en banc senate of the philippines, franklin m....

REPUBLIC OF THE PHILIPPINESSUPREME COURT

MANILA

EN BANC

SENATE OF THE PHILIPPINES, represented by FRANKLIN M. DRILON, in his capacity as Senate President, FRANCIS N. PANGILINAN, in his capacity as Majority Leader, AQUILINO Q. PIMENTEL, JR., in his capacity as Minority Leader, SENATORS RODOLFO G. BIAZON, “COMPANERA” PIA S. CAYETANO, JINGGOY EJERCITO ESTRADA, LUISA “LOI” EJERCITO ESTRADA, JUAN PONCE ENRILE, RICHARD J. GORDON, PANFILO M. LACSON, ALFREDO S. LIM, M.A. MADRIGAL, SERGIO OSMENA III, RALPH G. RECTO, and MAR ROXAS,

Petitioners,

versus G.R. No. 169777

EDUARDO R. ERMITA, in his capacity as Executive Secretary and alterego of President Gloria MacapagalArroyo, and anyone acting in his stead and in behalf of the President of the Philippines,

Respondent.xx

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

Motion for ReconsiderationBayan Muna, etc., et al. v. Eduardo R. Ermita (G.R. No. 169659)Francisco I. Chavez v. Eduardo R. Ermita (G.R. No. 169660)Alternative Law Groups (ALG) v. Eduardo Ermita (G.R. No. 169667)Senate of the Philippines, et al. v. Eduardo Ermita (G.R. No. 169777)PDP Laban v. Eexc. Sec. Eduardo Ermita (G.R. No. 169834)Jose Anselmo I. Cadiz, et al. v. Exec. Sec. Eduardo Ermita (G.R. No. 171246)xx

COUNSELS FOR THE DEFENSE OF LIBERTIES (CODAL), represented by ATTY. REMEDIOS BALBIN,

Petitioners,


EDUARDO ERMITA, in his capacity as Executive Secretary and alterego of President Gloria MacapagalArroyo,

Respondent.xx

FRANCISCO I. CHAVEZ,Petitioner,


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.xx

ALTERNATIVE LAW GROUPS (ALG),Petitioner,


HON. EDUARDO R. ERMITA, in his capacity as Executive Secretary,

Respondent.xx

2


PDP LABAN,Petitioner,


EXECUTIVE SECRETARY EDUARDO R. ERMITA, ET AL.,

Respondents.xx

JOSE ANSELMO I. CADIZ, FELICIANO M. BAUTISTA, ROMULO R. RIVERA, JOSE AMOR A. AMORANDO, ALICIA A. RISOSVIDAL, FILEMON C. ABELITA III and the INTEGRATED BAR OF THE PHILIPPINES,

Petitioners,


EXECUTIVE SECRETARY EDUARDO R. ERMITA,

Respondent.xx

MOTION FOR RECONSIDERATION

3


RESPONDENTS, by counsel, respectfully move for the

reconsideration of this Honorable Court’s Decision dated April 20,

2006, a copy of which was received by the Office of the Solicitor

General on May 3, 2006, declaring Sections 2(b) and 3 of Executive

Order No. 464 (series of 2005) VOID.

ARGUMENTS

I

IT IS PREMATURE FOR THIS HONORABLE COURT TO TAKE COGNIZANCE OF THE PRESENT PETITIONS.

II

THE HONORABLE COURT OVERLOOKED CERTAIN FACTS AND CIRCUMSTANCES WHICH JUSTIFY THE CONSENT REQUIREMENT FOR EXECUTIVE OFFICIALS APPEARING IN LEGISLATIVE INVESTIGATIONS.

DISCUSSION

I

IT IS PREMATURE FOR THIS HONORABLE COURT TO TAKE

4


COGNIZANCE OF THE PRESENT PETITIONS.

The President did not act so arbitrarily as to constitute abuse

of discretion, much less grave, in requiring prior consent from

executive officials before appearing in legislative investigations. The

Senate has not set guidelines or parameters upon which the action

of the President may be properly adjudged. Indeed, it is inopportune

to appraise the actions of the President without any rules or

guidelines from the Senate clearly providing the standards upon

which any response to their exercise of legislative functions and

duties may be checked. Under the circumstances, to impute abuse

of discretion on the President would be unwarranted. It is premature

therefore for the courts to take cognizance of the case.

Grave abuse of discretion implies such capricious and

whimsical exercise of judgment as is equivalent to lack of jurisdiction

or, in other words, where the power is exercised in an arbitrary

manner by reason of passion, prejudice, or personal hostility, and it

must be so patent or gross as to amount to an evasion of positive

5


duty or to a virtual refusal to perform the duty enjoined or to act at all

in contemplation of law.1

It bears to stress that grave abuse of discretion amounting to

lack or excess of jurisdiction is not presumed, the presumption being

that the public official concerned acted in accordance with law and

with due consideration of the matter, following the presumption of

regularity in the performance of official duty.2

In the instant case, considering the total absence of any

guidelines or rules promulgated by the Senate to govern the conduct

of its inquiries in aid of legislation or otherwise, it cannot be said,

therefore that the President, who had merely required prior consent

from her officials, acted with grave abuse of discretion amounting to

lack or excess of jurisdiction by issuing the executive order in

question. Put differently, EO 464 did not violate any Senate rules or

guidelines that could serve, in the least, as basis for the allegation

that the President has committed any grave abuse of discretion. As

such, it is premature for the Court to take cognizance of the present

petitions.

1 Angara vs. Fedman Development Corporation, 440 SCRA 467 (2004).2 Sec 3 [m] & [n], Rule 131 of the Revised Rules of Evidence.

6


II

THE HONORABLE COURT OVERLOOKED CERTAIN FACTS AND CIRCUMSTANCES WHICH JUSTIFY THE CONSENT REQUIREMENT FOR EXECUTIVE OFFICIALS APPEARING IN LEGISLATIVE INVESTIGATIONS.

The consent required of officials enumerated in Section 2 (b)

is not solely to ensure adherence to the doctrine on executive

privilege but also respect for the rights of public officials appearing in

congressional investigations.

I. The President may properly prohibit executive officials from appearing in congressional investigations by invoking the doctrine of executive privilege._________________________

A. EO 464 has correctly construed the doctrine of executive privilege.

7


The doctrine of executive privilege is founded upon the basic

principle that in order for the President to carry out his constitutional

responsibility to enforce the laws, he must be able to protect the

confidentiality of certain types of documents and communications

within the Executive Branch.3

Executive privilege is based on the constitutional doctrine of

separation of powers. It exempts the executive branch of

government from the usual disclosure requirements when the matter

to be disclosed involves national security and foreign policy, or where

such exemption is necessary to the discharge of highly important

executive responsibilities involved in maintaining governmental

operations. Executive privilege extends not only to military and

diplomatic secrets but also to documents integral to an appropriate

exercise of the executive’s domestic decisional and policymaking

functions, that is, those documents reflecting the frank expression

necessary in intragovernmental advisory and deliberative

communications.

3 LEXSEE 8 O.L.C. 101, Opinion of the Office of Legal Counsel, Prosecution for Contempt of Congress of an Executive Branch Official who has asserted a claim of excutive Privilege, May 30, 1984.

8


Executive privilege was first recognized in Philippine

jurisdiction in the case of Almonte vs. Vasquez,4 which quoted from

American jurisprudence from whence this doctrine developed.

It is admitted that executive privilege is not absolute and that it

is not beyond the scope of judicial review. But, while the rule on

executive privilege does not preclude the courts from determining

whether its invocation is justified depending on the circumstances of

each case, it is but logical to assume that the initial determination of

whether a matter is covered by the privilege falls well within the

scope of the President’s executive powers.

B. EO 464’s enumeration of officials covered by executive privilege is valid and reasonable.________________________

Section 2(b) of EO 464 enumerated the following officials to

be covered therein:

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

x x x

4 244 SCRA 286 (1995).

9


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

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

(ii) 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;

(iii) Philippine National Police (PNP) officers with the 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;

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

(v) Such other officers as may be determined by the President.

This enumeration is valid and reasonable under the

circumstance of protecting classified and confidential information.

Executive privilege is validly invoked with respect to certain officials

in the Executive Branch who, by the nature of their positions and the

character of their interaction with the President, gives them access to

sensitive information which cannot and should not be divulged if the

Executive Branch is to function effectively. It is the nature of the

10


matter or discussion which is controlling. Thus, all those who

participated in the discussion of such matter, considered classified or

confidential, likewise need the protection. The presidential

requirement of consent is needed to protect the information which

these executive officials had acquired.

In the case of Almonte vs. Vasquez,5 this Honorable Court

discussed the rationale for the rule on executive privilege covering

officials who assist the President in the process of shaping policies

and making decisions, citing United States vs. Nixon6:

“The expectation of a President to the confidentiality of his conversations and correspondence, 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 decisionmaking. 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 the government and inextricably rooted in the separation of powers under the Constitution . . .” (Emphasis supplied)

5 Supra.6 US vs. Nixon, 418 US 638 (1974).

11


In the In Re Sealed Case7, the United States Appeals Court

held that the presidential communications privilege covers

communications made or received by presidential advisers in the

course of preparing advise intended for the President, even if those

communications are not made directly to the President. It bases its

conclusion on “the President’s dependence on presidential advisers

and the inability of the deliberative process privilege to provide

advisers with adequate freedom from the public spotlight” and “the

need to provide sufficient elbow room for advisers to obtain

information from all knowledgeable sources.”8

Truly, it is not only the president or the department heads,

but all those who assist them in such sensitive matters, who must

be insulated from the unnecessary intrusion of the other branches of

government. In the fulfillment of her constitutionally mandated duty to

enforce and administer the laws of the land and oversee the

operations of the executive branch of government, the President

necessarily has to consult and seek the advise of not just the heads

of the departments but other officials involved in the vital operations

7 121 F.3d 729 (D.C. Cir. 1997)8 Id., as quoted in Presidential Claims of Executive Privilege: History, Law, Practice and Recent Developments, CRS Report for Congress, September 21, 1999.

12


of the executive branch including members of the Armed Forces of

the Philippines, the Philippine National Police and national security

officials; and, similarly, these top officials, in coming up with their

wellstudied advise and recommendations to the President,

necessarily had to consult with other officials in their departments.

In the discussion of matters that are covered by executive

privilege, the heads of departments and other senior officials of

government necessarily consult with other officials. Thus, to them is

given the initial determination as to who these officials covered

by the privilege may be. For definitely, such sensitive matters are

not solely formulated by just one person. To limit, then, the protection

afforded by the rule on executive privilege to only the President or

the heads of departments would seriously impair the ability of the

chief executive to shape policies and make vital decisions affecting

the country.

It is not argued that the doctrine of executive privilege may be

invoked only by the President or by her Executive Secretary “by

authority of the President.” It is merely the initial determination as

13


to who are covered based on the nature of the information

discussed that is given the other senior executive officials.

C. The President may validly prohibit the executive officials from appearing in Congress by invoking the doctrine of executive privilege.________________________

The President may as far as prohibit executive officials from

attending Congressional hearings by virtue of the doctrine of

Executive Privilege. This much, Senator Joker Arroyo has

conceded.9 Constitutional Commission deliberations even reveal that

when Commissioner Ople asked whether a deadlock would arise if

the President invoked executive privilege and prevented a member

of Cabinet from appearing before Congress “on call of either House,”

the response of Commissioner Suarez was definitive:

xxx that situation has happened time and again in the past, and that is in the pursuit of the doctrine of separation of powers. So, in the situation like that, it is the privilege of the President to seek recourse under the mantle of executive privilege. In other words, he may instruct his

9 Oral Argument, February 21, 2006.

14


Cabinet member not to respond to the summons or the invitation extended by the Congress.10

In relation thereto, Commissioner Bernas added his

authoritative opinion on the matter:

…it was made abundantly clear that Congress could not compel a Cabinet member to appear and neither may either House be compelled to permit appearance of a Cabinet member. Nor may the President be compelled to give his consent. Hence, executive privilege was preserved while at the same time respecting the autonomy of Congress.11

(emphasis supplied)

Even the Senate acknowledged such prerogative of the

President, as it included this statement in its own website:

However, it has been stated that the President can prevent a department head from appearing before each House. This has happened in the past in the pursuit of separation of powers. It is the privilege of the President to seek recourse under the mantle of the executive privilege. He may instruct his Cabinet member not to respond to the summons or to the invitation extended by Congress. 12

10 II Records of the Constitutional Commission, 15015111 Bernas, Joaquin S., The Intent of the 1986 Constitution Writers, 1995 ed., pp. 390391.12 www. nsclub.net/senate

15


Even this Honorable Court in its Decision dated April 20, 2006

on this case conforms:

…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.13

(emphasis supplied)

Likewise, for practical purposes, the President may prohibit

her executive officials from appearing before Congress by mere

invocation of the doctrine of executive privilege.

It is conceded that the President may not be present in these

Congressional investigations where matters confidential and

classified may be asked of the attending executive officials. As such,

for the purpose of protecting the information, a prohibition on the

executive official, even if only until the whole matter has been

thoroughly discussed with the President, may be in order. For once

the information has been coerced out of the official, there is no

turning back, and the damage that could result might be devastating

to the functioning of government.

13 Decision, pp.3738.

16


When there is in the invitation to the executive officials, “the

usual indication of the subject of inquiry and the questions relative to

and in furtherance thereof,” then the President is apprised of the

subject matter of the investigation, and the necessity of protecting

the sensitive information becomes her concern. She may, at the very

least, decide to ask for some time to discuss with the executive

official invited, and in doing so, prohibit, albeit temporarily her

officials from initially appearing.

As to this situation, this Honorable Court likewise conforms:

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.14

14 Decision, p. 47.

17


II. To protect the rights of executive officials appearing in Congressional investigations, the President may actually prohibit their appearance therein.__________________________

A. There may be circumvention of the discretionary character of appearances of executive officials under Section 22 when they are summoned by Congress purportedly in aid of legislation.________________________

Investigations in aid of legislations conducted under section 21

may very well circumvent the nonmandatory character of

appearance of cabinet members or department heads under Section

22. As admitted by Senator Arroyo during the oral arguments,

Section 22 or the oversight function has rarely been used by

Congress. Thus, the probability exists that investigations in aid of

legislation may infringe on matters of congressional oversight, where

the President, by virtue of the principle of separation of powers,

would have decided against the appearance of her Cabinet member

18


or department head. In other words, the necessary prerogative

placed on the President with regard to the appearance of

department heads could easily be circumvented by the mere

expedience of inviting a department head purportedly for legislative

investigations under section 21.

It is important to note that in the Constitutional Commission

deliberations, Commissioner Davide insisted that a Cabinet minister

may be compelled to appear before a particular committee in

congressional investigations truly in aid of legislation.15 This position,

however, failed to take into consideration why section 22 was

incorporated in the first place in the 1935 Constitution. Again,

Commissioner Bernas elucidates:

“Even after all this discussion, and after approval of the radically amended provision, Commissioner Davide still insisted that heads of departments could be compelled under pain of contempt to appear, no longer, however, in virtue of Section 22 but in virtue of the power of legislative investigation in Section 21. Such a position, however, fails to take into consideration the fact that Section 22 was incorporated into the 1935 Constitution in recognition of the tradition that the inherent power of legislative investigation could run afoul with assertion of executive privilege. American legislative tradition, whence Philippine tradition originated, has generally regarded congressional

15 II Records of the Constitutional Commission, 200.

19


contempt power as an inappropriate device for regulating executive claims of privilege. Hence, although the task of legislation demands adequate information and although the Bill of Rights guarantees the right of the people to information on matters of public concern, the dynamics of executivelegislative relations would dictate that Congress would find ways of obtaining information from department heads other than by compulsion. On the other hand, department heads would be aware that information vital to legislation legitimately requested by Congress should not, for the welfare of the nation, be withheld. 16”

(emphasis supplied)

B. The Congressional inquiry itself may not properly be in aid of legislation._____________________

The power of Congress to conduct investigations is not

absolute or unlimited. As provided for in the Constitution, the power

of Congress to investigate must be exercised “in aid of legislation.”17

Perforce, these investigations must carry a valid legislative purpose

or a contemplated legislation.18

As this Honorable Court in its Decision observed:

16 Bernas, Joaquin S., The 1987 Constitution of the Republic of the Philippines: A Commentary, 2003 ed., pp. 744745.17 Section 21, Article VI, Philippine Constitution.18 Bengzon vs. Senate Blue Ribbon Committee 203 SCRA 767

20


For one, as noted in Bengzon v. Senate Blue Ribbon Committee, the inquiry itself might not properly be in aid of legislation, and thus beyond the constitutional power of Congress. Such inquiry could not usurp judicial functions. Parenthetically, one possible way for Congress to avoid such 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.19

In Bengzon Jr. v. Senate Blue Ribbon Committee, this

Honorable Court struck down the investigation as not being in aid of

legislation. First, it pointed out that the purpose of the investigation

was not legislative but rather prosecutorial in nature because the

Senate merely wanted to look into possible violations of the Anti

Graft and Corrupt Practices Act. Second, the Honorable Court

clarified that the issue sought to be investigated was one over which

jurisdiction had been vested in the Sandiganbayan. In this

jurisdiction, the Office of the Ombudsman is the independent body

tasked to investigate and prosecute wrongdoings of public officials.

19 Decision, p.24.

21


In fact, there are already pending criminal investigations being

conducted by the Office of the Ombudsman on the alleged scams

(i.e. socalled fertilizer scam), which the Senate itself wants to

investigate too. At any rate, the Ombudsman and the Sandiganbayan

are the fora vested with the totality and allencompassing powers of

compulsion, determination of liability and corresponding imposition

of commensurate punishment for the erring public officials. Congress

is certainly illsuited for such nature of inquiry.

Congress is neither a law enforcement nor trial agency. These are functions of the executive and judicial branches of government. No inquiry is an end in itself; it must be related to and in furtherance of a legitimate task of Congress. Investigations conducted solely for the personal aggrandizement of the investigators or to ‘punish’ those investigated are indefensible.20

In investigations where there is no legitimate legislative

purpose, the President may properly refuse the appearance of

executive officials. An “investigation for the mere sake of

investigation or for political purposes not connected with intended

legislation or with any matters upon which the House could act, but

merely intended to subject a party or body investigated to public

20 203 SCRA 767, quoting John T. Watkins v. United States 354 US 178, 1L. 2D 1273 (1957).

22


animadversion, or to vindicate him or it from unjust aspersion, where

the Legislature had no power to put him or it on trial for supposed

offenses, and no legislation was contemplated”21 partakes of no

legislative proceeding at all, so as to give either House jurisdiction to

compel the attendance of witnesses or punish them for refusal to

attend. As can be gleaned in the Constitutional Commission

deliberations, the power of Congress to summon executive officials

is restricted by the purpose of its investigations.

Sadly, instead of being in aid of legislation, these legislative

investigations have been used for partisan political purposes. They

transform into legislative trials, which serve no other purpose than to

damage the reputations of those who agree to appear. Indeed,

recent events have underscored the need to ensure the respect for

the rights of persons appearing in these legislative investigations.

EO 464 merely rethinks the leniency with which the President has

allowed her officials to appear before Congress.

Finally, it is interesting to note that from July 26, 2004 to April

5, 2006, the Senate filed a total of 479 Resolutions of which 319 are

“in aid of legislation.” Of the 479 Senate Resolutions, 77 were

21 Luce, R. Legislative Procedure (1922), p. 173, citing Ex Parte Dalton, 43 Ohio St. 142.

23


adopted by the Senate. Of the 77 that were adopted, none pertains

to resolutions that are “in aid of legislation.”

C. The Rules of Procedure on Congressional Inquiries have not been published.________________________

Another limitation on the power of Congress to conduct

investigations is that such investigations must be done “in

accordance with its duly published rules of procedure.” Accordingly,

to ensure respect for the rights of public officials appearing therein,

where the rules of procedure have not been published, the President

may properly refuse their appearance.

Section 21, Article VI of the 1987 Constitution is explicit in that

the rules of procedure must be published:

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

24


procedure. The rights of persons appearing in or affected by such inquiries shall be respected.

(emphasis supplied)

On the above provision of the Constitution, Fr. Bernas, in his

treatise, opines that:

xxx

When the private rights of witnesses in an investigation are involved, Section 21 now prescribes that Congress and its committees must follow the “duly published rules of procedure.” Moreover, Section 21 may also be read as requiring that Congress must have “duly published rules of procedure” for legislative investigations. Violation of these rules would be an offense against due process.22

This provision imposes restrictions on the conduct of “inquiries

in aid of legislation” to forestall, if not entirely eliminate possible

abuses therein. Therefore, there must be strict compliance with this

Constitutional command of “duly published rules of procedure.”

Without these published rules, invocation of rights of persons in or

affected by such inquiries may not be in order, just as Congress will

not be positioned to determine the propriety of sustaining or

22 The 1987 Constitution of the Philippines, A Commentary by Fr. Bernas, p. 679 (1996)

25


declining them. These rights are endangered of not being invoked;

Section 21 of Article VI is thereby, rendered illusory.

In the light of the foregoing, it is respectfully submitted that the

phrase “duly published rules of procedure” in Section 21, Article VI of

the 1987 Constitution, contemplates: [1] due notice to the people by

publication of the said rules in newspapers of general circulation;

and [2] publication in full of its contents. With all due respect, this

evident mandate of the Constitution has not been fully satisfied.

The Senate Rules of Procedure Governing Inquiries in Aid of

Legislation was adopted on August 21, 1995 and took effect seven

days after its publication on August 24, 1995 in two newspapers of

general circulation, the Malaya and Philippine Star.

However, the Senate did not adopt the Rules of Procedure

Governing Inquiries in Aid of legislation and the Rules of the Senate

on its First Regular Session No. 1 on July 26, 2004, to govern the

initial sessions of the 13th Congress, nor approved it afterwards. A

look at the Journal of the Senate does not show any adoption of the

said rules.

26


Verily, in a Resolution pertaining to the case of Norberto

Gonzales vs. Joker Arroyo, G.R. No. 169638, this Honorable Court

had aptly observed that no proof has been submitted establishing

that the Senate of the present 13th Congress has formally adopted

the Rules of Procedure Governing Inquiries In Aid of Legislation:

Respondents submitted their Compliance on 17 October 2005. They submitted therein the proof of publication of the Rules of Procedure Governing Inquiries in Aid of Legislation (Rules of Procedure) in the Philippine Daily Inquirer and Philippine Star in August of 1992 or during the 9th Congress and in the Malaya in August of 1995 or during the 10th Congress. Respondents likewise attached excerpts of the Journal of the Senate in 1987, evincing approval by the Senate of the 8th Congress of the said Rules of Procedure. However, no proof has been submitted establishing that the Senate of the 13th Congress has similarly adopted said Rules of Procedure, or that it has been duly published since the Senate of the present Congress was convened.

x x x

Certainly, there is a need for the 13th Congress to make a

formal adoption of the rules of procedure of the previous Congress in

order for the Rules to be valid and in effect.

It may well be recalled that upon the ratification of the 1987

Constitution, during the first regular session of the 8th Congress on

27


July 27, 1987, the Senate in plenary, following the roll call and oath

taking of its newlyelected senators, a motion for adoption of

provisional Rules of the Senate was duly registered and approved:

Senator Mercado. Mr. President.

The Presiding Officer (Senator Laurel) Senator Mercado is recognized.

APPROVAL OF THE RULES OF THE SENATE

Senator Mercado. I move that we adopt the Rules submitted by the Ad Hoc Committee on Rules as the Rules of the Senate, subject to further amendments.

The Presiding Officer (Senator Laurel). Is there any objection? (Silence). The chair hears none; the motion is approved.23

Similarly, in the first regular session of the 9th Congress on

July 27, 1992, the Senate, in plenary, likewise approved a motion for

the adoption of the Rules of the previous Congress, following

amendments that had been introduced:

Senator Romulo. Mr. President.

The Acting President (Senator Gonzales). The acting Majority Floor Leader is recognized.

MOTION OF SENATOR ROMULO(Adoption of the Rules of the Senate, as Amended)

23 Record of the Senate, 1st Regular Session, Vol. I, No. 1, July 27, 1987, page 7.

28


Senator Romulo. Mr. President, I move that the Senate adopt the Rules of the Senate of the previous Congress, as amended.

The Acting President (Senator Gonzales). Is there any objection?

Senator Tolentino. Mr. President.

The Acting President (Senator Gonzales). Senator Tolentino is recognized.

Senator Tolentino. Mr. President, I would like to move that we postpone this item on the Agenda, maybe, until tomorrow, because I have many amendments that I would like to introduce in the Rules of the Senate. And if I do that now, we might delay this session. Perhaps, it will do no harm to postpone consideration of the Rules until tomorrow.

xxx

Senator Tolentino. Mr. President.

The Acting President (Senator Gonzales). Senator Tolentino is recognized.

Senator Tolentino. May I be permitted to ask the distinguished Acting Majority Floor Leader a couple of questions, in relation to the matter before us now.

Which rules are being referred to, specifically, in the motion of the Acting Majority Floor Leader? We have three sets of rules adopted in the last Senate. Which one is now being the subject of a motion?

29


Senator Romulo. Mr. President, we are referring to the Rules of the Senate which was approved and adopted on July 27, 1987, as amended.

Senator Tolentino. Thank you, Mr. President.

In view of the fact that it may be desired to have some rules for our proceedings, I would like to modify the motion or amend the motion of the Acting Floor Leader to the effect that we approve the Rules of the Senate except the rule referring to the Committees of the Senate.

The Acting President (Senator Gonzales). What does the Acting Majority Floor Leader say?

Senator Romulo. We accept, Mr. President.

Senator Tolentino. Thank you, Mr. President.

The Acting President (Senator Gonzales). Is there any objection to the motion of the Acting Floor Leader, as amended? (Silence). The Chair hears none; said motion is hereby approved.24

The same procedure was observed in the first regular session

of the Tenth Congress on July 24, 1995, albeit without amendments

except for the introduction of a new Committee on Rules:

The President: With 24 Senators being present, the Chair declares the presence of a quorum.

APPROVAL OF THE RULES OF THE SENATE

24 Record of the Senate, 1st Regular Session, Vol. I, No. 1, July 27, 1992, pages 3 to 4

30


Senator Romulo: Mr. President, I move that we adopt the Rules of the Senate in the Tenth Congress of the Philippines. All Members of the Senate have already been furnished copies of the proposed Rules.

Senator Maceda. Mr. President.

The President. Senator Maceda is recognized.

Senator Maceda. We have just received a copy of the Rules, and to obviate any discussions on the differences between the old one and the new one, may I just ask one question on the matter of the traditional freedom of every Senator to speak without the cloture rules as it is in existence in the United States Senate. Has there been a change on this Rule?

Senator Romulo: Mr. President, there been no change in the Rules that we are proposing for adoption. The Rules that we had approved and adopted for the Ninth Congress is reproduced without changes in the new Rules.

Senator Maceda. Mr. President, we noticed, as announced by the newspapers, that there has been a change in the number of the Committees. With the permission of the Majority Leader, could we defer this particular rule, Rule X, to a later date while we are still studying the matter?

Senator Romulo. We have no objection, Mr. President, except the Committee on Rules which we have to organize because the Committee on Rules would be involved in the organization of the Committees.

Senator Maceda. Thank you, Mr. President.

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APPROVAL OF THE RULES OF SENATE

The President. Is there any other comment? Is there any objection to the motion? (Silence) There being none, the Rules of the Senate in the Tenth Congress of the Philippines is hereby approved, with the exception of that rule relation to the constitution of committees, except the Rules Committee.25

Thereafter, as borne by the Records of the Senate, no other

formal adoption of rules had been made by the 11th and 12th

Congress, and the present 13th Congress.

Relevantly, Section 137 of Rule LII of the Rules of the Senate

of the Twelfth Congress of the Philippines provides:

SEC. 137. These Rules shall take effect on the date of their adoption and shall remain in force until they are amended or repealed.

It is only proper to interpret the phrase “on the date of their

adoption” in the light of the actions taken by the 8th, 9th and 10th

Congress. As stated earlier, there must first be a formal adoption of

the rules of the Senate of the previous Congress before the same

can be considered as valid and in effect.

25 Record of the Senate, 1st Regular Session, Vol. I, No. 1, July 24, 1995, page 3.

32


Even the concept that the Philippine Senate is a continuing

body does not give the senators of a prior generation the right to

impose its rules of procedure upon the senators of a succeeding

generation. Tested to its logical conclusion, can the Senate in the 8th

Congress require that its rules cannot be reviewed, revised or

amended by the next Congress elected by the people?

To interpret Section 137 of Rule LII of the Rules of the Senate

as in force and effect in perpetuam would be to unduly bind the

Senate of a newly elected Congress to the procedural rules adopted

by its predecessor. Hence, the “constitutional option” in Section 16,

(3) and (4), Article VI of the Constitution, which provides:

3) Each House may determine the rules of its proceedings, punish its Members for disorderly behavior, and, with the concurrence of twothirds of all its Members, suspend or expel a Member. A penalty of suspension, when imposed, shall not exceed sixty days.

4) Each House shall keep a journal of its proceedings, and from time to time publish the same, excepting such parts as may, in its judgment, affect national security; and the yeas and nays on any question shall, at the request of onefifth of the Members present, be entered in the Journal.

33


should be taken in conjunction with the term “new Congress” option

which was coined to give effect to the theory that the rules being

adopted is coterminous with the Congress adopting the same.26

In view of the foregoing, as far as the 13th Congress is

concerned, no rules of procedure for the purpose of governing

inquiries in aid of legislation has been adopted, which is fatal to its

conduct of investigations, insofar as it affects the fundamental rights

of witnesses or resource persons appearing before it.

P R A Y E R

WHEREFORE, it is respectfully prayed that the Decision of

this Court dated April 20, 2006 be RECONSIDERED and SET

ASIDE and, in lieu thereof, another one be ENTERED DISMISSING

the petitions.

Makati City, May 18, 2006.

ANTONIO EDUARDO B. NACHURASolicitor GeneralRoll No. 22252

IBP Lifetime Roll No. 038626 The “New Congress” Option and the “Constitutional” Option. The American Center For Law and Justice, Inc., posted at http://www.aclj.org/media/pdf/041116_rulesmemo.pdf, page 1

34

http://www.aclj.org/media/pdf/041116_rulesmemo.pdf


MA. ANTONIA EDITA C. DIZONAssistant Solicitor General

Roll No. 33774IBP No. 671843, 01/09/06

MAGTANGGOL M. CASTROSolicitor

Roll No. 35970IBP No. 671814. 01/09/06

THOMAS M. LARAGANSolicitor

Roll No. 38842IBP No. 671845, 01/09/06

BERNARDINO P. SALVADOR, JR.Associate Solicitor

Roll No. 47432IBP Lifetime Roll 03018

LAWRENCE MARTIN A. ALBARAssociate Solicitor

Roll No. 51305IBP No. 671848, 01/09/06

OFFICE OF THE SOLICITOR GENERAL134 Amorsolo St., Legaspi Village

Makati City

35


Copy furnished:

Atty. Neri Javier ColmenaresCounsel for Petitioners in G.R. No. 169659#153 Scout Rallos, Kamuning District, Quezon City

Atty. Francisco I. Chavez and Atty. Noel T. Babaran7th Floor, KalawLedesma Building117 Gamboa Street, Legaspi Village1229 Makati City

Attys. Melizel F. Asuncion, Raoul P. BarberoneRaisse H. Jajurie, Carlos P. Medina, Jr.Ma. Lourdes Zereida S. Pacuribot &Marlon J, ManuelCounsel for Petitioners in 169667Rm. 215, Institute of Social OrderSocial Development ComplexAteneo de Manila UniversityLoyola Heights, Quezon City

Dean Pacifico A. AgabinCounsel for Petitioners in G.R. No. 16977726th Floor Pacific Star BuildingMakati Avenue cor. Gil Puyat AvenueMakati City

Atty. Aquilino L.L. Pimentel IIICounsel for Petitioner in G.R. No. 169834Room 1504, Jafer PlaceEisenhower Street, Greenhills, San Juan, Metro Manila

Atty. Orlando E. MendiolaGeneral CounselCounsel for Petitioners in G.R. No. 171246

36


Integrated Bar of the PhilippinesIBP Building, Doña Julia Vargas AvenueOrtigas Center, Pasig City 1605

EXPLANATION(Pursuant to Section 11, Rule 13 of the

1997 Rules of Civil Procedure)

The foregoing Motion for Reconsideration is being served by registered mail due to lack of manpower that would effect personal service.

LAWRENCE MARTIN A. ALBARAssociate Solicitor

LMAA/pbl293771 d137

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en banc senate of the philippines, franklin m....

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