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Justice Teresita Leonardo-De Castro Cases (2008-2015) Political Law

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POLICE POWER

THE LEARNING CHILD, INC. and SPS. FELIPE AND MARY ANNE ALFONSO vs.

AYALA ALABANG VILLAGEASSOCIATION, SPOUSES ERNESTO AND ALMA ARZAGA, MARIA

LUISA QUISUMBING, ARTURO SENA, KSL CORPORATION, SLV MANAGEMENT CORPORATION

and LAWPHIL, INC.G.R. No. 134269, July 7, 2010, J. Leonardo- De Castro

Ayala Land Inc sold parcel of land to Spouses Jose Critina Yuson with a restriction that the

property shall be used exclusively for the establishment and maintenance of a preparatory school,

However, the spouses evaded such restriction and thus it is violates zoning ordinance. The court ruled

that zoning ordinance in question, while valid as a police measure, was not intended to affect existing

rights protected by the impairment clause. It is always a wise policy to reconcile apparently conflicting

rights under the Constitution and to preserve both instead of nullifying one against the other.

Facts:

Ayala Land, Inc. (ALI) sold a parcel of land to the spouses Jose and Cristina Yuson. In 1987,the spouses Yuson sold the same to the spouses Felipe and Mary Anne Alfonso. A Deed of

Restrictions was annotated in TCT No. 149166 issued to the spouses Alfonso, as had been required

by ALI. The Deed of Restrictions indicated that: The property shall be used exclusively for the

establishment and maintenance thereon of a preparatory (nursery and kindergarten) school, which

may include such installations as an office for school administration, playground and garage for

school vehicles. ALI turned over the right and power to enforce the restrictions on the properties in

the Ayala Alabang Village, including the above restrictions on TCT No. 149166, to the association of

homeowners therein, the Ayala Alabang Village Association (AAVA). In 1989, the spouses Alfonso

opened on the same lot The Learning Child Center Pre-school (TLC), a preparatory school which

initially consisted of nursery and kindergarten classes. In 1991, TLC was expanded to include a

grade school program, the School of the Holy Cross, which provided additional grade levels as the

pupils who initially enrolled advanced. AAVA wrote several letters to TLC and the spouses Alfonso,essentially (1) protesting the TLCs and the spouses Alfonsos violation of the Deed of Restrictions,

(2) requesting them to comply with the same, and (3) ordering them to desist from operating the

grade school and from operating the nursery and kindergarten classes in excess of the two

classrooms allowed by the ordinance. It also alleged violation of Metropolitan Manila Commission

Ordinance No. 81-01 (MMC No. 81-01), otherwise known as the Comprehensive Zoning Ordinance

for the National Capital Region and Barangay Ordinance No. 03, Series of 1991. MMC No. 81-01

classified Ayala Alabang Village for zoning purposes as a low-density residential area, or R-1,

thereby limiting the use of the subject property to the establishment or operation of a nursery and

kindergarten school, which should not exceed two classrooms.

Issue:

Whether or not TLC and the spouses Alfonso should be enjoined from continuing the

operation of a grade school in the subject property.

Ruling:

No, TLC and Spouses Alfonso should not be enjoined from continuing the operation of a

grade school in the subject property.


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In the case at bar, as observed by the Court of Appeals, the subject property, though

declared as an institutional lot, nevertheless lies within a residential subdivision and is surrounded

by residential lots. Verily, the area surrounding TLC did not undergo a radical change but rather

remained purely residential to this day. Significantly, the lot occupied by TLC is located along one of

the smaller roads (less than eight meters in width) within the subdivision. It is understandable whyALI, as the developer, restricted use of the subject lot to a smaller, preparatory school that will

generate less traffic than bigger schools. With its operation of both a preparatory and grade school,

TLCs student population had already swelled to around 350 students at the time of the filing of this

case. Foreseeably, the greater traffic generated by TLCs expanded operations will affect the

adjacent property owners enjoyment and use of their own properties. AAVAs and ALIs insistence

on (1) the enforcement of the Deed of Restrictions or (2) the obtainment of the approval of the

affected residents for any modification of the Deed of Restrictions is reasonable. On the other hand,

the then Municipality of Muntinlupa did not appear to have any special justification for declaring

the subject lot as an institutional property. On the contrary, Engr. Hector S. Baltazar, the Municipal

Planning and Development Officer of Muntilupa, testified that in declaring the subject property as

institutional the municipality simply adopted the classification used in a zoning map purportedly

submitted by ALI itself. In other words, the municipality was not asserting any interest or zoningpurpose contrary to that of the subdivision developer in declaring the subject property as

institutional.

It is therefore proper to reconcile the apparently conflicting rights of the parties herein

pursuant to the Co case. In Co, agricultural tenant Roaring, facing a demolition order, filed a

complaint for maintenance of possession with the Court of Agrarian Relations of Quezon City. The

landowner challenged the jurisdiction of the court arguing that the classification of the subject

property therein from agricultural to a light industrial zone. This Court denied the applicability of

the reclassification, and clarified Ortigas: This is not to suggest that a zoning ordinance cannot affect

existing legal relationships for it is settled that it can legally do so, being an exercise of the police

power. As such, it is superior to the impairment clause.

In the case of Ortigas & Co. v. Feati Bank , the court held that a municipal ordinance

establishing a commercial zone could validly revoke an earlier stipulation in a contract of sale of

land located in the area that it could be used for residential purposes only.

In the case at bar, fortunately for the private respondent, no similar intention is clearly

manifested. Accordingly, the court affirm the view that the zoning ordinance in question, while

valid as a police measure, was not intended to affect existing rights protected by the impairment

clause. It is always a wise policy to reconcile apparently conflicting rights under the Constitution

and to preserve both instead of nullifying one against the other.

HRET

DATU PAX PAKUNG S. MANGUDADATU vs. THE HOUSE OF REPRESENTATIVES

ELECTORAL TRIBUNAL and ANGELO O. MONTILLA

G.R. No. 179813, December 18, 2008, J. De Castro

LEGISLATIVE DEPARTMENT


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The 2004 HRET Rules on summons is silent on how the summons should be served on the

protestee. Significantly, Rule 80 of the 2004 HRET Rules provides that the 1997 Rules of Civil

Procedure applies by analogy or suppletorily in so far as the latter may be applicable and not

inconsistent therewith as well as with the orders, resolutions and decisions of the HRET. In view of the

failure of the HRET Rules to specify the authorized modes of service of summons, resort then is

necessary to Sections 6 and 7, Rule 14, 1997 Rules of Civil Procedure. In the case at bar, the service ofthe summons was made through registered mail, which is not among the allowed modes of service

under Rule 14 of the Rules of Court.

Facts:

Datu Pax Pakung S. Mangudadatu (petitioner) and Angelo O. Montilla (private respondent)

were congressional candidates for the First District of Sultan Kudarat during the May 14,

2007 national elections. Petitioner won by 17,451 votes and was proclaimed on May 22, 2007 by

the Provincial Board of Canvassers as the duly elected Representative of the said congressional

district. Respondent filed with the HRET a Petition of Protest contesting the results of the elections

and the proclamation of petitioner.

The Secretary of the HRET caused the service of summons upon petitioner through

registered mail. The HRET received the Registry Return Receipt Card, showing that a certain Aileen

R. Baldenas received the summons. Then, it issued Resolution and considered petitioner to have

entered a general denial of the allegations of the protest for failure to file an answer.

Meanwhile, petitioner informally learned of respondents protest, prompting petitioner to

request his lawyers to verify the same from the records of the HRET. Thereafter, his lawyers

entered their appearance and requested that they be furnished with copies of the petition of protest

as well as notices, orders and resolutions pertaining to the protest. Petitioner filed a Motion to

Reconsider and Motion to Admit Answer with Counter-Protest, alleging that he never received the

summons issued by the HRET. In his affidavit attached to the motion, petitioner denied that

Baldenas was a member of his household or his employee. He further claimed that she was notauthorized to receive any important documents addressed to him. And assuming that he had

authorized her, the summons received by her was never brought to his attention. The HRET issued

a resolution denying both Motions for lack of merit. Also, the HRET issued a Preliminary Conference

Order granting respondents motion for the revision of ballots and directing the Secretary of the

HRET to conduct the same in all or 100% of the protested precincts in the instant case. Hence, this

petition. Petitioner contended that the HRET never acquired jurisdiction over his person because of

the absence of a valid service of summons. He argued that a substitute service of summons is made

only when the defendant cannot be served personally at a reasonable time after efforts to locate

him have failed. In his case, since the process servers return failed to show on its face the

impossibility of personal service, then the substituted service was improper and invalid. Petitioner

further contends that there is nothing in the 2004 HRET Rules that allows service of summons by

registered mail and strongly asserts that service of summons by registered mail is susceptible tofraud and manipulation.

Issue:

Whether or not there is a valid service of summons.

Ruling:


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No. Sections 6 and 7, Rule 14, 1997 Rules of Civil Procedure state:

SEC. 6. Service in person on defendant . Whenever practicable, the summons

shall be served handling a copy thereof to the defendant in person, or, if he refuses

to receive and sign for it, by tendering it to him.

SEC. 7. Substituted service. If, for justifiable causes, the defendant cannot be

served within a reasonable time as provided in the preceding section, service may

be effected (a) by leaving copies of the summons at the defendants residence

with some person of suitable age and discretion then residing therein , or

(b) by leaving copies at defendants office or regular place of business with

some competent person in charge thereof .

In Federico S. Sandoval II v. House of Representatives Electoral Tribunal (HRET) and Aurora

Rosario A. Oreta, this Court has held that in the matter of service of summons, Sections 6 and 7, Rule

14 of the Rules of Court apply suppletorily to the rules of the HRET. To quote from that case:

It is well-established that summons upon a respondent or a defendant (i.e.,petitioner herein) must be served by handing a copy thereof to him in person or, if

he refuses to receive it, by tendering it to him. Personal service of summons most

effectively ensures that the notice desired under the constitutional requirement of

due process is accomplished. x x x

Substituted service derogates the regular method of personal service. It is an

extraordinary method since it seeks to bind the respondent or the defendant to the

consequences of a suit even though notice of such action is served not upon him but

upon another to whom the law could only presume would notify him of the pending

proceedings. As safeguard measures for this drastic manner of bringing in a person

to answer for a claim, it is required that statutory restrictions for substituted service

must be strictly, faithfully and fully observed. x x x

As already stated, the preferential rule regarding service of summons found in the

Rules of Court applies suppletorily to the Revised Rules of the House of

Representatives Electoral Tribunal. Hence, as regards the hierarchy in the service of

summons, there ought to be no rational basis for distinguishing between regular

court cases and election protest cases pending before the HRET.

The Court sees no reason why the HRET cannot make use of its own process servers to

personally serve the summons, or alternatively, delegate the matter to the process server of a court

with territorial jurisdiction over the place of residence of the respondent/protestee in the election

case, at the expense of the petitioner/protestant. Considering that the proper service of summons

on the respondent/protestee is a jurisdictional requirement and goes to heart of due process, wecannot allow service of summons by a method not sanctioned by the HRET Rules in relation to the

Rules of Court. The HRET committed grave abuse of discretion in considering petitioner to have

entered a general denial of the allegations in respondent’s petition of protest and in denying his

motion to reconsider as well as his motion to admit answer with counter-protest.

EXECUTIVE DEPARTMENT


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POWER OF REORGANIZATION

ATTY. SYLVIA BANDA, CONSORICIA O. PENSON, RADITO V. PADRIGANO, et al., vs. EDUARDO

R. ERMITA, in his capacity as Executive Secretary, The Director General of the Philippine

Information Agency and The National Treasurer G.R. No. 166620, April 20, 2010, J. Leonardo-De Castro

The President, by virtue of Section 31, Chapter 10, Title III, Book III of the Administrative Code

of 1987, has the continuing authority to reorganize the Office of the President, "in order to achieve

simplicity, economy and efficiency." As such, the issuance of Executive Order No. 378 by President

Arroyo was well within her prerogative. Its constitutionality can be derived from the exercise of a

delegated legislative power granted by law. Moreover, it purports to institute necessary reforms in

government in order to improve and upgrade efficiency in the delivery of public services by redefining

the functions of the NPO and limiting its funding to its own income and to transform it into a self-

reliant agency able to compete with the private sector.

Facts:

The National Printing Office was formed on July 25, 1987, during the term of former

President Corazon C. Aquino, by virtue of Executive Order No. 285 (EO 285) which provided, among

others, the creation of the NPO from the merger of the Government Printing Office and the relevant

printing units of the Philippine Information Agency. On October 25, 2004, President Arroyo issued

the herein assailed Executive Order No. 378 (EO 378), amending Section 6 of Executive Order No.

285 by, inter alia, removing the exclusive jurisdiction of the NPO over the printing services

requirements of government agencies and instrumentalities. By virtue of such, NPO shall no longer

enjoy exclusive jurisdiction over the printing services requirements of the government over

standard and accountable forms and shall have to compete with the private sector, except in the

printing of election paraphernalia which could be shared with the Bangko Sentral ng Pilipinas, upon

the discretion of the Commission on Elections consistent with the provisions of the Election Code of1987. Thus, government agencies and instrumentalities are allowed to source their printing

services from the private sector through competitive bidding, subject to the condition that the

services offered by the private supplier be of superior quality and lower in cost compared to what

was offered by the NPO. EO 378 also limited NPO’s appropriation in the General Appropriations Act

to its income. Perceiving the same as a threat to their security of tenure as employees of the NPO,

petitioners by way of a class suit now challenge its constitutionality, contending that: (1) it is

beyond the executive powers of President Arroyo to amend or repeal EO 285 issued by former

President Aquino when the latter still exercised legislative powers; and (2) EO 378 violates

petitioners’ security of tenure, because it paves the way for the gradual abolition of the NPO.

Issue:

Whether or Executive Order No. 378 is constitutional.

Ruling:

Petition DISMISSED.


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The contention that the issuance of Executive Order No. 378 is an invalid exercise of

legislative power on the part of the President has no legal leg to stand on. The issuance of Executive

Order No. 378 by President Arroyo is an exercise of a delegated legislative power granted by

Section 31, Chapter 10, Title III, Book III of the Administrative Code of 1987, which provides for the

continuing authority of the President to reorganize the Office of the President, "in order to achieve

simplicity, economy and efficiency." This is a matter already well-entrenched in jurisprudence. Thereorganization of such an office through executive or administrative order is also recognized in the

Administrative Code of 1987.

There is nothing objectionable in the provision in Executive Order No. 378 limiting the

appropriation of the NPO to its own income. In a long line of cases, the Court has noted certain

provisions in the general appropriations laws as likewise reflecting the power of the President to

reorganize executive offices or agencies even to the extent of modifying and realigning

appropriations for that purpose.

In all, Executive Order No. 378, which purports to institute necessary reforms in

government in order to improve and upgrade efficiency in the delivery of public services by

redefining the functions of the NPO and limiting its funding to its own income and to transform itinto a self-reliant agency able to compete with the private sector, is well within the prerogative of

President Arroyo under her continuing delegated legislative power to reorganize her own office. As

pointed out in the separate concurring opinion of our learned colleague, Associate Justice Antonio

T. Carpio, the objective behind Executive Order No. 378 is wholly consistent with the state policy

contained in Republic Act No. 9184 or the Government Procurement Reform Act to encourage

competitiveness by extending equal opportunity to private contracting parties who are eligible and

qualified.

To be very clear, this delegated legislative power to reorganize pertains only to the Office of

the President and the departments, offices and agencies of the executive branch and does not

include the Judiciary, the Legislature or the constitutionally-created or mandated bodies. Moreover,

it must be stressed that the exercise by the President of the power to reorganize the executivedepartment must be in accordance with the Constitution, relevant laws and prevailing

jurisprudence.

In this regard, we are mindful of the previous pronouncement of this Court in Dario v. Mison

that:

Reorganizations in this jurisdiction have been regarded as valid provided they are

pursued in good faith. As a general rule, a reorganization is carried out in "good

faith" if it is for the purpose of economy or to make bureaucracy more efficient. In

that event, no dismissal (in case of a dismissal) or separation actually occurs

because the position itself ceases to exist. And in that case, security of tenure would

not be a Chinese wall. Be that as it may, if the "abolition," which is nothing else but a

separation or removal, is done for political reasons or purposely to defeat securityof tenure, or otherwise not in good faith, no valid "abolition" takes place and

whatever "abolition" is done, is void ab initio. There is an invalid "abolition" as

where there is merely a change of nomenclature of positions, or where claims of

economy are belied by the existence of ample funds. (Emphasis ours.)

Stated alternatively, the presidential power to reorganize agencies and offices in the executive

branch of government is subject to the condition that such reorganization is carried out in good

faith.


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If the reorganization is done in good faith, the abolition of positions, which results in loss of

security of tenure of affected government employees, would be valid. In Buklod ng Kawaning EIIB v.

Zamora, we even observed that there was no such thing as an absolute right to hold office. Except

those who hold constitutional offices, which provide for special immunity as regards salary and

tenure, no one can be said to have any vested right to an office or salary.

As to the second ground that EO 378 will lead to the gradual abolition of the NPO and the

loss of security of tenure of its present employees, this Court took into consideration that the

petitioners failed to allege, much less prove, sufficient facts to show that the limitation of the NPO’sbudget to its own income would indeed lead to the abolition of the position, or removal from office,

of any employee. Neither did petitioners present any shred of proof of their assertion that the

changes in the functions of the NPO were for political considerations that had nothing to do with

improving the efficiency of, or encouraging operational economy in, the said agency.

PARDONING POWER

ATTY. ALICIA RISOS-VIDAL and ALFREDO S. LIM vs. COMMISSION ON ELECTIONS and JOSEPH EJERCITO ESTRADA

G.R. No. 206666, January 21, 2015, J. Leonardo-De Castro

When the pardon extended to former President Estrada shows that both the principal penalty

of reclusion perpetua and its accessory penalties are included in the pardon. The first sentence refers

to the executive clemency extended to former President Estrada who was convicted by the

Sandiganbayan of plunder and imposed a penalty of reclusion perpetua. The latter is the principal

penalty pardoned which relieved him of imprisonment. The sentence that followed, which states that

"(h)e is hereby restored to his civil and political rights," expressly remitted the accessory penalties that

attached to the principal penalty of reclusion perpetua. Hence, from the text of the pardon that the

accessory penalties of civil interdiction and perpetual absolute disqualification were expressly

remitted together with the principal penalty of reclusion perpetua.

Furthermore, t he third preambular clause of the pardon, i.e., “[w]hereas, Joseph Ejercito

Estrada has publicly committed to no longer seek any elective position or off ice,” neither makes the pardon conditional, nor militate against the conclusion that former President Estrada’s rights to

suffrage and to seek public elective office have been restored. A preamble is really not an integral part

of a law. It is merely an introduction to show its intent or purposes. It cannot be the origin of rights

and obligations. Where the meaning of a statute is clear and unambiguous, the preamble can neither

expand nor restrict its operation much less prevail over its text. Hence if the pardon was intended be

conditional, it should have explicitly stated the same in the text of the pardon itself. Since it did not

make an integral part of the decree of pardon, the 3rd preambular clause cannot be interpreted as a

condition to the pardon extended.

Facts:

The Sandiganbayan convicted former President Estrada, a former President of the

Philippines, for the crime of plunder in criminal case. Thereafter, however, former President Gloria

Macapagal Arroyo (former President Arroyo) extended executive clemency, by way of pardon, to

former President Estrada. Former President Estrada “received and accepted” the pardon by affixinghis signature beside his handwritten notation thereon.


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On 2009, former President Estrada filed a Certificate of Candidacy for the position of

President. During that time, his candidacy earned three oppositions, however, in separate

resolutions, all three petitions were effectively dismissed on the uniform grounds that (i) the

Constitutional proscription on reelection applies to a sitting president; and (ii) the pardon granted

to former President Estrada by former President Arroyo restored the former’s right to vote and bevoted for a public office. The subsequent motions for reconsideration thereto were denied by the

COMELEC En banc. After the conduct of the May 10, 2010 synchronized elections, however, former

President Estrada only managed to garner the second highest number of votes. On petition for

certiorari, Supreme Court dismissed the aforementioned petition on the ground of mootness

considering that former President Estrada lost his presidential bid.

On 2012, former President Estrada once more ventured into the political arena, and filed a

Certificate of Candidacy, this time vying for a local elective post, that of the Mayor of the City of

Manila. Subsequently, Atty. Alicia Risos-Vidal (Risos-Vidal), filed a Petition for Disqualification

against former President Estrada before the COMELEC, anchoring her petition on the theory that

"[Former President Estrada] is Disqualified to Run for Public Office because of his Conviction for

Plunder by the Sandiganbayan Sentencing Him to Suffer the Penalty of Reclusion PerpetuawithPerpetual Absolute Disqualification." She relied on Section 40 of the Local Government Code (LGC),

in relation to Section 12 of the Omnibus Election Code (OEC).”

In a Resolution, the COMELEC, Second Division, dismissed the petition for disqualification

for lack of merit as Risos-Vidal failed to present cogent proof sufficient to reverse the standing

pronouncement of this Commission declaring categorically that [former President Estrada’s] right

to seek public office has been effectively restored by the pardon vested upon him by former

President Gloria M. Arroyo. The subsequent motion for reconsideration filed by Risos-Vidal was

denied. Hence, this petition. While the case was pending before the Court, former Prsident Estrada

was elected into the said office. Alfredo S. Lim (Lim), one of former President Estrada’s opponents

for the position of Mayor, moved for leave to intervene in this case and was subsequently granted.

Lim subscribed to Risos-Vidal’s theory that former President Estrada is disqualified to run for andhold public office as the pardon granted to the latter failed to expressly remit his perpetual

disqualification.

Issue:

Whether former President Estrada is qualified to vote and be voted for in public office as a

result of the pardon granted to him by former President Arroyo.

Ruling:

The petition for certiorari lacks merit.

The pardoning power of the President cannot be limited by legislative action.

The 1987 Constitution, specifically Section 19 of Article VII and Section 5 of Article IX-C,

provides that the President of the Philippines possesses the power to grant pardons. It is apparent

from the constitutional provisions that the only instances in which the President may not extend

pardon remain to be in: (1) impeachment cases; (2) cases that have not yet resulted in a final

conviction; and (3) cases involving violations of election laws, rules and regulations in which there


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was no favorable recommendation coming from the COMELEC. Therefore, it can be argued that any

act of Congress by way of statute cannot operate to delimit the pardoning power of the President.

This doctrine of non-diminution or non-impairment of the President’s power of pardon byacts of Congress, specifically through legislation, was strongly adhered to by an overwhelming

majority of the framers of the 1987 Constitution when they flatly rejected a proposal to carve out anexception from the pardoning power of the President in the form of "offenses involving graft and

corruption" that would be enumerated and defined by Congress through the enactment of a law.

The proper interpretation of Articles 36 and 41 of the Revised Penal Code.

Articles 36 and 41 of the RPC cannot, in any way, serve to abridge or diminish the exclusive

power and prerogative of the President to pardon persons convicted of violating penal statutes. The

Court cannot subscribe to Risos-Vidal’s interpretation that the said Articles contain specific textual

commands which must be strictly followed in order to free the beneficiary of presidential grace

from the disqualifications specifically prescribed by them.

It is well-entrenched in this jurisdiction that where the words of a statute are clear, plain,and free from ambiguity, it must be given its literal meaning and applied without attempted

interpretation. Verba legis non est recedendum. From the words of a statute there should be no

departure. It is this Court’s firm view that the phrase in the presidential pardon at issue whichdeclares that former President Estrada “is hereby restored to his civil and political rights"

substantially complies with the requirement of express restoration.”

A close scrutiny of the text of the pardon extended to former President Estrada shows that

both the principal penalty of reclusion perpetua and its accessory penalties are included in the

pardon. The first sentence refers to the executive clemency extended to former President Estrada

who was convicted by the Sandiganbayan of plunder and imposed a penalty of reclusion perpetua.

The latter is the principal penalty pardoned which relieved him of imprisonment. The sentence that

followed, which states that "(h)e is hereby restored to his civil and political rights," expresslyremitted the accessory penalties that attached to the principal penalty of reclusion perpetua. Hence,

even if we apply Articles 36 and 41 of the RPC, it is indubitable from the text of the pardon that the

accessory penalties of civil interdiction and perpetual absolute disqualification were expressly

remitted together with the principal penalty of reclusion perpetua.

In this jurisdiction, the right to seek public elective office is recognized by law as falling

under the whole gamut of civil and political rights. From both law and jurisprudence, the right to

seek public elective office is unequivocally considered as a political right. Hence, the Court

reiterates its earlier statement that the pardon granted to former President Estrada admits no

other interpretation other than to mean that, upon acceptance of the pardon granted to him, he

regained his FULL civil and political rights – including the right to seek elective office. Furthermore,

the disqualification of former President Estrada under Section 40 of the LGC in relation to Section12 of the OEC was removed by his acceptance of the absolute pardon granted to him.

Risos-Vidal maintains that former President Estrada’s conviction for plunder disqualifies

him from running for the elective local position of Mayor of the City of Manila under Section 40(a)

of the LGC. However, the subsequent absolute pardon granted to former President Estrada

effectively restored his right to seek public elective office. This is made possible by reading Section

40(a) of the LGC in relation to Section 12 of the OEC.


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While it may be apparent that the proscription in Section 40(a) of the LGC is worded in

absolute terms, Section 12 of the OEC provides a legal escape from the prohibition – a plenary

pardon or amnesty. In other words, the latter provision allows any person who has been granted

plenary pardon or amnesty after conviction by final judgment of an offense involving moral

turpitude, inter alia, to run for and hold any public office, whether local or national position.

The third preambular clause of the pardon did not operate to make the pardon conditional.

Contrary to Risos-Vidal’s declaration, the third preambular clause of the pardon, i.e.,

“[w]hereas, Joseph Ejercito Estrada has publicly committed to no longer seek any elective positionor office,” neither makes the pardon conditional, nor militate against the conclusion that former

President Estrada’s rights to suffrage and to seek public elective office have been restored.

This is especially true as the pardon itself does not explicitly impose a condition or

limitation, considering the unqualified use of the t erm “civil and political rights” as being restored.

Jurisprudence educates that a preamble is not an essential part of an act as it is an introductory or

preparatory clause that explains the reasons for the enactment, usually introduced by the word“whereas.” Whereas clauses do not form part of a statute because, strictly speaking, they are not

part of the operative language of the statute. In this case, the whereas clause at issue is not an

integral part of the decree of the pardon, and therefore, does not by itself alone operate to make the

pardon conditional or to make its effectivity contingent upon the fulfilment of the aforementioned

commitment nor to limit the scope of the pardon. A preamble is really not an integral part of a law.

It is merely an introduction to show its intent or purposes. It cannot be the origin of rights and

obligations. Where the meaning of a statute is clear and unambiguous, the preamble can neither

expand nor restrict its operation much less prevail over its text.

If former President Arroyo intended for the pardon to be conditional on Respondent’s

promise never to seek a public office again, the former ought to have explicitly stated the same in

the text of the pardon itself. Since former President Arroyo did not make this an integral part of thedecree of pardon, the Commission is constrained to rule that the 3rd preambular clause cannot be

interpreted as a condition to the pardon extended to former President Estrada.

Absent any contrary evidence, former President Arroyo’s silence on former President

Estrada’s decision torun for President in the May 2010 elections against, among others, thecandidate of the political party of former President Arroyo, after the lat ter’s receipt and acceptanceof the pardon speaks volume of her intention to restore him to his rights to suffrage and to hold

public office.

Where the scope and import of the executive clemency extended by the President is in issue,

the Court must turn to the only evidence available to it, and that is the pardon itself. From a detailed

review of the four corners of said document, nothing therein gives an iota of intimation that thethird Whereas Clause is actually a limitation, proviso, stipulation or condition on the grant of the

pardon, such that the breach of the mentioned commitment not to seek public office will result in a

revocation or cancellation of said pardon. To the Court, what it is simply is a statement of fact or the

prevailing situation at the time the executive clemency was granted. It was not used as a condition

to the efficacy or to delimit the scope of the pardon.


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Therefore, there can be no other conclusion but to say that the pardon granted to former

President Estrada was absolute in the absence of a clear, unequivocal and concrete factual basis

upon which to anchor or support the Presidential intent to grant a limited pardon. To reiterate,

insofar as its coverage is concerned, the text of the pardon can withstand close scrutiny even under

the provisions of Articles 36 and 41 of the Revised Penal Code. The COMELEC did not commit grave

abuse of discretion amounting to lack or excess of jurisdiction in issuing the assailed Resolutions.

EXECUTIVE PRIVILEGE

ROMULO NERI vs. SENATE COMMITTEE ON ACCOUNTABILITY OF PUBLIC OFFICERS

AND INVESTIGATIONS, SENATE COMMITTEE ON TRADE AND COMMERCE, AND

SENATE COMMITTEE ON NATIONAL DEFENSE AND SECURITY

G.R. No. 180643, March 25, 2008, J. Leonardo-De Castro

Majority of the above jurisprudence have found their way in our jurisdiction. In Chavez v.

PCGG, this Court held that there is a governmental privilege against public disclosure with respect to

state secrets regarding military, diplomatic and other security matters. In Chavez v. PEA, there is also

a recognition of the confidentiality of Presidential conversations, correspondences, and discussions inclosed-door Cabinet meetings. In Senate v. Ermita, the concept of presidential communications

privilege is fully discussed. As may be gleaned from the above discussion, the claim of executive

privilege is highly recognized in cases where the subject of inquiry relates to a power textually

committed by the Constitution to the President, such as the area of military and foreign relations.

Under our Constitution, the President is the repository of the commander-in-chief, appointing,

pardoning, and diplomatic , powers. Consistent with the doctrine of separation of powers, the

information relating to these powers may enjoy greater confidentiality than others.

The above cases, especially, Nixon, In Re Sealed Case and Judicial Watch, somehow provide the

elements of presidential communications privilege, to wit:

1)

The protected communication must relate to a quintessential and non-delegable

presidential power; 2)

The communication must be authored or “solicited and received” by a close advisor of thePresident or the President himself. The judicial test is that an advisor must be in

operational proximity” with the President.

3)

The presidential communications privilege remains a qualified privilege that may be

overcome by a showing of adequate need, such that the information sought likely contains

important evidence and by the unavailability of the information elsewhere by an

appropriate investigating authority.

In the case at bar, Executive Secretary Ermita premised his claim of executive privilege on the

ground that the communications elicited by the three (3) questions fall under conversation and

correspondence between the President and public officials necessary in her executive and policy

decision-making process and, that “the information sought to be disclosed might impair ourdiplomatic as well as economic relations with the People’s Republic of China. Simply put, the bases are

presidential communications privilege and executive privilege on matters relating to diplomacy or

foreign relations.

Using the above elements, we are convinced that, indeed, the communications elicited by the

three (3) questions are covered by the presidential communications privilege. First, the

communications relate to a quintessential and non-delegable power of the President, i.e. the power to


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enter into an executive agreement with other countries. This authority of the President to enter into

executive agreements without the concurrence of the Legislature has traditionally been recognized in

Philippine jurisprudence. Second, the communications are received by a close advisor of the President.

Under the operational proximity test, petitioner can be considered a close advisor, being a member of

President Arroyo’s cabinet. And third, there is no adequate showing of a compelling need that would

justify the limitation of the privilege and of the unavailability of the information elsewhere by anappropriate investigating authority.

Facts:

April 21, 2007, the Department of Transportation and Communication (DOTC) entered into

a contract with Zhing Xing Telecommunications Equipment (ZTE) for the supply of equipment and

services for the National Broadband Network (NBN) Project. The Project was to be financed by the

People’s Republic of China

In connection with this NBN Project, various resolutions were introduced in the Senate.

Respondent Committees initiated the investigation by sending invitations to certain personalities

and cabinet officials involved in the NBN Project. Petitioner Romulo Neri (Neri) was among thoseinvited. He was summoned to appear and testify on September 18, 20, and 26 and October 25, 2007.

However, he attended only the September 26 hearing, claiming he was out of town during the other

dates.

In the September 18, 2007 hearing, businessman Jose de Venecia III testified that several

high executive officials and power brokers were using their influence to push the approval of the

NBN Project by the NEDA. It appeared that the Project was initially approved as a Build-Operate-

Transfer (BOT) project but, on March 29, 2007, the NEDA acquiesced to convert it into a

government-to- government project, to be financed through a loan from the Chinese Government.

On September 26, 2007, Neri testified before respondent Committees for eleven (11) hours.

He disclosed that then Commission on Elections (COMELEC) Chairman Benjamin Abalos offeredhim P200 Million in exchange for his approval of the NBN Project. He further narrated that he

informed President Arroyo about the bribery attempt and that she instructed him not to accept the

bribe. However, when probed further on what they discussed about the NBN Project, petitioner

refused to answer, invoking executive privilege. In particular, he refused to answer the questions

on (a) whether or not President Arroyo followed up the NBN Project, (b) whether or not she

directed him to prioritize it, and (c) whether or not she directed him to approve.

Unrelenting, respondent Committees issued a Subpoena Ad Testificandum to Neri, requiring

him to appear and testify on November 20, 2007. However, in the Letter dated November 15, 2007,

Executive Secretary Eduardo R. Ermita requested respondent Committees to dispense with

petitioner’s testimony on the ground of executive privilege.

On November 20, 2007, Neri did not appear before respondent Committees. Thus, on

November 22, 2007, the latter issued the show cause Letter requiring him to explain why he should

not be cited in contempt. Neri replied to respondent Committees, manifesting that it was not his

intention to ignore the Senate hearing and that he thought the only remaining questions were those

he claimed to be covered by executive privilege.


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In the interim Neri filed with the Supreme Court the present petition for certiorari assailing

the show cause Letter dated November 22, 2007.

Subsequently, respondent committees found Neri explanations unsatisfactory. Without

responding to his request for advance notice of the matters that he should still clarify, they issued

the order dated January 30, 2008, citing him in contempt of respondent Committees and orderinghis arrest and detention at the Office of the Senate Sergeant-At-Arms until such time that he would

appear and give his testimony.

Neri contends that respondent Committees’ show cause letter and contempt Order were

issued with grave abuse of discretion amounting to lack or excess of jurisdiction. He stresses that

his conversations with President Arroyo are candid discussions meant to explore options in making

policy decisions. According to him, these discussions dwelt on the impact of the bribery scandal

involving high government officials on the country’s diplomatic relations and economic and military

affairs and the possible loss of confidence of foreign investors and lenders in the Philippines. He

also emphasizes that his claim of executive privilege is upon the order of the President and within

the parameters laid down in Senate v. Ermita and otherwise known as Code of Conduct and Ethical

Standards for Public Officials and Employees, and Section 2413 (e) of Rule 130 of the Rules of Court.

Respondent Committees assert the contrary. They argue that (1) petitioner’s testimony is

material and pertinent in the investigation conducted in aid of legislation; (2) there is no valid

justification for petitioner to claim executive privilege; (3) there is no abuse of their authority to

order petitioner’s arrest; and (4) petitioner has not come to court with clean hands.

Issues:

1. Whether or not the communications elicited by the subject three (3) questions coveredby executive privilege.

2. Whether or not the grant of executive privilege will violate the Constitutional provisionson the right of the people to information on matters of public concern.

3. Whether or not the Senate Committees gravely abuse their discretion in ordering thearrest of Neri for non-compliance with the subpoena

Ruling:

1. Yes. The communications elicited by the three (3) questions are covered by executiveprivilege

Senate cautions that while the above provisions are closely related and complementary to each

other, they should not be considered as pertaining to the same power of Congress. Section 21

relates to the power to conduct inquiries in aid of legislation. Its aim is to elicit information that

may be used for legislation. On the other hand, Section 22 pertains to the power to conduct a

question hour, the objective of which is to obtain information in pursuit of Congress’ oversight

function. Simply stated, while both powers allow Congress or any of its committees to conduct

inquiry, their objectives are different.

This distinction gives birth to another distinction with regard to the use of compulsory process.

Unlike in Section 21, Congress cannot compel the appearance of executive officials under Section


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22.

The Court’s pronouncement in Senate v. Ermita is clear: 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.

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.

While these cases, especially Senate v. Ermita, have comprehensively discussed the concept

of executive privilege, we deem it imperative to explore it once more in view of the clamor for this

Court to clearly define the communications covered by executive privilege. The Nixon and post-

Watergate cases established the broad contours of the presidential communications privilege. In

United States v. Nixon, the U.S. Court recognized a great public interest in preserving the

confidentiality of conversations that take place in the President’s performance of his official duties.

It thus considered presidential communications as presumptively privileged. Apparently, the

presumption is founded on the President’s generalized interest in confidentiality. The privilege is

said to be necessary to guarantee the candor of presidential advisors and to provide the President

and those who assist him . . . with freedom 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.

In In Re: Sealed Case, the U.S. Court of Appeals delved deeper. It ruled that there are two (2)

kinds of executive privilege; one, is the presidential communications privilege and, the other is the

deliberative process privilege. The former pertains to communications, documents or other

materials that reflect presidential decision-making and deliberations and that the President

believes should remain confidential. The latter includes advisory opinions, recommendations and

deliberations comprising part of a process by which governmental decisions and policies are

formulated. Accordingly, they are characterized by marked distinctions. Presidential

communications privilege applies to decision-making of the President while, the deliberative

process privilege, to decision-making of executive officials. The first is rooted in the constitutional

principle of separation of power and the President’s unique constitutional role; the second on

common law privilege. Unlike the deliberative process privilege, the presidential communications

privilege applies to documents in their entirety, and covers final and post-decisional materials aswell as pre-deliberative ones. As a consequence, congressional or judicial negation of the

presidential communications privilege is always subject to greater scrutiny than denial of the

deliberative process privilege.

Turning on who are the officials covered by the presidential communications privilege, In

Re: Sealed Case confines the privilege only to White House Staff that has operational proximity to

direct presidential decision-making. Thus, the privilege is meant to encompass only those functions


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that form the core of presidential authority, involving what the court characterized as

quintessential and non-delegable presidential power, such as commander-in-chief power,

appointment and removal power, the power to grant pardons and reprieves, the sole authority to

receive ambassadors and other public officers, the power to negotiate treaties, etc. The situation in

Judicial Watch, Inc. v. Department of Justice tested the In Re: Sealed Case principles. There, while

the presidential decision involved is the exercise of the President’s pardon power, a non -delegable,core presidential function, the Deputy Attorney General and the Pardon Attorney were deemed to

be too remote from the President and his senior White House advisors to be protected. The Court

conceded that functionally those officials were performing a task directly related to the President’s

pardon power, but concluded that an organizational test was more appropriate for confining the

potentially broad sweep that would result from the In Re: Sealed Case’s functional test. Themajority concluded that, the lesser protections of the deliberative process privilege would suffice.

That privilege was, however, found insufficient to justify the confidentiality of the 4,341 withheld

documents.

Majority of the above jurisprudence have found their way in our jurisdiction. In Chavez v.

PCGG, this Court held that there is a governmental privilege against public disclosure with respect

to state secrets regarding military, diplomatic and other security matters. In Chavez v. PEA, there isalso a recognition of the confidentiality of Presidential conversations, correspondences, and

discussions in closed-door Cabinet meetings. In Senate v. Ermita, the concept of presidential

communications privilege is fully discussed.

As may be gleaned from the above discussion, the claim of executive privilege is highly

recognized in cases where the subject of inquiry relates to a power textually committed by the

Constitution to the President, such as the area of military and foreign relations. Under our

Constitution, the President is the repository of the commander-in-chief, appointing, pardoning, and

diplomatic, powers. Consistent with the doctrine of separation of powers, the information relating

to these powers may enjoy greater confidentiality than others.

The above cases, especially, Nixon, In Re Sealed Case and Judicial Watch, somehow providethe elements of presidential communications privilege, to wit:

4) The protected communication must relate to a quintessential and non-delegablepresidential power;

5) The communication must be authored or “solicited and received” by a close advisor ofthe President or the President himself. The judicial test is that an advisor must be in

operational proximity” with the President.

6) The presidential communications privilege remains a qualified privilege that may beovercome by a showing of adequate need, such that the information sought likely

contains important evidence and by the unavailability of the information elsewhere by

an appropriate investigating authority.

In the case at bar, Executive Secretary Ermita premised his claim of executive privilege on

the ground that the communications elicited by the three (3) questions fall under conversation and

correspondence between the President and public officials necessary in her executive and policy

decision-making process and, that “the information sought to be disclosed might impair ourdiplomatic as well as economic relat ions with the People’s Republic of China. Simply put, the bases

are presidential communications privilege and executive privilege on matters relating to diplomacy

or foreign relations.


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Using the above elements, we are convinced that, indeed, the communications elicited by

the three (3) questions are covered by the presidential communications privilege. First, the

communications relate to a quintessential and non-delegable power of the President, i.e. the power

to enter into an executive agreement with other countries. This authority of the President to enter

into executive agreements without the concurrence of the Legislature has traditionally been

recognized in Philippine jurisprudence. Second, the communications are received by a closeadvisor of the President. Under the operational proximity test, petitioner can be considered a close

advisor, being a member of President Arroyo’s cabinet. And third, there is no adequate showing of acompelling need that would justify the limitation of the privilege and of the unavailability of the

information elsewhere by an appropriate investigating authority.

The third element deserves a lengthy discussion. United States v. Nixon held that a claim of

executive privilege is subject to balancing against other interest. In other words, confidentiality in

executive privilege is not absolutely protected by the Constitution. The U.S. Court held: Neither the

doctrine of separation of powers, nor the need for confidentiality of high-level communications,

without more, can sustain an absolute, unqualified Presidential privilege of immunity from judicial

process under all circumstances. The foregoing is consistent with the earlier case of Nixon v. Sirica,

where it was held that presidential communications privilege are presumptively privileged and thatthe presumption can be overcome only by mere showing of public need by the branch seeking

access to conversations. The courts are enjoined to resolve the competing interests of the political

branches of the government in the manner that preserves the essential functions of each branch.

Here, the record is bereft of any categorical explanation from respondent Committees to show a

compelling or critical need for the answers to the three (3) questions in the enactment of a law.

Instead, the questions veer more towards the exercise of the legislative oversight function under

Section 22 of Article VI rather than Section 21 of the same Article. Senate v. Ermita ruled that the

the oversight function of Congress may be facilitated by compulsory process only to the extent that

it is performed in pursuit of legislation. It is conceded that it is difficult to draw the line between an

inquiry in aid of legislation and an inquiry in the exercise of oversight function of Congress. In this

regard, much will depend on the content of the questions and the manner the inquiry is conducted.

2. No. the grant of petitioner’s claim of executive priv ilege does violate the constitutionalprovisions on the right of the people to information on matters of public concern.

We might have agreed with such contention if petitioner did not appear before them at all. But

petitioner made himself available to them during the September 26 hearing, where he was

questioned for eleven (11) hours. Not only that, he expressly manifested his willingness to answer

more questions from the Senators, with the exception only of those covered by his claim of

executive privilege.

The right to public information, like any other right, is subject to Limitation. The provision itself

expressly provides the limitation, i.e. as may be provided by law. Some of these laws are Section 7 of

Republic Act (R.A.) No. 6713, Article 22952 of the Revised Penal Code, Section 3 (k) 53 of R.A. No.3019, and Section 24(e) of Rule 130 of the Rules of Court. These are in addition to what our body of

jurisprudence classifies as confidential55 and what our Constitution considers as belonging to the

larger concept of executive privilege. Clearly, there is a recognized public interest in the

confidentiality of certain information. We find the information subject of this case belonging to such

kind.


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More than anything else, though, the right of Congress or any of its Committees to obtain

information in aid of legislation cannot be equated with the people’s right to public information.The former cannot claim that every legislative inquiry is an exercise of the people’s right to

information. The distinction between such rights is laid down in Senate v. Ermita, thus: there are, it

bears noting, clear distinctions between the right of Congress to information which underlies the

power of inquiry and the right of people to information on matters of public concern. For one, thedemand of a citizen for the production of documents pursuant to his right to information does not

have the same obligatory force as a subpoena duces tecum issued by Congress. Neither does the

right to information grant a citizen the power to exact testimony from government officials. These

powers belong only to

Congress, 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.”

The members of respondent Committees should not invoke as justification in their exercise

of power a right properly belonging to the people in general. This is because when they discharge

their power, they do so as public officials and members of Congress. Be that as it may, the right to

information must be balanced with and should give way, in appropriate cases, to constitutionalprecepts particularly those pertaining to delicate interplay of executive-legislative powers and

privileges which is the subject of careful review by numerous decided cases.

3. Respondent Committees committed grave abuse of discretion in issuing the contempt Orderin view of five (5) reasons:

First, there being a legitimate claim of executive privilege, the issuance of the contempt

Order suffers from constitutional infirmity.

Second, respondent Committees did not comply with the requirement laid down in Senate v.

Ermita that the invitations should contain the possible needed statute which prompted the

need for the inquiry, along with the usual indication of the subject of inquiry and thequestions relative to and in furtherance thereof. Compliance with this requirement is

imperative, both under Sections 21 and 22 of Article VI of the Constitution. This must be so

to ensure that the rights of both persons appearing in or affected by such inquiry are

respected as mandated by said Section 21 and by virtue of the express language of Section

22. Unfortunately, despite Neris’ repeated demands, respondent Committees did not sendhim an advance list of questions. Third, a reading of the transcript of respondent

Committees’ January 30, 2008 proceeding reveals that only a minority of the members of

the Senate Blue Ribbon Committee was present during the deliberation. Clearly, the needed

vote is a majority of all the members of the Committee. Apparently, members who did not

actually participate in the deliberation were made to sign the contempt Order. Thus, there is

a cloud of doubt as to the validity of the contempt Order dated January 30, 2008.

Fourth, we find merit in the argument of the OSG that respondent Committees likewise

violated Section 21 of Article VI of the Constitution, requiring that the inquiry be in

accordance with the duly published rules of procedure.

And fifth, respondent Committees’ issuance of the contempt Order is arbitrary and

precipitate. It must be pointed out that respondent Committees did not first pass upon the

claim of executive privilege and inform petitioner of their ruling. Instead, they curtly


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dismissed his explanation as unsatisfactory” and simultaneously issued the Order citing him

in contempt and ordering his immediate arrest and detention. A fact worth highlighting is

that Neri is not an unwilling witness. He manifested several times his readiness to testify

before respondent Committees. He refused to answer the three (3) questions because he

was ordered by the President to claim executive privilege. It behooves respondent

Committees to first rule on the claim of executive privilege and inform petitioner of theirfinding thereon, instead of peremptorily dismissing his explanation as unsatisfactory.

Undoubtedly, respondent Committees’ actions constitute grave abuse of discretion for beingarbitrary and for denying petitioner due process of law. The same quality afflicted their

conduct when they (a) disregarded petitioner’s motion for reconsideration alleging that he

had filed the present petition before this Court and (b) ignored petitioner’s repeatedrequest for an advance list of questions, if there be any aside from the three (3) questions as

to which he claimed to be covered by executive privilege.

ROMULO L. NERI vs. SENATE COMMITTEE ON ACCOUNTABILITY OF PUBLIC OFFICERS AND

INVESTIGATIONS, SENATE COMMITTEE ON TRADE AND COMMERCE, AND SENATE

COMMITTEE ON NATIONAL DEFENSE AND SECURITY

G.R. No. 180643, September 04, 2008, J. Leonardo-De Castro

Thus, if what is involved is the presumptive privilege of presidential communications when

invoked by the President on a matter clearly within the domain of the Executive, the said presump-tion

dictates that the same be recognized and be given preference or priority, in the absence of proof of a

compelling or critical need for disclosure by the one assailing such presumption.

Facts:

In September 2007, Petitioner Romulo Neri, then Secretary of NEDA, appeared before

Respondent Committees and testified on matters concerning the National Broadband Project,

between the DOTC and Zhong Xing Telecommunications Equipment (ZTE). Neri disclosed that then

COMELEC Chairman Benjamin Abalos offered him PhP200 Million Pesos in exchange for hisapproval of the NBN Project. He later made known to President Gloria Macapagal Arroyo this

bribery attempt and the latter instructed him not to accept it. However, when he was probed

further on his discussions with the President, Neri invoked executive privilege and refused to

answer the following questions:

i. Whether or not President Arroyo followed up the NBN Project;ii. Whether or not she directed him to prioritize it; and,iii. Whether or not she directed him to approve it.

On November 20, 2007, Neri did not appear before Respondent Committees upon orders of

the President invoking executive privilege, as expressed in an earlier letter of Execu-tive Secretary

Eduardo Ermita addressed to Respondent Committees.

On January 30, 2008, Respondent Committees issued an Order citing petitioner in contempt

and causing his arrest and detention until such time that he would appear and give his testimony.

This prompted Neri to file a Petition for Certiorari before the Court, which was granted on

March 25, 2008 ruling that the three (3) questions propounded to him were covered by executive


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privilege and Respondent Committees gravely abused its discretion in issuing the contempt order.

Accordingly, Respondent Committees filed the instant Motion for Reconside-ration.

Issues:

1. Whether or not there is a recognized presumptive presidential communicationsprivilege in our legal system;

2. Whether or not there is factual or legal basis to hold that the communication elicited bythe three (3) questions are covered by executive privilege;

3. Whether or not Respondent Committees have shown that the communications elicitedby the three (3) questions are critical to the exercise of their functions; and,

4. Whether or not Respondent Committees committed grave abuse of discretion in issuingthe contempt order.

Ruling:

1. Yes, there is a presumptive presidential communication privilege in Philippine legal

system.

In Almonte vs. Chavez, Chavez vs. PCGG and Chavez vs. Public Estates Authority , the Court

stated that there are certain types of information which the government may withholding from the

public, that there exists a governmental privilege against public disclosure with respect to state

secrets regarding military, diplomatic and other national security matters , and that the right to

information does not extend to matters recognized as privileged information under the separation of

power, by which the Court mean Presidential conversations, correspondences, and discussions in

closed-door Cabinet meetings.

In Senate vs. Ermita, the Court further expounded that 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, inwhich case the Executive Secretary must state that the authority is ‘By order of the President’, whichmeans 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 this case, it was the President Arroyo herself, through Executive Secretary Ermita, who

invoked executive privilege on a specific matter involving an executive agreement between the

Philippines and China, which was the subject of the three (3) questions propounded to Neri. On this

point, the factual setting of this case markedly differs from that passed upon in Senate vs. Ermita.

Thus, if what is involved is the presumptive privilege of presidential communications when

invoked by the President on a matter clearly within the domain of the Executive, the said

presumption dictates that the same be recognized and be given preference or priority, in the

absence of proof of a compelling or critical need for disclosure by the one assailing such

presumption.

2. Yes, the three (3) questions are covered by executive privilege.

The requisites of a valid claim of executive privilege are present in this case.


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Contrary to the position of Respondent Committees, the power to enter into an executive

agreement is a quintessential and non-delegable presidential power. Despite the required

concurrence of the Monetary Board and its reporting to Congress, such power when exercised

remains purely executive and these acts of certain organs of the government are but pursuant to

the doctrine of separation of powers and principle of checks and balances.

Secondly, the doctrine of operational proximity was established to limit the scope of the

presidential communications privilege. In the case at bar, the danger of expanding the privilege to

large swath of the executive branch is absent because the official involved is a member of the

Cabinet, who is within the term of advisor of the President.

Thirdly, the President’s claim of executive privilege is not merely founded on her

generalized interest in confidentiality. The letter of Executive Secretary Ermita specified

presidential communications privilege in relation to the diplomatic and economic relations with

another sovereign nation as the bases for the claim. In balancing this national interest with that of

the Senate to conduct inquiries in aid of legislation, the Court did not disregard or diminish the

public’s right to information and the importance of public accountability and transparency. The

Senate may continue its investigation and even call Neri to testify again. What this Court proscribedin its Decision is the compulsion upon Neri to respond the three (3) questions covered by executive

privilege.

3. No, the questions are not critical to the legislature’s functions.

The Court recognizes Respondent Committees power to investigate the NBN Project in aid

of legislation. However, it cannot uphold the view that when a constitutionally guaranteed privilege

or right is validly invoked by a witness in the course of a legislative investigation, the legislative

purpose of the Respondent Committees’ questions can be sufficiently supported by the expedientmentioning of statutes and/or pending bills to which their inquiry as a whole may have relevance.

The jurisprudential test laid down in past precedents on executive privilege is that the presumption

of privilege can only be overturned by a showing of compelling need for disclosure of theinformation covered by executive privilege.

Clearly, the need for hard facts in crafting legislation cannot be equated with the compelling

or demonstratively critical and specific need for facts which is so essential to the judicial power to

adjudicate actual controversies. The presumption in favor of presidential communications puts the

burden on the Respondent Committees to overturn the presumption by demonstrating their

specific need for the information to be elicited by the answers to the three (3) questions subject of

this case, to enable them to craft legislation. In this case, there is simply a generalized assertion that

the information is pertinent to the exercise of the power to legislate and a broad and non-specific

reference to pending Senate bills. It not clear what matters relating to these bills could not be

determined without the said information sought by the three (3) questions.

Anent the function to curb graft and corruption, it must be stressed that Respondent

Committees’ need for information in the exercise of this function is not as compelling as ininstances when the purpose of the inquiry is legislative in nature. This is because curbing graft and

corruption is merely an oversight function of Congress. And if this is the primary objective of

Respondent Committees in asking the three (3) questions covered by privilege, it may even

contradict their claim that their purpose is legislative in nature and not oversight.


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Moreover, Congress is neither a law enforcement nor trial agency. It bears stressing that no

inquiry is an end in itself. It must be related to, and in furtherance of a legitimate task of the

Congress. Investigations conducted solely to gather incriminatory evidence and punish those

investigated are indefensible. There is congressional power to expose for the sake of exposure.

4. Yes, the Respondent Committees committed grave abuse of discretion in issuing thecontempt order.

Respondent Committees contend that their Rules of Procedure Governing Inquiries in Aid of

Legislation are beyond the reach of this Court. While it is true that this Court must refrain from

reviewing the internal processes of Congress, as a co-equal branch of government, however, when a

constitutional requirement exists, the Court has the duty to look into Congress’ compliance

therewith. According to Section 18 thereof, a Committee may order to punish a person on proper

grounds provided thereunder by majority vote of all its members.

Taking into account this provision, the deliberation of Respondent Committees that led to

the issuance of the contempt order is flawed. Instead of being submitted to a full debate by all the

members of each committee, the contempt order was prepared and thereafter presented to theother members for signing. As a result, the contempt order was not a faithful representation of the

proceedings that took place on said date.

RE: REQUEST OF THELMA J. CHIONG FOR INVESTIGATION OF THE ALLEGED “JUSTICE FORSALE” IN CA-CEBU.

A.M. No. 07405CA, February 22, 2008, J. LEONARDODE CASTRO

Section 6 of RA No. 8246, cited by the CA Justices as a legal basis for the aforesaid waiver, does

not allow any provision of the said law to be used to justify the transfer of any member of the CA to any place or station without his or her consent. However, the movement from one station to another

concerned here is occasioned by the operation of the IRCA, and not by the construction of the provision

of RA No. 8246. To our mind, the said provision of law guarantees that a Member of the Court of

Appeals shall not be transferred without his consent from a station where he ought to be. The said

station is determined not by RA No. 8246 but by the rule on the reorganization of Divisions contained

in the IRCA. The said rule is anchored on the solitary standard supplied by R.A. No. 8246, which is

seniority.

Facts:

Three separate letters from Thelma J. Chiong, National Vice President of Crusade Against

Violence, Judge Fortunato M. De Gracia, Jr, and Rosendo Germano were sent to the Chief Justicerequesting investigation of the alleged “Justice for Sale” in CA-Cebu. Chiong alleged that they had

received a “lot of information” on the supposed fraudulence in said situation. Judge de Garcia basedhis letter on a derogatory news item published in Sun Star Cebu. Germano asserted that a certain

civil case was erroneously dismissed by CA-Cebu because money did much of the talking. No

particular Justice or personnel was named. Then CA Presiding Justice Ruben T. Reyes submitted his

comment that for sometime, the Court of Appeals Cebu Station has been the subject of unsavory

newspaper items that said negative articles triggered critical evaluation of the present setup. One

JUDICIAL DEPARTMENT


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area of concern identified is the prolonged stay of some Justices in the Station, making it possible

for them to develop special affiliation with local politicians and influential people.

In 2004, 18 justices were appointed and with the enactment of Republic Act 8246 (An Act

Creating Additional Divisions In The Court Of Appeals, Increasing The Number Of Court Of Appeals

Justices From FiftyOne (51) To SixtyNine (69)), three divisions, the 18th

to 20th

were organized inCebu City and another three, 21st to 23rd, in Cagayan de Oro City. The composition of the existing 17

divisions in Manila remained.

The 18 justices were assigned to Cebu and Cagayan stations according to to the order if

seniority, but the Internal Rules of Court of Appeals (IRCA) allowed the waiver of senior members.

As a result, there are occurrences when members of the Court who are supposed to be in Cebu or

Cagayan De Oro signed waivers and remained in Manila without losing their seniority. According to

Justice Remedios Fernando, R.A. 8246 does not contain any provision on waiver, and the only

standard in determining the place of assignment is precedence, hence, the practice of signing

waivers is not in harmony with the law.

On the other hand, the Justices in CA-Cebu believe that the existence of waiver explicitlyembodied in Section 6 of R.A. 8246 and are of the view that the transfer of Justices from one station

to another cannot be done without the consent of the Justices concerned. They cite Sections 3 and 6

of R.A. 8246 and Section 9, Rule 1 of the 2002 IRCA. The Court of Appeals en banc voted to maintain

the status quo in the places of assignment of work stations.

Issue:

Whether or not any member of the Court may execute a waiver in transfers of work stations

based on seniority

Ruling:

No. Petition denied.

Section 6 of RA No. 8246, cited by the CA Justices as a legal basis for the aforesaid waiver,

does not allow any provision of the said law to be used to justify the transfer of any member of the

CA to any lace or station without his or her consent. However, the movement from one station to

another concerned here is occasioned by the operation of the IRCA, and not by the construction of

the provision of RA No. 8246. To our mind, the said provision of law guarantees that a Member of

the Court of Appeals shall not be transferred without his consent from a station where he ought to

be. The said station is determined not by RA No. 8246 but by the rule on the reorganization of

Divisions contained in the IRCA. The said rule is anchored on the solitary standard supplied by R.A.

No. 8246, which is seniority.

The “transfer” contemplated by Section 6 of R.A. No. 8246 presupposes that a member of

the CA is in the station allocated to him by the rules, the said law being silent in this regard, from

which station he cannot be transferred without his consent. Paradoxically, the said provision of law

is invoked to allow the CA Justices to preempt the operation of the rule on reorganization, at their

discretion by executing a waiver, in the form and content provided in Section 9, Rule 1 of the IRCA,

as amended.


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Accordingly, the Court finds compelling reasons to set aside the amendment to Section 9,

Rule I of the IRCA which institutionalizes the “waiver” of the place of assignment or station of theCA Justices.

COMMISSION ON AUDIT

REBECCA A. BARBO, ELEONORA R. DE JESUS, and ANTONIO B. MAGTIBAY vs. COMMISSION ON

AUDIT

G.R. No. 157542, October 10, 2008, J. Leonardo-De Castro

In Rodolfo S. de Jesus vs. COA, the Court upheld the authority and jurisdiction of the COA to rule

on the legality of the disbursement of government funds by a water district and declared that such

power does not conflict with the jurisdiction of the courts, the DBM, and the LWUA. Citing Section 2,

Subdivision D, Article IX of the Constitution, the Court declared that it is the mandate of the COA to

audit all government agencies, including GOCCs with original charters. Indeed, the Constitutionspecifically vests in the COA the authority to determine whether government entities comply with laws

and regulations in disbursing government funds, and to disallow illegal or irregular disbursements of

government funds. This independent constitutional body is tasked to be vigilant and conscientious in

safeguarding the proper use of the governments, and ultimately the peoples, property.

Facts:

Petitioners are officials of the Local Water Utilities Administration (LWUA), who received

Notices of Disallowance from the COA. According to a special audit team, petitioners were allowed

by LWUA Board Resolutions to receive Representation and Transportation Allowance (RATA),

Travel Allowance, and Extraordinary & Miscellaneous Expense (EME), Christmas Bonus, Uniform

Allowance, Rice Allowance, Medical and Dental Benefits, and Productivity Incentive Bonus on top oftheir regular salary and per diem compensation. COA alleged in its Notices of Disallowance that this

myriad of benefits is contrary to the Government Accounting and Auditing Manual (GAAM), CSC

Resolution No. 954073 and P.D. No. 198.

The COA Regional Director and subsequently the Commission Proper denied the appeals

raised by herein petitioners and simply upheld the findings and recommendations of the special

audit team.

Issues:

1. Is the COA vested with jurisdiction to declare a corporate resolution as illegal being in

contravention with a statute?2. Can the LWUA authorize the grant of allowances and other forms of compensation?3. Can good faith excuse the petitioners from not returning the amounts as stated in the

Notices of Disallowance?

Ruling:

1. Yes, the COA has jurisdiction to rule on such issue.

CONSTITUTIONAL COMMISION


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In Rodolfo S. de Jesus vs. COA, the Court upheld the authority and jurisdiction of the COA to

rule on the legality of the disbursement of government funds by a water district and declared that

such power does not conflict with the jurisdiction of the courts, the DBM, and the LWUA. Citing

Section 2, Subdivision D, Article IX of the Constitution, the Court declared that it is the mandate of

the COA to audit all government agencies, including GOCCs with original charters. Indeed, theConstitution specifically vests in the COA the authority to determine whether government entities

comply with laws and regulations in disbursing government funds, and to disallow illegal or

irregular disbursements of government funds. This independent constitu-tional body is tasked to be

vigilant and conscientious in safeguarding the proper use of the governments, and ultimately the

peoples, property.

2. No, the statute of LWUA provides otherwise.

It is undeniable that P.D. No. 198 expressly prohibits the grant of RATA , EME, and bonuses

to members of the Board of Water Districts. In Baybay Water District vs. COA, the members of the

Board of Baybay Water District also questioned the disallowance by the COA of the payment of

RATA, rice allowance and excessive per diems. The Court ruled that pursuant to P.D. No. 198,members of the Board of Water Districts cannot receive allowances and benefits more than those

allowed by P.D. No. 198, which merely a per diem compensation or allowance.

poli compiled

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