sought, by virtue of their constitutional right to information. Hence,
it is argued that this case falls under one of the exceptions to the principle of exhaustion of
administrative remedies.

Among the settled principles in administrative law is that before a party can be allowed to resort to
the courts, he is expected to have exhausted all means of administrative redress available under the
law. The courts for reasons of law, comity and convenience will not entertain a case unless the
available administrative remedies have been resorted to and the appropriate authorities have been
given opportunity to act and correct the errors committed in the administrative forum. However, the
principle of exhaustion of administrative remedies is subject to settled exceptions, among which is
when only a question of law is involved [Pascual v. Provincial Board, 106 Phil. 466 (1959); Aguilar v.
Valencia, et al., G.R. No. L-30396, July 30, 1971, 40 SCRA 210; Malabanan v. Ramento, G.R. No.
L-2270, May 21, 1984, 129 SCRA 359.] The issue raised by petitioners, which requires the
interpretation of the scope of the constitutional right to information, is one which can be passed upon
by the regular courts more competently than the GSIS or its Board of Trustees, involving as it does a
purely legal question. Thus, the exception of this case from the application of the general rule on
exhaustion of administrative remedies is warranted. Having disposed of this procedural issue, We
now address ourselves to the issue of whether or not mandamus hes to compel respondent to
perform the acts sought by petitioners to be done, in pursuance of their right to information.

We shall deal first with the second and third alternative acts sought to be done, both of which involve
the issue of whether or not petitioners are entitled to access to the documents evidencing loans
granted by the GSIS.
This is not the first time that the Court is confronted with a controversy directly involving the
constitutional right to information. In Tañada v. Tuvera, G.R. No. 63915, April 24,1985, 136 SCRA 27
and in the recent case of Legaspi v. Civil Service Commission, G.R. No. 72119, May 29, 1987,150
SCRA 530, the Court upheld the people's constitutional right to be informed of matters of public
interest and ordered the government agencies concerned to act as prayed for by the petitioners.

The pertinent provision under the 1987 Constitution is Art. 111, Sec. 7 which states:

The right of the people to information on matters of public concern shall be

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

The right of access to information was also recognized in the 1973 Constitution, Art. IV Sec. 6 of
which provided:

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, shall be afforded the citizen subject to such
limitations as may be provided by law.

An informed citizenry with access to the diverse currents in political, moral and artistic thought and
data relative to them, and the free exchange of ideas and discussion of issues thereon, is vital to the
democratic government envisioned under our Constitution. The cornerstone of this republican
system of government is delegation of power by the people to the State. In this system,
governmental agencies and institutions operate within the limits of the authority conferred by the
people. Denied access to information on the inner workings of government, the citizenry can become
prey to the whims and caprices of those to whom the power had been delegated. The postulate of
public office as a public trust, institutionalized in the Constitution (in Art. XI, Sec. 1) to protect the
people from abuse of governmental power, would certainly be were empty words if access to such
information of public concern is denied, except under limitations prescribed by implementing
legislation adopted pursuant to the Constitution.

Petitioners are practitioners in media. As such, they have both the right to gather and the obligation
to check the accuracy of information the disseminate. For them, the freedom of the press and of
speech is not only critical, but vital to the exercise of their professions. The right of access to
information ensures that these freedoms are not rendered nugatory by the government's
monopolizing pertinent information. For an essential element of these freedoms is to keep open a
continuing dialogue or process of communication between the government and the people. It is in
the interest of the State that the channels for free political discussion be maintained to the end that
the government may perceive and be responsive to the people's will. 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.

The right to information is an essential premise of a meaningful right to speech and expression. But
this is not to say that the right to information is merely an adjunct of and therefore restricted in
application by the exercise of the freedoms of speech and of the press. Far from it. The right to
information goes hand-in-hand with the constitutional policies of full public disclosure  * and honesty in the
public service. ** It is meant to enhance the widening role of the citizenry in governmental decision-making as well as in checking abuse in
government.
Yet, like all the constitutional guarantees, the right to information is not absolute. As stated
in Legaspi, the people's right to information is limited to "matters of public concern," and is further
"subject to such limitations as may be provided by law." Similarly, the State's policy of full disclosure
is limited to "transactions involving public interest," and is "subject to reasonable conditions
prescribed by law."

Hence, before mandamus may issue, it must be clear that the information sought is of "public
interest" or "public concern," and is not exempted by law from the operation of the constitutional
guarantee [Legazpi v. Civil Service Commission, supra, at p. 542.]

The Court has always grappled with the meanings of the terms "public interest" and "public concern".
As observed in Legazpi:

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 citezen. 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. [Ibid. at p.
541]

In the Tañada case the public concern deemed covered by the constitutional right to information was
the need for adequate notice to the public of the various laws which are to regulate the actions and
conduct of citezens. In Legaspi, it was the "legitimate concern of citezensof ensure that government
positions requiring civil service eligibility are occupied only by persons who are eligibles" [Supra at p.
539.]

The information sought by petitioners in this case is the truth of reports that certain Members of the
Batasang Pambansa belonging to the opposition were able to secure "clean" loans from the GSIS
immediately before the February 7, 1986 election through the intercession of th eformer First Lady,
Mrs. Imelda Marcos.

The GSIS is a trustee of contributions from the government and its employees and the administrator
of various insurance programs for the benefit of the latter. Undeniably, its funds assume a public
character. More particularly, Secs. 5(b) and 46 of P.D. 1146, as amended (the Revised Government
Service Insurance Act of 1977), provide for annual appropriations to pay the contributions,
premiums, interest and other amounts payable to GSIS by the government, as employer, as well as
the obligations which the Republic of the Philippines assumes or guarantees to pay. Considering the
nature of its funds, the GSIS is expected to manage its resources with utmost prudence and in strict
compliance with the pertinent laws or rules and regulations. Thus, one of the reasons that prompted
the revision of the old GSIS law (C.A. No. 186, as amended) was the necessity "to preserve at all
times the actuarial solvency of the funds administered by the System" [Second Whereas Clause,
P.D. No. 1146.] Consequently, as respondent himself admits, the GSIS "is not supposed to grant
'clean loans.'" [Comment, p. 8.] It is therefore the legitimate concern of the public to ensure that
these funds are managed properly with the end in view of maximizing the benefits that accrue to the
insured government employees. Moreover, the supposed borrowers were Members of the defunct
Batasang Pambansa who themselves appropriated funds for the GSIS and were therefore expected
to be the first to see to it that the GSIS performed its tasks with the greatest degree of fidelity and
that an its transactions were above board.
In sum, the public nature of the loanable funds of the GSIS and the public office held by the alleged
borrowers make the information sought clearly a matter of public interest and concern.

A second requisite must be met before the right to information may be enforced through mandamus
proceedings, viz., that the information sought must not be among those excluded by law.

Respondent maintains that a confidential relationship exists between the GSIS and its borrowers. It
is argued that a policy of confidentiality restricts the indiscriminate dissemination of information.

Yet, respondent has failed to cite any law granting the GSIS the privilege of confidentiality as
regards the documents subject of this petition. His position is apparently based merely on
considerations of policy. The judiciary does not settle policy issues. The Court can only declare what
the law is, and not what the law should be. Under our system of government, policy issues are within
the domain of the political branches of the government, and of the people themselves as the
repository of all State power.

Respondent however contends that in view of the right to privacy which is equally protected by the
Constitution and by existing laws, the documents evidencing loan transactions of the GSIS must be
deemed outside the ambit of the right to information.

There can be no doubt that right to privacy is constitutionally protected. In the landmark case
of Morfe v. Mutuc [130 Phil. 415 (1968), 22 SCRA 424], this Court, speaking through then Mr.
Justice Fernando, stated:

... The right to privacy as such is accorded recognition independently of its

identification with liberty; in itself, it is fully deserving of constitutional protection. The
language of Prof. Emerson is particularly apt: "The concept of limited government
has always included the idea that governmental powers stop short of certain
intrusions into the personal life of the citizen. This is indeed one of the basic
distinctions between absolute and limited government. UItimate and pervasive
control of the individual, in all aspects of his life, is the hallmark of the absolute. state,
In contrast, a system of limited government safeguards a private sector, which
belongs to the individual, firmly distinguishing it from the public sector, which the
state can control. Protection of this private sector — protection, in other words, of the
dignity and integrity of the individual — has become increasingly important as
modem society has developed. All the forces of technological age —
industrialization, urbanization, and organization — operate to narrow the area of
privacy and facilitate intrusion into it. In modern terms, the capacity to maintain and
support this enclave of private life marks the difference between a democratic and a
totalitarian society." [at pp. 444-445.]

When the information requested from the government intrudes into the privacy of a citizen, a
potential conflict between the rights to information and to privacy may arise. However, the competing
interests of these rights need not be resolved in this case. Apparent from the above-quoted
statement of the Court in Morfe is that the right to privacy belongs to the individual in his private
capacity, and not to public and governmental agencies like the GSIS. Moreover, the right cannot be
invoked by juridical entities like the GSIS. As held in the case of Vassar College v. Loose Wills
Biscuit Co. [197 F. 982 (1912)], a corporation has no right of privacy in its name since the entire
basis of the right to privacy is an injury to the feelings and sensibilities of the party and a corporation
would have no such ground for relief.
Neither can the GSIS through its General Manager, the respondent, invoke the right to privacy of its
borrowers. The right is purely personal in nature [Cf. Atkinson v. John Doherty & Co., 121 Mich 372,
80 N.W. 285, 46 [Link]. 219 (1899); Schuyler v. Curtis, 147 N.Y. 434, 42 N.E. 22, 31 L.R.A. 286
(1895)), and hence may be invoked only by the person whose privacy is claimed to be violated.

It may be observed, however, that in the instant case, the concerned borrowers themselves may not
succeed if they choose to invoke their right to privacy, considering the public offices they were
holding at the time the loans were alleged to have been granted. It cannot be denied that because of
the interest they generate and their newsworthiness, public figures, most especially those holding
responsible positions in government, enjoy a more limited right to privacy as compared to ordinary
individuals, their actions being subject to closer public scrutiny [Cf. Ayer Productions Pty. Ltd. v.
Capulong, G.R. Nos. 82380 and 82398, April 29, 1988; See also Cohen v. Marx, 211 P. 2d 321
(1949).]

Respondent next asserts that the documents evidencing the loan transactions of the GSIS
are private in nature and hence, are not covered by the Constitutional right to information on matters
of public concern which guarantees "(a)ccess to official records, and to documents, and papers
pertaining to official acts, transactions, or decisions" only.

It is argued that the records of the GSIS, a government corporation performing proprietary functions,
are outside the coverage of the people's right of access to official records.

It is further contended that since the loan function of the GSIS is merely incidental to its insurance
function, then its loan transactions are not covered by the constitutional policy of full public
disclosure and the right to information which is applicable only to "official" transactions.

First of all, the "constituent — ministrant" dichotomy characterizing government function has long
been repudiated. In ACCFA v. Confederation of Unions and Government Corporations and
Offices (G.R. Nos. L-21484 and L-23605, November 29, 1969, 30 SCRA 6441, the Court said that
the government, whether carrying out its sovereign attributes or running some business, discharges
the same function of service to the people.

Consequently, that the GSIS, in granting the loans, was exercising a proprietary function would not
justify the exclusion of the transactions from the coverage and scope of the right to information.

Moreover, the intent of the members of the Constitutional Commission of 1986, to include
government-owned and controlled corporations and transactions entered into by them within the
coverage of the State policy of fun public disclosure is manifest from the records of the proceedings:

xxx xxx xxx

THE PRESIDING OFFICER (Mr. Colayco).

Commissioner Suarez is recognized.

MR. SUAREZ. Thank you. May I ask the Gentleman a few question?

MR. OPLE. Very gladly.

MR. SUAREZ. Thank you.

 When we declare a "policy of full public disclosure of all its
transactions" — referring to the transactions of the State — and when
we say the "State" which I suppose would include all of the various
agencies, departments, ministries and instrumentalities of the
government....

MR. OPLE. Yes, and individual public officers, Mr. Presiding Officer.

MR. SUAREZ. Including government-owned and controlled corporations.

MR. OPLE. That is correct, Mr. Presiding Officer.

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 only to reasonable

safeguards on the national interest.

MR. SUAREZ. Thank you. [V Record of the

Constitutional Commission 24-25.] (Emphasis
supplied.)

Considering the intent of the framers of the Constitution which, though not binding upon the Court,
are nevertheless persuasive, and considering further that government-owned and controlled
corporations, whether performing proprietary or governmental functions are accountable to the
people, the Court is convinced that transactions entered into by the GSIS, a government-controlled
corporation created by special legislation are within the ambit of the people's right to be informed
pursuant to the constitutional policy of transparency in government dealings.

In fine, petitioners are entitled to access to the documents evidencing loans granted by the GSIS,
subject to reasonable regulations that the latter may promulgate relating to the manner and hours of
examination, to the end that damage to or loss of the records may be avoided, that undue
interference with the duties of the custodian of the records may be prevented and that the right of
other persons entitled to inspect the records may be insured [Legaspi v. Civil Service
Commission, supra at p. 538, quoting Subido v. Ozaeta, 80 Phil. 383, 387.] The petition, as to the
second and third alternative acts sought to be done by petitioners, is meritorious.

However, the same cannot be said with regard to the first act sought by petitioners, i.e., "to furnish
petitioners the list of the names of the Batasang Pambansa members belonging to the UNIDO and
PDP-Laban who were able to secure clean loans immediately before the February 7 election thru the
intercession/marginal note of the then First Lady Imelda Marcos."

Although citizens are afforded the right to information and, pursuant thereto, are entitled to "access
to official records," the Constitution does not accord them a right to compel custodians of official
records to prepare lists, abstracts, summaries and the like in their desire to acquire information on
matters of public concern.

It must be stressed that it is essential for a writ of mandamus to issue that the applicant has a well-
defined, clear and certain legal right to the thing demanded and that it is the imperative duty of
defendant to perform the act required. The corresponding duty of the respondent to perform the
required act must be clear and specific [Lemi v. Valencia, G.R. No. L-20768, November 29,1968,126
SCRA 203; Ocampo v. Subido, G.R. No. L-28344, August 27, 1976, 72 SCRA 443.] The request of
the petitioners fails to meet this standard, there being no duty on the part of respondent to prepare
the list requested.

WHEREFORE, the instant petition is hereby granted and respondent General Manager of the
Government Service Insurance System is ORDERED to allow petitioners access to documents and
records evidencing loans granted to Members of the former Batasang Pambansa, as petitioners may
specify, subject to reasonable regulations as to the time and manner of inspection, not incompatible
with this decision, as the GSIS may deem necessary.

SO ORDERED.
G.R. No. 133250           July 9, 2002

FRANCISCO I. CHAVEZ, petitioner,
vs.
PUBLIC ESTATES AUTHORITY and AMARI COASTAL BAY DEVELOPMENT
CORPORATION, respondents.

CARPIO, J.:

This is an original Petition for Mandamus with prayer for a writ of preliminary injunction and a
temporary restraining order. The petition seeks to compel the Public Estates Authority ("PEA" for
brevity) to disclose all facts on PEA's then on-going renegotiations with Amari Coastal Bay and
Development Corporation ("AMARI" for brevity) to reclaim portions of Manila Bay. The petition
further seeks to enjoin PEA from signing a new agreement with AMARI involving such reclamation.

The Facts

On November 20, 1973, the government, through the Commissioner of Public Highways, signed a
contract with the Construction and Development Corporation of the Philippines ("CDCP" for brevity)
to reclaim certain foreshore and offshore areas of Manila Bay. The contract also included the
construction of Phases I and II of the Manila-Cavite Coastal Road. CDCP obligated itself to carry out
all the works in consideration of fifty percent of the total reclaimed land.

On February 4, 1977, then President Ferdinand E. Marcos issued Presidential Decree No. 1084
creating PEA. PD No. 1084 tasked PEA "to reclaim land, including foreshore and submerged areas,"
and "to develop, improve, acquire, x x x lease and sell any and all kinds of lands." 1 On the same
date, then President Marcos issued Presidential Decree No. 1085 transferring to PEA the "lands
reclaimed in the foreshore and offshore of the Manila Bay" 2 under the Manila-Cavite Coastal Road
and Reclamation Project (MCCRRP).

On December 29, 1981, then President Marcos issued a memorandum directing PEA to amend its
contract with CDCP, so that "[A]ll future works in MCCRRP x x x shall be funded and owned by
PEA." Accordingly, PEA and CDCP executed a Memorandum of Agreement dated December 29,
1981, which stated:

"(i) CDCP shall undertake all reclamation, construction, and such other works in the
MCCRRP as may be agreed upon by the parties, to be paid according to progress of works
on a unit price/lump sum basis for items of work to be agreed upon, subject to price
escalation, retention and other terms and conditions provided for in Presidential Decree No.
1594. All the financing required for such works shall be provided by PEA.

xxx

(iii) x x x CDCP shall give up all its development rights and hereby agrees to cede and
transfer in favor of PEA, all of the rights, title, interest and participation of CDCP in and to all
the areas of land reclaimed by CDCP in the MCCRRP as of December 30, 1981 which have
not yet been sold, transferred or otherwise disposed of by CDCP as of said date, which
areas consist of approximately Ninety-Nine Thousand Four Hundred Seventy Three (99,473)
square meters in the Financial Center Area covered by land pledge No. 5 and approximately
Three Million Three Hundred Eighty Two Thousand Eight Hundred Eighty Eight (3,382,888)
 square meters of reclaimed areas at varying elevations above Mean Low Water Level
located outside the Financial Center Area and the First Neighborhood Unit." 3

On January 19, 1988, then President Corazon C. Aquino issued Special Patent No. 3517, granting
and transferring to PEA "the parcels of land so reclaimed under the Manila-Cavite Coastal Road and
Reclamation Project (MCCRRP) containing a total area of one million nine hundred fifteen thousand
eight hundred ninety four (1,915,894) square meters." Subsequently, on April 9, 1988, the Register
of Deeds of the Municipality of Parañaque issued Transfer Certificates of Title Nos. 7309, 7311, and
7312, in the name of PEA, covering the three reclaimed islands known as the "Freedom Islands"
located at the southern portion of the Manila-Cavite Coastal Road, Parañaque City. The Freedom
Islands have a total land area of One Million Five Hundred Seventy Eight Thousand Four Hundred
and Forty One (1,578,441) square meters or 157.841 hectares.

On April 25, 1995, c. The JVA also required the reclamation of an additional 250 hectares of
submerged areas surrounding these islands to complete the configuration in the Master
Development Plan of the Southern Reclamation Project-MCCRRP. PEA and AMARI entered into the
JVA through negotiation without public bidding.4 On April 28, 1995, the Board of Directors of PEA, in
its Resolution No. 1245, confirmed the JVA.5 On June 8, 1995, then President Fidel V. Ramos,
through then Executive Secretary Ruben Torres, approved the JVA.6

On November 29, 1996, then Senate President Ernesto Maceda delivered a privilege speech in the
Senate and denounced the JVA as the "grandmother of all scams." As a result, the Senate
Committee on Government Corporations and Public Enterprises, and the Committee on
Accountability of Public Officers and Investigations, conducted a joint investigation. The Senate
Committees reported the results of their investigation in Senate Committee Report No. 560 dated
September 16, 1997.7 Among the conclusions of their report are: (1) the reclaimed lands PEA seeks
to transfer to AMARI under the JVA are lands of the public domain which the government has not
classified as alienable lands and therefore PEA cannot alienate these lands; (2) the certificates of
title covering the Freedom Islands are thus void, and (3) the JVA itself is illegal.

On December 5, 1997, then President Fidel V. Ramos issued Presidential Administrative Order No.
365 creating a Legal Task Force to conduct a study on the legality of the JVA in view of Senate
Committee Report No. 560. The members of the Legal Task Force were the Secretary of
Justice,8 the Chief Presidential Legal Counsel,9 and the Government Corporate Counsel. 10 The Legal
Task Force upheld the legality of the JVA, contrary to the conclusions reached by the Senate
Committees.11

On April 4 and 5, 1998, the Philippine Daily Inquirer and Today published reports that there were on-
going renegotiations between PEA and AMARI under an order issued by then President Fidel V.
Ramos. According to these reports, PEA Director Nestor Kalaw, PEA Chairman Arsenio Yulo and
retired Navy Officer Sergio Cruz composed the negotiating panel of PEA.

On April 13, 1998, Antonio M. Zulueta filed before the Court a Petition for Prohibition with
Application for the Issuance of a Temporary Restraining Order and Preliminary Injunction docketed
as G.R. No. 132994 seeking to nullify the JVA. The Court dismissed the petition "for unwarranted
disregard of judicial hierarchy, without prejudice to the refiling of the case before the proper court." 12

On April 27, 1998, petitioner Frank I. Chavez ("Petitioner" for brevity) as a taxpayer, filed the
instant Petition for Mandamus with Prayer for the Issuance of a Writ of Preliminary Injunction and
Temporary Restraining Order. Petitioner contends the government stands to lose billions of pesos in
the sale by PEA of the reclaimed lands to AMARI. Petitioner prays that PEA publicly disclose the
terms of any renegotiation of the JVA, invoking Section 28, Article II, and Section 7, Article III, of the
1987 Constitution on the right of the people to information on matters of public concern. Petitioner
assails the sale to AMARI of lands of the public domain as a blatant violation of Section 3, Article XII
of the 1987 Constitution prohibiting the sale of alienable lands of the public domain to private
corporations. Finally, petitioner asserts that he seeks to enjoin the loss of billions of pesos in
properties of the State that are of public dominion.

After several motions for extension of time, 13 PEA and AMARI filed their Comments on October 19,
1998 and June 25, 1998, respectively. Meanwhile, on December 28, 1998, petitioner filed an
Omnibus Motion: (a) to require PEA to submit the terms of the renegotiated PEA-AMARI contract;
(b) for issuance of a temporary restraining order; and (c) to set the case for hearing on oral
argument. Petitioner filed a Reiterative Motion for Issuance of a TRO dated May 26, 1999, which the
Court denied in a Resolution dated June 22, 1999.

In a Resolution dated March 23, 1999, the Court gave due course to the petition and required the
parties to file their respective memoranda.

On March 30, 1999, PEA and AMARI signed the Amended Joint Venture Agreement ("Amended
JVA," for brevity). On May 28, 1999, the Office of the President under the administration of then
President Joseph E. Estrada approved the Amended JVA.

Due to the approval of the Amended JVA by the Office of the President, petitioner now prays that on
"constitutional and statutory grounds the renegotiated contract be declared null and void." 14

The Issues

The issues raised by petitioner, PEA15 and AMARI16 are as follows:

I. WHETHER THE PRINCIPAL RELIEFS PRAYED FOR IN THE PETITION ARE MOOT
AND ACADEMIC BECAUSE OF SUBSEQUENT EVENTS;

II. WHETHER THE PETITION MERITS DISMISSAL FOR FAILING TO OBSERVE THE
PRINCIPLE GOVERNING THE HIERARCHY OF COURTS;

III. WHETHER THE PETITION MERITS DISMISSAL FOR NON-EXHAUSTION OF

ADMINISTRATIVE REMEDIES;

IV. WHETHER PETITIONER HAS LOCUS STANDI TO BRING THIS SUIT;

V. WHETHER THE CONSTITUTIONAL RIGHT TO INFORMATION INCLUDES OFFICIAL

INFORMATION ON ON-GOING NEGOTIATIONS BEFORE A FINAL AGREEMENT;

VI. WHETHER THE STIPULATIONS IN THE AMENDED JOINT VENTURE AGREEMENT

FOR THE TRANSFER TO AMARI OF CERTAIN LANDS, RECLAIMED AND STILL TO BE
RECLAIMED, VIOLATE THE 1987 CONSTITUTION; AND

VII. WHETHER THE COURT IS THE PROPER FORUM FOR RAISING THE ISSUE OF
WHETHER THE AMENDED JOINT VENTURE AGREEMENT IS GROSSLY
DISADVANTAGEOUS TO THE GOVERNMENT.

The Court's Ruling

 First issue: whether the principal reliefs prayed for in the petition are moot and academic
because of subsequent events.

The petition prays that PEA publicly disclose the "terms and conditions of the on-going negotiations
for a new agreement." The petition also prays that the Court enjoin PEA from "privately entering into,
perfecting and/or executing any new agreement with AMARI."

PEA and AMARI claim the petition is now moot and academic because AMARI furnished petitioner
on June 21, 1999 a copy of the signed Amended JVA containing the terms and conditions agreed
upon in the renegotiations. Thus, PEA has satisfied petitioner's prayer for a public disclosure of the
renegotiations. Likewise, petitioner's prayer to enjoin the signing of the Amended JVA is now moot
because PEA and AMARI have already signed the Amended JVA on March 30, 1999. Moreover, the
Office of the President has approved the Amended JVA on May 28, 1999.

Petitioner counters that PEA and AMARI cannot avoid the constitutional issue by simply fast-tracking
the signing and approval of the Amended JVA before the Court could act on the issue. Presidential
approval does not resolve the constitutional issue or remove it from the ambit of judicial review.

We rule that the signing of the Amended JVA by PEA and AMARI and its approval by the President
cannot operate to moot the petition and divest the Court of its jurisdiction. PEA and AMARI have still
to implement the Amended JVA. The prayer to enjoin the signing of the Amended JVA on
constitutional grounds necessarily includes preventing its implementation if in the meantime PEA
and AMARI have signed one in violation of the Constitution. Petitioner's principal basis in assailing
the renegotiation of the JVA is its violation of Section 3, Article XII of the Constitution, which prohibits
the government from alienating lands of the public domain to private corporations. If the Amended
JVA indeed violates the Constitution, it is the duty of the Court to enjoin its implementation, and if
already implemented, to annul the effects of such unconstitutional contract.

The Amended JVA is not an ordinary commercial contract but one which seeks to transfer title and
ownership to 367.5 hectares of reclaimed lands and submerged areas of Manila Bay to a
single private corporation. It now becomes more compelling for the Court to resolve the issue to
insure the government itself does not violate a provision of the Constitution intended to safeguard
the national patrimony. Supervening events, whether intended or accidental, cannot prevent the
Court from rendering a decision if there is a grave violation of the Constitution. In the instant case, if
the Amended JVA runs counter to the Constitution, the Court can still prevent the transfer of title and
ownership of alienable lands of the public domain in the name of AMARI. Even in cases where
supervening events had made the cases moot, the Court did not hesitate to resolve the legal or
constitutional issues raised to formulate controlling principles to guide the bench, bar, and the
public.17

Also, the instant petition is a case of first impression. All previous decisions of the Court involving
Section 3, Article XII of the 1987 Constitution, or its counterpart provision in the 1973
Constitution,18 covered agricultural lands sold to private corporations which acquired the lands from
private parties. The transferors of the private corporations claimed or could claim the right to judicial
confirmation of their imperfect titles19 under Title II of Commonwealth Act. 141 ("CA No. 141" for
brevity). In the instant case, AMARI seeks to acquire from PEA, a public corporation, reclaimed
lands and submerged areas for non-agricultural purposes by purchase under PD No. 1084
(charter of PEA) and Title III of CA No. 141. Certain undertakings by AMARI under the Amended
JVA constitute the consideration for the purchase. Neither AMARI nor PEA can claim judicial
confirmation of their titles because the lands covered by the Amended JVA are newly reclaimed or
still to be reclaimed. Judicial confirmation of imperfect title requires open, continuous, exclusive and
notorious occupation of agricultural lands of the public domain for at least thirty years since June 12,
1945 or earlier. Besides, the deadline for filing applications for judicial confirmation of imperfect title
expired on December 31, 1987. 20

Lastly, there is a need to resolve immediately the constitutional issue raised in this petition because
of the possible transfer at any time by PEA to AMARI of title and ownership to portions of the
reclaimed lands. Under the Amended JVA, PEA is obligated to transfer to AMARI the latter's seventy
percent proportionate share in the reclaimed areas as the reclamation progresses. The Amended
JVA even allows AMARI to mortgage at any time the entire reclaimed area to raise financing for the
reclamation project.21

Second issue: whether the petition merits dismissal for failing to observe the principle
governing the hierarchy of courts.

PEA and AMARI claim petitioner ignored the judicial hierarchy by seeking relief directly from the
Court. The principle of hierarchy of courts applies generally to cases involving factual questions. As
it is not a trier of facts, the Court cannot entertain cases involving factual issues. The instant case,
however, raises constitutional issues of transcendental importance to the public.22 The Court can
resolve this case without determining any factual issue related to the case. Also, the instant case is a
petition for mandamus which falls under the original jurisdiction of the Court under Section 5, Article
VIII of the Constitution. We resolve to exercise primary jurisdiction over the instant case.

Third issue: whether the petition merits dismissal for non-exhaustion of administrative
remedies.

PEA faults petitioner for seeking judicial intervention in compelling PEA to disclose publicly certain
information without first asking PEA the needed information. PEA claims petitioner's direct resort to
the Court violates the principle of exhaustion of administrative remedies. It also violates the rule that
mandamus may issue only if there is no other plain, speedy and adequate remedy in the ordinary
course of law.

PEA distinguishes the instant case from Tañada v. Tuvera23 where the Court granted the petition for
mandamus even if the petitioners there did not initially demand from the Office of the President the
publication of the presidential decrees. PEA points out that in Tañada, the Executive Department
had an affirmative statutory duty under Article 2 of the Civil Code24 and Section 1 of
Commonwealth Act No. 63825 to publish the presidential decrees. There was, therefore, no need for
the petitioners in Tañada to make an initial demand from the Office of the President. In the instant
case, PEA claims it has no affirmative statutory duty to disclose publicly information about its
renegotiation of the JVA. Thus, PEA asserts that the Court must apply the principle of exhaustion of
administrative remedies to the instant case in view of the failure of petitioner here to demand initially
from PEA the needed information.

The original JVA sought to dispose to AMARI public lands held by PEA, a government corporation.
Under Section 79 of the Government Auditing Code, 26 the disposition of government lands to private
parties requires public bidding. PEA was under a positive legal duty to disclose to the public the
terms and conditions for the sale of its lands. The law obligated PEA to make this public
disclosure even without demand from petitioner or from anyone. PEA failed to make this public
disclosure because the original JVA, like the Amended JVA, was the result of a negotiated
contract, not of a public bidding. Considering that PEA had an affirmative statutory duty to make the
public disclosure, and was even in breach of this legal duty, petitioner had the right to seek direct
judicial intervention.
Moreover, and this alone is determinative of this issue, the principle of exhaustion of administrative
remedies does not apply when the issue involved is a purely legal or constitutional question. 27 The
principal issue in the instant case is the capacity of AMARI to acquire lands held by PEA in view of
the constitutional ban prohibiting the alienation of lands of the public domain to private corporations.
We rule that the principle of exhaustion of administrative remedies does not apply in the instant
case.

Fourth issue: whether petitioner has locus standi to bring this suit

PEA argues that petitioner has no standing to institute mandamus proceedings to enforce his

constitutional right to information without a showing that PEA refused to perform an affirmative duty
imposed on PEA by the Constitution. PEA also claims that petitioner has not shown that he will
suffer any concrete injury because of the signing or implementation of the Amended JVA. Thus,
there is no actual controversy requiring the exercise of the power of judicial review.

The petitioner has standing to bring this taxpayer's suit because the petition seeks to compel PEA to
comply with its constitutional duties. There are two constitutional issues involved here. First is the
right of citizens to information on matters of public concern. Second is the application of a
constitutional provision intended to insure the equitable distribution of alienable lands of the public
domain among Filipino citizens. The thrust of the first issue is to compel PEA to disclose publicly
information on the sale of government lands worth billions of pesos, information which the
Constitution and statutory law mandate PEA to disclose. The thrust of the second issue is to prevent
PEA from alienating hundreds of hectares of alienable lands of the public domain in violation of the
Constitution, compelling PEA to comply with a constitutional duty to the nation.

Moreover, the petition raises matters of transcendental importance to the public. In Chavez v.
PCGG,28 the Court upheld the right of a citizen to bring a taxpayer's suit on matters of transcendental
importance to the public, thus -

"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 'immediately 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, such as in this case. He invokes
several decisions of this Court which have set aside the procedural matter of locus standi,
when the subject of the case involved public interest.

xxx

In Tañada v. Tuvera, 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. 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, 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, 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.'

Further, in Albano v. Reyes, we said that while expenditure of public funds may not have
been involved under the questioned contract for the development, management and
operation of the Manila International Container Terminal, 'public interest [was] definitely
involved considering the important role [of the subject contract] . . . 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."

We rule that since the instant petition, brought by a citizen, involves the enforcement of constitutional
rights - to information and to the equitable diffusion of natural resources - matters of transcendental
public importance, the petitioner has the requisite locus standi.

Fifth issue: whether the constitutional right to information includes official information on
on-going negotiations before a final agreement.

Section 7, Article III of the Constitution explains the people's right to information on matters of public
concern in this manner:

"Sec. 7. The right of the people to information on matters of public concern shall be
recognized. Access to official records, and to documents, and papers pertaining to
official acts, transactions, or decisions, as well as to government research data used as
basis for policy development, shall be afforded the citizen, subject to such limitations as may
be provided by law." (Emphasis supplied)

The State policy of full transparency in all transactions involving public interest reinforces the
people's right to information on matters of public concern. This State policy is expressed in Section
28, Article II of the Constitution, thus:

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

These twin provisions of the Constitution seek to promote transparency in policy-making and in the
operations of the government, as well as provide the people sufficient information to exercise
effectively other constitutional rights. These twin provisions are essential to the exercise of freedom
of expression. If the government does not disclose its official acts, transactions and decisions to
citizens, whatever citizens say, even if expressed without any restraint, will be speculative and
amount to nothing. These twin provisions are also essential to hold public officials "at all times x x x
accountable to the people,"29 for unless citizens have the proper information, they cannot hold public
officials accountable for anything. Armed with the right information, citizens can participate in public
discussions leading to the formulation of government policies and their effective implementation. An
informed citizenry is essential to the existence and proper functioning of any democracy. As
explained by the Court in Valmonte v. Belmonte, Jr.30 –

"An essential element of these freedoms is to keep open a continuing dialogue or process of
communication between the government and the people. It is in the interest of the State that
the channels for free political discussion be maintained to the end that the government may
perceive and be responsive to the people's will. 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."

PEA asserts, citing Chavez v. PCGG,31 that in cases of on-going negotiations the right to information
is limited to "definite propositions of the government." PEA maintains the right does not include
access to "intra-agency or inter-agency recommendations or communications during the stage when
common assertions are still in the process of being formulated or are in the 'exploratory stage'."

Also, AMARI contends that petitioner cannot invoke the right at the pre-decisional stage or before
the closing of the transaction. To support its contention, AMARI cites the following discussion in the
1986 Constitutional Commission:

"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 only to reasonable safeguards on the national interest.

Mr. Suarez: Thank you."32 (Emphasis supplied)

AMARI argues there must first be a consummated contract before petitioner can invoke the right.
Requiring government officials to reveal their deliberations at the pre-decisional stage will degrade
the quality of decision-making in government agencies. Government officials will hesitate to express
their real sentiments during deliberations if there is immediate public dissemination of their
discussions, putting them under all kinds of pressure before they decide.

We must first distinguish between information the law on public bidding requires PEA to disclose
publicly, and information the constitutional right to information requires PEA to release to the public.
Before the consummation of the contract, PEA must, on its own and without demand from anyone,
disclose to the public matters relating to the disposition of its property. These include the size,
location, technical description and nature of the property being disposed of, the terms and conditions
of the disposition, the parties qualified to bid, the minimum price and similar information. PEA must
prepare all these data and disclose them to the public at the start of the disposition process, long
before the consummation of the contract, because the Government Auditing Code requires public
bidding. If PEA fails to make this disclosure, any citizen can demand from PEA this information at
any time during the bidding process.

Information, however, on on-going evaluation or review of bids or proposals being undertaken by

the bidding or review committee is not immediately accessible under the right to information. While
the evaluation or review is still on-going, there are no "official acts, transactions, or decisions" on the
bids or proposals. However, once the committee makes its official recommendation, there arises
a "definite proposition" on the part of the government. From this moment, the public's right to
information attaches, and any citizen can access all the non-proprietary information leading to such
definite proposition. In Chavez v. PCGG,33 the Court ruled as follows:

"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 during the stage when common
assertions are still in the process of being formulated or are in the "exploratory" stage. There
is 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." (Emphasis supplied)

Contrary to AMARI's contention, the commissioners of the 1986 Constitutional Commission

understood that the right to information "contemplates inclusion of negotiations leading to the
consummation of the transaction." Certainly, a consummated contract is not a requirement for the
exercise of the right to information. Otherwise, the people can never exercise the right if no contract
is consummated, and if one is consummated, it may be too late for the public to expose its defects. 1âwphi1.nêt

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

The right covers three categories of information which are "matters of public concern," namely: (1)
official records; (2) documents and papers pertaining to official acts, transactions and decisions; and
(3) government research data used in formulating policies. The first category refers to any document
that is part of the public records in the custody of government agencies or officials. The second
category refers to documents and papers recording, evidencing, establishing, confirming, supporting,
justifying or explaining official acts, transactions or decisions of government agencies or officials.
The third category refers to research data, whether raw, collated or processed, owned by the
government and used in formulating government policies.

The information that petitioner may access on the renegotiation of the JVA includes evaluation
reports, recommendations, legal and expert opinions, minutes of meetings, terms of reference and
other documents attached to such reports or minutes, all relating to the JVA. However, the right to
information does not compel PEA to prepare lists, abstracts, summaries and the like relating to the
renegotiation of the JVA.34 The right only affords access to records, documents and papers, which
means the opportunity to inspect and copy them. One who exercises the right must copy the
records, documents and papers at his expense. The exercise of the right is also subject to
reasonable regulations to protect the integrity of the public records and to minimize disruption to
government operations, like rules specifying when and how to conduct the inspection and copying. 35

The right to information, however, does not extend to matters recognized as privileged information
under the separation of powers.36 The right does not also apply to information on military and
diplomatic secrets, information affecting national security, and information on investigations of
crimes by law enforcement agencies before the prosecution of the accused, which courts have long
recognized as confidential.37 The right may also be subject to other limitations that Congress may
impose by law.

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,38 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. 39 This is not
the situation in the instant case.

We rule, therefore, that the constitutional right to information includes official information on on-
going negotiations before a final contract. The information, however, must constitute definite
propositions by the government and should not cover recognized exceptions like privileged
information, military and diplomatic secrets and similar matters affecting national security and public
order.40 Congress has also prescribed other limitations on the right to information in several
legislations.41

Sixth issue: whether stipulations in the Amended JVA for the transfer to AMARI of lands,
reclaimed or to be reclaimed, violate the Constitution.

The Regalian Doctrine

The ownership of lands reclaimed from foreshore and submerged areas is rooted in the Regalian
doctrine which holds that the State owns all lands and waters of the public domain. Upon the
Spanish conquest of the Philippines, ownership of all "lands, territories and possessions" in the
Philippines passed to the Spanish Crown.42 The King, as the sovereign ruler and representative of
the people, acquired and owned all lands and territories in the Philippines except those he disposed
of by grant or sale to private individuals.

The 1935, 1973 and 1987 Constitutions adopted the Regalian doctrine substituting, however, the
State, in lieu of the King, as the owner of all lands and waters of the public domain. The Regalian
doctrine is the foundation of the time-honored principle of land ownership that "all lands that were not
acquired from the Government, either by purchase or by grant, belong to the public domain." 43 Article
339 of the Civil Code of 1889, which is now Article 420 of the Civil Code of 1950, incorporated the
Regalian doctrine.

Ownership and Disposition of Reclaimed Lands

The Spanish Law of Waters of 1866 was the first statutory law governing the ownership and
disposition of reclaimed lands in the Philippines. On May 18, 1907, the Philippine Commission
enacted Act No. 1654 which provided for the lease, but not the sale, of reclaimed lands of the
government to corporations and individuals. Later, on November 29, 1919, the Philippine
Legislature approved Act No. 2874, the Public Land Act, which authorized the lease, but not the
sale, of reclaimed lands of the government to corporations and individuals. On November 7,
1936, the National Assembly passed Commonwealth Act No. 141, also known as the Public Land
Act, which authorized the lease, but not the sale, of reclaimed lands of the government to
corporations and individuals. CA No. 141 continues to this day as the general law governing the
classification and disposition of lands of the public domain.

The Spanish Law of Waters of 1866 and the Civil Code of 1889

Under the Spanish Law of Waters of 1866, the shores, bays, coves, inlets and all waters within the
maritime zone of the Spanish territory belonged to the public domain for public use. 44 The Spanish
Law of Waters of 1866 allowed the reclamation of the sea under Article 5, which provided as follows:

"Article 5. Lands reclaimed from the sea in consequence of works constructed by the State,
or by the provinces, pueblos or private persons, with proper permission, shall become the
property of the party constructing such works, unless otherwise provided by the terms of the
grant of authority."

Under the Spanish Law of Waters, land reclaimed from the sea belonged to the party undertaking
the reclamation, provided the government issued the necessary permit and did not reserve
ownership of the reclaimed land to the State.

Article 339 of the Civil Code of 1889 defined property of public dominion as follows:

"Art. 339. Property of public dominion is –

1. That devoted to public use, such as roads, canals, rivers, torrents, ports and bridges
constructed by the State, riverbanks, shores, roadsteads, and that of a similar character;

2. That belonging exclusively to the State which, without being of general public use, is
employed in some public service, or in the development of the national wealth, such as walls,
fortresses, and other works for the defense of the territory, and mines, until granted to private
individuals."

Property devoted to public use referred to property open for use by the public. In contrast, property
devoted to public service referred to property used for some specific public service and open only to
those authorized to use the property.

Property of public dominion referred not only to property devoted to public use, but also to property
not so used but employed to develop the national wealth. This class of property constituted
property of public dominion although employed for some economic or commercial activity to increase
the national wealth.

Article 341 of the Civil Code of 1889 governed the re-classification of property of public dominion into
private property, to wit:
 "Art. 341. Property of public dominion, when no longer devoted to public use or to the
defense of the territory, shall become a part of the private property of the State."

This provision, however, was not self-executing. The legislature, or the executive department
pursuant to law, must declare the property no longer needed for public use or territorial defense
before the government could lease or alienate the property to private parties. 45

Act No. 1654 of the Philippine Commission

On May 8, 1907, the Philippine Commission enacted Act No. 1654 which regulated the lease of
reclaimed and foreshore lands. The salient provisions of this law were as follows:

"Section 1. The control and disposition of the foreshore as defined in existing law, and
the title to all Government or public lands made or reclaimed by the Government by
dredging or filling or otherwise throughout the Philippine Islands, shall be retained by the
Government without prejudice to vested rights and without prejudice to rights conceded to
the City of Manila in the Luneta Extension.

Section 2. (a) The Secretary of the Interior shall cause all Government or public lands made
or reclaimed by the Government by dredging or filling or otherwise to be divided into lots or
blocks, with the necessary streets and alleyways located thereon, and shall cause plats and
plans of such surveys to be prepared and filed with the Bureau of Lands.

(b) Upon completion of such plats and plans the Governor-General shall give notice to
the public that such parts of the lands so made or reclaimed as are not needed for
public purposes will be leased for commercial and business purposes, x x x.

xxx

(e) The leases above provided for shall be disposed of to the highest and best
bidder therefore, subject to such regulations and safeguards as the Governor-General may
by executive order prescribe." (Emphasis supplied)

Act No. 1654 mandated that the government should retain title to all lands reclaimed by the
government. The Act also vested in the government control and disposition of foreshore lands.
Private parties could lease lands reclaimed by the government only if these lands were no longer
needed for public purpose. Act No. 1654 mandated public bidding in the lease of government
reclaimed lands. Act No. 1654 made government reclaimed lands sui generis in that unlike other
public lands which the government could sell to private parties, these reclaimed lands were available
only for lease to private parties.

Act No. 1654, however, did not repeal Section 5 of the Spanish Law of Waters of 1866. Act No. 1654
did not prohibit private parties from reclaiming parts of the sea under Section 5 of the Spanish Law
of Waters. Lands reclaimed from the sea by private parties with government permission remained
private lands.

Act No. 2874 of the Philippine Legislature

On November 29, 1919, the Philippine Legislature enacted Act No. 2874, the Public Land Act. 46 The
salient provisions of Act No. 2874, on reclaimed lands, were as follows:
 "Sec. 6. The Governor-General, upon the recommendation of the Secretary of
Agriculture and Natural Resources, shall from time to time classify the lands of the
public domain into –

(a) Alienable or disposable,

(b) Timber, and

(c) Mineral lands, x x x.

Sec. 7. For the purposes of the government and disposition of alienable or disposable public
lands, the Governor-General, upon recommendation by the Secretary of Agriculture
and Natural Resources, shall from time to time declare what lands are open to
disposition or concession under this Act."

Sec. 8. Only those lands shall be declared open to disposition or concession which
have been officially delimited or classified x x x.

xxx

Sec. 55. Any tract of land of the public domain which, being neither timber nor mineral land,
shall be classified as suitable for residential purposes or for commercial, industrial, or
other productive purposes other than agricultural purposes, and shall be open to
disposition or concession, shall be disposed of under the provisions of this chapter, and not
otherwise.

Sec. 56. The lands disposable under this title shall be classified as follows:

(a) Lands reclaimed by the Government by dredging, filling, or other means;

(b) Foreshore;

(c) Marshy lands or lands covered with water bordering upon the shores or banks of
navigable lakes or rivers;

(d) Lands not included in any of the foregoing classes.

x x x.

Sec. 58. The lands comprised in classes (a), (b), and (c) of section fifty-six shall be
disposed of to private parties by lease only and not otherwise, as soon as the
Governor-General, upon recommendation by the Secretary of Agriculture and Natural
Resources, shall declare that the same are not necessary for the public service and
are open to disposition under this chapter. The lands included in class (d) may be
disposed of by sale or lease under the provisions of this Act." (Emphasis supplied)

Section 6 of Act No. 2874 authorized the Governor-General to "classify lands of the public domain
into x x x alienable or disposable"47 lands. Section 7 of the Act empowered the Governor-General to
"declare what lands are open to disposition or concession." Section 8 of the Act limited alienable or
disposable lands only to those lands which have been "officially delimited and classified."
Section 56 of Act No. 2874 stated that lands "disposable under this title 48 shall be classified" as
government reclaimed, foreshore and marshy lands, as well as other lands. All these lands,
however, must be suitable for residential, commercial, industrial or other productive non-
agricultural purposes. These provisions vested upon the Governor-General the power to classify
inalienable lands of the public domain into disposable lands of the public domain. These provisions
also empowered the Governor-General to classify further such disposable lands of the public domain
into government reclaimed, foreshore or marshy lands of the public domain, as well as other non-
agricultural lands.

Section 58 of Act No. 2874 categorically mandated that disposable lands of the public domain
classified as government reclaimed, foreshore and marshy lands "shall be disposed of to private
parties by lease only and not otherwise." The Governor-General, before allowing the lease of
these lands to private parties, must formally declare that the lands were "not necessary for the public
service." Act No. 2874 reiterated the State policy to lease and not to sell government reclaimed,
foreshore and marshy lands of the public domain, a policy first enunciated in 1907 in Act No. 1654.
Government reclaimed, foreshore and marshy lands remained sui generis, as the only alienable or
disposable lands of the public domain that the government could not sell to private parties.

The rationale behind this State policy is obvious. Government reclaimed, foreshore and marshy
public lands for non-agricultural purposes retain their inherent potential as areas for public service.
This is the reason the government prohibited the sale, and only allowed the lease, of these lands to
private parties. The State always reserved these lands for some future public service.

Act No. 2874 did not authorize the reclassification of government reclaimed, foreshore and marshy
lands into other non-agricultural lands under Section 56 (d). Lands falling under Section 56 (d) were
the only lands for non-agricultural purposes the government could sell to private parties. Thus, under
Act No. 2874, the government could not sell government reclaimed, foreshore and marshy lands to
private parties, unless the legislature passed a law allowing their sale.49

Act No. 2874 did not prohibit private parties from reclaiming parts of the sea pursuant to Section 5 of
the Spanish Law of Waters of 1866. Lands reclaimed from the sea by private parties with
government permission remained private lands.

Dispositions under the 1935 Constitution

On May 14, 1935, the 1935 Constitution took effect upon its ratification by the Filipino people. The
1935 Constitution, in adopting the Regalian doctrine, declared in Section 1, Article XIII, that –

"Section 1. All agricultural, timber, and mineral lands of the public domain, waters, minerals,
coal, petroleum, and other mineral oils, all forces of potential energy and other natural
resources of the Philippines belong to the State, and their disposition, exploitation,
development, or utilization shall be limited to citizens of the Philippines or to corporations or
associations at least sixty per centum of the capital of which is owned by such citizens,
subject to any existing right, grant, lease, or concession at the time of the inauguration of the
Government established under this Constitution. Natural resources, with the exception of
public agricultural land, shall not be alienated, and no license, concession, or lease for
the exploitation, development, or utilization of any of the natural resources shall be granted
for a period exceeding twenty-five years, renewable for another twenty-five years, except as
to water rights for irrigation, water supply, fisheries, or industrial uses other than the
development of water power, in which cases beneficial use may be the measure and limit of
the grant." (Emphasis supplied)
The 1935 Constitution barred the alienation of all natural resources except public agricultural lands,
which were the only natural resources the State could alienate. Thus, foreshore lands, considered
part of the State's natural resources, became inalienable by constitutional fiat, available only for
lease for 25 years, renewable for another 25 years. The government could alienate foreshore lands
only after these lands were reclaimed and classified as alienable agricultural lands of the public
domain. Government reclaimed and marshy lands of the public domain, being neither timber nor
mineral lands, fell under the classification of public agricultural lands. 50 However, government
reclaimed and marshy lands, although subject to classification as disposable public agricultural
lands, could only be leased and not sold to private parties because of Act No. 2874.

The prohibition on private parties from acquiring ownership of government reclaimed and marshy
lands of the public domain was only a statutory prohibition and the legislature could therefore
remove such prohibition. The 1935 Constitution did not prohibit individuals and corporations from
acquiring government reclaimed and marshy lands of the public domain that were classified as
agricultural lands under existing public land laws. Section 2, Article XIII of the 1935 Constitution
provided as follows:

"Section 2. No private corporation or association may acquire, lease, or hold public
agricultural lands in excess of one thousand and twenty four hectares, nor may any
individual acquire such lands by purchase in excess of one hundred and forty
hectares, or by lease in excess of one thousand and twenty-four hectares, or by
homestead in excess of twenty-four hectares. Lands adapted to grazing, not exceeding two
thousand hectares, may be leased to an individual, private corporation, or association."
(Emphasis supplied)

Still, after the effectivity of the 1935 Constitution, the legislature did not repeal Section 58 of Act No.
2874 to open for sale to private parties government reclaimed and marshy lands of the public
domain. On the contrary, the legislature continued the long established State policy of retaining for
the government title and ownership of government reclaimed and marshy lands of the public domain.

Commonwealth Act No. 141 of the Philippine National Assembly

On November 7, 1936, the National Assembly approved Commonwealth Act No. 141, also known as
the Public Land Act, which compiled the then existing laws on lands of the public domain. CA No.
141, as amended, remains to this day the existing general law governing the classification and
disposition of lands of the public domain other than timber and mineral lands. 51

Section 6 of CA No. 141 empowers the President to classify lands of the public domain into
"alienable or disposable"52 lands of the public domain, which prior to such classification are
inalienable and outside the commerce of man. Section 7 of CA No. 141 authorizes the President to
"declare what lands are open to disposition or concession." Section 8 of CA No. 141 states that the
government can declare open for disposition or concession only lands that are "officially delimited
and classified." Sections 6, 7 and 8 of CA No. 141 read as follows:

"Sec. 6. The President, upon the recommendation of the Secretary of Agriculture and
Commerce, shall from time to time classify the lands of the public domain into –

(a) Alienable or disposable,

(b) Timber, and

 (c) Mineral lands,

and may at any time and in like manner transfer such lands from one class to another, 53 for
the purpose of their administration and disposition.

Sec. 7. For the purposes of the administration and disposition of alienable or disposable
public lands, the President, upon recommendation by the Secretary of Agriculture and
Commerce, shall from time to time declare what lands are open to disposition or
concession under this Act.

Sec. 8. Only those lands shall be declared open to disposition or concession which
have been officially delimited and classified and, when practicable, surveyed, and which
have not been reserved for public or quasi-public uses, nor appropriated by the
Government, nor in any manner become private property, nor those on which a private right
authorized and recognized by this Act or any other valid law may be claimed, or which,
having been reserved or appropriated, have ceased to be so. x x x."

Thus, before the government could alienate or dispose of lands of the public domain, the President
must first officially classify these lands as alienable or disposable, and then declare them open to
disposition or concession. There must be no law reserving these lands for public or quasi-public
uses.

The salient provisions of CA No. 141, on government reclaimed, foreshore and marshy lands of the
public domain, are as follows:

"Sec. 58. Any tract of land of the public domain which, being neither timber nor
mineral land, is intended to be used for residential purposes or for commercial,
industrial, or other productive purposes other than agricultural, and is open to
disposition or concession, shall be disposed of under the provisions of this chapter
and not otherwise.

Sec. 59. The lands disposable under this title shall be classified as follows:

(a) Lands reclaimed by the Government by dredging, filling, or other means;

(b) Foreshore;

(c) Marshy lands or lands covered with water bordering upon the shores or banks of
navigable lakes or rivers;

(d) Lands not included in any of the foregoing classes.

Sec. 60. Any tract of land comprised under this title may be leased or sold, as the case may
be, to any person, corporation, or association authorized to purchase or lease public lands
for agricultural purposes. x x x.

Sec. 61. The lands comprised in classes (a), (b), and (c) of section fifty-nine shall be
disposed of to private parties by lease only and not otherwise, as soon as the
President, upon recommendation by the Secretary of Agriculture, shall declare that the
same are not necessary for the public service and are open to disposition under this
 chapter. The lands included in class (d) may be disposed of by sale or lease under the
provisions of this Act." (Emphasis supplied)

Section 61 of CA No. 141 readopted, after the effectivity of the 1935 Constitution, Section 58 of Act
No. 2874 prohibiting the sale of government reclaimed, foreshore and marshy disposable lands of
the public domain. All these lands are intended for residential, commercial, industrial or other non-
agricultural purposes. As before, Section 61 allowed only the lease of such lands to private parties.
The government could sell to private parties only lands falling under Section 59 (d) of CA No. 141, or
those lands for non-agricultural purposes not classified as government reclaimed, foreshore and
marshy disposable lands of the public domain. Foreshore lands, however, became inalienable under
the 1935 Constitution which only allowed the lease of these lands to qualified private parties.

Section 58 of CA No. 141 expressly states that disposable lands of the public domain intended for
residential, commercial, industrial or other productive purposes other than agricultural "shall be
disposed of under the provisions of this chapter and not otherwise." Under Section 10 of CA
No. 141, the term "disposition" includes lease of the land. Any disposition of government reclaimed,
foreshore and marshy disposable lands for non-agricultural purposes must comply with Chapter IX,
Title III of CA No. 141,54 unless a subsequent law amended or repealed these provisions.

In his concurring opinion in the landmark case of Republic Real Estate Corporation v. Court of
Appeals,55 Justice Reynato S. Puno summarized succinctly the law on this matter, as follows:

"Foreshore lands are lands of public dominion intended for public use. So too are lands
reclaimed by the government by dredging, filling, or other means. Act 1654 mandated that
the control and disposition of the foreshore and lands under water remained in the national
government. Said law allowed only the 'leasing' of reclaimed land. The Public Land Acts of
1919 and 1936 also declared that the foreshore and lands reclaimed by the government
were to be "disposed of to private parties by lease only and not otherwise." Before leasing,
however, the Governor-General, upon recommendation of the Secretary of Agriculture and
Natural Resources, had first to determine that the land reclaimed was not necessary for the
public service. This requisite must have been met before the land could be disposed of. But
even then, the foreshore and lands under water were not to be alienated and sold to
private parties. The disposition of the reclaimed land was only by lease. The land
remained property of the State." (Emphasis supplied)

As observed by Justice Puno in his concurring opinion, "Commonwealth Act No. 141 has remained
in effect at present."

The State policy prohibiting the sale to private parties of government reclaimed, foreshore and
marshy alienable lands of the public domain, first implemented in 1907 was thus reaffirmed in CA
No. 141 after the 1935 Constitution took effect. The prohibition on the sale of foreshore lands,
however, became a constitutional edict under the 1935 Constitution. Foreshore lands became
inalienable as natural resources of the State, unless reclaimed by the government and classified as
agricultural lands of the public domain, in which case they would fall under the classification of
government reclaimed lands.

After the effectivity of the 1935 Constitution, government reclaimed and marshy disposable lands of
the public domain continued to be only leased and not sold to private parties. 56 These lands
remained sui generis, as the only alienable or disposable lands of the public domain the
government could not sell to private parties.
Since then and until now, the only way the government can sell to private parties government
reclaimed and marshy disposable lands of the public domain is for the legislature to pass a law
authorizing such sale. CA No. 141 does not authorize the President to reclassify government
reclaimed and marshy lands into other non-agricultural lands under Section 59 (d). Lands classified
under Section 59 (d) are the only alienable or disposable lands for non-agricultural purposes that the
government could sell to private parties.

Moreover, Section 60 of CA No. 141 expressly requires congressional authority before lands under

Section 59 that the government previously transferred to government units or entities could be sold
to private parties. Section 60 of CA No. 141 declares that –

"Sec. 60. x x x The area so leased or sold shall be such as shall, in the judgment of the
Secretary of Agriculture and Natural Resources, be reasonably necessary for the purposes
for which such sale or lease is requested, and shall not exceed one hundred and forty-four
hectares: Provided, however, That this limitation shall not apply to grants, donations, or
transfers made to a province, municipality or branch or subdivision of the Government for the
purposes deemed by said entities conducive to the public interest; but the land so granted,
donated, or transferred to a province, municipality or branch or subdivision of the
Government shall not be alienated, encumbered, or otherwise disposed of in a
manner affecting its title, except when authorized by Congress: x x x." (Emphasis
supplied)

The congressional authority required in Section 60 of CA No. 141 mirrors the legislative authority
required in Section 56 of Act No. 2874.

One reason for the congressional authority is that Section 60 of CA No. 141 exempted government
units and entities from the maximum area of public lands that could be acquired from the State.
These government units and entities should not just turn around and sell these lands to private
parties in violation of constitutional or statutory limitations. Otherwise, the transfer of lands for non-
agricultural purposes to government units and entities could be used to circumvent constitutional
limitations on ownership of alienable or disposable lands of the public domain. In the same manner,
such transfers could also be used to evade the statutory prohibition in CA No. 141 on the sale of
government reclaimed and marshy lands of the public domain to private parties. Section 60 of CA
No. 141 constitutes by operation of law a lien on these lands. 57

In case of sale or lease of disposable lands of the public domain falling under Section 59 of CA No.
141, Sections 63 and 67 require a public bidding. Sections 63 and 67 of CA No. 141 provide as
follows:

"Sec. 63. Whenever it is decided that lands covered by this chapter are not needed for public
purposes, the Director of Lands shall ask the Secretary of Agriculture and Commerce (now
the Secretary of Natural Resources) for authority to dispose of the same. Upon receipt of
such authority, the Director of Lands shall give notice by public advertisement in the same
manner as in the case of leases or sales of agricultural public land, x x x.

Sec. 67. The lease or sale shall be made by oral bidding; and adjudication shall be
made to the highest bidder. x x x." (Emphasis supplied)

Thus, CA No. 141 mandates the Government to put to public auction all leases or sales of alienable
or disposable lands of the public domain. 58
Like Act No. 1654 and Act No. 2874 before it, CA No. 141 did not repeal Section 5 of the Spanish
Law of Waters of 1866. Private parties could still reclaim portions of the sea with government
permission. However, the reclaimed land could become private land only if classified as
alienable agricultural land of the public domain open to disposition under CA No. 141. The 1935
Constitution prohibited the alienation of all natural resources except public agricultural lands.

The Civil Code of 1950

The Civil Code of 1950 readopted substantially the definition of property of public dominion found in
the Civil Code of 1889. Articles 420 and 422 of the Civil Code of 1950 state that –

"Art. 420. The following things are property of public dominion:

(1) Those intended for public use, such as roads, canals, rivers, torrents, ports and bridges
constructed by the State, banks, shores, roadsteads, and others of similar character;

(2) Those which belong to the State, without being for public use, and are intended for some
public service or for the development of the national wealth.

x x x.

Art. 422. Property of public dominion, when no longer intended for public use or for public
service, shall form part of the patrimonial property of the State."

Again, the government must formally declare that the property of public dominion is no longer
needed for public use or public service, before the same could be classified as patrimonial property
of the State.59 In the case of government reclaimed and marshy lands of the public domain, the
declaration of their being disposable, as well as the manner of their disposition, is governed by the
applicable provisions of CA No. 141.

Like the Civil Code of 1889, the Civil Code of 1950 included as property of public dominion those
properties of the State which, without being for public use, are intended for public service or the
"development of the national wealth." Thus, government reclaimed and marshy lands of the State,
even if not employed for public use or public service, if developed to enhance the national wealth,
are classified as property of public dominion.

Dispositions under the 1973 Constitution

The 1973 Constitution, which took effect on January 17, 1973, likewise adopted the Regalian
doctrine. Section 8, Article XIV of the 1973 Constitution stated that –

"Sec. 8. All lands of the public domain, waters, minerals, coal, petroleum and other mineral
oils, all forces of potential energy, fisheries, wildlife, and other natural resources of the
Philippines belong to the State. With the exception of agricultural, industrial or
commercial, residential, and resettlement lands of the public domain, natural
resources shall not be alienated, and no license, concession, or lease for the exploration,
development, exploitation, or utilization of any of the natural resources shall be granted for a
period exceeding twenty-five years, renewable for not more than twenty-five years, except as
to water rights for irrigation, water supply, fisheries, or industrial uses other than the
development of water power, in which cases, beneficial use may be the measure and the
limit of the grant." (Emphasis supplied)
The 1973 Constitution prohibited the alienation of all natural resources with the exception of
"agricultural, industrial or commercial, residential, and resettlement lands of the public domain." In
contrast, the 1935 Constitution barred the alienation of all natural resources except "public
agricultural lands." However, the term "public agricultural lands" in the 1935 Constitution
encompassed industrial, commercial, residential and resettlement lands of the public domain. 60 If the
land of public domain were neither timber nor mineral land, it would fall under the classification of
agricultural land of the public domain. Both the 1935 and 1973 Constitutions, therefore,
prohibited the alienation of all natural resources except agricultural lands of the public
domain.

The 1973 Constitution, however, limited the alienation of lands of the public domain to individuals
who were citizens of the Philippines. Private corporations, even if wholly owned by Philippine
citizens, were no longer allowed to acquire alienable lands of the public domain unlike in the 1935
Constitution. Section 11, Article XIV of the 1973 Constitution declared that –

"Sec. 11. The Batasang Pambansa, taking into account conservation, ecological, and
development requirements of the natural resources, shall determine by law the size of land
of the public domain which may be developed, held or acquired by, or leased to, any
qualified individual, corporation, or association, and the conditions therefor. No private
corporation or association may hold alienable lands of the public domain except by
lease not to exceed one thousand hectares in area nor may any citizen hold such lands by
lease in excess of five hundred hectares or acquire by purchase, homestead or grant, in
excess of twenty-four hectares. No private corporation or association may hold by lease,
concession, license or permit, timber or forest lands and other timber or forest resources in
excess of one hundred thousand hectares. However, such area may be increased by the
Batasang Pambansa upon recommendation of the National Economic and Development
Authority." (Emphasis supplied)

Thus, under the 1973 Constitution, private corporations could hold alienable lands of the public
domain only through lease. Only individuals could now acquire alienable lands of the public domain,
and private corporations became absolutely barred from acquiring any kind of alienable land
of the public domain. The constitutional ban extended to all kinds of alienable lands of the public
domain, while the statutory ban under CA No. 141 applied only to government reclaimed, foreshore
and marshy alienable lands of the public domain.

PD No. 1084 Creating the Public Estates Authority

On February 4, 1977, then President Ferdinand Marcos issued Presidential Decree No. 1084
creating PEA, a wholly government owned and controlled corporation with a special charter.
Sections 4 and 8 of PD No. 1084, vests PEA with the following purposes and powers:

"Sec. 4. Purpose. The Authority is hereby created for the following purposes:

(a) To reclaim land, including foreshore and submerged areas, by dredging, filling or
other means, or to acquire reclaimed land;

(b) To develop, improve, acquire, administer, deal in, subdivide, dispose, lease and sell any
and all kinds of lands, buildings, estates and other forms of real property, owned,
managed, controlled and/or operated by the government;

(c) To provide for, operate or administer such service as may be necessary for the efficient,
economical and beneficial utilization of the above properties.
 Sec. 5. Powers and functions of the Authority. The Authority shall, in carrying out the
purposes for which it is created, have the following powers and functions:

(a)To prescribe its by-laws.

xxx

(i) To hold lands of the public domain in excess of the area permitted to private
corporations by statute.

(j) To reclaim lands and to construct work across, or otherwise, any stream, watercourse,
canal, ditch, flume x x x.

xxx

(o) To perform such acts and exercise such functions as may be necessary for the
attainment of the purposes and objectives herein specified." (Emphasis supplied)

PD No. 1084 authorizes PEA to reclaim both foreshore and submerged areas of the public domain.
Foreshore areas are those covered and uncovered by the ebb and flow of the tide. 61 Submerged
areas are those permanently under water regardless of the ebb and flow of the tide. 62 Foreshore and
submerged areas indisputably belong to the public domain 63 and are inalienable unless reclaimed,
classified as alienable lands open to disposition, and further declared no longer needed for public
service.

The ban in the 1973 Constitution on private corporations from acquiring alienable lands of the public
domain did not apply to PEA since it was then, and until today, a fully owned government
corporation. The constitutional ban applied then, as it still applies now, only to "private corporations
and associations." PD No. 1084 expressly empowers PEA "to hold lands of the public domain"
even "in excess of the area permitted to private corporations by statute." Thus, PEA can hold title
to private lands, as well as title to lands of the public domain.

In order for PEA to sell its reclaimed foreshore and submerged alienable lands of the public domain,
there must be legislative authority empowering PEA to sell these lands. This legislative authority is
necessary in view of Section 60 of CA No.141, which states –

"Sec. 60. x x x; but the land so granted, donated or transferred to a province, municipality, or
branch or subdivision of the Government shall not be alienated, encumbered or otherwise
disposed of in a manner affecting its title, except when authorized by Congress; x x x."
(Emphasis supplied)

Without such legislative authority, PEA could not sell but only lease its reclaimed foreshore and
submerged alienable lands of the public domain. Nevertheless, any legislative authority granted to
PEA to sell its reclaimed alienable lands of the public domain would be subject to the constitutional
ban on private corporations from acquiring alienable lands of the public domain. Hence, such
legislative authority could only benefit private individuals.

Dispositions under the 1987 Constitution

The 1987 Constitution, like the 1935 and 1973 Constitutions before it, has adopted the Regalian
doctrine. The 1987 Constitution declares that all natural resources are "owned by the State," and
except for alienable agricultural lands of the public domain, natural resources cannot be alienated.
Sections 2 and 3, Article XII of the 1987 Constitution state that –

"Section 2. All lands of the public domain, waters, minerals, coal, petroleum and other
mineral oils, all forces of potential energy, fisheries, forests or timber, wildlife, flora and
fauna, and other natural resources are owned by the State. With the exception of
agricultural lands, all other natural resources shall not be alienated. The exploration,
development, and utilization of natural resources shall be under the full control and
supervision of the State. x x x.

Section 3. Lands of the public domain are classified into agricultural, forest or timber, mineral
lands, and national parks. Agricultural lands of the public domain may be further classified by
law according to the uses which they may be devoted. Alienable lands of the public
domain shall be limited to agricultural lands. Private corporations or associations
may not hold such alienable lands of the public domain except by lease, for a period
not exceeding twenty-five years, renewable for not more than twenty-five years, and
not to exceed one thousand hectares in area. Citizens of the Philippines may lease not
more than five hundred hectares, or acquire not more than twelve hectares thereof by
purchase, homestead, or grant.

Taking into account the requirements of conservation, ecology, and development, and
subject to the requirements of agrarian reform, the Congress shall determine, by law, the
size of lands of the public domain which may be acquired, developed, held, or leased and
the conditions therefor." (Emphasis supplied)

The 1987 Constitution continues the State policy in the 1973 Constitution banning private
corporations from acquiring any kind of alienable land of the public domain. Like the 1973
Constitution, the 1987 Constitution allows private corporations to hold alienable lands of the public
domain only through lease. As in the 1935 and 1973 Constitutions, the general law governing the
lease to private corporations of reclaimed, foreshore and marshy alienable lands of the public
domain is still CA No. 141.

The Rationale behind the Constitutional Ban

The rationale behind the constitutional ban on corporations from acquiring, except through lease,
alienable lands of the public domain is not well understood. During the deliberations of the 1986
Constitutional Commission, the commissioners probed the rationale behind this ban, thus:

"FR. BERNAS: Mr. Vice-President, my questions have reference to page 3, line 5 which
says:

`No private corporation or association may hold alienable lands of the public domain except
by lease, not to exceed one thousand hectares in area.'

If we recall, this provision did not exist under the 1935 Constitution, but this was introduced
in the 1973 Constitution. In effect, it prohibits private corporations from acquiring alienable
public lands. But it has not been very clear in jurisprudence what the reason for this is.
In some of the cases decided in 1982 and 1983, it was indicated that the purpose of this
is to prevent large landholdings. Is that the intent of this provision?

MR. VILLEGAS: I think that is the spirit of the provision.

 FR. BERNAS: In existing decisions involving the Iglesia ni Cristo, there were instances
where the Iglesia ni Cristo was not allowed to acquire a mere 313-square meter land where
a chapel stood because the Supreme Court said it would be in violation of this." (Emphasis
supplied)

In Ayog v. Cusi,64 the Court explained the rationale behind this constitutional ban in this way:

"Indeed, one purpose of the constitutional prohibition against purchases of public agricultural
lands by private corporations is to equitably diffuse land ownership or to encourage 'owner-
cultivatorship and the economic family-size farm' and to prevent a recurrence of cases like
the instant case. Huge landholdings by corporations or private persons had spawned social
unrest."

However, if the constitutional intent is to prevent huge landholdings, the Constitution could have
simply limited the size of alienable lands of the public domain that corporations could acquire. The
Constitution could have followed the limitations on individuals, who could acquire not more than 24
hectares of alienable lands of the public domain under the 1973 Constitution, and not more than 12
hectares under the 1987 Constitution.

If the constitutional intent is to encourage economic family-size farms, placing the land in the name
of a corporation would be more effective in preventing the break-up of farmlands. If the farmland is
registered in the name of a corporation, upon the death of the owner, his heirs would inherit shares
in the corporation instead of subdivided parcels of the farmland. This would prevent the continuing
break-up of farmlands into smaller and smaller plots from one generation to the next.

In actual practice, the constitutional ban strengthens the constitutional limitation on individuals from
acquiring more than the allowed area of alienable lands of the public domain. Without the
constitutional ban, individuals who already acquired the maximum area of alienable lands of the
public domain could easily set up corporations to acquire more alienable public lands. An individual
could own as many corporations as his means would allow him. An individual could even hide his
ownership of a corporation by putting his nominees as stockholders of the corporation. The
corporation is a convenient vehicle to circumvent the constitutional limitation on acquisition by
individuals of alienable lands of the public domain.

The constitutional intent, under the 1973 and 1987 Constitutions, is to transfer ownership of only a
limited area of alienable land of the public domain to a qualified individual. This constitutional intent
is safeguarded by the provision prohibiting corporations from acquiring alienable lands of the public
domain, since the vehicle to circumvent the constitutional intent is removed. The available alienable
public lands are gradually decreasing in the face of an ever-growing population. The most effective
way to insure faithful adherence to this constitutional intent is to grant or sell alienable lands of the
public domain only to individuals. This, it would seem, is the practical benefit arising from the
constitutional ban.

The Amended Joint Venture Agreement

The subject matter of the Amended JVA, as stated in its second Whereas clause, consists of three
properties, namely:

1. "[T]hree partially reclaimed and substantially eroded islands along Emilio Aguinaldo
Boulevard in Paranaque and Las Pinas, Metro Manila, with a combined titled area of
1,578,441 square meters;"
 2. "[A]nother area of 2,421,559 square meters contiguous to the three islands;" and

3. "[A]t AMARI's option as approved by PEA, an additional 350 hectares more or less to
regularize the configuration of the reclaimed area." 65

PEA confirms that the Amended JVA involves "the development of the Freedom Islands and further
reclamation of about 250 hectares x x x," plus an option "granted to AMARI to subsequently reclaim
another 350 hectares x x x."66

In short, the Amended JVA covers a reclamation area of 750 hectares. Only 157.84 hectares of the
750-hectare reclamation project have been reclaimed, and the rest of the 592.15 hectares are
still submerged areas forming part of Manila Bay.

Under the Amended JVA, AMARI will reimburse PEA the sum of P1,894,129,200.00 for PEA's
"actual cost" in partially reclaiming the Freedom Islands. AMARI will also complete, at its own
expense, the reclamation of the Freedom Islands. AMARI will further shoulder all the reclamation
costs of all the other areas, totaling 592.15 hectares, still to be reclaimed. AMARI and PEA will
share, in the proportion of 70 percent and 30 percent, respectively, the total net usable area which is
defined in the Amended JVA as the total reclaimed area less 30 percent earmarked for common
areas. Title to AMARI's share in the net usable area, totaling 367.5 hectares, will be issued in the
name of AMARI. Section 5.2 (c) of the Amended JVA provides that –

"x x x, PEA shall have the duty to execute without delay the necessary deed of transfer or
conveyance of the title pertaining to AMARI's Land share based on the Land Allocation
Plan. PEA, when requested in writing by AMARI, shall then cause the issuance and
delivery of the proper certificates of title covering AMARI's Land Share in the name of
AMARI, x x x; provided, that if more than seventy percent (70%) of the titled area at any
given time pertains to AMARI, PEA shall deliver to AMARI only seventy percent (70%) of the
titles pertaining to AMARI, until such time when a corresponding proportionate area of
additional land pertaining to PEA has been titled." (Emphasis supplied)

Indisputably, under the Amended JVA AMARI will acquire and own a maximum of 367.5
hectares of reclaimed land which will be titled in its name.

To implement the Amended JVA, PEA delegated to the unincorporated PEA-AMARI joint venture
PEA's statutory authority, rights and privileges to reclaim foreshore and submerged areas in Manila
Bay. Section 3.2.a of the Amended JVA states that –

"PEA hereby contributes to the joint venture its rights and privileges to perform Rawland
Reclamation and Horizontal Development as well as own the Reclamation Area, thereby
granting the Joint Venture the full and exclusive right, authority and privilege to undertake the
Project in accordance with the Master Development Plan."

The Amended JVA is the product of a renegotiation of the original JVA dated April 25, 1995 and its
supplemental agreement dated August 9, 1995.

The Threshold Issue

The threshold issue is whether AMARI, a private corporation, can acquire and own under the
Amended JVA 367.5 hectares of reclaimed foreshore and submerged areas in Manila Bay in view of
Sections 2 and 3, Article XII of the 1987 Constitution which state that:
 "Section 2. All lands of the public domain, waters, minerals, coal, petroleum, and other
mineral oils, all forces of potential energy, fisheries, forests or timber, wildlife, flora and
fauna, and other natural resources are owned by the State. With the exception of
agricultural lands, all other natural resources shall not be alienated. x x x.

xxx

Section 3. x x x Alienable lands of the public domain shall be limited to agricultural

lands. Private corporations or associations may not hold such alienable lands of the
public domain except by lease, x x x."(Emphasis supplied)

Classification of Reclaimed Foreshore and Submerged Areas

PEA readily concedes that lands reclaimed from foreshore or submerged areas of Manila Bay are
alienable or disposable lands of the public domain. In its Memorandum, 67 PEA admits that –

"Under the Public Land Act (CA 141, as amended), reclaimed lands are classified as
alienable and disposable lands of the public domain:

'Sec. 59. The lands disposable under this title shall be classified as follows:

(a) Lands reclaimed by the government by dredging, filling, or other means;

x x x.'" (Emphasis supplied)

Likewise, the Legal Task Force68 constituted under Presidential Administrative Order No. 365
admitted in its Report and Recommendation to then President Fidel V. Ramos, "[R]eclaimed lands
are classified as alienable and disposable lands of the public domain."69 The Legal Task Force
concluded that –

"D. Conclusion

Reclaimed lands are lands of the public domain. However, by statutory authority, the rights of
ownership and disposition over reclaimed lands have been transferred to PEA, by virtue of
which PEA, as owner, may validly convey the same to any qualified person without violating
the Constitution or any statute.

The constitutional provision prohibiting private corporations from holding public land, except
by lease (Sec. 3, Art. XVII,70 1987 Constitution), does not apply to reclaimed lands whose
ownership has passed on to PEA by statutory grant."

Under Section 2, Article XII of the 1987 Constitution, the foreshore and submerged areas of Manila
Bay are part of the "lands of the public domain, waters x x x and other natural resources" and
consequently "owned by the State." As such, foreshore and submerged areas "shall not be
alienated," unless they are classified as "agricultural lands" of the public domain. The mere
reclamation of these areas by PEA does not convert these inalienable natural resources of the State
into alienable or disposable lands of the public domain. There must be a law or presidential
proclamation officially classifying these reclaimed lands as alienable or disposable and open to
disposition or concession. Moreover, these reclaimed lands cannot be classified as alienable or
disposable if the law has reserved them for some public or quasi-public use. 71
Section 8 of CA No. 141 provides that "only those lands shall be declared open to disposition or
concession which have been officially delimited and classified."72 The President has the authority
to classify inalienable lands of the public domain into alienable or disposable lands of the public
domain, pursuant to Section 6 of CA No. 141. In Laurel vs. Garcia,73 the Executive Department
attempted to sell the Roppongi property in Tokyo, Japan, which was acquired by the Philippine
Government for use as the Chancery of the Philippine Embassy. Although the Chancery had
transferred to another location thirteen years earlier, the Court still ruled that, under Article 422 74 of
the Civil Code, a property of public dominion retains such character until formally declared
otherwise. The Court ruled that –

"The fact that the Roppongi site has not been used for a long time for actual Embassy
service does not automatically convert it to patrimonial property. Any such conversion
happens only if the property is withdrawn from public use (Cebu Oxygen and Acetylene Co.
v. Bercilles, 66 SCRA 481 [1975]. A property continues to be part of the public domain,
not available for private appropriation or ownership 'until there is a formal declaration
on the part of the government to withdraw it from being such' (Ignacio v. Director of
Lands, 108 Phil. 335 [1960]." (Emphasis supplied)

PD No. 1085, issued on February 4, 1977, authorized the issuance of special land patents for lands
reclaimed by PEA from the foreshore or submerged areas of Manila Bay. On January 19, 1988 then
President Corazon C. Aquino issued Special Patent No. 3517 in the name of PEA for the 157.84
hectares comprising the partially reclaimed Freedom Islands. Subsequently, on April 9, 1999 the
Register of Deeds of the Municipality of Paranaque issued TCT Nos. 7309, 7311 and 7312 in the
name of PEA pursuant to Section 103 of PD No. 1529 authorizing the issuance of certificates of title
corresponding to land patents. To this day, these certificates of title are still in the name of PEA.

PD No. 1085, coupled with President Aquino's actual issuance of a special patent covering the
Freedom Islands, is equivalent to an official proclamation classifying the Freedom Islands as
alienable or disposable lands of the public domain. PD No. 1085 and President Aquino's issuance of
a land patent also constitute a declaration that the Freedom Islands are no longer needed for public
service. The Freedom Islands are thus alienable or disposable lands of the public domain,
open to disposition or concession to qualified parties.

At the time then President Aquino issued Special Patent No. 3517, PEA had already reclaimed the
Freedom Islands although subsequently there were partial erosions on some areas. The government
had also completed the necessary surveys on these islands. Thus, the Freedom Islands were no
longer part of Manila Bay but part of the land mass. Section 3, Article XII of the 1987 Constitution
classifies lands of the public domain into "agricultural, forest or timber, mineral lands, and national
parks." Being neither timber, mineral, nor national park lands, the reclaimed Freedom Islands
necessarily fall under the classification of agricultural lands of the public domain. Under the 1987
Constitution, agricultural lands of the public domain are the only natural resources that the State may
alienate to qualified private parties. All other natural resources, such as the seas or bays, are
"waters x x x owned by the State" forming part of the public domain, and are inalienable pursuant to
Section 2, Article XII of the 1987 Constitution.

AMARI claims that the Freedom Islands are private lands because CDCP, then a private
corporation, reclaimed the islands under a contract dated November 20, 1973 with the
Commissioner of Public Highways. AMARI, citing Article 5 of the Spanish Law of Waters of 1866,
argues that "if the ownership of reclaimed lands may be given to the party constructing the works,
then it cannot be said that reclaimed lands are lands of the public domain which the State may not
alienate."75 Article 5 of the Spanish Law of Waters reads as follows:
 "Article 5. Lands reclaimed from the sea in consequence of works constructed by the State,
or by the provinces, pueblos or private persons, with proper permission, shall become the
property of the party constructing such works, unless otherwise provided by the terms of
the grant of authority." (Emphasis supplied)

Under Article 5 of the Spanish Law of Waters of 1866, private parties could reclaim from the sea only
with "proper permission" from the State. Private parties could own the reclaimed land only if not
"otherwise provided by the terms of the grant of authority." This clearly meant that no one could
reclaim from the sea without permission from the State because the sea is property of public
dominion. It also meant that the State could grant or withhold ownership of the reclaimed land
because any reclaimed land, like the sea from which it emerged, belonged to the State. Thus, a
private person reclaiming from the sea without permission from the State could not acquire
ownership of the reclaimed land which would remain property of public dominion like the sea it
replaced.76 Article 5 of the Spanish Law of Waters of 1866 adopted the time-honored principle of land
ownership that "all lands that were not acquired from the government, either by purchase or by
grant, belong to the public domain."77

Article 5 of the Spanish Law of Waters must be read together with laws subsequently enacted on the
disposition of public lands. In particular, CA No. 141 requires that lands of the public domain must
first be classified as alienable or disposable before the government can alienate them. These lands
must not be reserved for public or quasi-public purposes. 78 Moreover, the contract between CDCP
and the government was executed after the effectivity of the 1973 Constitution which barred private
corporations from acquiring any kind of alienable land of the public domain. This contract could not
have converted the Freedom Islands into private lands of a private corporation.

Presidential Decree No. 3-A, issued on January 11, 1973, revoked all laws authorizing the
reclamation of areas under water and revested solely in the National Government the power to
reclaim lands. Section 1 of PD No. 3-A declared that –

"The provisions of any law to the contrary notwithstanding, the reclamation of areas
under water, whether foreshore or inland, shall be limited to the National Government or
any person authorized by it under a proper contract. (Emphasis supplied)

x x x."

PD No. 3-A repealed Section 5 of the Spanish Law of Waters of 1866 because reclamation of areas
under water could now be undertaken only by the National Government or by a person contracted by
the National Government. Private parties may reclaim from the sea only under a contract with the
National Government, and no longer by grant or permission as provided in Section 5 of the Spanish
Law of Waters of 1866.

Executive Order No. 525, issued on February 14, 1979, designated PEA as the National
Government's implementing arm to undertake "all reclamation projects of the government," which
"shall be undertaken by the PEA or through a proper contract executed by it with any person
or entity." Under such contract, a private party receives compensation for reclamation services
rendered to PEA. Payment to the contractor may be in cash, or in kind consisting of portions of the
reclaimed land, subject to the constitutional ban on private corporations from acquiring alienable
lands of the public domain. The reclaimed land can be used as payment in kind only if the reclaimed
land is first classified as alienable or disposable land open to disposition, and then declared no
longer needed for public service.
The Amended JVA covers not only the Freedom Islands, but also an additional 592.15 hectares
which are still submerged and forming part of Manila Bay. There is no legislative or Presidential
act classifying these submerged areas as alienable or disposable lands of the public domain
open to disposition. These submerged areas are not covered by any patent or certificate of title.
There can be no dispute that these submerged areas form part of the public domain, and in their
present state are inalienable and outside the commerce of man. Until reclaimed from the sea,
these submerged areas are, under the Constitution, "waters x x x owned by the State," forming part
of the public domain and consequently inalienable. Only when actually reclaimed from the sea can
these submerged areas be classified as public agricultural lands, which under the Constitution are
the only natural resources that the State may alienate. Once reclaimed and transformed into public
agricultural lands, the government may then officially classify these lands as alienable or disposable
lands open to disposition. Thereafter, the government may declare these lands no longer needed for
public service. Only then can these reclaimed lands be considered alienable or disposable lands of
the public domain and within the commerce of man.

The classification of PEA's reclaimed foreshore and submerged lands into alienable or disposable
lands open to disposition is necessary because PEA is tasked under its charter to undertake public
services that require the use of lands of the public domain. Under Section 5 of PD No. 1084, the
functions of PEA include the following: "[T]o own or operate railroads, tramways and other kinds of
land transportation, x x x; [T]o construct, maintain and operate such systems of sanitary sewers as
may be necessary; [T]o construct, maintain and operate such storm drains as may be necessary."
PEA is empowered to issue "rules and regulations as may be necessary for the proper use by
private parties of any or all of the highways, roads, utilities, buildings and/or any of its
properties and to impose or collect fees or tolls for their use." Thus, part of the reclaimed foreshore
and submerged lands held by the PEA would actually be needed for public use or service since
many of the functions imposed on PEA by its charter constitute essential public services.

Moreover, Section 1 of Executive Order No. 525 provides that PEA "shall be primarily responsible for
integrating, directing, and coordinating all reclamation projects for and on behalf of the National
Government." The same section also states that "[A]ll reclamation projects shall be approved by the
President upon recommendation of the PEA, and shall be undertaken by the PEA or through a
proper contract executed by it with any person or entity; x x x." Thus, under EO No. 525, in relation
to PD No. 3-A and PD No.1084, PEA became the primary implementing agency of the National
Government to reclaim foreshore and submerged lands of the public domain. EO No. 525
recognized PEA as the government entity "to undertake the reclamation of lands and ensure their
maximum utilization in promoting public welfare and interests."79 Since large portions of these
reclaimed lands would obviously be needed for public service, there must be a formal declaration
segregating reclaimed lands no longer needed for public service from those still needed for public
service.1âwphi1.nêt

Section 3 of EO No. 525, by declaring that all lands reclaimed by PEA "shall belong to or be owned
by the PEA," could not automatically operate to classify inalienable lands into alienable or disposable
lands of the public domain. Otherwise, reclaimed foreshore and submerged lands of the public
domain would automatically become alienable once reclaimed by PEA, whether or not classified as
alienable or disposable.

The Revised Administrative Code of 1987, a later law than either PD No. 1084 or EO No. 525, vests
in the Department of Environment and Natural Resources ("DENR" for brevity) the following powers
and functions:

"Sec. 4. Powers and Functions. The Department shall:

 (1) x x x

xxx

(4) Exercise supervision and control over forest lands, alienable and disposable public

lands, mineral resources and, in the process of exercising such control, impose appropriate
taxes, fees, charges, rentals and any such form of levy and collect such revenues for the
exploration, development, utilization or gathering of such resources;

xxx

(14) Promulgate rules, regulations and guidelines on the issuance of licenses,

permits, concessions, lease agreements and such other privileges concerning the
development, exploration and utilization of the country's marine, freshwater, and
brackish water and over all aquatic resources of the country and shall continue to
oversee, supervise and police our natural resources; cancel or cause to cancel such
privileges upon failure, non-compliance or violations of any regulation, order, and for all other
causes which are in furtherance of the conservation of natural resources and supportive of
the national interest;

(15) Exercise exclusive jurisdiction on the management and disposition of all lands of

the public domain and serve as the sole agency responsible for classification, sub-
classification, surveying and titling of lands in consultation with appropriate
agencies."80 (Emphasis supplied)

As manager, conservator and overseer of the natural resources of the State, DENR exercises
"supervision and control over alienable and disposable public lands." DENR also exercises
"exclusive jurisdiction on the management and disposition of all lands of the public domain." Thus,
DENR decides whether areas under water, like foreshore or submerged areas of Manila Bay, should
be reclaimed or not. This means that PEA needs authorization from DENR before PEA can
undertake reclamation projects in Manila Bay, or in any part of the country.

DENR also exercises exclusive jurisdiction over the disposition of all lands of the public domain.
Hence, DENR decides whether reclaimed lands of PEA should be classified as alienable under
Sections 681 and 782 of CA No. 141. Once DENR decides that the reclaimed lands should be so
classified, it then recommends to the President the issuance of a proclamation classifying the lands
as alienable or disposable lands of the public domain open to disposition. We note that then DENR
Secretary Fulgencio S. Factoran, Jr. countersigned Special Patent No. 3517 in compliance with the
Revised Administrative Code and Sections 6 and 7 of CA No. 141.

In short, DENR is vested with the power to authorize the reclamation of areas under water, while
PEA is vested with the power to undertake the physical reclamation of areas under water, whether
directly or through private contractors. DENR is also empowered to classify lands of the public
domain into alienable or disposable lands subject to the approval of the President. On the other
hand, PEA is tasked to develop, sell or lease the reclaimed alienable lands of the public domain.

Clearly, the mere physical act of reclamation by PEA of foreshore or submerged areas does not
make the reclaimed lands alienable or disposable lands of the public domain, much less patrimonial
lands of PEA. Likewise, the mere transfer by the National Government of lands of the public domain
to PEA does not make the lands alienable or disposable lands of the public domain, much less
patrimonial lands of PEA.
Absent two official acts – a classification that these lands are alienable or disposable and open to
disposition and a declaration that these lands are not needed for public service, lands reclaimed by
PEA remain inalienable lands of the public domain. Only such an official classification and formal
declaration can convert reclaimed lands into alienable or disposable lands of the public domain,
open to disposition under the Constitution, Title I and Title III 83 of CA No. 141 and other applicable
laws.84

PEA's Authority to Sell Reclaimed Lands

PEA, like the Legal Task Force, argues that as alienable or disposable lands of the public domain,
the reclaimed lands shall be disposed of in accordance with CA No. 141, the Public Land Act. PEA,
citing Section 60 of CA No. 141, admits that reclaimed lands transferred to a branch or subdivision of
the government "shall not be alienated, encumbered, or otherwise disposed of in a manner affecting
its title, except when authorized by Congress: x x x."85 (Emphasis by PEA)

In Laurel vs. Garcia,86 the Court cited Section 48 of the Revised Administrative Code of 1987, which
states that –

"Sec. 48. Official Authorized to Convey Real Property. Whenever real property of the
Government is authorized by law to be conveyed, the deed of conveyance shall be
executed in behalf of the government by the following: x x x."

Thus, the Court concluded that a law is needed to convey any real property belonging to the
Government. The Court declared that -

"It is not for the President to convey real property of the government on his or her own sole
will. Any such conveyance must be authorized and approved by a law enacted by the
Congress. It requires executive and legislative concurrence." (Emphasis supplied)

PEA contends that PD No. 1085 and EO No. 525 constitute the legislative authority allowing PEA to
sell its reclaimed lands. PD No. 1085, issued on February 4, 1977, provides that –

"The land reclaimed in the foreshore and offshore area of Manila Bay pursuant to the
contract for the reclamation and construction of the Manila-Cavite Coastal Road Project
between the Republic of the Philippines and the Construction and Development Corporation
of the Philippines dated November 20, 1973 and/or any other contract or reclamation
covering the same area is hereby transferred, conveyed and assigned to the ownership
and administration of the Public Estates Authority established pursuant to PD No. 1084;
Provided, however, That the rights and interests of the Construction and Development
Corporation of the Philippines pursuant to the aforesaid contract shall be recognized and
respected.

Henceforth, the Public Estates Authority shall exercise the rights and assume the obligations
of the Republic of the Philippines (Department of Public Highways) arising from, or incident
to, the aforesaid contract between the Republic of the Philippines and the Construction and
Development Corporation of the Philippines.

In consideration of the foregoing transfer and assignment, the Public Estates Authority shall
issue in favor of the Republic of the Philippines the corresponding shares of stock in said
entity with an issued value of said shares of stock (which) shall be deemed fully paid and
non-assessable.
 The Secretary of Public Highways and the General Manager of the Public Estates Authority
shall execute such contracts or agreements, including appropriate agreements with the
Construction and Development Corporation of the Philippines, as may be necessary to
implement the above.

Special land patent/patents shall be issued by the Secretary of Natural Resources in

favor of the Public Estates Authority without prejudice to the subsequent transfer to
the contractor or his assignees of such portion or portions of the land reclaimed or to
be reclaimed as provided for in the above-mentioned contract. On the basis of such
patents, the Land Registration Commission shall issue the corresponding certificate
of title." (Emphasis supplied)

On the other hand, Section 3 of EO No. 525, issued on February 14, 1979, provides that -

"Sec. 3. All lands reclaimed by PEA shall belong to or be owned by the PEA which shall
be responsible for its administration, development, utilization or disposition in accordance
with the provisions of Presidential Decree No. 1084. Any and all income that the PEA may
derive from the sale, lease or use of reclaimed lands shall be used in accordance with the
provisions of Presidential Decree No. 1084."

There is no express authority under either PD No. 1085 or EO No. 525 for PEA to sell its reclaimed
lands. PD No. 1085 merely transferred "ownership and administration" of lands reclaimed from
Manila Bay to PEA, while EO No. 525 declared that lands reclaimed by PEA "shall belong to or be
owned by PEA." EO No. 525 expressly states that PEA should dispose of its reclaimed lands "in
accordance with the provisions of Presidential Decree No. 1084," the charter of PEA.

PEA's charter, however, expressly tasks PEA "to develop, improve, acquire, administer, deal in,
subdivide, dispose, lease and sell any and all kinds of lands x x x owned, managed, controlled
and/or operated by the government."87 (Emphasis supplied) There is, therefore, legislative
authority granted to PEA to sell its lands, whether patrimonial or alienable lands of the public
domain. PEA may sell to private parties its patrimonial properties in accordance with the PEA
charter free from constitutional limitations. The constitutional ban on private corporations from
acquiring alienable lands of the public domain does not apply to the sale of PEA's patrimonial lands.

PEA may also sell its alienable or disposable lands of the public domain to private individuals
since, with the legislative authority, there is no longer any statutory prohibition against such sales
and the constitutional ban does not apply to individuals. PEA, however, cannot sell any of its
alienable or disposable lands of the public domain to private corporations since Section 3, Article XII
of the 1987 Constitution expressly prohibits such sales. The legislative authority benefits only
individuals. Private corporations remain barred from acquiring any kind of alienable land of the public
domain, including government reclaimed lands.

The provision in PD No. 1085 stating that portions of the reclaimed lands could be transferred by
PEA to the "contractor or his assignees" (Emphasis supplied) would not apply to private corporations
but only to individuals because of the constitutional ban. Otherwise, the provisions of PD No. 1085
would violate both the 1973 and 1987 Constitutions.

The requirement of public auction in the sale of reclaimed lands

Assuming the reclaimed lands of PEA are classified as alienable or disposable lands open to
disposition, and further declared no longer needed for public service, PEA would have to conduct a
public bidding in selling or leasing these lands. PEA must observe the provisions of Sections 63 and
67 of CA No. 141 requiring public auction, in the absence of a law exempting PEA from holding a
public auction.88 Special Patent No. 3517 expressly states that the patent is issued by authority of the
Constitution and PD No. 1084, "supplemented by Commonwealth Act No. 141, as amended." This is
an acknowledgment that the provisions of CA No. 141 apply to the disposition of reclaimed alienable
lands of the public domain unless otherwise provided by law. Executive Order No. 654, 89 which
authorizes PEA "to determine the kind and manner of payment for the transfer" of its assets and
properties, does not exempt PEA from the requirement of public auction. EO No. 654 merely
authorizes PEA to decide the mode of payment, whether in kind and in installment, but does not
authorize PEA to dispense with public auction.

Moreover, under Section 79 of PD No. 1445, otherwise known as the Government Auditing Code,
the government is required to sell valuable government property through public bidding. Section 79
of PD No. 1445 mandates that –

"Section 79. When government property has become unserviceable for any cause, or is no

longer needed, it shall, upon application of the officer accountable therefor, be inspected by
the head of the agency or his duly authorized representative in the presence of the auditor
concerned and, if found to be valueless or unsaleable, it may be destroyed in their
presence. If found to be valuable, it may be sold at public auction to the highest
bidder under the supervision of the proper committee on award or similar body in the
presence of the auditor concerned or other authorized representative of the
Commission, after advertising by printed notice in the Official Gazette, or for not less
than three consecutive days in any newspaper of general circulation, or where the
value of the property does not warrant the expense of publication, by notices posted for a
like period in at least three public places in the locality where the property is to be sold. In
the event that the public auction fails, the property may be sold at a private sale at
such price as may be fixed by the same committee or body concerned and approved
by the Commission."

It is only when the public auction fails that a negotiated sale is allowed, in which case the
Commission on Audit must approve the selling price.90 The Commission on Audit implements
Section 79 of the Government Auditing Code through Circular No. 89-296 91 dated January 27, 1989.
This circular emphasizes that government assets must be disposed of only through public auction,
and a negotiated sale can be resorted to only in case of "failure of public auction."

At the public auction sale, only Philippine citizens are qualified to bid for PEA's reclaimed foreshore
and submerged alienable lands of the public domain. Private corporations are barred from bidding at
the auction sale of any kind of alienable land of the public domain.

PEA originally scheduled a public bidding for the Freedom Islands on December 10, 1991. PEA
imposed a condition that the winning bidder should reclaim another 250 hectares of submerged
areas to regularize the shape of the Freedom Islands, under a 60-40 sharing of the additional
reclaimed areas in favor of the winning bidder. 92 No one, however, submitted a bid. On December
23, 1994, the Government Corporate Counsel advised PEA it could sell the Freedom Islands
through negotiation, without need of another public bidding, because of the failure of the public
bidding on December 10, 1991. 93

However, the original JVA dated April 25, 1995 covered not only the Freedom Islands and the
additional 250 hectares still to be reclaimed, it also granted an option to AMARI to reclaim another
350 hectares. The original JVA, a negotiated contract, enlarged the reclamation area to 750
hectares.94 The failure of public bidding on December 10, 1991, involving only 407.84 hectares, 95 is
not a valid justification for a negotiated sale of 750 hectares, almost double the area publicly
auctioned. Besides, the failure of public bidding happened on December 10, 1991, more than three
years before the signing of the original JVA on April 25, 1995. The economic situation in the country
had greatly improved during the intervening period.

Reclamation under the BOT Law and the Local Government Code

The constitutional prohibition in Section 3, Article XII of the 1987 Constitution is absolute and clear:
"Private corporations or associations may not hold such alienable lands of the public domain except
by lease, x x x." Even Republic Act No. 6957 ("BOT Law," for brevity), cited by PEA and AMARI as
legislative authority to sell reclaimed lands to private parties, recognizes the constitutional ban.
Section 6 of RA No. 6957 states –

"Sec. 6. Repayment Scheme. - For the financing, construction, operation and maintenance
of any infrastructure projects undertaken through the build-operate-and-transfer arrangement
or any of its variations pursuant to the provisions of this Act, the project proponent x x x may
likewise be repaid in the form of a share in the revenue of the project or other non-monetary
payments, such as, but not limited to, the grant of a portion or percentage of the reclaimed
land, subject to the constitutional requirements with respect to the ownership of the
land: x x x." (Emphasis supplied)

A private corporation, even one that undertakes the physical reclamation of a government BOT
project, cannot acquire reclaimed alienable lands of the public domain in view of the constitutional
ban.

Section 302 of the Local Government Code, also mentioned by PEA and AMARI, authorizes local
governments in land reclamation projects to pay the contractor or developer in kind consisting of a
percentage of the reclaimed land, to wit:

"Section 302. Financing, Construction, Maintenance, Operation, and Management of

Infrastructure Projects by the Private Sector. x x x

xxx

In case of land reclamation or construction of industrial estates, the repayment plan may
consist of the grant of a portion or percentage of the reclaimed land or the industrial estate
constructed."

Although Section 302 of the Local Government Code does not contain a proviso similar to that of the
BOT Law, the constitutional restrictions on land ownership automatically apply even though not
expressly mentioned in the Local Government Code.

Thus, under either the BOT Law or the Local Government Code, the contractor or developer, if a
corporate entity, can only be paid with leaseholds on portions of the reclaimed land. If the contractor
or developer is an individual, portions of the reclaimed land, not exceeding 12 hectares 96 of non-
agricultural lands, may be conveyed to him in ownership in view of the legislative authority allowing
such conveyance. This is the only way these provisions of the BOT Law and the Local Government
Code can avoid a direct collision with Section 3, Article XII of the 1987 Constitution.

Registration of lands of the public domain

Finally, PEA theorizes that the "act of conveying the ownership of the reclaimed lands to public
respondent PEA transformed such lands of the public domain to private lands." This theory is
echoed by AMARI which maintains that the "issuance of the special patent leading to the eventual
issuance of title takes the subject land away from the land of public domain and converts the
property into patrimonial or private property." In short, PEA and AMARI contend that with the
issuance of Special Patent No. 3517 and the corresponding certificates of titles, the 157.84 hectares
comprising the Freedom Islands have become private lands of PEA. In support of their theory, PEA
and AMARI cite the following rulings of the Court:

1. Sumail v. Judge of CFI of Cotabato,97 where the Court held –

"Once the patent was granted and the corresponding certificate of title was issued, the land
ceased to be part of the public domain and became private property over which the Director
of Lands has neither control nor jurisdiction."

2. Lee Hong Hok v. David,98 where the Court declared -

"After the registration and issuance of the certificate and duplicate certificate of title based on
a public land patent, the land covered thereby automatically comes under the operation of
Republic Act 496 subject to all the safeguards provided therein."3. Heirs of Gregorio Tengco
v. Heirs of Jose Aliwalas,99 where the Court ruled -

"While the Director of Lands has the power to review homestead patents, he may do so only
so long as the land remains part of the public domain and continues to be under his
exclusive control; but once the patent is registered and a certificate of title is issued, the land
ceases to be part of the public domain and becomes private property over which the Director
of Lands has neither control nor jurisdiction."

4. Manalo v. Intermediate Appellate Court,100 where the Court held –

"When the lots in dispute were certified as disposable on May 19, 1971, and free patents
were issued covering the same in favor of the private respondents, the said lots ceased to be
part of the public domain and, therefore, the Director of Lands lost jurisdiction over the
same."

[Link] v. Court of Appeals,101 where the Court stated –

"Proclamation No. 350, dated October 9, 1956, of President Magsaysay legally effected a
land grant to the Mindanao Medical Center, Bureau of Medical Services, Department of
Health, of the whole lot, validly sufficient for initial registration under the Land Registration
Act. Such land grant is constitutive of a 'fee simple' title or absolute title in favor of petitioner
Mindanao Medical Center. Thus, Section 122 of the Act, which governs the registration of
grants or patents involving public lands, provides that 'Whenever public lands in the
Philippine Islands belonging to the Government of the United States or to the Government of
the Philippines are alienated, granted or conveyed to persons or to public or private
corporations, the same shall be brought forthwith under the operation of this Act (Land
Registration Act, Act 496) and shall become registered lands.'"

The first four cases cited involve petitions to cancel the land patents and the corresponding
certificates of titles issued to private parties. These four cases uniformly hold that the Director of
Lands has no jurisdiction over private lands or that upon issuance of the certificate of title the land
automatically comes under the Torrens System. The fifth case cited involves the registration under
the Torrens System of a 12.8-hectare public land granted by the National Government to Mindanao
Medical Center, a government unit under the Department of Health. The National Government
transferred the 12.8-hectare public land to serve as the site for the hospital buildings and other
facilities of Mindanao Medical Center, which performed a public service. The Court affirmed the
registration of the 12.8-hectare public land in the name of Mindanao Medical Center under Section
122 of Act No. 496. This fifth case is an example of a public land being registered under Act No. 496
without the land losing its character as a property of public dominion.

In the instant case, the only patent and certificates of title issued are those in the name of PEA, a
wholly government owned corporation performing public as well as proprietary functions. No patent
or certificate of title has been issued to any private party. No one is asking the Director of Lands to
cancel PEA's patent or certificates of title. In fact, the thrust of the instant petition is that PEA's
certificates of title should remain with PEA, and the land covered by these certificates, being
alienable lands of the public domain, should not be sold to a private corporation.

Registration of land under Act No. 496 or PD No. 1529 does not vest in the registrant private or
public ownership of the land. Registration is not a mode of acquiring ownership but is merely
evidence of ownership previously conferred by any of the recognized modes of acquiring ownership.
Registration does not give the registrant a better right than what the registrant had prior to the
registration.102 The registration of lands of the public domain under the Torrens system, by itself,
cannot convert public lands into private lands.103

Jurisprudence holding that upon the grant of the patent or issuance of the certificate of title the
alienable land of the public domain automatically becomes private land cannot apply to government
units and entities like PEA. The transfer of the Freedom Islands to PEA was made subject to the
provisions of CA No. 141 as expressly stated in Special Patent No. 3517 issued by then President
Aquino, to wit:

"NOW, THEREFORE, KNOW YE, that by authority of the Constitution of the Philippines and
in conformity with the provisions of Presidential Decree No. 1084, supplemented by
Commonwealth Act No. 141, as amended, there are hereby granted and conveyed unto
the Public Estates Authority the aforesaid tracts of land containing a total area of one million
nine hundred fifteen thousand eight hundred ninety four (1,915,894) square meters; the
technical description of which are hereto attached and made an integral part hereof."
(Emphasis supplied)

Thus, the provisions of CA No. 141 apply to the Freedom Islands on matters not covered by PD No.
1084. Section 60 of CA No. 141 prohibits, "except when authorized by Congress," the sale of
alienable lands of the public domain that are transferred to government units or entities. Section 60
of CA No. 141 constitutes, under Section 44 of PD No. 1529, a "statutory lien affecting title" of the
registered land even if not annotated on the certificate of title. 104 Alienable lands of the public domain
held by government entities under Section 60 of CA No. 141 remain public lands because they
cannot be alienated or encumbered unless Congress passes a law authorizing their disposition.
Congress, however, cannot authorize the sale to private corporations of reclaimed alienable lands of
the public domain because of the constitutional ban. Only individuals can benefit from such law.

The grant of legislative authority to sell public lands in accordance with Section 60 of CA No. 141
does not automatically convert alienable lands of the public domain into private or patrimonial lands.
The alienable lands of the public domain must be transferred to qualified private parties, or to
government entities not tasked to dispose of public lands, before these lands can become private or
patrimonial lands. Otherwise, the constitutional ban will become illusory if Congress can declare
lands of the public domain as private or patrimonial lands in the hands of a government agency
tasked to dispose of public lands. This will allow private corporations to acquire directly from
government agencies limitless areas of lands which, prior to such law, are concededly public lands.

Under EO No. 525, PEA became the central implementing agency of the National Government to
reclaim foreshore and submerged areas of the public domain. Thus, EO No. 525 declares that –

"EXECUTIVE ORDER NO. 525

Designating the Public Estates Authority as the Agency Primarily Responsible for all
Reclamation Projects

Whereas, there are several reclamation projects which are ongoing or being proposed to be
undertaken in various parts of the country which need to be evaluated for consistency with
national programs;

Whereas, there is a need to give further institutional support to the Government's declared
policy to provide for a coordinated, economical and efficient reclamation of lands;

Whereas, Presidential Decree No. 3-A requires that all reclamation of areas shall be limited
to the National Government or any person authorized by it under proper contract;

Whereas, a central authority is needed to act on behalf of the National Government

which shall ensure a coordinated and integrated approach in the reclamation of lands;

Whereas, Presidential Decree No. 1084 creates the Public Estates Authority as a
government corporation to undertake reclamation of lands and ensure their maximum
utilization in promoting public welfare and interests; and

Whereas, Presidential Decree No. 1416 provides the President with continuing authority to
reorganize the national government including the transfer, abolition, or merger of functions
and offices.

NOW, THEREFORE, I, FERDINAND E. MARCOS, President of the Philippines, by virtue of

the powers vested in me by the Constitution and pursuant to Presidential Decree No. 1416,
do hereby order and direct the following:

Section 1. The Public Estates Authority (PEA) shall be primarily responsible for
integrating, directing, and coordinating all reclamation projects for and on behalf of
the National Government. All reclamation projects shall be approved by the President upon
recommendation of the PEA, and shall be undertaken by the PEA or through a proper
contract executed by it with any person or entity; Provided, that, reclamation projects of any
national government agency or entity authorized under its charter shall be undertaken in
consultation with the PEA upon approval of the President.

x x x ."

As the central implementing agency tasked to undertake reclamation projects nationwide, with
authority to sell reclaimed lands, PEA took the place of DENR as the government agency charged
with leasing or selling reclaimed lands of the public domain. The reclaimed lands being leased or
sold by PEA are not private lands, in the same manner that DENR, when it disposes of other
alienable lands, does not dispose of private lands but alienable lands of the public domain. Only
when qualified private parties acquire these lands will the lands become private lands. In the hands
of the government agency tasked and authorized to dispose of alienable of disposable lands
of the public domain, these lands are still public, not private lands.

Furthermore, PEA's charter expressly states that PEA "shall hold lands of the public domain" as
well as "any and all kinds of lands." PEA can hold both lands of the public domain and private lands.
Thus, the mere fact that alienable lands of the public domain like the Freedom Islands are
transferred to PEA and issued land patents or certificates of title in PEA's name does not
automatically make such lands private.

To allow vast areas of reclaimed lands of the public domain to be transferred to PEA as private lands
will sanction a gross violation of the constitutional ban on private corporations from acquiring any
kind of alienable land of the public domain. PEA will simply turn around, as PEA has now done
under the Amended JVA, and transfer several hundreds of hectares of these reclaimed and still to
be reclaimed lands to a single private corporation in only one transaction. This scheme will
effectively nullify the constitutional ban in Section 3, Article XII of the 1987 Constitution which was
intended to diffuse equitably the ownership of alienable lands of the public domain among Filipinos,
now numbering over 80 million strong.

This scheme, if allowed, can even be applied to alienable agricultural lands of the public domain
since PEA can "acquire x x x any and all kinds of lands." This will open the floodgates to
corporations and even individuals acquiring hundreds of hectares of alienable lands of the public
domain under the guise that in the hands of PEA these lands are private lands. This will result in
corporations amassing huge landholdings never before seen in this country - creating the very evil
that the constitutional ban was designed to prevent. This will completely reverse the clear direction
of constitutional development in this country. The 1935 Constitution allowed private corporations to
acquire not more than 1,024 hectares of public lands. 105 The 1973 Constitution prohibited private
corporations from acquiring any kind of public land, and the 1987 Constitution has unequivocally
reiterated this prohibition.

The contention of PEA and AMARI that public lands, once registered under Act No. 496 or PD No.
1529, automatically become private lands is contrary to existing laws. Several laws authorize lands
of the public domain to be registered under the Torrens System or Act No. 496, now PD No. 1529,
without losing their character as public lands. Section 122 of Act No. 496, and Section 103 of PD No.
1529, respectively, provide as follows:

Act No. 496

"Sec. 122. Whenever public lands in the Philippine Islands belonging to the x x x
Government of the Philippine Islands are alienated, granted, or conveyed to persons or
the public or private corporations, the same shall be brought forthwith under the operation
of this Act and shall become registered lands."

PD No. 1529

"Sec. 103. Certificate of Title to Patents. Whenever public land is by the Government
alienated, granted or conveyed to any person, the same shall be brought forthwith under the
operation of this Decree." (Emphasis supplied)

Based on its legislative history, the phrase "conveyed to any person" in Section 103 of PD No. 1529
includes conveyances of public lands to public corporations.
Alienable lands of the public domain "granted, donated, or transferred to a province, municipality, or
branch or subdivision of the Government," as provided in Section 60 of CA No. 141, may be
registered under the Torrens System pursuant to Section 103 of PD No. 1529. Such registration,
however, is expressly subject to the condition in Section 60 of CA No. 141 that the land "shall not be
alienated, encumbered or otherwise disposed of in a manner affecting its title, except when
authorized by Congress." This provision refers to government reclaimed, foreshore and marshy
lands of the public domain that have been titled but still cannot be alienated or encumbered unless
expressly authorized by Congress. The need for legislative authority prevents the registered land of
the public domain from becoming private land that can be disposed of to qualified private parties.

The Revised Administrative Code of 1987 also recognizes that lands of the public domain may be
registered under the Torrens System. Section 48, Chapter 12, Book I of the Code states –

"Sec. 48. Official Authorized to Convey Real Property. Whenever real property of the
Government is authorized by law to be conveyed, the deed of conveyance shall be executed
in behalf of the government by the following:

(1) x x x

(2) For property belonging to the Republic of the Philippines, but titled in the name of
any political subdivision or of any corporate agency or instrumentality, by the
executive head of the agency or instrumentality." (Emphasis supplied)

Thus, private property purchased by the National Government for expansion of a public wharf may
be titled in the name of a government corporation regulating port operations in the country. Private
property purchased by the National Government for expansion of an airport may also be titled in the
name of the government agency tasked to administer the airport. Private property donated to a
municipality for use as a town plaza or public school site may likewise be titled in the name of the
municipality.106 All these properties become properties of the public domain, and if already registered
under Act No. 496 or PD No. 1529, remain registered land. There is no requirement or provision in
any existing law for the de-registration of land from the Torrens System.

Private lands taken by the Government for public use under its power of eminent domain become
unquestionably part of the public domain. Nevertheless, Section 85 of PD No. 1529 authorizes the
Register of Deeds to issue in the name of the National Government new certificates of title covering
such expropriated lands. Section 85 of PD No. 1529 states –

"Sec. 85. Land taken by eminent domain. Whenever any registered land, or interest therein,
is expropriated or taken by eminent domain, the National Government, province, city or
municipality, or any other agency or instrumentality exercising such right shall file for
registration in the proper Registry a certified copy of the judgment which shall state definitely
by an adequate description, the particular property or interest expropriated, the number of
the certificate of title, and the nature of the public use. A memorandum of the right or interest
taken shall be made on each certificate of title by the Register of Deeds, and where the fee
simple is taken, a new certificate shall be issued in favor of the National Government,
province, city, municipality, or any other agency or instrumentality exercising such right for
the land so taken. The legal expenses incident to the memorandum of registration or
issuance of a new certificate of title shall be for the account of the authority taking the land or
interest therein." (Emphasis supplied)

Consequently, lands registered under Act No. 496 or PD No. 1529 are not exclusively private or
patrimonial lands. Lands of the public domain may also be registered pursuant to existing laws.
AMARI makes a parting shot that the Amended JVA is not a sale to AMARI of the Freedom Islands
or of the lands to be reclaimed from submerged areas of Manila Bay. In the words of AMARI, the
Amended JVA "is not a sale but a joint venture with a stipulation for reimbursement of the original
cost incurred by PEA for the earlier reclamation and construction works performed by the CDCP
under its 1973 contract with the Republic." Whether the Amended JVA is a sale or a joint venture,
the fact remains that the Amended JVA requires PEA to "cause the issuance and delivery of the
certificates of title conveying AMARI's Land Share in the name of AMARI." 107

This stipulation still contravenes Section 3, Article XII of the 1987 Constitution which provides that
private corporations "shall not hold such alienable lands of the public domain except by lease." The
transfer of title and ownership to AMARI clearly means that AMARI will "hold" the reclaimed lands
other than by lease. The transfer of title and ownership is a "disposition" of the reclaimed lands, a
transaction considered a sale or alienation under CA No. 141, 108 the Government Auditing
Code,109 and Section 3, Article XII of the 1987 Constitution.

The Regalian doctrine is deeply implanted in our legal system. Foreshore and submerged areas
form part of the public domain and are inalienable. Lands reclaimed from foreshore and submerged
areas also form part of the public domain and are also inalienable, unless converted pursuant to law
into alienable or disposable lands of the public domain. Historically, lands reclaimed by the
government are sui generis, not available for sale to private parties unlike other alienable public
lands. Reclaimed lands retain their inherent potential as areas for public use or public service.
Alienable lands of the public domain, increasingly becoming scarce natural resources, are to be
distributed equitably among our ever-growing population. To insure such equitable distribution, the
1973 and 1987 Constitutions have barred private corporations from acquiring any kind of alienable
land of the public domain. Those who attempt to dispose of inalienable natural resources of the
State, or seek to circumvent the constitutional ban on alienation of lands of the public domain to
private corporations, do so at their own risk.

We can now summarize our conclusions as follows:

1. The 157.84 hectares of reclaimed lands comprising the Freedom Islands, now covered by
certificates of title in the name of PEA, are alienable lands of the public domain. PEA may
lease these lands to private corporations but may not sell or transfer ownership of these
lands to private corporations. PEA may only sell these lands to Philippine citizens, subject to
the ownership limitations in the 1987 Constitution and existing laws.

2. The 592.15 hectares of submerged areas of Manila Bay remain inalienable natural
resources of the public domain until classified as alienable or disposable lands open to
disposition and declared no longer needed for public service. The government can make
such classification and declaration only after PEA has reclaimed these submerged areas.
Only then can these lands qualify as agricultural lands of the public domain, which are the
only natural resources the government can alienate. In their present state, the 592.15
hectares of submerged areas are inalienable and outside the commerce of man.

3. Since the Amended JVA seeks to transfer to AMARI, a private corporation, ownership of
77.34 hectares110 of the Freedom Islands, such transfer is void for being contrary to Section
3, Article XII of the 1987 Constitution which prohibits private corporations from acquiring any
kind of alienable land of the public domain.

4. Since the Amended JVA also seeks to transfer to AMARI ownership of 290.156
hectares111 of still submerged areas of Manila Bay, such transfer is void for being contrary to
Section 2, Article XII of the 1987 Constitution which prohibits the alienation of natural
 resources other than agricultural lands of the public domain. PEA may reclaim these
submerged areas. Thereafter, the government can classify the reclaimed lands as alienable
or disposable, and further declare them no longer needed for public service. Still, the transfer
of such reclaimed alienable lands of the public domain to AMARI will be void in view of
Section 3, Article XII of the 1987 Constitution which prohibits private corporations from
acquiring any kind of alienable land of the public domain.

Clearly, the Amended JVA violates glaringly Sections 2 and 3, Article XII of the 1987 Constitution.
Under Article 1409112 of the Civil Code, contracts whose "object or purpose is contrary to law," or
whose "object is outside the commerce of men," are "inexistent and void from the beginning." The
Court must perform its duty to defend and uphold the Constitution, and therefore declares the
Amended JVA null and void ab initio.

Seventh issue: whether the Court is the proper forum to raise the issue of whether the
Amended JVA is grossly disadvantageous to the government.

Considering that the Amended JVA is null and void ab initio, there is no necessity to rule on this last
issue. Besides, the Court is not a trier of facts, and this last issue involves a determination of factual
matters.

WHEREFORE, the petition is GRANTED. The Public Estates Authority and Amari Coastal Bay
Development Corporation are PERMANENTLY ENJOINED from implementing the Amended Joint
Venture Agreement which is hereby declared NULL and VOID ab initio.

SO ORDERED.
GLORIA MACAPAGAL-ARROYO,Petitioner,

-versus-

Hon. LEILA M. DE LIMA, in her

capacity as Secretary of the Department

of Justice and RICARDO A. DAVID,

JR., in his capacity as Commissioner of

the Bureau of Immigration,

Respondents.

X- – – – – – – – – – – – – – – – – – – – – – – -X
JOSE MIGUEL T. ARROYO,Petitioner,

-versus-

Hon. LEILA M. DE LIMA, in her

capacity as Secretary, Department of

Justice, RICARDO V. PARAS III, in

his capacity as Chief State Counsel,

Department of Justice and RICARDO

A. DAVID, JR., in his capacity as

Commissioner, Bureau of Immigration,

Respondents.

X- – – – – – – – – – – – – – – – – – – – – – – -X
TO: Hon. LEILA M. DE LIMASecretary

RICARDO V. PARAS III

Chief State Counsel

Department of Justice (DOJ)

Padre Faura St., Ermita, Manila

RICARDO A. DAVID, JR.

Commissioner

Bureau of Immigration (BOI)

2nd Floor BOI Building

Magallanes Drive, Intramuros, Manila

GREETINGS:

WHEREAS, the Supreme Court, on November 15, 2011, adopted a resolution in the
above-entitled cases, to wit:

G.R. No. 199034 (Gloria Macapagal-Arroyo vs. Hon. Leila M. De Lima, in her capacity as
Secretary of the Department of Justice and Ricardo A. David, Jr., in his capacity as
Commissioner of the Bureau of Immigration) and G.R. No. 199046 (Jose Miguel T.
Arroyo vs. Hon. Leila M. de Lima, in her capacity as Secretary, Department of Justice,
Ricardo V. Paras III, in his capacity as Chief State Counsel, Department of Justice and
Ricardo A. David, Jr., in his capacity as Commissioner, Bureau of Immigration).- Acting
on the Special Civil Actions for Certiorari and Prohibition with Prayer for the Issuance of
a Temporary Restraining Order and/or Writ of Preliminary Injunction, and mindful of the
underlying issues in the cases—the right to life (which is the highest right under the
Constitution) and its supporting rights, including the right to travel—the Court Resolved
to

(a) CONSOLIDATE the above-entitled cases;

(b) REQUIRE the respondents to COMMENT on the consolidated petitions NOT LATER

THAN NOVEMBER 18, 2011;

(c) ISSUE a TEMPORARY RESTRAINING ORDER in the consolidated petitions, enjoining

the respondents from enforcing or implementing DOJ Department Circular No. 41 and
Watchlist Order Nos. ASM-11-237 dated August 9, 2011, 2011-422 dated September 6,
2011 and 2011-573 dated October 27, 2011, subject to the following conditions:

(i) The petitioners shall post a cash bond of Two Million Pesos (P2,000,000.00) payable
to this Court within five (5) days from notice hereof. Failure to post the bond within the
aforesaid period will result in the automatic lifting of the temporary restraining order;
(ii) The petitioners shall appoint a legal representative common to both of them who will
receive subpoena, orders and other legal processes on their behalf during their absence.
The petitioners shall submit the name of the legal representative, also within five (5)
days from notice hereof; and

(iii) If there is a Philippine embassy or consulate in the place where they will be traveling,
the petitioners shall inform said embassy or consulate by personal appearance or by
phone of their whereabouts at all times; and

(d) SET the consolidated cases for ORAL ARGUMENTS on November 22, 2011,

Tuesday, at 2:00 p.m. at the New Session Hall, New Supreme Court Building, Padre
Faura, Ermita, Manila.

The Court further Resolved to NOTE the

(a) Very Urgent Manifestation and Motion dated November 9, 2011 filed by the Office of
the Solicitor General (OSG) for respondents Hon. Leila M. De Lima, in her official
capacity as Secretary of the Department of Justice and Ricardo A. David, Jr., in his
capacity as Commissioner of the Bureau of Immigration in G.R. No. 199034;

(b) Manifestation and Motion dated November 10, 2011 filed by the OSG for
respondents Hon. Leila M. De Lima and Ricardo A. David, Jr. in G.R. No. 199034;

(c) Supplemental Petition dated November 13, 2011 filed by counsel for petitioner in
G.R. No. 199034;

(d) Comment/Opposition (on/to the Very Urgent Manifestation and Motion dated
November 9, 2011) dated November 14, 2011 filed by counsel for petitioner in G.R. No.
199034;

(e) Very Urgent Manifestation and Motion dated November 9, 2011 filed by the OSG for
respondents Hon. Leila M. de Lima, in her capacity as Secretary of the Department of
Justice, Ricardo V. Paras III, in his capacity as Chief State Counsel and Ricardo A. David,
Jr., in his capacity as Commissioner of the Bureau of Immigration in G.R. No. 199046;
and

(f) Urgent Manifestation filed by counsel for petitioner in G.R. No. 199046.

The temporary restraining order shall be immediately executory. Justices Antonio T.

Carpio and Bienvenido L. Reyes have reserved the right to submit their dissenting
opinions. Leonardo-De Castro, J., on official business. Del Castillo, J., on official leave.
(adv156 & 157)
NOW, THEREFORE, effective immediately and continuing until further orders from this
Court, You, Respondents, your agents, representatives, or persons acting in your place
or stead, are hereby ENJOINED from enforcing or implementing DOJ Department
Circular No. 41 and Watchlist Order Nos. ASM-11-237 dated August 9, 2011, 2011-422
dated September 6, 2011 and 2011-573 dated October 27, 2011.
Senate v. Ermita, G.R. No. 169777, April 20,
2006
April 20, 2006

Republic of the Philippines

SUPREME COURT
Manila

EN BANC

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 [Link], 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.

DECISION

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

Also invited to the above-said hearing scheduled on September 28 2005 was the AFP Chief of
Staff, General Generoso S. Senga who, by letter 3 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 letter 6 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 letter 8 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.10NorthRail 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
SaturOcampo, 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; SaturOcampo, 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 letter 15 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 GinintuangMasaganangAni 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 Management 18 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. Corpus 21 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. 169667 25 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 lismota of the case.39

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

Standing

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

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

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

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

Invoking this Court’s ruling in National Economic Protectionism Association v. Ongpin 42 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 legislation 45 is not
disputed. E.O. 464, however, allegedly stifles the ability of the members of Congress to access
information that is crucial to law-making.46 Verily, the Senate, including its individual members,
has a substantial and direct interest over the outcome of the controversy and is the proper party to
assail the constitutionality of E.O. 464. Indeed, legislators have standing to maintain inviolate the
prerogative, powers and privileges vested by the Constitution in their office and are allowed to
sue to question the validity of any official action which they claim infringes their prerogatives as
legislators.47

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

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

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

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

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

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

Actual Case or Controversy

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

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

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

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

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

Constitutionality of E.O. 464

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

The power of inquiry

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Executive privilege

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

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

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

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

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

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

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

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

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

The 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 xx ” (Emphasis and underscoring supplied)

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

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

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

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

Validity of Section 1

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

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

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

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

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

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 Constitution 86 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 Energy 99 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 suasponte 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 xx (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 ducestecum issued by
Congress. Neither does the right to information grant a citizen the power to exact testimony from
government officials. These powers belong only to Congress and not to an individual citizen.

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

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

It is in the interest of the State that the channels for free political discussion be maintained to the
end that the government may perceive and be responsive to the people’s will. Yet, this open
dialogue can be effective only to the extent that the citizenry is informed and thus able to
formulate its will intelligently. Only when the participants in the discussion are aware of the
issues and have access to information relating thereto can such bear fruit.107 (Emphasis and
underscoring supplied)
The impairment of the right of the people to information as a consequence of E.O. 464 is,
therefore, in the sense explained above, just as direct as its violation of the legislature’s power of
inquiry.

Implementation of E.O. 464 prior to its publication

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

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

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

Conclusion

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

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

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

Resort to any means then by which officials of the executive branch could refuse to divulge
information cannot be presumed valid. Otherwise, we shall not have merely nullified the power
of our legislature to inquire into the operations of government, but we shall have given up
something of much greater value—our right as a people to take part in government.
WHEREFORE, the petitions are PARTLY GRANTED. Sections 2(b) and 3 of Executive Order
No. 464 (series of 2005), “Ensuring Observance of the Principle of Separation of Powers,
Adherence to the Rule on Executive Privilege and Respect for the Rights of Public Officials
Appearing in Legislative Inquiries in Aid of Legislation Under the Constitution, and For Other
Purposes,” are declared VOID. Sections 1 and 2(a) are, however, VALID.
G.R. No. 165036               July 5, 2010

HAZEL MA. C. ANTOLIN, Petitioner,

vs.
ABELARDO T. DOMONDON, JOSE A. GANGAN, and VIOLETA J. JOSEF, Respondents.

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

G.R. No. 175705

HAZEL MA. C. ANTOLIN Petitioner,

vs.
ANTONIETA FORTUNA-IBE, Respondent.

DECISION

DEL CASTILLO, J.:

Examinations have a two-fold purpose. First, they are summative; examinations are intended to
assess and record what and how much the students have learned. Second, and perhaps more
importantly, they are formative; examinations are intended to be part and parcel of the learning
process. In a perfect system, they are tools for learning. In view of the pedagogical aspect of
national examinations, the need for all parties to fully ventilate their respective positions, and the
view that government transactions can only be improved by public scrutiny, we remand these cases
to the trial court for further proceedings.

Factual Antecedents

Petitioner took the accountancy licensure examinations (the Certified Public Accountant [CPA] Board
Exams) conducted by the Board of Accountancy (the Board) in October 1997. 1 The examination
results were released on October 29, 1997; out of 6,481 examinees, only 1,171 passed.
Unfortunately, petitioner did not make it. When the results were released, she received failing grades
in four out of the seven subjects.2

Subject Petitioner’s Grade

Theory of Accounts 65 % Convinced that she deserved to
Business Law 66 % pass the examinations, she wrote
to respondent Abelardo T.
Management Services 69 % Domondon (Domondon), Acting
Auditing Theory 82 % Chairman of the Board of
Accountancy, and requested that
Auditing Problems 70 % her answer sheets be re-
Practical Accounting I 68 % corrected.3 On November 3, 1997,
petitioner was shown her answer
Practical Accounting II 77 %
sheets, but these consisted merely
of shaded marks, so she was unable to determine why she failed the exam. 4 Thus, on November 10,
1997, she again wrote to the Board to request for copies of (a) the questionnaire in each of the
seven subjects (b) her answer sheets; (c) the answer keys to the questionnaires, and (d) an
explanation of the grading system used in each subject (collectively, the Examination Papers). 5
Acting Chairman Domondon denied petitioner’s request on two grounds: first, that Section 36, Article
III of the Rules and Regulations Governing the Regulation and Practice of Professionals, as
amended by Professional Regulation Commission (PRC) Resolution No. 332, series of 1994, only
permitted access to the petitioner’s answer sheet (which she had been shown previously), and that
reconsideration of her examination result was only proper under the grounds stated therein:

Sec. 36 An examinee shall be allowed to have access or to go over his/her test papers or answer
sheets on a date not later than thirty (30) days from the official release of the results of the
examination. Within ten (10) days from such date, he/she may file his/her request for reconsideration
of ratings. Reconsideration of rating shall be effected only on grounds of mechanical error in the
grading of his/her testpapers or answer sheets, or malfeasance. 6 lawph!l

Second, Acting Chairman Domondon clarified that the Board was precluded from releasing the
Examination Papers (other than petitioner’s answer sheet) by Section 20, Article IV of PRC
Resolution No. 338, series of 1994, which provides:

Sec. 20. Illegal, Immoral, Dishonorable, Unprofessional Acts – The hereunder acts shall constitute
prejudicial, illegal, grossly immoral, dishonorable, or unprofessional conduct:

A. Providing, getting, receiving, holding, using or reproducing questions

xxxx

3. that have been given in the examination except if the test bank for the subject has on deposit at
least two thousand (2,000) questions.7

After a further exchange of correspondence,8 the Board informed petitioner that an investigation was
conducted into her exam and there was no mechanical error found in the grading of her test papers. 9

Proceedings before the Regional Trial Court

Undeterred, on January 12, 1998, petitioner filed a Petition for Mandamus with Damages against the
Board of Accountancy and its members 10 before the Regional Trial Court (RTC) of Manila. The case
was raffled to Branch 33, and docketed as Civil Case No. 98-86881. The Petition included a prayer
for the issuance of a preliminary mandatory injunction ordering the Board of Accountancy and its
members (the respondents) to furnish petitioner with copies of the Examination Papers. Petitioner
also prayed that final judgment be issued ordering respondents to furnish petitioner with all
documents and other materials as would enable her to determine whether respondents fairly
administered the examinations and correctly graded petitioner’s performance therein, and, if
warranted, to issue to her a certificate of registration as a CPA.11

On February 5, 1998, respondents filed their Opposition to the Application for a Writ of Preliminary
Mandatory Injunction, and argued, inter alia, that petitioner was not entitled to the relief sought, that
the respondents did not have the duty to furnish petitioner with copies of the Examination Papers,
and that petitioner had other plain, speedy, adequate remedy in the ordinary course of law, namely,
recourse to the PRC.12 Respondents also filed their Answer with Compulsory Counterclaim in the
main case, which asked that the Petition for Mandamus with Damages be dismissed for lack of merit
on the following grounds: (1) petitioner failed to exhaust administrative remedies; (2) the petition
stated no cause of action because there was no ministerial duty to release the information
demanded; and (3) the constitutional right to information on matters of public concern is subject to
limitations provided by law, including Section 20, Article IV, of PRC Resolution No. 338, series of
1994.13

On March 3, 1998, petitioner filed an Amended Petition (which was admitted by the RTC), where she
included the following allegation in the body of her petition:

The allegations in this amended petition are meant only to plead a cause of action for access to the
documents requested, not for re-correction which petitioner shall assert in the proper forum
depending on, among others, whether she finds sufficient error in the documents to warrant such or
any other relief. None of the allegations in this amended petition, including those in the following
paragraphs, is made to assert a cause of action for re-correction. 14

If only to underscore the fact that she was not asking for a re-checking of her exam, the following
prayer for relief was deleted from the Amended Petition: "and, if warranted, to issue to her a
certificate of registration as a CPA."

On June 23, 1998, respondents filed a Manifestation and Motion to Dismiss Application for Writ of
Preliminary Mandatory Injunction, on the ground that petitioner had taken and passed the May 1998
CPA Licensure Examination and had taken her oath as a CPA.15 Petitioner filed her Opposition on
July 8, 1998.16 Subsequently, on October 29, 1998, respondents filed their Answer with Counterclaim
to the amended petition. They reiterated their original allegations and further alleged that there was
no cause of action because at the time the Amended Petition was admitted, they had ceased to be
members of the Board of Accountancy and they were not in possession of the documents sought by
the petitioner.17

Ruling of the Regional Trial Court

In an Order dated October 16, 1998, the trial court granted respondent’s Motion to Dismiss
Petitioner’s Application for a Writ of Preliminary Mandatory Injunction (not the main case), ruling that
the matter had become moot since petitioner passed the May CPA Licensure 1998 Examination and
had already taken her oath as a CPA.18

Undaunted, petitioner sought and obtained leave to file a Second Amended Petition for Mandamus
with Damages19 where she finally impleaded the PRC as respondent and included the following plea
in her prayer:

WHEREFORE, petitioner respectfully prays that:

xxxx

2. Judgment be issued –

(a) commanding respondents to give petitioner all documents and other materials as would enable
her to determine whether respondents fairly administered the same examinations and correctly
graded petitioner’s performance therein and, if warranted, to make the appropriate revisions on the
results of her examination. (Emphasis ours)

On June 21, 2002, the trial court dismissed the petition on the ground that the petition had already
become moot, since petitioner managed to pass the 1998 CPA Board examinations. 20 Petitioner
sought reconsideration21 which was granted by the trial court in its Omnibus Order 22 dated November
11, 2002. The Omnibus Order provides in part:
On the motion for reconsideration filed by the petitioner, the Court is inclined to reconsider its Order
dismissing the petition. The Court agrees with the petitioner that the passing of the petitioner in the
subsequent CPA examination did not render the petition moot and academic because the relief "and
if warranted, to issue to her a certificate of registration as Certified Public Accountant" was deleted
from the original petition. As regard the issue of whether the petitioner has the constitutional right to
have access to the questioned documents, the Court would want first the parties to adduce evidence
before it can resolve the issue so that it can make a complete determination of the rights of the
parties.

The Court would also want the Professional Regulation Commission to give its side of the case the
moment it is impleaded as a respondent in the Second Amended Petition for Mandamus filed by the
petitioner which this Court is inclined to grant.

As to the Motion for Conservatory Measures filed by the petitioner, the Court denies the same. It is
clear that the PRC has in custody the documents being requested by the petitioner. It has also an
adequate facility to preserve and safeguard the documents. To be sure that the questioned
documents are preserved and safeguarded, the Court will order the PRC to preserve and safeguard
the documents and make them available anytime the Court or petitioner needs them.

WHEREFORE, the Order of this Court dated June 20, 2002 is reconsidered and set aside. The
Professional Regulation Commission is ordered to preserve and safeguard the following documents:

a) Questionnaire in each of the seven subjects comprising the Accountancy Examination of

October, 1997;

b) Petitioner’s Answer Sheets; and

c) Answer keys to the questionnaires.

SO ORDERED.23

Respondents filed a motion for reconsideration which was denied. 24

Proceedings before the Court of Appeals

The RTC Decisions led to the filing of three separate petitions for certiorari before the Court of
Appeals (CA):

(a) CA-GR SP No. 76498, a petition filed by respondents Domondon, Gangan, and Josef on
April 11, 2003;

(b) CA-GR SP No. 76546, a petition filed by respondent Ibe on April 30, 2003; and

(c) CA-GR SP No. 76545, a petition filed by the Board of Accountancy and PRC.

It is the first two proceedings that are pending before us. In both cases, the CA set aside the RTC
Decisions and ordered the dismissal of Civil Case No. 98-8681.

Ruling of the Court of Appeals

In its December 11, 2006 Decision25 in CA-GR SP No. 76546, the CA ruled that the petition has
become moot in view of petitioner’s eventual passing of the 1998 CPA Board Exam. In CA-GR SP
No. 76498, the CA found, in a Decision dated February 16, 2004, 26 that (i) Section 20, Article IV of
PRC Resolution No. 338 constituted a valid limitation on petitioner’s right to information and access
to government documents; (ii) the Examination Documents were not of public concern, because
petitioner merely sought review of her failing marks; (iii) it was not the ministerial or mandatory
function of the respondents to review and reassess the answers to examination questions of a failing
examinee; (iv) the case has become moot, since petitioner already passed the May 1998 CPA Board
Examinations and took her oath as a CPA; and (v) petitioner failed to exhaust administrative
remedies, because, having failed to secure the desired outcome from the respondents, she did not
elevate the matter to the PRC before seeking judicial intervention. 27

CA-GR SP No. 76498 and CA-GR SP No. 76546 were brought before us by the petitioner and
docketed as G.R. Nos. 165036 and 175705, respectively. The cases were then consolidated, in view
of the similarity of the factual antecedents and issues, and to avoid the possibility of conflicting
decisions by different divisions of this Court.28

Issues

Before us, petitioner argues that she has a right to obtain copies of the examination papers so she
can determine for herself why and how she failed and to ensure that the Board properly performed
its duties. She argues that the Constitution29 as well as the Code of Conduct and Ethical Standards
for Public Officials and Employees30 support her right to demand access to the Examination Papers.
Furthermore, she claims that there was no need to exhaust administrative remedies, since no
recourse to the PRC was available, and only a pure question of law is involved in this case. Finally,
she claims that her demand for access to documents was not rendered moot by her passing of the
1998 CPA Board Exams.

Our Ruling

Propriety of Writ of Mandamus

At the very outset let us be clear of our ruling. Any claim for re-correction or revision of her 1997
examination cannot be compelled by mandamus. This much was made evident by our ruling in
Agustin-Ramos v. Sandoval,31 where we stated:

After deliberating on the petition in relation to the other pleadings filed in the proceedings at bar, the
Court resolved to DENY said petition for lack of merit. The petition at bar prays for the setting aside
of the Order of respondent Judge dismissing petitioners’ mandamus action to compel the other
respondents (Medical Board of Examiners and the Professional Regulation Commission) "to
reconsider, recorrect and/or rectify the board ratings of the petitioners from their present failing
grades to higher or passing marks." The function of reviewing and re-assessing the petitioners’
answers to the examination questions, in the light of the facts and arguments presented by them x x
x is a discretionary function of the Medical Board, not a ministerial and mandatory one, hence, not
within the scope of the writ of mandamus. The obvious remedy of the petitioners from the adverse
judgment by the Medical Board of Examiners was an appeal to the Professional Regulation
Commission itself, and thence to the Court of Appeals; and since they did not apply for relief to the
Commission prior to their institution of the special civil action of mandamus in the Regional Trial
Court, the omission was fatal to the action under the familiar doctrine requiring exhaustion of
administrative remedies. Apart from the obvious undesirability of a procedure which would allow
Courts to substitute their judgment for that of Government boards in the determination of successful
examinees in any administered examination – an area in which courts have no expertise – and the
circumstance that the law declares the Court of Appeals to be the appropriate review Court, the
Regional Trial Court was quite correct in refusing to take cognizance of an action seeking reversal of
the quasi-judicial action taken by the Medical Board of Examiners. 32 (Emphasis ours)

For a writ of mandamus to issue, the applicant must have a well-defined, clear, and certain legal
right to the thing demanded. The corresponding duty of the respondent to perform the required act
must be equally clear.33 No such clarity exists here; neither does petitioner’s right to demand a
revision of her examination results. And despite petitioner’s assertions that she has not made any
demand for re-correction, the most cursory perusal of her Second Amended Petition and her prayer
that the respondents "make the appropriate revisions on the results of her examination" belies this
claim.

Like the claimants in Agustin, the remedy of petitioner from the refusal of the Board to release the
Examination Papers should have been through an appeal to the PRC. Undoubtedly, petitioner had
an adequate remedy from the Board’s refusal to provide her with copies of the Examination Papers.
Under Section 5(a) of Presidential Decree No. 223, 34 the PRC has the power to promulgate rules and
regulations to implement policies for the regulation of the accounting profession. 35 In fact, it is one
such regulation (PRC Resolution No. 338) that is at issue in this case. In addition, under Section
5(c), the PRC has the power to

review, coordinate, integrate and approve the policies, resolutions, rules and regulations, orders or
decisions promulgated by the various Boards with respect to the profession or occupation under
their jurisdictions including the results of their licensure examinations but their decisions on
administrative cases shall be final and executory unless appealed to the Commission within thirty
(30) days from the date of promulgation thereof.

Petitioner posits that no remedy was available because the PRC’s power to "review" and "approve"
in Section 5(c) only refers to appeals in decisions concerning administrative investigations 36 and not
to instances where documents are being requested. Not only is this position myopic and self-serving,
it is bereft of either statutory or jurisprudential basis. The PRC’s quasi-legislative and enforcement
powers, encompassing its authority to review and approve "policies, resolutions, rules and
regulations, orders, or decisions" cover more than administrative investigations conducted pursuant
to its quasi-judicial powers.37 More significantly, since the PRC itself issued the resolution questioned
by the petitioner here, it was in the best position to resolve questions addressed to its area of
expertise. Indeed, petitioner could have saved herself a great deal of time and effort had she given
the PRC the opportunity to rectify any purported errors committed by the Board.

One of the reasons for exhaustion of administrative remedies is our well-entrenched doctrine on
separation of powers, which enjoins upon the Judiciary a becoming policy of non-interference with
matters falling primarily (albeit not exclusively) within the competence of other departments. 38 Courts,
for reasons of law, comity and convenience, should not entertain suits unless the available
administrative remedies have first been resorted to and the proper authorities have been given an
appropriate opportunity to act and correct their alleged errors, if any, committed in the administrative
forum. 39

However, the principle of exhaustion of administrative remedies is subject to exceptions, among

which is when only a question of law is involved. 40 This is because issues of law – such as whether
petitioner has a constitutional right to demand access to the Examination Papers - cannot be
resolved with finality by the administrative officer. 41

Issues of Mootness
We now turn to the question of whether the petition has become moot in view of petitioner’s having
passed the 1998 CPA examination. An issue becomes moot and academic when it ceases to
present a justiciable controversy, so that a declaration on the issue would be of no practical use or
value.42

In this jurisdiction, any citizen may challenge any attempt to obstruct the exercise of his or her right
to information and may seek its enforcement by mandamus. 43 And since every citizen possesses the
inherent right to be informed by the mere fact of citizenship, 44 we find that petitioner’s belated
passing of the CPA Board Exams does not automatically mean that her interest in the Examination
Papers has become mere superfluity. Undoubtedly, the constitutional question presented, in view of
the likelihood that the issues in this case will be repeated, warrants review. 45

The crux of this case is whether petitioner may compel access to the Examination Documents
through mandamus. As always, our inquiry must begin with the Constitution. Section 7, Article III
provides:

Sec.7. The right of the people to information on matters of public concern shall be recognized.
Access to official records, and to documents, and papers pertaining to official acts, transactions, or
decisions, as well 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.

Together with the guarantee of the right to information, Section 28, Article II promotes full disclosure
and transparency in government, viz:

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

Like all the constitutional guarantees, the right to information is not absolute. The people's right to
information is limited to "matters of public concern," and is further "subject to such limitations as may
be provided by law." Similarly, the State's policy of full disclosure is limited to "transactions involving
public interest," and is "subject to reasonable conditions prescribed by law". The Court has always
grappled with the meanings of the terms "public interest" and "public concern." As observed in
Legaspi v. Civil Service Commission: 46

In determining whether x x x 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.

We have also recognized the need to preserve a measure of confidentiality on some matters, such
as national security, trade secrets and banking transactions, criminal matters, and other confidential
matters.47

We are prepared to concede that national board examinations such as the CPA Board Exams are
matters of public concern. The populace in general, and the examinees in particular, would
understandably be interested in the fair and competent administration of these exams in order to
ensure that only those qualified are admitted into the accounting profession. And as with all matters
pedagogical, these examinations could be not merely quantitative means of assessment, but also
means to further improve the teaching and learning of the art and science of accounting.
On the other hand, we do realize that there may be valid reasons to limit access to the Examination
Papers in order to properly administer the exam. More than the mere convenience of the examiner, it
may well be that there exist inherent difficulties in the preparation, generation, encoding,
administration, and checking of these multiple choice exams that require that the questions and
answers remain confidential for a limited duration. However, the PRC is not a party to these
proceedings. They have not been given an opportunity to explain the reasons behind their
regulations or articulate the justification for keeping the Examination Documents confidential. In view
of the far-reaching implications of this case, which may impact on every board examination
administered by the PRC, and in order that all relevant issues may be ventilated, we deem it best to
remand these cases to the RTC for further proceedings.

IN VIEW OF THE FOREGOING, the petitions are GRANTED. The December 11, 2006 and
February 16, 2004 Decisions of the Court of Appeals in CA-GR SP No. 76546 and CA-GR SP No.
76498, respectively, are hereby SET ASIDE. The November 11, 2002 and January 30, 2003 Orders
of the Regional Trial Court of Manila, Branch 33, in Civil Case No. 98-86881 are AFFIRMED. The
case is remanded to the Regional Trial Court for further proceedings.

SO ORDERED.
G.R. No. 200238               November 20, 2012

PHILIPPINE SAVINGS BANK (PSBANK) and PASCUAL M. GARCIA III, as representative of

Philippine Savings Bank and in his personal capacity, Petitioners,
vs.
SENATE IMPEACHMENT COURT, consisting of the senators of the republic of the philippines
acting as senator judges, namely: JUAN PONCE ENRILE, JINGGOY EJERCITO ESTRADA,
VICENTE C. SOTTO III, ALAN PETER S. CAYETANO, EDGARDO J. ANGARA, JOKER P.
ARROYO, PIA S. CAYETANO, FRANKLIN M. DRILON, FRANCIS G. ESCUDERO, TEOFISTO
GUINGONA III, GREGORIO B. HONASAN II, PANFILO M. LACSON, MANUEL M. LAPID, LOREN
B. LEGARDA, FERDINAND R. MARCOS, JR., SERGIO R. OSMENA III, FRANCIS "KIKO"
PANGILINAN, AQUILINO PIMENTEL III, RALPH G. RECTO, RAMON REVILLA, JR., ANTONIO F.
TRILLANES IV, MANNY VILLAR; and THE HONORABLE MEMBERS OF THE PROSECUTION
PANEL OF THE HOUSE OF REPRESENTATIVES, Respondents.

RESOLUTION

PERLAS-BERNABE, J.:

Petitioners Philippine Savings Bank (PSBank) and Pascual M. Garcia III, as President of PSBank,
filed a Petition for Certiorari and Prohibition seeking to nullity and set aside the Resolution of
1 

respondent Senate of the Republic of the Philippines, sitting as an Impeachment Court, which
granted the prosecution's requests for subpoena duces tecum ad testificandum to PSBank and/or its
2 

representatives requiring them to testify and produce before the Impeachment Court documents
relative to the foreign currency accounts that were alleged to belong to then Suprerpe Court Chief
Justice Renato C. Corona.

On November 5, 2012, and during the pendency of this petition, petitioners filed a Motion with Leave
of Court to Withdraw the Petition averring that subsequent events have overtaken the petition and
3 

that, with the termination of the impeachment proceedings against former Chief Justice Corona, they
are no longer faced with the dilemma of either violating Republic Act No. 6426 (RA 6426) or being
held in contempt of court for refusing to disclose the details of the subject foreign currency deposits.

It is well-settled that courts will not determine questions that have become moot and academic
because there is no longer any justiciable controversy to speak of. The judgment will not serve any
useful purpose or have any practical legal effect because, in the nature of things, it cannot be
enforced. In Gancho-on v. Secretary of Labor and Employment, the Court ruled:
4  5 

It is a rule of universal application that courts of justice constituted to pass upon substantial rights will
not consider questions in which no actual interests are involved; they decline jurisdiction of moot
cases. And where the issue has become moot and academic, there is no justiciable controversy, so
that a declaration thereon would be of no practical use or value. There is no actual substantial relief
to which petitioners would be entitled and which would be negated by the dismissal of the petition.
(Citations omitted)

Indeed, the main issue of whether the Impeachment Court acted arbitrarily when it issued the
assailed subpoena to obtain information concerning the subject foreign currency deposits
notwithstanding the confidentiality of such deposits under RA 6426 has been overtaken by events.
The supervening conviction of Chief Justice Corona on May 29, 2012, as well as his execution of a
waiver against the confidentiality of all his bank accounts, whether in peso or foreign currency, has
rendered the present petition moot and academic.
On the basis of the foregoing, the Court finds it appropriate to abstain from passing upon the merits
of this case where legal relief is no longer needed nor called for.
1âwphi1

WHEREFORE, the petition is DISMISSED for having become moot and academic and the
temporary restraining order issued by the Court on February 9, 2012 is LIFTED.

SO ORDERED.
A.M. No. 09-8-6-SC               June 13, 2012

RE: REQUEST FOR COPY OF 2008 STATEMENT OF ASSETS, LIABILITIES AND NETWORTH
[SALN] AND PERSONAL DATA SHEET OR CURRICULUM VITAE OF THE JUSTICES OF THE
SUPREME COURT AND OFFICERS AND EMPLOYEES OF THE JUDICIARY.

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

A.M. No. 09-8-07-CA

RE: REQUEST OF PHILIPPINE CENTER FOR INVESTIGATIVE JOURNALISM [PCIJ] FOR THE
2008 STATEMENT OF ASSETS, LIABILITIES AND NET WORTH [SALN] AND PERSONAL
DATA SHEETS OF THE COURT OF APPEALS JUSTICES.

RESOLUTION

MENDOZA, J.:

In a letter, dated July 30, 2009, Rowena C. Paraan, Research Director of the Philippine Center for
1 

Investigative Journalism (PCIJ), sought copies of the Statement of Assets, Liabilities and

Networth (SALN) of the Justices of this Court for the year 2008. She also requested for copies of the
Personal Data Sheet (PDS) or the Curriculum Vitae (CV) of the Justices of this Court for the purpose
of updating their database of information on government officials.

In her Letter, dated August 13, 2009, Karol M. Ilagan, a researcher-writer also of the PCIJ, likewise
2 

sought for copies of the SALN and PDS of the Justices of the Court of Appeals (CA), for the same
above-stated purpose.

The two requests were ordered consolidated by the Court on August 18, 2009. On the same day,
3 

the Court resolved to create a special committee (Committee) to review the policy on requests for
SALN and PDS and other similar documents, and to recommend appropriate action on such
requests.4

On November 23, 2009, the Committee, chaired by then Associate Justice Minita V. Chico-Nazario
submitted its Memorandum dated November 18, 2009 and its Resolution dated November 16, 2009,
5  6 

recommending the creation of Committee on Public Disclosure that would, in essence, take over the
functions of the Office of the Court Administrator (OCA) with respect to requests for copies of, or
access to, SALN, and other personal documents of members of the Judiciary.

Meanwhile, several requests for copies of the SALN and other personal documents of the Justices of
this Court, the CA and the Sandiganbayan (SB) were filed. In particular, these requests include the:

(1) SUBPOENA DUCES TECUM, dated September 10, 2009, issued by Atty. E. H. Amat,
7 

Acting Director, General Investigation Bureau-B of the Office of the Ombudsman, directing
the Office of Administrative Services, Supreme Court to submit two (2) copies of the SALN of
Associate Justice Roland B. Jurado of the Sandiganbayan for the years 1997-2008, his
latest PDS, his Oath of Office, appointment papers, and service records.
(2) LETTER, dated April 21, 2010, of the Philippine Public Transparency Reporting Project,
8 

asking permission to be able to access and copy the SALN of officials and employees of the
lower courts.

(3) LETTER, filed on August 24, 2011, by Marvin Lim, seeking copies of the SALN of Chief
9 

Justice Renato C. Corona, Associate Justices Antonio T. Carpio, Presbitero J. Velasco, Jr.,
Teresita Leonardo-De Castro, Arturo D. Brion, Diosdado M. Peralta, Lucas P. Bersamin,
Mariano C. Del Castillo, Roberto A. Abad, Martin S. Villarama, Jr., Jose Portugal Perez, Jose
C. Mendoza, and Maria Lourdes P.A. Sereno.

(4) LETTER, dated August 26, 2011, of Rawnna Crisostomo, Reporter, GMA News and
10 

Public Affairs also requesting for copies of the SALN of Chief Justice Renato C. Corona,
Associate Justices Antonio T. Carpio, Presbitero J. Velasco, Jr., Teresita Leonardo-De
Castro, Arturo D. Brion, Diosdado M. Peralta, Lucas P. Bersamin, Mariano C. Del Castillo,
Roberto A. Abad, Martin S. Villarama, Jr., Jose Portugal Perez, Jose C. Mendoza, and Maria
Lourdes P.A. Sereno, for purposes of producing a story on transparency and governance,
and updating their database.

(5) LETTER, dated October 11, 2011, of Bala S. Tamayo, requesting for a copy of the 2010
11 

SALN of any Justice of the Supreme Court as well as a copy of the Judiciary Development
Fund, for purposes of her securing a huge percentage in final examination in Constitutional
Law I at the San Beda College Alabang School of Law and for her study on the state of the
Philippine Judiciary, particularly the manner, nature and disposition of the resources under
the JDF and how these have evolved through the years.

(6) LETTERS, all dated December 19, 2011, of Harvey S. Keh, Lead Convenor of Kaya
Natin! Movement for Good Governance and Ethical Leadership, addressed to Chief Justice
Renato C. Corona, Associate Justices Presbitero J. Velasco, Jr., Teresita Leonardo-De
12  13 

Castro, Arturo D. Brion, Diosdado M. Peralta, Mariano C. Del Castillo, Jose Portugal
14  15  16  17 

Perez, and Maria Lourdes P.A. Sereno, requesting for copies of their SALN and seeking
18  19 

permission to post the same on their website for the general public.

(7) LETTER, dated December 21, 2011, of Glenda M. Gloria, Executive Director,
20 

Newsbreak, seeking copies of the SALN of the Supreme Court Justices covering various
years, for the purpose of the stories they intend to put on their website regarding the
Supreme Court and the Judiciary.

(8) LETTERS, all dated January 3, 2012, of Phillipe Manalang of Unlimited Productions, Inc.,
addressed to Associate Justices Presbitero J. Velasco, Jr., Teresita Leonardo-De
21 

Castro, Mariano C. Del Castillo and Jose Portugal Perez, and Atty. Enriqueta Esguerra-
22  23  24 

Vidal, Clerk of Court, Supreme Court requesting for copies of the SALN of the Supreme
25 

Court Justices for the years 2010 and 2011.

(9) LETTER, dated December 19, 2011, of Malou Mangahas, Executive Director, PCIJ,
26 

requesting for copies of the SALN, PDS or CVs of the Justices of the Supreme Court from
the year they were appointed to the present.

(10) SUBPOENA AD TESTIFICANDUM ET DUCES TECUM, issued on January 17, 2012,

27 

by the Senate, sitting as an Impeachment Court, in connection with Impeachment Case No.
002-2011 against Chief Justice Renato C. Corona, requiring the Clerk of Court, among
others, to bring with her the SALN of Chief Justice Renato C. Corona for the years 2002 to
2011.
(11) LETTER, dated January 16, 2012, of Nilo "Ka Nilo" H. Baculo, Sr., requesting copies of
28 

the SALN of the Supreme Court Justices for the years 2008 to 2011, for his use as a media
practitioner.

(12) LETTER, dated January 25, 2012, of Roxanne Escaro-Alegre of GMA News,
29 

requesting for copies of the SALN of the Supreme Court Justices for the network’s story on
the political dynamics and process of decision-making in the Supreme Court.

(13) LETTER, dated January 27, 2012, of David Jude Sta. Ana, Head, News Operations,
30 

News 5, requesting for copies of the 2010-2011 SALN of the Supreme Court Justices for use
as reference materials for stories that will be aired in the newscasts of their television
network.

(14) LETTER, dated January 31, 2012, of Michael G. Aguinaldo, Deputy Executive
31 

Secretary for Legal Affairs, Malacañang, addressed to Atty. Enriqueta Esguerra-Vidal, Clerk
of Court, Supreme Court, seeking her comments and recommendation on House Bill No.
5694, to aid in their determination of whether the measure should be certified as urgent.
32 

(15) Undated LETTER of Benise P. Balaoing, Intern of [Link], a news website,

33 

seeking copies of the 2010 SALN of the Justices of the Court and the CA for the purpose of
completing its database in preparation for its coverage of the 2013 elections.

(16) LETTER, dated April 27, 2012, of Maria A. Ressa, Chief Executive Officer and
34 

Executive Officer and Executive Editor of Rappler, Inc., requesting for copies of the current
SALN of all the Justices of the Supreme Court, the Court of Appeals and the Sandiganbayan
also for the purpose of completing its database in preparation for its coverage of the 2013
elections.

(17) LETTER, dated May 2, 2012, of Mary Ann A. Señir, Junior Researcher, News Research
35 

Section, GMA News and Public Affairs, requesting for copies of the SALN of Chief Justice
Renato C. Corona and the Associate Justices of the Supreme Court for the calendar year
2011 for the network’s use in their public affairs programs.

(18) LETTER, dated May 4, 2012, of Edward Gabud, Sr., Desk Editor of Solar Network, Inc.,
36 

requesting for copies of the 2011 SALN of all the Justices of the Supreme Court.

(19) LETTER, dated May 30, 2012, of Gerry Lirio, Senior News Editor, TV5 requesting for
37 

copies of the SALN of the Justices of the Court for the last three (3) years for the purpose of
a special report it would produce as a result of the impeachment and subsequent conviction
of Chief Justice Renato C. Corona.

(20) LETTER, dated May 31, 2012, of Atty. Joselito P. Fangon, Assistant Ombudsman, Field
38 

Investigation Office, Office of the Ombudsman, requesting for 1] certified copies of the SALN
of former Chief Justice Renato C. Corona for the years 2002-2011, as well as 2] a certificate
of his yearly compensation, allowances, and bonuses, also for the years 2002-2011.

(21) LETTER, dated June 8, 2012, of Thea Marie S. Pias, requesting a copy of the SALN of
39 

any present Supreme Court Justice, for the purpose of completing her grade in Legal
Philosophy at the San Beda College of Law.
Pursuant to Section 6, Article VIII of the 1987 Constitution, the Court, upon recommendation of the
40 

OCA, issued its Resolution dated October 13, 2009, denying the subpoena duces tecum for the
41 

SALNs and personal documents of Justice Roland B. Jurado of the SB. The resolution also directed
the Ombudsman to forward to the Court any complaint and/or derogatory report against Justice
Roland B. Jurado, in consonance with the doctrine laid down in Caiobes v. Ombudsman. Upon 42 

compliance by the Ombudsman, the Court, in its Resolution dated February 2, 2010, docketed this
43 

matter as a regular administrative complaint.44

Also, considering the development in Impeachment Case No. 002-2011 against Chief Justice
Renato C. Corona, the Court, on January 24, 2012, resolved to consider moot the Subpoena Ad
Testificandum Et Duces Tecum issued by the Senate impeachment court. 45

In resolving the remaining pending incidents, the Court, on January 17, 2012 required the CA, the
SB, the CTA, the Philippine Judges Association, the Metropolitan and City Judges Association of the
Philippines, the Philippine Trial Judges League, and the Philippine Women Judges Association
(PWJA), to file their respective comments.

In essence, it is the consensus of the Justices of the above-mentioned courts and the various judges
associations that while the Constitution holds dear the right of the people to have access to matters
of concern, the Constitution also holds sacred the independence of the Judiciary. Thus, although no
direct opposition to the disclosure of SALN and other personal documents is being expressed, it is
the uniform position of the said magistrates and the various judges’ associations that the disclosure
must be made in accord with the guidelines set by the Court and under such circumstances that
would not undermine the independence of the Judiciary.

After a review of the matters at hand, it is apparent that the matter raised for consideration of the
Court is not a novel one. As early as 1989, the Court had the opportunity to rule on the matter of
SALN disclosure in Re: Request of Jose M. Alejandrino, where the Court denied the request of Atty.
46 

Alejandrino for the SALNs of the Justices of the Court due to a "plainly discernible" improper motive.
Aggrieved by an adverse decision of the Court, he accused the Justices of patent partiality and
alluded that they enjoyed an early Christmas as a result of the decision promulgated by the Court.
Atty. Alejandrino even singled out the Justices who took part in the decision and conspicuously
excluded the others who, for one reason or another, abstained from voting therein. While the Court
expressed its willingness to have the Clerk of Court furnish copies of the SALN of any of its
members, it however, noted that requests for SALNs must be made under circumstances that must
not endanger, diminish or destroy the independence, and objectivity of the members of the Judiciary
in the performance of their judicial functions, or expose them to revenge for adverse decisions,
kidnapping, extortion, blackmail or other untoward incidents. Thus, in order to give meaning to the
constitutional right of the people to have access to information on matters of public concern, the
Court laid down the guidelines to be observed for requests made. Thus:

1. All requests for copies of statements of assets and liabilities of any Justice or Judge shall
be filed with the Clerk of Court of the Supreme Court or with the Court Administrator, as the
case may be (Section 8 [A][2], R.A. 6713), and shall state the purpose of the request.

2. The independence of the Judiciary is constitutionally as important as the right to

information which is subject to the limitations provided by law. Under specific circumstances,
the need for fair and just adjudication of litigations may require a court to be wary of
deceptive requests for information which shall otherwise be freely available. Where the
request is directly or indirectly traced to a litigant, lawyer, or interested party in a case
pending before the court, or where the court is reasonably certain that a disputed matter will
come before it under circumstances from which it may, also reasonably, be assumed that the
 request is not made in good faith and for a legitimate purpose, but to fish for information and,
with the implicit threat of its disclosure, to influence a decision or to warn the court of the
unpleasant consequences of an adverse judgment, the request may be denied.

3. Where a decision has just been rendered by a court against the person making the
request and the request for information appears to be a "fishing expedition" intended to
harass or get back at the Judge, the request may be denied.

4. In the few areas where there is extortion by rebel elements or where the nature of their
work exposes Judges to assaults against their personal safety, the request shall not only be
denied but should be immediately reported to the military.

5. The reason for the denial shall be given in all cases.

In the 1992 case of Re: Request for Certified True Copies of the Sworn Statements of Assets,
Liabilities and Networth, the request was denied because the Court found that the purpose of the
47 

request was to fish for information against certain members of the Judiciary. In the same case, the
Court resolved to authorize the Court Administrator to act on all requests for copies of SALN, as well
as other papers on file with the 201 Personnel Records of lower court judges and personnel,
provided that there was a court subpoena duly signed by the Presiding Judge in a pending criminal
case against a judge or personnel of the Judiciary. The Court added that for requests made by the
Office of the Ombudsman, the same must be personally signed by the Ombudsman himself.
Essentially, the Court resolved that, in all instances, requests must conform to the guidelines set in
the Alejandrino case and that the documents or papers requested for must be relevant and material
to the case being tried by the court or under investigation by the Ombudsman.

In 1993, the Court, in Request for Certified True Copies of the Sworn Statements of Assets,
Liabilities and Net Worth of former Judge Luis D. Dictado, ruled that the OCA may extend its
48 

granted authority to retired members of the Judiciary.

With respect to investigations conducted by the Office of the Ombudsman in a criminal case against
a judge, the Court, in Maceda v. Vasquez, upheld its constitutional duty to exercise supervision over
49 

all inferior courts and ruled that an investigation by the Office of the Ombudsman without prior
referral of the criminal case to the Court was an encroachment of a constitutional duty that ran afoul
to the doctrine of separation of powers. This pronouncement was further amplified in the
abovementioned case of Caiobes. Thus:

x x x Under Section 6, Article VIII of the Constitution, it is the Supreme Court which is vested with
exclusive administrative supervision over all courts and its personnel. Prescinding from this premise,
the Ombudsman cannot determine for itself and by itself whether a criminal complaint against a
judge, or court employee, involves an administrative matter. The Ombudsman is duty bound to have
all cases against judges and court personnel filed before it, referred to the Supreme Court for
determination as to whether an administrative aspect is involved therein. This rule should hold true
regardless of whether an administrative case based on the act subject of the complaint before the
Ombudsman is already pending with the Court. For, aside from the fact that the Ombudsman would
not know of this matter unless he is informed of it, he should give due respect for and recognition of
the administrative authority of the Court, because in determining whether an administrative matter is
involved, the Court passes upon not only administrative liabilities but also administrative concerns,
as is clearly conveyed in the case of Maceda v. Vasquez (221 SCRA 464[1993]).

The Ombudsman cannot dictate to, and bind the Court, to its findings that the case before it does or
does not have administrative implications. To do so is to deprive the Court of the exercise of its
administrative prerogatives and to arrogate unto itself a power not constitutionally sanctioned. This is
a dangerous policy which impinges, as it does, on judicial independence.

Maceda is emphatic that by virtue of its constitutional power of administrative supervision over all
courts and court personnel, from the Presiding Justice of the Court of Appeals down to the lowest
municipal trial court clerk, it is only the Supreme Court that can oversee the judges’ and court
personnel’s compliance with all laws, and take the proper administrative action against them if they
commit any violation thereof. No other branch of government may intrude into this power, without
running afoul of the doctrine of separation of powers.

Corollary to the above pronouncements, Section 7, Article III of the Constitution is relevant in the
issue of public disclosure of SALN and other documents of public officials, viz:

Sec. 7. The right of the people to information on matters of public concern shall be recognized.
Access to official records, and to documents, and papers pertaining to official acts, transactions, or
decisions, as well as to government research data used as basis for policy development, shall be
afforded the citizen, subject to such limitations as may be provided by law.

Emphasizing the import and meaning of the foregoing constitutional provision, the Court, in the
landmark case of Valmonte v. Belmonte, Jr., elucidated on the import of the right to information in
50 

this wise:

The cornerstone of this republican system of government is delegation of power by the people to the
State. In this system, governmental agencies and institutions operate within the limits of the authority
conferred by the people. Denied access to information on the inner workings of government, the
citizenry can become prey to the whims and caprices of those to whom the power had been
delegated. The postulate of public office is a public trust, institutionalized in the Constitution
to protect the people from abuse of governmental power, would certainly be mere empty
words if access to such information of public concern is denied x x x.

x x x The right to information goes hand-in-hand with the constitutional policies of full public
disclosure and honesty in the public service. It is meant to enhance the widening role of the
citizenry in governmental decision-making as well as in checking abuse in
government. (Emphases supplied)

In Baldoza v. Dimaano, the importance of the said right was pragmatically explicated:
51 

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

Thus, while "public concern" like "public interest" eludes exact definition and has been said to
embrace a broad spectrum of subjects which the public may want to know, either because such
matters directly affect their lives, or simply because such matters naturally arouse the interest of an
ordinary citizen, the Constitution itself, under Section 17, Article XI, has classified the information
52 

disclosed in the SALN as a matter of public concern and interest. In other words, a "duty to disclose"
sprang from the "right to know." Both of constitutional origin, the former is a command while the
latter is a permission. Hence, the duty on the part of members of the government to disclose their
SALNs to the public in the manner provided by law:

Section 17. A public officer or employee shall, upon assumption of office and as often thereafter as
may be required by law, submit a declaration under oath of his assets, liabilities, and net worth. In
the case of the President, the Vice-President, the Members of the Cabinet, the Congress, the
Supreme Court, the Constitutional Commissions and other constitutional offices, and officers of the
armed forces with general or flag rank, the declaration shall be disclosed to the public in the
manner provided by law. [Emphasis supplied]

This Constitutional duty is echoed and particularized in a statutory creation of Congress: Republic
Act No. 6713, also known as "Code of Conduct and Ethical Standards for Public Officials and
Employees": 53

Section 8. Statements and Disclosure. - Public officials and employees have an obligation to
accomplish and submit declarations under oath of, and the public has the right to know, their
assets, liabilities, net worth and financial and business interests including those of their spouses and
of unmarried children under eighteen (18) years of age living in their households.

(A) Statements of Assets and Liabilities and Financial Disclosure. - All public officials and
employees, except those who serve in an honorary capacity, laborers and casual or temporary
workers, shall file under oath their Statement of Assets, Liabilities and Net Worth and a Disclosure of
Business Interests and Financial Connections and those of their spouses and unmarried children
under eighteen (18) years of age living in their households.

The two documents shall contain information on the following:

(a) real property, its improvements, acquisition costs, assessed value and current fair market
value;

(b) personal property and acquisition cost;

(c) all other assets such as investments, cash on hand or in banks, stocks, bonds, and the
like;

(d) liabilities, and;

(e) all business interests and financial connections.

The documents must be filed:

(a) within thirty (30) days after assumption of office;

(b) on or before April 30, of every year thereafter; and

(c) within thirty (30) days after separation from the service.

All public officials and employees required under this section to file the aforestated documents shall
also execute, within thirty (30) days from the date of their assumption of office, the necessary
authority in favor of the Ombudsman to obtain from all appropriate government agencies, including
the Bureau of Internal Revenue, such documents as may show their assets, liabilities, net worth, and
also their business interests and financial connections in previous years, including, if possible, the
year when they first assumed any office in the Government.

Husband and wife who are both public officials or employees may file the required statements jointly
or separately.

The Statements of Assets, Liabilities and Net Worth and the Disclosure of Business Interests and
Financial Connections shall be filed by:

(1) Constitutional and national elective officials, with the national office of the Ombudsman;

(2) Senators and Congressmen, with the Secretaries of the Senate and the House of
Representatives, respectively; Justices, with the Clerk of Court of the Supreme Court;
Judges, with the Court Administrator; and all national executive officials with the Office of the
President.

(3) Regional and local officials and employees, with the Deputy Ombudsman in their
respective regions;

(4) Officers of the armed forces from the rank of colonel or naval captain, with the Office of
the President, and those below said ranks, with the Deputy Ombudsman in their respective
regions; and

(5) All other public officials and employees, defined in Republic Act No. 3019, as amended,
with the Civil Service Commission.

(B) Identification and disclosure of relatives. - It shall be the duty of every public official or employee
to identify and disclose, to the best of his knowledge and information, his relatives in the
Government in the form, manner and frequency prescribed by the Civil Service Commission.
(Emphasis supplied)

Like all constitutional guarantees, however, the right to information, with its companion right of
access to official records, is not absolute. While providing guaranty for that right, the Constitution
also provides that the people’s right to know is limited to "matters of public concern" and is further
subject to such limitations as may be provided by law.

Jurisprudence has provided the following limitations to that right: (1) national security matters and
54 

intelligence information; (2) trade secrets and banking transactions; (3) criminal matters; and (4)
other confidential information such as confidential or classified information officially known to public
officers and employees by reason of their office and not made available to the public as well as
diplomatic correspondence, closed door Cabinet meetings and executive sessions of either house of
Congress, and the internal deliberations of the Supreme Court.

This could only mean that while no prohibition could stand against access to official records, such as
the SALN, the same is undoubtedly subject to regulation.

In this regard, Section 8 (c) and (d) of R.A. No. 6713 provides for the limitation and prohibition on the
regulated access to SALNs of government officials and employees, viz:

(C) Accessibility of documents. - (1) Any and all statements filed under this Act, shall be made
available for inspection at reasonable hours.
 (2) Such statements shall be made available for copying or reproduction after ten (10)
working days from the time they are filed as required by law.

(3) Any person requesting a copy of a statement shall be required to pay a reasonable fee to
cover the cost of reproduction and mailing of such statement, as well as the cost of
certification.

(4) Any statement filed under this Act shall be available to the public for a period of ten (10)
years after receipt of the statement. After such period, the statement may be destroyed
unless needed in an ongoing investigation.

(D) Prohibited acts. - It shall be unlawful for any person to obtain or use any statement filed under
this Act for:

(a) any purpose contrary to morals or public policy; or

(b) any commercial purpose other than by news and communications media for
dissemination to the general public.

Moreover, the following provisions in the Implementing Rules and Regulations of R.A. No. 6713
provide:

Rule IV
Transparency of Transactions and Access to Information

xxxx

Section 3. Every department, office or agency shall provide official information, records or
documents to any requesting public, except if:

(a) such information, record or document must be kept secret in the interest of national
defense or security or the conduct of foreign affairs;

(b) such disclosure would put the life and safety of an individual in imminent danger;

(c) the information, record or document sought falls within the concepts of established
privilege or recognized exceptions as may be provided by law or settled policy or
jurisprudence;

(d) such information, record or document compromises drafts or decisions, orders, rulings,
policy, decisions, memoranda, etc;

(e) it would disclose information of a personal nature where disclosure would constitute a
clearly unwarranted invasion of personal privacy;

(f) it would disclose investigatory records complied for law enforcement purposes, or
information which if written would be contained in such records or information would (i)
interfere with enforcement proceedings, (ii) deprive a person of a right to a fair trial or an
impartial adjudication, (iii) disclose the identity of a confidential source and, in the case of a
record compiled by a criminal law enforcement authority in the course of a criminal
investigation, or by an agency conducting a lawful national security intelligence investigation,
 confidential information furnished only by the confidential source, or (iv) unjustifiably disclose
investigative techniques and procedures; or

(g) it would disclose information the premature disclosure of which would (i) in the case of a
department, office or agency which agency regulates currencies, securities, commodities, of
financial institutions, be likely to lead to significant financial speculation in currencies,
securities, or commodities or significantly endanger the stability of any financial institution, or
(ii) in the case of any department, office or agency be likely or significantly to frustrate
implementation of a proposed official action, except that subparagraph (f) (ii) shall not apply
in any instance where the department, office or agency has already disclosed to the public
the content or nature of its proposed action, or where the department, office or agency is
required by law to make such disclosure on its own initiative prior to taking final official action
on such proposal.

xxxx

Rule VI
Duties of Public Officials and Employees

Section 6. All public documents must be made accessible to, and readily available for inspection by,
the public during working hours, except those provided in Section 3, Rule IV.

The power to regulate the access by the public to these documents stems from the inherent power
of the Court, as custodian of these personal documents, to control its very office to the end that
damage to, or loss of, the records may be avoided; that undue interference with the duties of the
custodian of the books and documents and other employees may be prevented; and that the right of
other persons entitled to make inspection may be insured. 55

In this connection, Section 11 of the same law provides for the penalties in case there should be a
misuse of the SALN and the information contained therein, viz:

Section 11. Penalties. - (a) Any public official or employee, regardless of whether or not he holds
office or employment in a casual, temporary, holdover, permanent or regular capacity, committing
any violation of this Act shall be punished with a fine not exceeding the equivalent of six (6) months'
salary or suspension not exceeding one (1) year, or removal depending on the gravity of the offense
after due notice and hearing by the appropriate body or agency. If the violation is punishable by a
heavier penalty under another law, he shall be prosecuted under the latter statute. Violations of
Sections 7, 8 or 9 of this Act shall be punishable with imprisonment not exceeding five (5) years, or a
fine not exceeding five thousand pesos (₱ 5,000), or both, and, in the discretion of the court of
competent jurisdiction, disqualification to hold public office.

(b) Any violation hereof proven in a proper administrative proceeding shall be sufficient
cause for removal or dismissal of a public official or employee, even if no criminal
prosecution is instituted against him.

(c) Private individuals who participate in conspiracy as co-principals, accomplices or

accessories, with public officials or employees, in violation of this Act, shall be subject to the
same penal liabilities as the public officials or employees and shall be tried jointly with them.

(d) The official or employee concerned may bring an action against any person who obtains
or uses a report for any purpose prohibited by Section 8 (d) of this Act. The Court in which
 such action is brought may assess against such person a penalty in any amount not to
exceed twenty-five thousand pesos (₱ 25,000.00). If another sanction hereunder or under
any other law is heavier, the latter shall apply.

Considering the foregoing legal precepts vis-à-vis the various requests made, the Court finds no
cogent reason to deny the public access to the SALN, PDS and CV of the Justices of the Court and
other magistrates of the Judiciary subject, of course, to the limitations and prohibitions provided in
R.A. No. 6713, its implementing rules and regulations, and in the guidelines set forth in the decretal
portion.

The Court notes the valid concerns of the other magistrates regarding the possible illicit motives of
some individuals in their requests for access to such personal information and their publication.
However, custodians of public documents must not concern themselves with the motives, reasons
and objects of the persons seeking access to the records. The moral or material injury which their
misuse might inflict on others is the requestor’s responsibility and lookout. Any publication is made
subject to the consequences of the law. While public officers in the custody or control of public
56 

records have the discretion to regulate the manner in which records may be inspected, examined or
copied by interested persons, such discretion does not carry with it the authority to prohibit access,
inspection, examination, or copying of the records. After all, public office is a public trust. Public
57 

officers and employees must, at all times, be accountable to the people, serve them with utmost
responsibility, integrity, loyalty, and efficiency, act with patriotism and justice, and lead modest lives. 58

WHEREFORE, the Court resolves to GRANT the requests contained in the (1) Letter, dated July 30,
2009, of Rowena C. Paraan; (2) Letter, dated August 13, 2009, of Karol M. Ilagan; (3) Letter, dated
April 21, 2010, of the Philippine Public Transparency Reporting Project; (4) Letter, filed on August
24, 2011, by Marvin Lim; (5) Letter, dated August 26, 2011, of Rawnna Crisostomo; (6) Letter, dated
October 11, 2011, of Bala S. Tamayo; (7) Letters, all dated December 19, 2011, of Harvey S. Keh;
(8) Letter, dated December 21, 2011, of Glenda M. Gloria; (9) Letters, all dated January 3, 2012, of
Phillipe Manalang; (10) Letter, dated December 19, 2011, of Malou Mangahas; (11) Letter, dated
January 16, 2012, of Nilo "Ka Nilo" H. Baculo; (12) Letter, dated January 25, 2012, of Roxanne
Escaro-Alegre; (13) Letter, dated January 27, 2012, of David Jude Sta. Ana; (14) Letter, dated
January 31, 2012, of Michael G. Aguinaldo; (15) undated Letter of Benise P. Balaoing; (16) Letter,
dated April 27, 2012, of Maria A. Ressa; (17) Letter, dated May 2, 2012, of Mary Ann A. Señir; (18)
Letter, dated May 4, 2012, of Edward Gabud, Sr., Desk Editor of Solar Network, Inc.; (19) Letter,
dated May 30, 2012, of Gerry Lirio, Senior News Editor, TV5; (20) Letter, dated May 31, 2002, of
Atty. Joselito P. Fangon of the Office of the Ombudsman; and (21) Letter, dated June 7, 2012, of
Thea Marie S. Pias, insofar as copies of the 2011 SALN, PDS, and CV of the Justices of the
Supreme Court, the Court of Appeals, the Sandiganbayan, and the Court of Tax Appeals; Judges of
lower courts; and other members of the Judiciary, are concerned, subject to the limitations and
prohibitions provided in R.A. No. 6713, its implementing rules and regulations, and the following
guidelines:

1. All requests shall be filed with the Office of the Clerk of Court of the Supreme Court, the
Court of Appeals, the Sandiganbayan, the Court of Tax Appeals; for the lower courts, with
the Office of the Court Administrator; and for attached agencies, with their respective heads
of offices.

2. Requests shall cover only copies of the latest SALN, PDS and CV of the members,
officials and employees of the Judiciary, and may cover only previous records if so
specifically requested and considered as justified, as determined by the officials mentioned
in par. 1 above, under the terms of these guidelines and the Implementing Rules and
Regulations of R.A. No. 6713.
 3. In the case of requests for copies of SALN of the Justices of the Supreme Court, the Court
of Appeals, the Sandiganbayan and the Court of Tax Appeals, the authority to disclose shall
be made by the Court En Banc.

4. Every request shall explain the requesting party’s specific purpose and their individual
interests sought to be served; shall state the commitment that the request shall only be for
the stated purpose; and shall be submitted in a duly accomplished request form secured
from the SC website. The use of the information secured shall only be for the stated purpose.

5. In the case of requesting individuals other than members of the media, their interests
should go beyond pure or mere curiosity. 1âwphi1

6. In the case of the members of the media, the request shall additionally be supported by
proof under oath of their media affiliation and by a similar certification of the accreditation of
their respective organizations as legitimate media practitioners.

7. The requesting party, whether as individuals or as members of the media, must have no
derogatory record of having misused any requested information previously furnished to
them.

The requesting parties shall complete their requests in accordance with these guidelines. The
custodians of these documents (the respective Clerks of Court of the Supreme Court, Court of
59 

Appeals, Sandiganbayan, and Court of Tax Appeals for the Justices; and the Court Administrator for
the Judges of various trial courts) shall preliminarily determine if the requests are not covered by the
limitations and prohibitions provided in R.A. No. 6713 and its implementing rules and regulations,
and in accordance with the aforecited guidelines. Thereafter, the Clerk of Court shall refer the matter
pertaining to Justices to the Court En Banc for final determination.

SO ORDERED.
G.R. Nos. L-32613-14 December 27, 1972

PEOPLE OF THE PHILIPPINES, petitioner,

vs.
HON. SIMEON. FERRER (in his capacity as Judge of the Court of First Instance of Tarlac,
Branch I), FELICIANO CO alias LEONCIO CO alias "Bob," and NILO S. TAYAG alias Romy
Reyes alias "Taba," respondents.

Solicitor R. Mutuc for respondent Feliciano Co.

Jose W. Diokno for respondent Nilo Tayag.

CASTRO, J.:p

I. Statement of the Case

Posed in issue in these two cases is the constitutionality of the Anti-Subversion

Act,1 which outlaws the Communist Party of the Philippines and other "subversive associations," and punishes any person who "knowingly,
willfully and by overt acts affiliates himself with, becomes or remains a member" of the Party or of any other similar "subversive" organization.

On March 5, 1970 a criminal complaint for violation of section 4 of the Anti-Subversion Act was filed
against the respondent Feliciano Co in the Court of First Instance of Tarlac. On March 10 Judge
Jose C. de Guzman conducted a preliminary investigation and, finding a prima facie case against
Co, directed the Government prosecutors to file the corresponding information. The twice-amended
information, docketed as Criminal Case No. 27, recites:

That on or about May 1969 to December 5, 1969, in the Municipality of Capas,

Province of Tarlac, Philippines, and within the jurisdiction of this Honorable Court, the
abovenamed accused, feloniously became an officer and/or ranking leader of the
Communist Party of the Philippines, an outlawed and illegal organization aimed to
overthrow the Government of the Philippines by means of force, violence, deceit,
subversion, or any other illegal means for the purpose of establishing in the
Philippines a totalitarian regime and placing the government under the control and
domination of an alien power, by being an instructor in the Mao Tse Tung University,
the training school of recruits of the New People's Army, the military arm of the said
Communist Party of the Philippines.

That in the commission of the above offense, the following aggravating

circumstances are present, to wit:

(a) That the crime has been committed in contempt of or with insult to public
authorities;

(b) That the crime was committed by a band; and afford impunity.

(c) With the aid of armed men or persons who insure or afford impunity.

Co moved to quash on the ground that the Anti-Subversion Act is a bill of attainder.
Meanwhile, on May 25, 1970, another criminal complaint was filed with the same court, sharing the
respondent Nilo Tayag and five others with subversion. After preliminary investigation was had, an
information was filed, which, as amended, reads:

The undersigned provincial Fiscal of Tarlac and State Prosecutors duly designated
by the Secretary of Justice to collaborate with the Provincial Fiscal of Tarlac,
pursuant to the Order dated June 5, above entitled case, hereby accuse Nilo S.
Tayag, alias Romy Reyes alias TABA, ARTHUR GARCIA, RENATO (REY) CASIPE,
ABELARDO GARCIA, MANUEL ALAVADO, BENJAMIN BIE alias COMMANDER
MELODY and several JOHN DOES, whose identities are still unknown, for violation
of REPUBLIC ACT No. 1700, otherwise known as the Anti-Subversion Law,
committed as follows:

That in or about March 1969 and for sometime prior thereto and thereafter, in the
Province of Tarlac, within the jurisdiction of this Honorable Court, and elsewhere in
the Philippines, the above-named accused knowingly, willfully and by overt acts
organized, joined and/or remained as offices and/or ranking leaders, of the
KABATAANG MAKABAYAN, a subversive organization as defined in Republic Act
No. 1700; that BENJAMIN BIE and COMMANDER MELODY, in addition thereto,
knowingly, willfully and by over acts joined and/or remained as a member and
became an officer and/or ranking leader not only of the Communist Party of the
Philippines but also of the New People's Army, the military arm of the Communist
Party of the Philippines; and that all the above-named accused, as such officers
and/or ranking leaders of the aforestated subversive organizations, conspiring,
confederating and mutually helping one another, did then and there knowingly,
willfully and feloniously commit subversive and/or seditious acts, by inciting,
instigating and stirring the people to unite and rise publicly and tumultuously and take
up arms against the government, and/or engage in rebellious conspiracies and riots
to overthrow the government of the Republic of the Philippines by force, violence,
deceit, subversion and/or other illegal means among which are the following:

1. On several occasions within the province of Tarlac, the accused conducted

meetings and/or seminars wherein the said accused delivered speeches instigating
and inciting the people to unite, rise in arms and overthrow the Government of the
Republic of the Philippines, by force, violence, deceit, subversion and/or other illegal
means; and toward this end, the said accused organized, among others a chapter of
the KABATAANG MAKABAYAN in barrio Motrico, La Paz, Tarlac for the avowed
purpose of undertaking or promoting an armed revolution, subversive and/or
seditious propaganda, conspiracies, and/or riots and/or other illegal means to
discredit and overthrow the Government of the Republic of the Philippines and to
established in the Philippines a Communist regime.

2. The accused NILO TAYAG alias ROMY REYES alias TABA, together with
FRANCISCO PORTEM alias KIKO Gonzales and others, pursued the above
subversive and/or seditious activities in San Pablo City by recruiting members for the
New People's Army, and/or by instigating and inciting the people to organize and
unite for the purpose of overthrowing the Government of the Republic of the
Philippines through armed revolution, deceit, subversion and/or other illegal means,
and establishing in the Philippines a Communist Government.
 That the following aggravating circumstances attended the commission of the
offense: (a) aid of armed men or persons to insure or afford impunity; and (b) craft,
fraud, or disguise was employed.

On July 21, 1970 Tayag moved to quash, impugning the validity of the statute on the grounds that
(1) it is a bill of attainder; (2) it is vague; (3) it embraces more than one subject not expressed in the
title thereof; and (4) it denied him the equal protection of the laws.

Resolving the constitutional issues raised, the trial court, in its resolution of September 15, 1970,
declared the statute void on the grounds that it is a bill of attainder and that it is vague and
overboard, and dismissed the informations against the two accused. The Government appealed. We
resolved to treat its appeal as a special civil action for certiorari.

II. Is the Act a Bill of Attainder?

Article III, section 1 (11) of the Constitution states that "No bill of attainder or ex port facto law shall
be enacted."  A bill of attainder is a legislative act which inflicts punishment without trial.  Its essence
2 3

is the substitution of a legislative for a judicial determination of guilt.  The constitutional ban against
4

bills of attainder serves to implement the principle of separation of powers   by confining legislatures
5

to
rule-making   and thereby forestalling legislative usurpation of the judicial function.  History in
6 7

perspective, bills of attainder were employed to suppress unpopular causes and political
minorities,   and it is against this evil that the constitutional prohibition is directed. The singling out of
8

a definite class, the imposition of a burden on it, and a legislative intent, suffice to stigmatizea statute
as a bill of attainder.  9

In the case at bar, the Anti-Subversion Act was condemned by the court a quo as a bill of attainder
because it "tars and feathers" the Communist Party of the Philippines as a "continuing menace to the
freedom and security of the country; its existence, a 'clear, present and grave danger to the security
of the Philippines.'" By means of the Act, the trial court said, Congress usurped "the powers of the
judge," and assumed "judicial magistracy by pronouncing the guilt of the CCP without any of the
forms or safeguards of judicial trial." Finally, according to the trial court, "if the only issue [to be
determined] is whether or not the accused is a knowing and voluntary member, the law is still a bill of
attainder because it has expressly created a presumption of organizational guilt which the accused
can never hope to overthrow."

1. When the Act is viewed in its actual operation, it will be seen that it does not specify the
Communist Party of the Philippines or the members thereof for the purpose of punishment. What it
does is simply to declare the Party to be an organized conspiracy for the overthrow of the
Government for the purposes of the prohibition, stated in section 4, against membership in the
outlawed organization. The term "Communist Party of the Philippines" issued solely for definitional
purposes. In fact the Act applies not only to the Communist Party of the Philippines but also to "any
other organization having the same purpose and their successors." Its focus is not on individuals but
on conduct.  10

This feature of the Act distinguishes it from section 504 of the U.S. Federal Labor-Management
Reporting and Disclosure Act of 1959   which, in U.S. vs. Brown,   was held to be a bill of attainder
11 12

and therefore unconstitutional. Section 504 provided in its pertinent parts as follows:

(a) No person who is or has been a member of the Communist

Party ... shall serve —
 (1) as an officer, director, trustee, member of any executive board or similar
governing body, business agent, manager, organizer, or other employee (other than
as an employee performing exclusively clerical or custodial duties) of any labor
organization.

during or for five years after the termination of his membership in the Communist
Party....

(b) Any person who willfully violates this section shall be fined not more than $10,000
or imprisoned for not more than one year, or both.

This statute specified the Communist Party, and imposes disability and penalties on its members.
Membership in the Party, without more, ipso facto disqualifies a person from becoming an officer or
a member of the governing body of any labor organization. As the Supreme Court of the United
States pointed out:

Under the line of cases just outlined, sec. 504 of the Labor Management Reporting
and Disclosure Act plainly constitutes a bill of attainder. Congress undoubtedly
possesses power under the Commerce Clause to enact legislation designed to keep
from positions affecting interstate commerce persons who may use of such positions
to bring about political strikes. In section 504, however, Congress has exceeded the
authority granted it by the Constitution. The statute does not set forth a generally
applicable rule decreeing that any person who commits certain acts or possesses
certain characteristics (acts and characteristics which, in Congress' view, make them
likely to initiate political strikes) shall not hold union office, and leaves to courts and
juries the job of deciding what persons have committed the specified acts or
possessed the specified characteristics. Instead, it designates in no uncertain terms
the persons who possess the feared characteristics and therefore cannot hold union
office without incurring criminal liability — members of the Communist Party.

Communist Party v. Subversive Activities Control Board, 367 US 1, 6 L ed 2d 625, 81

S CT 1357, lend a support to our conclusion. That case involved an appeal from an
order by the Control Board ordering the Communist Party to register as a
"Communist-action organization," under the Subversive Activities Control Act of
1950, 64 Stat 987, 50 USC sec. 781 et seq. (1958 ed). The definition of "Communist-
action organization" which the Board is to apply is set forth in sec. 3 of the Act:

[A]ny organization in the United States ... which (i)is substantially directed,
dominated, or controlled by the foreign government or foreign organization controlling
the world Communist movement referred to in section 2 of this title, and(ii) operates
primarily to advance the objectives of such world Communist movement... 64 Stat
989, 50 USC sec. 782 (1958 ed.)

A majority of the Court rejected the argument that the Act was a bill of attainder,
reasoning that sec. 3 does not specify the persons or groups upon which the
deprivations setforth in the Act are to be imposed, but instead sets forth a general
definition. Although the Board has determined in 1953 that the Communist Party was
a "Communist-action organization," the Court found the statutory definition not to be
so narrow as to insure that the Party would always come within it:

In this proceeding the Board had found, and the Court of Appeals has sustained its
conclusion, that the Communist Party, by virtud of the activities in which it now
 engages, comes within the terms of the Act. If the Party should at anytime choose to
abandon these activities, after it is once registered pursuant to sec. 7, the Act
provides adequate means of relief. (367 US, at 87, 6 L ed 2d at 683)

Indeed, were the Anti-Subversion Act a bill of attainder, it would be totally unnecessary to charge
Communists in court, as the law alone, without more, would suffice to secure their punishment. But
the undeniable fact is that their guilt still has to be judicially established. The Government has yet to
prove at the trial that the accused joined the Party knowingly, willfully and by overt acts, and that
they joined the Party, knowing its subversive character and with specific intent to further its basic
objective, i.e., to overthrow the existing Government by force deceit, and other illegal means and
place the country under the control and domination of a foreign power.

As to the claim that under the statute organizationl guilt is nonetheless imputed despite the
requirement of proof of knowing membership in the Party, suffice it to say that is precisely the nature
of conspiracy, which has been referred to as a "dragneet device" whereby all who participate in the
criminal covenant are liable. The contention would be correct if the statute were construed as
punishing mere membership devoid of any specific intent to further the unlawful goals of the
Party.   But the statute specifically required that membership must be knowing or active, with
13

specific intent to further the illegal objectives of the Party. That is what section 4 means when it
requires that membership, to be unlawful, must be shown to have been acquired "knowingly, willfully
and by overt acts."   The ingredient of specific intent to pursue the unlawful goals of the Party must
14

be shown by "overt acts."   This constitutes an element of "membership" distinct from the ingredient
15

of guilty knowledge. The former requires proof of direct participation in the organization's unlawful
activities, while the latter requires proof of mere adherence to the organization's illegal objectives.

2. Even assuming, however, that the Act specifies individuals and not activities, this feature is not
enough to render it a bill of attainder. A statute prohibiting partners or employees of securities
underwriting firms from serving as officers or employees of national banks on the basis of a
legislative finding that the persons mentioned would be subject to the temptation to commit acts
deemed inimical to the national economy, has been declared not to be a bill of attainder.   Similarly,
16

a statute requiring every secret, oath-bound society having a membership of at least twenty to
register, and punishing any person who becomes a member of such society which fails to register or
remains a member thereof, was declared valid even if in its operation it was shown to apply only to
the members of the Ku Klux Klan.  17

In the Philippines the validity of section 23 (b) of the Industrial Peace Act,   requiring labor unions to
18

file with the Department of Labor affidavits of union officers "to the effect that they are not members
of the Communist Party and that they are not members of any organization which teaches the
overthrow of the Government by force or by any illegal or unconstitutional method," was upheld by
this Court. 
19

Indeed, it is only when a statute applies either to named individuals or to easily ascertainable
members of a group in such a way as to inflict punishment on them without a judicial trial does it
become a bill of attainder.   It is upon this ground that statutes which disqualified those who had
20

taken part in the rebellion against the Government of the United States during the Civil War from
holding office,   or from exercising their profession,   or which prohibited the payment of further
21 22

compensation to individuals named in the Act on the basis of a finding that they had engages in
subversive activities,   or which made it a crime for a member of the Communist Party to serve as an
23

officer or employee of a labor union,   have been invalidated as bills of attainder.

24
But when the judgment expressed in legislation is so universally acknowledged to be certain as to be
"judicially noticeable," the legislature may apply its own rules, and judicial hearing is not needed
fairly to make such determination. 25

In New York ex rel. Bryant vs. Zimmerman,   the New York legislature passed a law requiring every
26

secret, oath-bound society with a membership of at least twenty to register, and punishing any
person who joined or remained a member of such a society failing to register. While the statute did
not specify the Ku Klux Klan, in its operation the law applied to the KKK exclusively. In sustaining the
statute against the claim that it discriminated against the Ku Klux Klan while exempting other secret,
oath-bound organizations like masonic societies and the Knights of Columbus, the United States
Supreme Court relied on common knowledge of the nature and activities of the Ku Klux Klan. The
Court said:

The courts below recognized the principle shown in the cases just cited and reached
the conclusion that the classification was justified by a difference between the two
classes of associations shown by experience, and that the difference consisted (a) in
a manifest tendency on the part of one class to make the secrecy surrounding its
purpose and membership a cloak for acts and conduct inimical to personal rights and
public welfare, and (b) in the absence of such a tendency on the part of the other
class. In pointing out this difference one of the courts said of the Ku Klux Klan, the
principal association in the included class: "It is a matter of common knowledge that
this organization functions largely at night, its members disguised by hoods and
gowns and doing things calculated to strike terror into the minds of the people;" and
later said of the other class: "These organizations and their purposes are well known,
many of them having been in existence for many years. Many of them are oath-
bound and secret. But we hear no complaint against them regarding violation of the
peace or interfering with the rights of others." Another of the courts said: "It is a
matter of common knowledge that the association or organization of which the relator
is concededly a member exercises activities tending to the prejudice and intimidation
of sundry classes of our citizens. But the legislation is not confined to this society;"
and later said of the other class: "Labor unions have a recognized lawful purpose.
The benevolent orders mentioned in the Benevolent Orders Law have already
received legislative scrutiny and have been granted special privileges so that the
legislature may well consider them beneficial rather than harmful agencies." The third
court, after recognizing "the potentialities of evil in secret societies," and observing
that "the danger of certain organizations has been judicially demonstrated," —
meaning in that state, — said: "Benevolent orders, labor unions and college
fraternities have existed for many years, and, while not immune from hostile criticism,
have on the whole justified their existence."

We assume that the legislature had before it such information as was readily
available including the published report of a hearing, before a committee of the
House of Representatives of the 57th Congress relating to the formation, purposes
and activities of the Klu Klux Klan. If so it was advised — putting aside controverted
evidence — that the order was a revival of the Ku Klux Klan of an earlier time with
additional features borrowed from the Know Nothing and the A. P. A. orders of other
periods; that its memberships was limited to native-born, gentile, protestant whites;
that in part of its constitution and printed creed it proclaimed the widest freedom for
all and full adherence to the Constitution of the United States; in another exacted of
its member an oath to shield and preserve "white supremacy;" and in still another
declared any person actively opposing its principles to be "a dangerous ingredient in
the body politic of our country and an enemy to the weal of our national
commonwealth;" that it was conducting a crusade against Catholics, Jews, and
 Negroes, and stimulating hurtful religious and race prejudices; that it was striving for
political power and assuming a sort of guardianship over the administration of local,
state and national affairs; and that at times it was taking into its own hands the
punishment of what some of its members conceived to be crimes.  27

In the Philippines the character of the Communist Party has been the object of continuing scrutiny by
this Court. In 1932 we found the Communist Party of the Philippines to be an illegal association.   In 28

1969 we again found that the objective of the Party was the "overthrow of the Philippine Government
by armed struggle and to establish in the Philippines a communist form of government similar to that
of Soviet Russia and Red China."   More recently, in Lansang vs. Garcia,   we noted the growth of
29 30

the Communist Party of the Philippines and the organization of Communist fronts among youth
organizations such as the Kabataang Makabayan (KM) and the emergence of the New People's
Army. After meticulously reviewing the evidence, we said: "We entertain, therefore, no doubts about
the existence of a sizeable group of men who have publicly risen in arms to overthrow the
government and have thus been and still are engaged in rebellion against the Government of the
Philippines.

3. Nor is it enough that the statute specify persons or groups in order that it may fall within the ambit
of the prohibition against bills of attainder. It is also necessary that it must apply retroactively and
reach past conduct. This requirement follows from the nature of a bill of attainder as a legislative
adjudication of guilt. As Justice Frankfurter observed, "frequently a bill of attainder was ... doubly
objectionable because of its ex post facto features. This is the historic explanation for uniting the two
mischiefs in one
clause — 'No Bill of Attainder or ex post facto law shall be passed.' ... Therefore, if [a statute] is a bill
of attainder it is also an ex post facto law. But if it is not an ex post facto law, the reasons that
establish that it is not are persuasive that it cannot be a bill of attainder." 
31

Thus in Gardner vs. Board of Public Works,   the U.S. Supreme Court upheld the validity of the
32

Charter of the City of Los Angeles which provided:

... [N]o person shall hold or retain or be eligible for any public office or employment in
the service of the City of Los Angeles, in any office or department thereof, either
elective or appointive, who has within five (5) years prior to the effective date of this
section advised, advocated, or taught, or who may, after this section becomes
effective, become a member of or affiliated with any group, society, association,
organization or party which advises, advocates or teaches or has within said period
of five (5) years advised, advocated, or taught the overthrow by force or violence of
the Government of the United States of America or of the State of California.

In upholding the statute, the Court stressed the prospective application of the Act to the petitioner
therein, thus:

... Immaterial here is any opinion we might have as to the charter provision insofar as
it purported to apply restrospectively for a five-year period to its effective date. We
assume that under the Federal Constitution the Charter Amendment is valid to the
extent that it bars from the city's public service persons who, subsequently to its
adoption in 1941, advise, advocate, or reach the violent overthrow of the
Government or who are or become affiliated with any group doing so. The provisions
operating thus prospectively were a reasonable regulation to protect the municipal
service by establishing an employment qualification of loyalty to the State and the
United States.
 ... Unlike the provisions of the charter and ordinance under which petitioners were
removed, the statute in the Lovett case did not declare general and prospectively
operative standards of qualification and eligibility for public employment. Rather, by
its terms it prohibited any further payment of compensationto named individuals or
employees. Under these circumstances, viewed against the legislative background,
the statutewas held to have imposed penalties without judicial trial.

Indeed, if one objection to the bill of attainder is thatCongress thereby assumed judicial magistracy,
them it mustbe demonstrated that the statute claimed to be a bill of attainderreaches past conduct
and that the penalties it imposesare inescapable. As the U.S. Supreme Court observedwith respect
to the U.S. Federal Subversive Activities ControlAct of 1950:

Nor is the statute made an act of "outlawry" or of attainderby the fact that the conduct
which it regulates is describedwith such particularity that, in probability, few
organizationswill come within the statutory terms. Legislatures may act tocurb
behaviour which they regard as harmful to the public welfare,whether that conduct is
found to be engaged in by manypersons or by one. So long as the incidence of
legislation issuch that the persons who engage in the regulated conduct, bethey
many or few, can escape regulation merely by altering thecourse of their own present
activities, there can be no complaintof an attainder. 33

This statement, mutatis mutandis, may be said of theAnti-Subversion Act. Section 4 thereof

expressly statesthat the prohibition therein applies only to acts committed"After the approval of this
Act." Only those who "knowingly,willfully and by overt acts affiliate themselves with,become or
remain members of the Communist Party of thePhilippines and/or its successors or of any
subversive association"after June 20, 1957, are punished. Those whowere members of the Party or
of any other subversive associationat the time of the enactment of the law, weregiven the
opportunity of purging themselves of liability byrenouncing in writing and under oath their
membershipin the Party. The law expressly provides that such renunciationshall operate to exempt
such persons from penalliability.   The penalties prescribed by the Act are thereforenot inescapable.
34

III. The Act and the Requirements of Due Process

1. As already stated, the legislative declaration in section 2 of the Act that the Communist Party of
the Philippinesis an organized conspiracy for the overthrow of theGovernment is inteded not to
provide the basis for a legislativefinding of guilt of the members of the Party butrather to justify the
proscription spelled out in section 4. Freedom of expression and freedom of association are
sofundamental that they are thought by some to occupy a"preferred position" in the hierarchy of
constitutional values.   Accordingly, any limitation on their exercise mustbe justified by the existence
35

of a substantive evil. This isthe reason why before enacting the statute in question
Congressconducted careful investigations and then stated itsfindings in the preamble, thus:

... [T]he Communist Party of the Philippines althoughpurportedly a political party, is in

fact an organized conspiracyto overthrow the Government of the Republic of the
Philippinesnot only by force and violence but also by deceit, subversionand other
illegal means, for the purpose of establishing in thePhilippines a totalitarian regime
subject to alien dominationand control;

... [T]he continued existence and activities of the CommunistParty of the Philippines
constitutes a clear, present andgrave danger to the security of the Philippines;
 ... [I]n the face of the organized, systematice and persistentsubversion, national in
scope but international in direction,posed by the Communist Party of the Philippines
and its activities,there is urgent need for special legislation to cope withthis
continuing menace to the freedom and security of the country.

In truth, the constitutionality of the Act would be opento question if, instead of making these findings
in enactingthe statute, Congress omitted to do so.

In saying that by means of the Act Congress has assumed judicial magistracy, the trial courd failed
to takeproper account of the distinction between legislative fact and adjudicative fact. Professor Paul
Freund elucidatesthe crucial distinction, thus:

... A law forbidding the sale of beverages containingmore than 3.2 per cent of alcohol
would raise a question of legislativefact, i.e., whether this standard has a reasonable
relationto public health, morals, and the enforcement problem. Alaw forbidding the
sale of intoxicating beverages (assuming itis not so vague as to require
supplementation by rule-making)would raise a question of adjudicative fact, i.e.,
whether thisor that beverage is intoxicating within the meaning of the statuteand the
limits on governmental action imposed by the Constitution. Of course what we mean
by fact in each case is itselfan ultimate conclusion founded on underlying facts and
oncriteria of judgment for weighing them.

A conventional formulation is that legislative facts — those facts which are relevant to
the legislative judgment — will not be canvassed save to determine whether there is
a rationalbasis for believing that they exist, while adjudicativefacts — those which tie
the legislative enactment to the litigant — are to be demonstrated and found
according to the ordinarystandards prevailing for judicial trials. 
36

The test formulated in Nebbia vs. new York,   andadopted by this Court in Lansang vs. Garcia,   is
37 38

that 'if laws are seen to have a reasonable relation to a proper legislative purpose, and are neither
arbitrary nor discriminatory, the requirements of due process are satisfied, and judicial determination
to that effect renders a court functus officio." The recital of legislative findings implements this test.

With respect to a similar statement of legislative findingsin the U.S. Federal Subversive Activities
Control Actof 1950 (that "Communist-action organizations" are controlledby the foreign government
controlling the worldCommunist movement and that they operate primarily to"advance the objectives
of such world Communist movement"),the U.S. Supreme Court said:

It is not for the courts to reexamine the validity of theselegislative findings and reject
them....They are the productof extensive investigation by Committes of Congress
over morethan a decade and a half. Cf. Nebbia v. New York, 291 U.S.502, 516, 530.
We certainly cannot dismiss them as unfoundedirrational imaginings. ... And if we
accept them, as we mustas a not unentertainable appraisal by Congress of the
threatwhich Communist organizations pose not only to existing governmentin the
United States, but to the United States as asovereign, independent Nation. ...we
must recognize that thepower of Congress to regulate Communist organizations of
thisnature is
extensive. 39

This statement, mutatis mutandis, may be said of thelegislative findings articulated in the Anti-
Subversion Act.
That the Government has a right to protect itself againstsubversion is a proposition too plain to
require [Link]-preservation is the "ultimate value" of society. It surpasses and transcendes
every other value, "forif a society cannot protect its very structure from armedinternal attack, ...no
subordinate value can be protected"   As Chief Justice Vinson so aptly said in Dennis vs. United
40

States: 41

Whatever theoretical merit there may be to the argumentthat there is a 'right' to

rebellion against dictatorial governmentsis without force where the existing structure
of government provides for peaceful and orderly change. We rejectany principle of
governmental helplessness in the face of preparationfor revolution, which principle,
carried to its logical conclusion,must lead to anarchy. No one could conceive that it
isnot within the power of Congress to prohibit acts intended tooverthrow the
government by force and violence.

2. By carefully delimiting the reach of the Act to conduct (as explicitly described in sectin 4 thereof),
Congressreaffirmed its respect for the rule that "even throughthe governmental purpose be
legitimate and substantial,that purpose cannot be pursued by means that broadly stiflefundamental
personal liberties when the end can be more narrowly achieved."   The requirement
42

of knowing membership,as distinguished from nominal membership, hasbeen held as a sufficient

basis for penalizing membershipin a subversive organization.   For, as has been stated:
43

Membership in an organization renders aid and encouragement to the organization;

and when membership is acceptedor retained with knowledge that the organization is
engaged inan unlawful purpose, the one accepting or retaining membershipwith such
knowledge makes himself a party to the unlawfulenterprise in which it is engaged.  44

3. The argument that the Act is unconstitutionallyoverbroad because section 2 merely speaks of
"overthrow"of the Government and overthrow may be achieved by peaceful means, misconceives
the function of the phrase"knowingly, willfully and by overt acts" in section 4. Section 2 is merely a
legislative declaration; the definitionsof and the penalties prescribed for the different acts
prescribedare stated in section 4 which requires that membershipin the Communist Party of the
Philippines, to be unlawful, must be acquired "knowingly, willfully and by overt acts." Indeed, the first
"whereas" clause makes clear thatthe overthrow contemplated is "overthrow not only by forceand
violence but also be deceit, subversion and other illegalmeans." The absence of this qualificatio in
section 2 appearsto be due more to an oversight rather than to deliberateomission.

Moreover, the word "overthrow' sufficiently connotesthe use of violent and other illegal means. Only
in a metaphoricalsense may one speak of peaceful overthrow ofgovernments, and certainly the law
does not speak in [Link] the case of the Anti-Subversion Act, the use ofthe word "overthrow"
in a metaphorical sense is hardlyconsistent with the clearly delineated objective of the
"overthrow,"namely, "establishing in the Philippines a totalitarianregime and place [sic] the
Government under thecontrol and domination of an alien power." What thisCourt once said in a
prosecution for sedition is appropos: "The language used by the appellant clearly imported
anoverthrow of the Government by violence, and it should beinterpreted in the plain and obvious
sense in which it wasevidently intended to be understood. The word 'overthrow'could not have been
intended as referring to an ordinarychange by the exercise of the elective franchise. The useof the
whip [which the accused exhorted his audience to useagainst the Constabulary], an instrument
designed toleave marks on the sides of adversaries, is inconsistentwith the mild interpretation which
the appellant wouldhave us impute to the language."  45

IV. The Act and the Guaranty of Free Expression

As already pointed out, the Act is aimed against conspiracies to overthrow the Government by force,
violence orother illegal means. Whatever interest in freedom of speechand freedom of association is
infringed by the prohibitionagainst knowing membership in the Communist Party ofthe Philippines, is
so indirect and so insubstantial as to beclearly and heavily outweighed by the overriding
considerationsof national security and the preservartion of democraticinstitutions in his country.

The membership clause of the U.S. Federal Smith Actis similar in many respects to the membership
provision ofthe Anti-Subversion Act. The former provides:

Whoever organizes or helps or attempts to organize anysociety, group, or assembly

of persons who teach, advocate, orencourage the overthrow or destruction of any
such governmentby force or violence; or becomes or is a member of, or affiliatedwith,
any such society, group or assembly of persons, knowingthe purpose thereof —

Shall be fined not more than $20,000 or imprisoned notmore than twenty years, or
both, and shall be ineligible for emplymentby the United States or any department