sc petition eo464

7/28/2019 SC Petition Eo464

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REPUBLIC OF THE PHILIPPINESSupreme Court

Manila

ALTERNATIVE LAW GROUPS, INC. (ALG),Petitioner

- Versus-

HON. EDUARDO R. ERMITA,in h is capaci ty as Ex ecut iveSecretary,

G.R. No. ___169667_____

For Cert iorar i andProhibi t ion With

Appl icat ion for TemporaryRestrain ing Order.

Respondent.

X---- ---- -- -- ----- ---- -- ----- ---- --- --X

PETITION FOR CERTIORARIAND PROHIBITI ON

With Appl icat ion for a Temporary Restrain ing Order

PETITIONER, by counsel, respectfully states:

PRELIMINARY STATEMENT

Among the fundamental freedoms that this Honorable Court has resolutely

guarded is the peoples right to information on matters of public concern. The

Honorable Court has asserted that the right to information is essential to the effective

exercise of other constitutional rights.

Two notable cases can be cited as leading jurisprudential pronouncements on

the right to information.

In Chavez v. Public Estates Authority,384 SCRA 152 (2002), the Honorable

Court explained the importance of the right to information, in relation to the state policy

of full transparency in all transactions involving public interest:

These twin provisions of the Constitution seek to promotetransparency in policy-making and in the operations of the government,as well as provide the people sufficient information to exercise effectively

other constitutional rights. These twin provisions are essential to theexercise of freedom of expression. If the government does not discloseits official acts, transactions and decisions to citizens, whatever citizenssay, even if expressed without any restraint, will be speculative andamount to nothing. These twin provisions are also essential to hold publicofficials "at all times x x x accountable to the people," for unless citizenshave the proper information, they cannot hold public officials accountablefor anything. Armed with the right information, citizens can participate in


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public discussions leading to the formulation of government policies andtheir effective implementation. An informed citizenry is essential to theexistence and proper functioning of any democracy. As explained by theCourt in Valmonte v. Belmonte, Jr.

"An essential element of these freedoms is to keep open acontinuing dialogue or process of communication between thegovernment and the people. It is in the interest of the State that thechannels for free political discussion be maintained to the end that thegovernment may perceive and be responsive to the people's will. Yet, thisopen dialogue can be effective only to the extent that the citizenry isinformed and thus able to formulate its will intelligently. Only when theparticipants in the discussion are aware of the issues and have access toinformation relating thereto can such bear fruit."1

In Chavez v. Presidential Commission on Good Government, 299 SCRA

744 (1998), the Honorable Court explained the direct connection between the right to

information and the peoples participation in the affairs of government, thus:

In general, writings coming into the hands of public officers inconnection with their official functions must be accessible to the public,consistent with the policy of transparency of governmental affairs. Thisprinciple is aimed at affording the people an opportunity to determinewhether those to whom they have entrusted the affairs of thegovernment are honesty, faithfully and competently performing their

functions as public servants. Undeniably, the essence of democracy liesin the free flow of thought; but thoughts and ideas must be well-informedso that the public would gain a better perspective of vital issuesconfronting them and, thus, be able to criticize as well as participate inthe affairs of the government in a responsible, reasonable and effectivemanner. Certainly, it is by ensuring an unfettered and uninhibitedexchange of ideas among a well-informed public that a governmentremains responsive to the changes desired by the people.2

Ironically, the President of the Republic has misused the Honorable

Courts decisions in these two cases to justify the recent issuance of

Executive Order No. 464, which, contrary to the principles enunciated in the

quoted decisions, violate the peoples right to information, defy the state

policy of full transparency, and curtail the peoples right to participate in

governance.

In exposing the patent nullity of Executive Order No. 464, this Petition

invokes the peoples sacred freedoms to information, free speech and

expression, and full participation in governance. The Petition also asserts the

principles of full public disclosure, transparency and accountability, and

separation of powers, which, in essence, are likewise principles of liberty.

1 Chavez v. Public Estates Authority,384 SCRA 152 (2002), at 184-185.2 Chavez v. Presidential Commission on Good Government,299 SCRA 744 (1998), at 767.


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NATURE AND PURPOSE OF THE PETITION

This is a Petition, under Rule 65 of the Rules of Court, for certiorari and

prohibition, with an application for the issuance of a temporary restraining order and/or

a writ of preliminary injunction. The Petition prays that this Honorable Court issue:

1) A judgment declaring null and void, for being unconstitutional, Executive

Order No. 464, entitled, ENSURING OBSERVANCE OF THE PRINCIPLE OF SEPARATION

OF POWERS, ADHERENCE TO THE RULE ON EXECUTIVE PRIVILEGE, AND RESPECT FOR

THE RIGHTS OF PUBLIC OFFICIALS APPEARING IN LEGISLATIVE INQUIRIES IN AID OF

LEGISLATION UNDER THE CONSTITUTION, AND FOR OTHER PURPOSES. (Executive

Order No. 464 shall be referred to herein as E.O. 464.)

2) A judgment commanding the respondent and all persons acting on the

basis of E.O. 464 to cease from implementing the said E.O. 464.

3) A Temporary Restraining Order and/or Writ of Preliminary Injunction

enjoining the respondent from implementing E.O. 464.

The Petitioner respectfully manifests that, pursuant to Section 1, Rule 129

of the Rules of Court, the Honorable Court may take judicial notice of Executive

Order No. 464, as an official act of the executive department. For the

Honorable Courts easy reference, however, a copy of the questioned Executive

Order is attached to this Petition as Annex A.

BASIS OF THE PETITION

The Petition invokes the Honorable Courts exercise of its sacred constitutional

obligation to determine whether or not there was grave abuse of discretion amounting

to lack or excess of jurisdiction on the part of any branch or instrumentality of the

government. (Art. VII, Sec. 1) The Petition is filed as there is no remedy of appeal

and neither is there available to petitioners any other plain, speedy and adequate

remedy, administrative or otherwise, in the ordinary course of law. The Petition seeks

the issuance of the writ of certiorari, prohibition and mandamus, on the basis of the

following:

GROUNDS FOR GRANTING THE PETITION


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EXECUTIVE ORDER NO. 464 IS NULL AND VOID FOR BEING

UNCONSTITUTIONAL AS IT VIOLATES THE FOLLOWING PROVISIONS OF THE

1987 CONSTITUTION:

ARTICLE III, SECTION 7, WHICH GUARANTEES THE RIGHT OF

THE PEOPLE TO INFORMATION ON MATTERS OF PUBLIC

CONCERN.

ARTICLE II, SECTION 28, WHICH PROVIDES THAT THE STATE

ADOPTS AND IMPLEMENTS A POLICY OF FULL PUBLIC

DISCLOSURE OF ALL ITS TRANSACTIONS INVOLVING PUBLIC

INTEREST.

ARTICLE XI, SECTION 1, WHICH PROVIDES THAT PUBLIC

OFFICERS AND EMPLOYEES MUST AT ALL TIMES BE

ACCOUNTABLE TO THE PEOPLE.

ARTICLE III, SECTION 4, WHICH GUARANTEES THE FREEDOM

OF SPEECH, OF EXPRESSION, AND OF THE PRESS, AND THE

RIGHT OF THE PEOPLE PEACEABLY TO ASSEMBLE AND PETITION

THE GOVERNMENT FOR REDRESS OF GRIEVANCES.

ARTICLE XIII, SECTION 16, WHICH GUARANTES THE RIGHT OF

THE PEOPLE AND THEIR ORGANIZATIONS TO EFFECTIVE AND

REASONABLE PARTICIPATION AT ALL LEVELS OF SOCIAL,

POLITICAL, AND ECONOMIC DECISION-MAKING.

ARTICLE VI, SECTION 21, WHICH PROVIDES THAT THE SENATE

OR THE HOUSE OF REPRESENTATIVES OR ANY OF ITS

RESPECTIVE COMMITTEES MAY CONDUCT INQUIRIES IN AID OF

LEGISLATION IN ACCORDANCE WITH ITS DULY PUBLISHED

RULES OF PROCEDURE.

THE EXECUTIVE, IN ISSUING EXECUTIVE ORDER NO. 464, AND IN

IMPLEMENTING THE SAID ORDER, ACTED WITH GRAVE ABUSE OF

DISCRETION AMOUNTING TO LACK OR EXCESS OF JURISDICTION AS THEY

TRANSGRESSED CLEAR CONSTITUTIONAL GUARANTEES AND STATE

POLICIES.


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THE PARTIES

The Petitioner

1. Petitioner Alternative Law Groups, Inc. (ALG) is a non-stock, non-

profit corporation duly organized and existing under Philippine laws, with address at

Room 215, Institute of Social Order, Ateneo de Manila University, Loyola Heights,

Quezon City. ALG is represented in this Petition by its Council Chairperson, Atty. Arlene

J. Bag-ao. The petitioner is a coalition of seventeen (17) legal resource non-

governmental organizations that engage in developmental or alternative lawyering and

work with the poor and marginalized groups in different parts of the country.

2. The petitioner has the following organizations as members:

2.1. Albert Schweitzer Association, Philippines, Inc. (ASAP), a non-government organization that provides free legal assistance to children-in-conflict-with-law. The core of ASAP consists of young professionals and lawyerswho offer volunteer services, pursuant to the organizations credo that no childshould be unnecessarily detained due to circumstances beyond his/her control.ASAP also works toward the reintegration of former child detainees into theirfamilies and into society in general.

2.2. Alternative Law Research and Development Center, Inc.,(ALTERLAW), a legal-resource non-government organization that is committedto the promotion and protection of human rights and responding to issues ofsocial inequity in a pro-active, creative and progressive manner. Since itsestablishment in 1992, ALTERLAW has worked for the rights of marginalizedgroups including the migrant workers, urban poor, children, informal sector.

2.3. Ateneo Human Rights Center (AHRC), one of the first university-based institutions engaged in the promotion of peace, development and humanrights in the Philippines. Established in October 1986, the Center seeks to realize

its mandate of protecting and promoting human rights advocates amonglawyers, law students and grassroots leaders, the monitoring of the human rightssituation in the Philippines and abroad, research and publication, publiceducation on peace, development and human rights, legal assistance to indigentvictims of human rights abuses, law school curriculum development and valuesformation.

2.4. Balay Alternative Legal Advocates for Development inMindanaw, Inc. (BALAOD Mindanaw), a non-stock, non-profit organizationthat aims to help in the advancement of the legal and justice issues of differentmarginalized sectors and communities in Mindanao in the context of activepeoples participation in governance. BALAOD promotes paralegal formation,provides other legal services to marginalized sectors and communities, conductscapability-building interventions on local legislation and dispute resolution,provides a venue for networking and alternative legal assistance for lawpractitioners, law schools and law students, and facilitates the creation of afavorable policy environment responsive to the needs of marginalized sectorsand communities.


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2.5. Childrens Legal Bureau (CLB), Inc., a Cebu-based non-stock, non-profit organization envisioning a just world for children. CLB is committed toempower communities in promoting justice for children through legal aid,training, advocacy and networking. Its services include providing legal servicesto abused children and children in conflict with the law, providing paralegaltrainings to communities and children, policy development and advocacy relatedto childs rights.

2.6. Environmental Legal Assistance Center (ELAC), a non-governmental organization that was organized to address the emergingchallenge of environment lawyering especially in the rural areas wheredegradation of the environment is most felt. It aims to protect and assertenvironmental rights and equitable access to and control of natural resource useby communities in Palawan and the Visayas through effective developmentallegal assistance and community-based resource management. ELAC envisionscommunities that are empowered and self determining stewards of naturalresources.

2.7. Free Rehabilitation, Economic, Education and Legal AssistanceVolunteers Association, Inc. (FREELAVA), a non-government organizationestablished in Cebu City in 1983. It is an umbrella organization composed mostlyof community-based groups pooling their resources together to assist thedisadvantaged and the unprivileged sectors in society. Using free legal aid,rehabilitation of offenders and crime prevention programs, and covering theentire Province of Cebu, the target groups for its programs and services include:children and youth, children in conflict with law (CICL), former CICL, women andthe urban poor.

2.8. Kaisahan Tungo sa Kaunlaran ng Kanayunan at RepormangPansakahan (KAISAHAN), a social development organization promoting asustainable and humane society through the empowerment of marginalizedsectors in rural areas, especially among farmers and farm workers, to undertaketheir own development, participate fully in democratic processes and demandtheir rightful share in the stewardship of the land and the fruits of their labor. Itsmission is to facilitate agrarian reform implementation and sustainable ruraldevelopment with various stakeholders at the national and local level, especiallyfarmers, farm workers toward the formation of sustainable integrated area adevelopment (SIAD) communities.

2.9. Legal Rights and Natural Resources Center Kasama sa

Kalikasan/Friends of the Earth-Philippines, Inc. (LRC-KSK/FOEI-Phils.),a policy and legal research and advocacy institution that was organized as a non-stock, non-profit, non-partisan, cultural, scientific and research foundation dulyregistered with the Securities and Exchange Commission. The organization isalso the official Philippine affiliate of Friends of the Earth International. The goalof LRC-KSK is to empower the marginalized and disenfranchised peoples directlydependent on our natural resources so as to able to effect ecologicallysustainable, culturally appropriate, economically viable, gender sensitive,equitable uses, management, conservation and development of our naturalresources.

2.10. Paglilingkod Batas Pangkapatiran Foundation (PBPF), aMindanao-based non-governmental organization which seeks to capacitatepeoples organizations so that they can effect legal change to serve thecommunitys interests for genuine empowerment and equity-led development.Established in April of 1990, the organization serves communities throughoutMindanao where it provides paralegal formation, legal assistance and supportthrough research and litigation. It has four (4) major areas of work:environment, women and children and governance.


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2.11. Participatory Research Organization of Communities andEducation Towards Struggle for Self-Reliance (PROCESS) Foundation-PANAY, Inc., a non-government organization operating in Iloilo City, Antique,and other areas in Panay Island. It seeks to empower the grassroots anddeprived sectors of society so that they can take control of their own destiniestowards a sustainable and ecologically sound environment.

2.12. Pilipina Legal Resources Center (PLRC), a non-profit, socialdevelopment agency that uses legal resources for the empowerment anddevelopment of women and disadvantaged communities. Organized in 1982 inDavao City, PLRC has engaged in legislative and policy reform, advocacy forjudicial reform, legal literacy, organizational development, research, organizingand network building and technical support. Its current programs are focused onwomens rights and reproductive rights, women in politics and governance,judicial reform in the Sharia Courts, and peace building in Mindanao.

2.13. Sentro ng Alternatibong Lingap Panligal (SALIGAN), a legal

resource non-governmental organization doing developmental legal work withfarmers, workers, the urban poor, women, and local communities. Founded in1987, SALIGAN operates in different areas throughout the Philippines, throughits main office in Quezon City and its branches in Bicol Region and in Mindanao.SALIGANs programs include Legal Education, Litigation, Policy Reform Work andResearch and Publications.

2.14. Tanggapang Panligal ng Katutubong Pilipino (PANLIPI), anorganization of lawyers and indigenous peoples advocates that pioneered andcontinues to engage in development work among indigenous peoples in thePhilippines. It was established in 1985 and had since implemented programs forthe development of IP communities through: Developmental Legal Assistance,Legal Education and Outreach, Institutional Capability Building, AncestralDomains Delineation and Resource Management Planning.

2.15. Tanggol Kalikasan (TK), a public interest environmental law officewhich envisions an empowered society that relates with its environment in justand sustainable manner for the equitable benefit of all Filipinos. TanggolKalikasans mission is to facilitate the empowerment of communities andinstitutions to manage their ecosystems through law and other creativemechanisms. Conscious of the power of an organized and informed citizenry,TKs programs are aimed at encouraging greater citizens participation inenvironmental law enforcement and policy-making in resource allocation.

2.16. Womens Legal Bureau (WLB), a non-government legal organizationpromoting and fighting for womens human rights in accordance with feministand development perspectives and principles. Specifically, its mission is toprovide feminist legal services and actively engage in advocacy together withother womens groups to transform the law and the legal system in furtheranceof the right of women to self-determination and the advancement of theirdignity, rights and leadership. For most of its 12 years of operations, WLB hasbeen at the forefront of pioneering initiatives to promote and protect womenshuman rights in the country.

2.17. Womens Legal Education, Advocacy and Defense Foundation,Inc. (WomenLEAD), a feminist legal resource institution for women committedto advancing womens human rights through feminist methodologies in thecritique and analysis of law and the legal system. Through its core program(Feminist Counseling and Legal Services), WomenLEADs core of lawyers andparalegals engage in litigation to challenge laws, and the legal culture whichreinforces biases against women. Its other programs include training andeducation, campaign on womens issues, and research and publication.


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3. With the exception of the Ateneo Human Rights Center (AHRC), all ALG

member organizations are also duly registered organizations. The AHRC does not have

a legal personality separate from the Ateneo de Manila University, but it enjoys

autonomy in its programs and operations. ALG member organizations are composed

of Filipino citizens.

4. The petitioner files this case as a real party in interest and, as

representative of its member organizations and these organizations individual members,

as a class suit in their capacity as taxpayers and citizens, for themselves and in behalf of

all taxpayers and citizens similarly situated. The petitioner files this Petition for itself

and other organizations and individual citizens who are similarly situated but are so

numerous that it is impracticable to bring them all before the Honorable Court.

5. The petitioner can be served summons and other processes through the

undersigned counsel at the address stated below.

The Respondent

6. Public respondent Eduardo R. Ermita is the incumbent Executive

Secretary. He is sued in his official capacity as a public official. Respondent Ermita

may be served summons and other processes at his office at Malacaang Palace, Manila.

7. Public respondent is primarily charged with the duty of issuing and

implementing the questioned Executive Order No. 464.

JURISDICTIONAL ALLEGATIONS

8. Pursuant to Section 1, Rule 65 of the Rules of Court, the petitioner

hereby certifies, as shown by the attached affidavits, that, it has not commenced any

action involving the same issues before the Supreme Court, the Court of Appeals, or


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different divisions thereof, or before any other tribunal or agency, and that to the best

of its knowledge, no such action or proceeding is pending in the Supreme Court, the

Court of Appeals, or different divisions thereof, or any other tribunal or agency. The

petitioner also certifies that should it hereafter learn that a similar action or proceeding

has been filed or is pending in the Supreme Court, the Court of Appeals, or different

divisions thereof, or any other tribunal or agency, it undertakes to promptly inform the

aforesaid courts and other tribunal or agency thereof, within five (5) days therefrom.

9. The petitioner further certifies that upon the filing of this Petition, it has

paid the required docket fees. Proof of service of copies of this Petition on the

respondent and on the Solicitor General is submitted together with this Petition.

TIMELINESS AND URGENCY OF THE PETITION

10. On 28 September 2005, President Gloria Macapagal Arroyo approved

Executive Order No. 464, entitled, ENSURING OBSERVANCE OF THE PRINCIPLE OF

SEPARATION OF POWERS, ADHERENCE TO THE RULE ON EXECUTIVE PRIVILEGE, AND

RESPECT FOR THE RIGHTS OF PUBLIC OFFICIALS APPEARING IN LEGISLATIVE

INQUIRIES IN AID OF LEGISLATION UNDER THE CONSTITUTION, AND FOR OTHER

PURPOSES.

11. As a result of such approval, the Executive has started the

implementation of, and continues to implement, the said Executive Order with the

unconstitutional provisions assailed in this Petition. The Executive continuously

commits acts constituting grave abuse of discretion amounting to lack or excess of

jurisdiction in violation of the rights of the petitioner and other taxpayers and citizens.

12. This Petition is timely filed to question the validity of the said Executive

Order No. 464 on constitutional grounds. This Petition requires urgent resolution as


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the issues involved pertain to fundamental freedoms guaranteed under the Constitution

and the very foundations of our system of government.

13. The principle of exhaustion of administrative remedies does not apply to

this case since the issue involved is a purely legal or constitutional question. The

principle of hierarchy of courts likewise does not apply since it generally applies to cases

involving factual questions. The instant case raises constitutional issues of

transcendental importance to the public. The petitioner respectfully submits that the

Honorable Court can resolve to exercise primary jurisdiction over the instant case. 3

THE MATERIAL FACTS

1. On 28 September 2005, President Gloria Macapagal Arroyo, through

Executive Secretary Eduardo R. Ermita issued Executive Order No. 464 entitled

Ensuring Observance Of The Principle Of Separation Of Powers, Adherence To The Rule

On Executive Privilege And Respect For The Rights Of Public Officials Appearing In

Legislative Inquiries In Aid Of Legislation Under The Constitution, And For Other

Purposes, the pertinent sections of which provides:

x x x

SECTION 1. Appearance by Heads of Departments BeforeCongress. In accordance with Article VI, Section 22 of the Constitutionand to implement the Constitutional provisions on separation of powersbetween co-equal branches of the government, all heads of departmentsof the Executive Branch of the government shall secure the consent ofthe President prior to appearing before either House of Congress.

When the security of the State or the public interest so requiresand the President so states in writing, the appearance shall only beconducted in executive session.

SECTION 2. Nature, Scope and Coverage of Executive

Privilege.

(a) Nature and Scope. The rule of confidentiality based onexecutive privilege is fundamental to the operation of government androoted in the separation of powers under the Constitution (Almonte vs.Vasquez, G.R. No. 95367, 23 May 1995). Further, Republic Act No.

3 Chavez v. Public Estates Authority,384 SCRA 152 (2002), at 179 and 181.


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6713 or the Code of Conduct and Ethical Standards for Public Officialsand Employees provides that public officials and employees shall not useor divulge confidential or classified information officially known to themby reason of their office and not made available to the public to prejudicethe public interest.

Executive privilege covers all confidential or classified informationbetween the President and the public officers covered by this ExecutiveOrder, including:

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

(ii) Military, diplomatic and other national security maters which in theinterest of national security should not be divulged (Almonte vs.

Vasquez, G.R. No. 95367, 23 May 1995; Chavez v. PresidentialCommission on Good Government, G.R. No. 130716, 9 December1998);

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

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

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

(b) Who are covered. The following are covered by this executiveorder:

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

(ii) Generals and flag officers of the Armed Forces of the Philippinesand such other officers who in the judgment of the Chief of Staff arecovered by the executive privilege;

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

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

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

SECTION 3. Appearance of Other Public Officials BeforeCongress. All public officials enumerated in Section 2 (b) hereof shallsecure prior consent of the President prior to appearing before eitherHouse of Congress to ensure the observance of the principle ofseparation of powers, adherence to the rule on executive privilege and


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respect for the rights of public officials appearing in inquiries in aid oflegislation.

x x x (Emphasis supplied.)

2. As stated in its preambular clauses, the Executive Order was allegedly

because x x x recent events, particularly with respect to the invitation of a member of

the Cabinet by the Senate as well as various heads of offices, civilian and military, have

highlighted the need to ensure the observance of the principle of separation of powers,

adherence to the rule on executive privilege and respect for the rights of persons

appearing in such inquiries in aid of legislation and due regard to constitutional

mandate.

3. In a statement, Presidential Spokesperson Ignacio Bunye explained that

E.O. 464 expands Memorandum Order No. 112, which was issued by former President

Corazon C. Aquino on 29 September 1987, but basically lays down the ground rules for

attending hearings and that its issuance was made in response to certain legislative

inquiries made by Congress.

4. On 28 September 2005, Brig. Gen. Francisco Gudani, assistant

superintendent of the Philippine Military Academy and Col. Alexander Balutan, Assistant

Commandant of PMA cadets, made a testimony before the Senate committee looking

into the wiretapping issue. The hearing was later held in executive session.

5. Brig. Gen. Gudani was invited to attend a Senate hearing based on

Senate Resolution No. 295, Directing the Committee on National Defense and

Security to Conduct an Inquiry, In Aid of Legislation, on the Wiretapping of the President

of the Republic. The resolution aimed at reviewing existing laws to provide for security

of communications in the highest command authority of the government considering the

fact that no less than the President of the Republic, the Commander-In-Chief of its

armed forces could be wiretapped presents a clear and present danger and constitutes a

very serious threat to national security;


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6. After said testimony, however, the Armed Forces of the Philippines issued

a statement that B/Gen Gudani and Lt/C. Balutan disobeyed a legal order and would

have to suffer the consequences of their actions. The two officers were relieved of their

assignments. In addition, Lt. Gen. Generoso Senga, chief of staff of the Armed Forces

of the Philippines announced that GUdani and Balutan would face court martial

proceedings for disobeying a legal order from the President. The penalty was based on

the power of President Arroyo upholding the sanctions of the AFP leadership allegedly

in the name of military discipline and obedience to the chain of command.

7. Further, following an invitation to General Generoso S. Senga, on 27

September 2005, he wrote a letter to Senator Rodolfo Biazon regretting that he and

other senior officers of the AFP could not attend the public hearing of the Committee on

National Defense and Security scheduled on 28 September 2005 due to pressing

operational situation that demands my utmost attention. Likewise, some of the invited

AFP officers are currently attending to other urgent operational matters. He

recognized, however the significance of said hearing to national security as well as their

obligation to be personally present together with the other invited officers.

8. The following day, however, on 28 September 2005, General Senga

wrote a letter to Senator Biazon stating that: per instruction of Her Excellency

President Gloria Macapagal Arroyo, thru the Secretary of National Defense, no officer of

the Armed Forces of the Philippines is authorized to appear before any Senate or

Congressional hearings without seeking a written approval from the President.

9. Furthermore, on 29 September 2005, the Senate committee conducted

an investigation on the governments North Rail Project, resulting from a privilege

speech delivered by Senator Juan Ponce Enrile last February urging the Senate to

investigate the alleged overpricing and other unlawful provisions of the contract. Said

investigation stemmed from a $503-million project involving the rehabilitation of a 32-


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km. railway, which was awarded to the China National Machinery and Equipment Corp.

(CNMEC) using loans secured from Chinas Export-import Bank (Eximbank).

10. In the said Senate hearing scheduled on 29 September 2005, Budget

Secretary Romulo Neri, Transportation Secretary Leandro Mendoza and Presidential

Chief Legal Counsel Mercedita Gutierrez were absent. Their absence was based on E.O.

464.

11. Atty. Efren Gonzales, Assistant Government Corporate Counsel appeared

before a Senate inquiry into the controversial 503-million dollar Northrail project. He

maintained that although he did not have permission to appear in the hearing, he could

sill do so because he was not covered by the Presidents Executive Order 464. Midway

through the Senate hearing, Atty. Gonzales told senators he received a message from

his wife and secretary that his office had been padlocked.

12. The penalty imposed on the two military officers for appearing before the

Senate on 27 September, the refusal of the Cabinet Secretaries to appear before the

Northrail inquiry on 29 September, and the sanctions imposed on Atty. Gonzales, are all

based on the absence of the written permission from the President. The instances

described above, occurring in a short period of three days, already reveal the impact of

EO 464. The requirement works to defeat the mandate to hold legislative inquiries

which are and should be constitutionally guaranteed and which are used to access

information that is otherwise kept secret to the public.


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ISSUE

THE MAIN ISSUE IN THIS PETITION IS WHETHER OR NOT THE EXECUTIVE

COMMITTED GRAVE ABUSE OF DISCRETION AMOUNTING TO LACK OR

EXCESS OF JURISDICTION IN ISSUING EXECUTIVE ORDER NO. 464.

The resolution of this principal issue depends, in turn, on

the resolution of the constitutional issues raised at the outset of

this petition, to wit:

1) IS E.O. 464 NULL AND VOID FOR BEING

UNCONSTITUTIONAL AS IT VIOLATES ARTICLE III, SECTION 7

OF THE CONSTITUTION, WHICH GUARANTEES THE RIGHT OF

THE PEOPLE TO INFORMATION ON MATTERS OF PUBLIC

CONCERN?


UNCONSTITUTIONAL AS IT GOES AGAINST ARTICLE II, SECTION

28 OF THE CONSTITUTION, WHICH PROVIDES THAT THE STATE

ADOPTS AND IMPLEMENTS A POLICY OF FULL PUBLIC

DISCLOSURE OF ALL ITS TRANSACTIONS INVOLVING PUBLIC

INTEREST?


UNCONSTITUTIONAL AS IT VIOLATES ARTICLE XI, SECTION 1

OF THE CONSTITUTION, WHICH PROVIDES THAT PUBLIC

OFFICERS AND EMPLOYEES MUST AT ALL TIMES BE

ACCOUNTABLE TO THE PEOPLE?


UNCONSTITUTIONAL AS IT TRANSGRESSES ARTICLE III,

SECTION 4, WHICH GUARANTEES THE FREEDOM OF SPEECH, OF

EXPRESSION, AND OF THE PRESS, AND THE RIGHT OF THE

PEOPLE PEACABLY TO ASSEMBLE AND PETITION THE

GOVERNMENT FOR REDRESS OF GRIEVANCES?


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UNCONSTITUTIONAL FOR VIOLATING ARTICLE XIII, SECTION

16, WHICH GUARANTES THE RIGHT OF THE PEOPLE AND THEIR

ORGANIZATIONS TO EFFECTIVE AND REASONABLE

PARTICIPATION AT ALL LEVELS OF SOCIAL, POLITICAL, AND

ECONOMIC DECISION-MAKING?


UNCONSTITUTIONAL AS IT VIOLATES ARTICLE VI, SECTION 21

OF THE CONSTITUTION, WHICH PROVIDES THAT THE SENATE

OR THE HOUSE OF REPRESENTATIVES OR ANY OF ITS

RESPECTIVE COMMITTEES MAY CONDUCT INQUIRIES IN AID OF

LEGISLATION IN ACCORDANCE WITH ITS DULY PUBLISHED

RULES OF PROCEDURE?

The petitioner respectfully submits that, in issuing and implementing

the questioned E.O. 464, the Executive acted with grave abuse of discretion

amounting to lack or excess of jurisdiction and violated the clear provisions of

the 1987 Constitution. The respondents implementation of such void and

unconstitutional order is a continuing commission of grave abuse of

discretion amounting to lack or excess of jurisdiction and a clear

transgression of the Constitution. Such unlawful implementation of the

unconstitutional order must, perforce, be stopped and the respondent and all

others acting on the basis of the questioned E.O. 464 must be directed to

strictly comply with the mandates of the Constitution.

DISCUSSION

Before the discussion of the constitutional issues, it is important to establish the

petitioners legal personality to impugn the validity of E.O. 464. In fact, the issue of

the petitioners standing to file this case is as important as, and integral to, the

constitutional issues raised. Thus, the Petition shall first deal with this issue.


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PETITIONER HAS THE REQUISITE STANDINGTO INSTITUTE THE PRESENT ACTION

THE PETITIONER HAS THE LEGALSTANDING AS AN ORGANIZATION OF

CITIZENS OF THE PHILIPPINES WHOHAVE PERSONAL AND SUBSTANTIAL

INTEREST IN THE OUTCOME OF THE

CASE.

1. Petitioner respectfully submits that, as an organization of citizens of the

Philippines seeking to enforce a Constitutional right, Petitioner has standing to sue upon

this suit to declare unconstitutional Executive Order No. 464. Furthermore, Petitioner

claims that, being a matter of transcendental importance, this Honorable Court must

take cognizance of this case and brush aside procedural requirements in order to

perform its Constitutional duty to determine whether or not there has been grave

abuse of discretion amounting to a lack or excess of jurisdiction on the part of any

branch or instrumentality of the government.4 As Mr. Justice Isagani A. Cruz declared

in his dissenting opinion in the case ofGuazon v. De Villa,5 It is not only the owner

of the burning house who has a right to call the firemen. Everyone has the right and

responsibility to prevent the fire from spreading even if he lives in the other block.

2. At the outset, it bears emphasis that in Chavez v. PEA-Amari,6 this

Honorable Court categorically stated:

The petitioner has standing to bring this taxpayer's suitbecause the petition seeks to compel PEA to comply with itsconstitutional duties. There are two constitutional issuesinvolved here. First is the right of citizens to information onmatters of public concern. x x x

Moreover, the petition raises matters of transcendentalimportance to the public. In Chavez v. PCGG, the Court upheld theright of a citizen to bring a taxpayer's suit on matters of transcendentalimportance to the public, thus

"Besides, petitioner emphasizes, the matter of recovering

the ill-gotten wealth of the Marcoses is an issue of'transcendental importance to the public.' He asserts thatordinary taxpayers have a right to initiate and prosecuteactions questioning the validity of acts or orders of

4 PHIL CONST. art. VIII, 15 181 SCRA 6236 384 SCRA 152


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government agencies or instrumentalities, if the issuesraised are of 'paramount public interest,' and if they'immediately affect the social, economic and moral wellbeing of the people.'

Moreover, the mere fact that he is a citizen satisfies therequirement of personal interest, when the proceeding involvesthe assertion of a public right, such as in this case. He invokesseveral decisions of this Court which have set aside the procedural matterof locus standi, when the subject of the case involved public interest.

xxx xxx xxx

In Taada v. Tuvera, the Court asserted that when the issueconcerns a public right and the object of mandamus is to obtainthe enforcement of a public duty, the people are regarded as thereal parties in interest; and because it is sufficient that

petitioner is a citizen and as such is interested in the executionof the laws, he need not show that he has any legal or specialinterest in the result of the action. In the aforesaid case, thepetitioners sought to enforce their right to be informed onmatters of public concern, a right then recognized in Section 6, ArticleIV of the 1973 Constitution, in connection with the rule that laws in orderto be valid and enforceable must be published in the Official Gazette orotherwise effectively promulgated. In ruling for the petitioners' legalstanding, the Court declared that the right they sought to be enforced 'isa public right recognized by no less than the fundamental law of theland.'

Legaspi v. Civil Service Commission, while reiterating Taada,further declared that 'when a mandamus proceeding involves theassertion of a public right, the requirement of personal interest issatisfied by the mere fact that petitioner is a citizen and,therefore, part of the general 'public' which possesses the right.'

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

economic development of the country and the magnitude of the financialconsideration involved.'

We concluded that, as a consequence, the disclosureprovision in the Constitution would constitute sufficientauthority for upholding the petitioner's standing.

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

We rule that since the instant petition, brought by acitizen, involves the enforcement of constitutional rights toinformation and to the equitable diffusion of natural resources


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matters of transcendental public importance, the petitioner hasthe requisite locus standi. (emphasis supplied)

3. It is submitted that the doctrines laid down by this Honorable Court find

direct bearing to the present case.

PETITIONER IS A GROUP OF CITIZENSOF THE PHILIPPINES SEEKING TOENFORCE A CONSTITUTIONAL RIGHT.

4. The settled rule is that the party who impugns the validity of a statute

must have a personal and substantial interest in the case such that the said party has

sustained, or will sustain direct injury as a result of its enforcement.7 It must appear

that the person complaining has been or is about to be denied some right or privilege to

which the said party is lawfully entitled or that the said party is in danger of being

subjected to some burdens or penalties by reason of the statute complained of. These

requirements, the Petitioner humbly submits, are adequately met in this case.

5. This Honorable Court has ruled that when suing as a citizen, the interest

of the petitioner assailing the constitutionality of a statute must be direct and personal.

The citizenmust be able to show, not only that the law or any government act is invalid,

but also that s/he sustained or is in imminent danger of sustaining some direct injury as

a result of its enforcement, and not merely that s/he suffers thereby in some indefinite

way. It must appear that the person complaining has been or is about to be denied

some right or privilege to which s/he is lawfully entitled or that s/he is about to be

subjected to some burdens or penalties by reason of the statute or act complained of.8

6. However, the Court, in the recent case ofFrancisco et. al. v. House

Speaker et. al.9 clarified this when it ruled that when the proceeding involves the

assertion of a public right, the mere fact that he is a citizen satisfies the requirement of

7 People v. Vera, 65 Phil. 56 (1937).8 Agan v. PIATCO, G.R. No. 155001, May 5, 2003 citingBAYAN v. Zamora, 342 SCRA 449, 562-563

[2000]; Gonzales v. Narvasa,, 337 SCRA 733 [2000]; TELEBAP v. COMELEC, 289 SCRA 337 [1998].9 G.R. 160261, November 10, 2003


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personal interest.10 This reiterates the case of Taada v. Tuvera11 where the

Honorable Court said that when the issue concerns a public right, it is sufficient that the

petitioner is a citizen and as such is interested in the execution of the laws. Thus, the

petitioner need not show that s/he has any legal or special interest in the result of the

action.

7. In this case, the Petitioner has satisfied the two basic requisites laid down

by jurisprudence12 to sustain petitioners legal standing, to wit: (1) the enforcement of a

public right, and (2) espousal of the said right by a Filipino citizen. Indeed, herein

Petitioner is a group of citizens of the Philippines, part of the general public, who are

seeking to enforce their right to information on matters of public concern, a right

recognized by the Constitution as accruing to persons on the basis of citizenship. 13 As a

group of citizens of the Philippines, therefore, the Petitioner is entitled as a matter of

Constitutional fiat to information denied to the public by the assailed Executive Order.

Such interest gives the Petitioner standing to demand access to the information

sought.14

THIS CASE INVOLVESCONSTITUTIONAL ISSUES THAT AREOF TRANSCENDENTAL IMPORTANCE

8. The Petitioner respectfully asks this Honorable Court to rule on the

substantial constitutional issues raised herein because of their transcendental

10 This is a reiteration of the early decisions, most notably, Severino v. Governor General (16 Phil. 366,378 [1910]), where the court has recognized the right of citizens to file petitions to enforce a publicright. The Court said:

We are therefore of the opinion that the weight of authority supports the proposition that therelator is a proper party to the proceedings of this character when a public right is sought tobe enforced. If the general rule in America were otherwise, we think that it would not beapplicable to the case at bar for the reason that it is always dangerous to apply a general ruleto a particular case without keeping in mind the reason for the rule, because, if under theparticular circumstances the reason for the rule does not exist, the rule itself is not applicableand reliance upon the rule may well lead to error.

No reason exists in the case at bar for applying the general rule insisted upon by counsel forrespondent. The circumstances which surround this case area different from those in theUnited States, inasmuch as if the relator is not a proper party to these proceedings no otherperson could be, as we have seen that it is not the duty of the law officer of the Governmentto appear and represent the people in cases of this character.

11 136 SCRA 27, 36-37 (1985).12 Chavez v. PEA-Amari Coastal Bay Development Corporation, 384 SCRA 152 [2002]13 PHIL. CONST. 6, art. III.


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importance to public interest. As early as the Emergency Power Cases,15 this Honorable

Court has allowed suits where serious constitutional issues are involved, notwithstanding

the absence of direct interest in the subject of the litigation, since, the transcendental

importance to the public of these cases demands that they be settled promptly and

definitely, brushing aside technicalities of procedure. More particularly, the Court

said16:

Nevertheless, where a most compelling reason exists, such as when thematter is of transcendental importance and paramount interest to thenation, the Court must take the liberal approach that recognizes the legalstanding of nontraditional plaintiffs, such as citizens and taxpayers, to

raise constitutional issues that affect them. This Court thus did so in acase that involves the conservation of our forests for ecological needs.Until an exact balance is struck, the Court must accept an eclectic notionthat can free itself from the bondage of legal nicety and hold trenchanttechnicalities subordinate to what may be considered to be of overridingconcern.

9. This same liberal policy on locus standi has been applied by this

Honorable Court in various cases where the petitioner was able to craft an issue of

transcendental significance to the people, as when the issues raised involve public

rights.17

10. In the discussion above and in the succeeding discussion, the Petitioner

has sufficiently shown that the constitutional questions raised in this petition are of

transcendental significance to the life of the nation and of its people. The issues raised

herein go to the very heart of our system of government, its built-in safeguard of checks

and balances, as well as the basic right of its citizens to information on matters of public

concern.

14 BERNAS, THE 1987 CONSTITUTION OF THE REPUBLIC OF THE PHILIPPINES: A COMMENTARY952 (2003).15 Araneta v. Dinglasan, 84 Phil. 368; Rodriguez v. Gella, 93 Phil. 603.16 Cruz v. Secretary of DENR, G.R. No. 135385, December 6, 2000.17 Araneta v. Dinglasan, 84 Phil. 368 (1949); Kilosbayan, Inc. v. Morato, 250 SCRA 130 (1995); Tatad v.

Secretary of the Department of Energy, 281 SCRA 330 (1997); Santiago v. COMELEC, 270 SCRA 106(1997); KMU v. Garcia, Jr., 239 SCRA 386 (1994); Joya v. PCGG, 225 SCRA 368 (1993); Carpio v.Executive Secretary, 206 SCRA 290 (1992); Osmea v. COMELEC, 199 SCRA 750 (1991); Basco v.PAGCOR, 197 SCRA 52 (1991); Guingona v. Carague, 196 SCRA 221 (1991); Francisco et al. v. HouseSpeaker et al (G.R. 160261, November 10, 2003).


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11. Indeed, objections to citizens suits for lack of sufficient personality or

interest are, in the main, procedural matters.18 Considering the importance to the public

interest of the case at bar, and in keeping with the Courts duty, under the Constitution,

to determine whether or not the other branches of government have kept themselves

within the limits of the Constitution and the laws and that they have not abused the

discretion given to them, the Court must take cognizance of this case and rule upon the

arguments put forward in this petition.

12. Considering the foregoing, the petitioner has the personality to institute

the present petition.

THE PRESENT CONTROVERSY DOES NOT CONSTITUTEA POLITICAL QUESTION

13. Petitioner respectfully submits that the instant case does not pose a

political question and that any attempt on the part of the government to foist such

doctrine on the Court should be thwarted. The assailed executive order, issued as it was

with protestations of executive privilege and separation of powers, is subject to the

scrutiny of this Court for having been issued with grave abuse of discretion. While it is

admitted that the doctrine of political questions, in certain defined instances, is still a

limitation on the power of judicial review, it is respectfully submitted that in no way can

the instant case be regarded as one involving a truly political question.

14. In Osmena v. COMELEC, the Supreme Court held that:

What is involved here is the legality, not the wisdom of Republic Act7056. And even if we were to assume that the issue presented before usis political in nature, We would still not be precluded from resolving itunder the expanded jurisdiction conferred upon us that now covers inproper cases even political questions (Daza v. Singson, 180 SCRA 496),provided naturally, that the question is not solely and exclusively political(as when the Executive extends recognition to a foreign government) butone which really necessitates a forthright determination ofconstitutionality, involving as it does a question of national importance.

18 Kapatiran ng mga Naglilingkod Sa Pamahalaan ng Pilipinas, Inc. v. Hon. Bienvenido Tan, G.R. No. L-81311, June 30, 1988; Bugnay Construction and Development Corporation, v. Hon. Crispin C. Laron,G.R. No. 79983, August 10, 1989.


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On the other procedural issues raised, We held as early asin the Emergency Power Cases (Araneta v. Dinglasan, 84Phil. 368; Rodriguez v. Gella 93 Phil. 603) that whereserious constitutional questions are involved, "thetranscendental importance to the public of these casesdemands that they be settled promptly and definitely,brushing aside if we must, technicalities of procedure."

xx xx xxThe language of Justice Laurel fits the case: "All await the decision of thisCourt on the constitutional question. Considering, therefore, theimportance which the instant case has assumed and to preventmultiplicity of suits, strong reasons of public policy demand that (its)constitutionality . . . be now resolved." It may likewise be added that theexceptional character of the situation that confronts us, the paramountpublic interest and the undeniable necessity for ruling, the nationalelection being barely six months away reinforce our stand.

It would appear undeniable, therefore, that before us is an appropriateinvocation of our jurisdiction to prevent the enforcement of an allegedunconstitutional statute. We are left with no choice then; we must act onthe matter.

xx xx xx

To summarize, on the procedural issue, We hold in view of the foregoingconsiderations, that the issue presented to us in the case at bar, isjusticiable rather than political. Even if the question were political innature, it would still come within our powers of review under theexpanded jurisdiction conferred upon us by Article VIII, Section 1 of the1987 Constitution, which includes the authority to determine whethergrave abuse of discretion amounting to excess or lack of jurisdiction hasbeen committed by any branch or instrumentality of the government. Asfor the other alleged procedural flaws lack of court standing, etc.,assuming the existence of such flaws, the same may be brushed aside,conformably with existing doctrine so that the important constitutionalissue raised may be addressed.

Accordingly, We are left with no other alternative but to uphold thejurisdiction of the Court over the present cases. It goes without sayingthat We do this not because the Court is superior to the Executive and/orLegislative but simply because the Executive, the Legislative and this

Court are subject to the Constitution as the supreme law.19

15. Furthermore, the Supreme Court, in Taada v. Cuenco, defined political

questions as "those questions which, under the Constitution, are to be decided by the

people in their sovereign capacity, or in regard to which full discretionary authority has

been delegated to the legislative or executive branch of the government."20 (Italics

supplied.)

19 G.R. No. 100318 (1991)


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16. The assailed executive order deals with public officials appearing in

legislative inquiries in aid of legislation pursuant to Article VI, Section 22 of the 1987

Constitution. The language of this provision is such that there are limitations to the

allowed participation of the President in case Congress should require the presence of

public officials for purposes of legislative inquiry. 21 It is not, therefore, one where full

discretionary authority has been delegated to the legislative or executive branch of the

government."

17. Whether the Presidents executive order exceeds these constitutionally

imposed limitations is a proper subject of judicial review, which is not so much a power

of the Court as it is a duty imposed by the Constitution. It is, after all, the only means by

which the Judiciary participates in the balancing of powers that is fundamental to our

form of government. A balancing which is indispensable, not only for maintaining our

government as a democracy, but for safeguarding fundamental rights and liberties of

the people.22 Besides, as Fr. Joaquin G. Bernas, S.J., has observed, the Supreme Court

has, in the past, swept aside invocations of the political question doctrine and assumed

jurisdiction over cases whenever it has found that there are constitutionally imposed

limitson the exercise of powers conferred.23

18. In his concurring opinion in the IBP v. Zamoracase, Justice Renato Puno

also had occasion to observe that:

We should not water down the ruling that deciding whether a matter hasbeen committed by the Constitution to another branch of government, orwhether the action of that branch exceeds whatever authority has beencommitted, is a delicate exercise in constitutional interpretation, and is aresponsibility of the Court as ultimate interpreter of the fundamental law.When private justiciable rights are involved in a suit, the Court must not

20 L-10520, February 28, 196521 SECTION 22. The heads of departments may upon their own initiative, with the consent of the

President, or upon the request of either House, as the rules of each House shall provide, appear before andbe heard by such House on any matter pertaining to their departments. Written questions shall besubmitted to the President of the Senate or the Speaker of the House of Representatives at least three daysbefore their scheduled appearance. Interpellations shall not be limited to written questions, but may covermatters related thereto. When the security of the State or the public interest so requires and the Presidentso states in writing, the appearance shall be conducted in executive session.22 Florentino P. Florenciano, The Application of Law: Some Recurring Aspects of the Process of JudicialReview and Decision Making 37 American Journal of Jurisprudence 17, expanded version of a 1990 SherrillLecture delivered at the Yale Law School, 4 December 199023 Bernas, The 1987 Constitution of the Republic of the Philippines: A Commentary, 861 (1996)


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refuse to assume jurisdictioneven though questions of extreme politicalimportance are necessarily involved. 24

19. After all, while the doctrine of political question can still be used, in

certain instances, to avoid passing upon some questions, the new phraseology of

Section 1, Article VIII of the 1987 Constitution has made sure that the Court cannot

hide behind the doctrine when "grave abuse of discretion" is committed. Not even

when the highest executive authority commits it. Besides, the doctrine speaks of

deference in light of political questions, never of political cases.

THE PETITION POSES AN ACTUAL CONTROVERSY

20. A requisite for the exercise of judicial review is that there must be an

actual case or controversy, one which involves a conflict of legal rights, an assertion of

opposite legal claims susceptible of judicial resolution,25 and that the question before it

must be ripe for adjudication, that is, the governmental act being challenged has had a

direct adverse effect on the individual challenging it.26

21. InAngara v. Electoral Commission,27 the Court had occasion to rule that

when the actions of one branch of the government conflicts with that of another, there

is an actual case that is ripe for judicial review:

When the judiciary mediates to allocate constitutional boundaries, it doesnot assert any superiority over the other departments; it does not inreality nullify or invalidate an act of legislature, but only asserts thesolemn and sacred obligation assigned to it by the Constitution todetermine conflicting claims of authority the rights which that instrumentsecures and guarantees to them. This is in truth all that is involved inwhat is termed judicial supremacy which properly is the power ofjudicial review under the Constitution.

This power of judicial review is limited to actual cases and controversiesto be exercised after full opportunity of argument by the parties, and

24 338 SCRA 121 (2000)25 Joya v. PCGG, G.R. No. 96541, August 24, 199326 PACU v. Secretary of Education, 97 Phil. 806, 810 (1955); Tan v. Macapagal, 43 SCRA 678 (1972).27 63 Phil 139 (1936).


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limited further to the constitutional question raised or the very lis motapresented.

Here is then presented an actual controversy involving as it does aconflict of a grave constitutional nature between the National Assemblyon the one hand, and the Electoral Commission on the other. From thevery nature of the republican government established in ourcountry in the light of American experience and of our own,upon the judicial department is thrown the solemn andinescapable obligation of interpreting the Constitution anddefining constitutional boundaries. (Emphasis supplied)

22. E.O. 464 has already been implemented, and that fact alone is prejudicial

to the rights of Petitioner. As stated earlier, the consequences of the participation of

Gudani, Balutan, and Gutierrez in the Senate inquiry, and the circumstances of the non-

participation of Gen. Senga, and Secretaries Neri, Mendoza and Gutierrez, had shown

that the implementation of the questioned Executive Order had already interfered with

the Senate inquiry and prevented the participation of government officials therein.

Officials who have participated in the Senate inquiry had been penalized pursuant to the

questioned Executive Order. Those who were supposed to participate had been

effectively prevented from such participation in the Senate inquiry. Thus, information

on matters of public concern had already been withheld from the public. The public

duty to disclose information on matters of public concern had already been breached.

23. The power of the courts to declare a law unconstitutional arises only

when the interests of litigants require the use of that judicial authority for their

protection against actual interference, a hypothetical threat being insufficient.28 The

injury that Petitioners are sustaining by the enactment of E.O. 464 cannot be deemed a

mere hypothetical threat. The certainty of sanctions in case of a failure to follow the said

Executive Order exposes violators to immediate injury. In fact, this Honorable Court has

already ruled that a threat of sustaining immediate injury is sufficient to warrant judicial

review:

28 PACU v. Secretary of Education, 97 Phil. 806 (1955), citingUnited Public Works v. Mitchell, 336 US 75.


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With particular regard to the requirement of proper party as applied inthe cases before us, we hold that the same is satisfied by the petitionersand intervenors because each of them has sustained or is in danger ofsustaining an immediate injury as a result of the acts ormeasures complained of.29 (Emphasis supplied)

24. In Taada v. Angara,30 the Court held:

In seeking to nullify an act of the Philippine Senate on theground that it contravenes the Constitution, the petition nodoubt raises a justiciable controversy. Where an action of thelegislative branch is seriously alleged to have infringed the Constitution, itbecomes not only the right but in fact the duty of the judiciary to settlethe dispute. xxx Once a controversy as to the application or

interpretation of constitutional provision is raised before this Court (as inthe instant case), it becomes a legal issue which the Court is bound byconstitutional mandate to decide. (Emphasis supplied)

25. It is significant to note that the Court has adopted the policy of taking

jurisdiction over cases whenever the petitioner has seriously and convincingly presented

an issue of transcendental significance to the Filipino people.31 The Court categorically

ruled:

The question of propriety of the instant petition which may appear to bevisited by the vice of prematurity as there are no ongoing proceedings inany tribunal, board or before a government official exercising judicial,quasi-judicial or ministerial functions as required by Rule 65 of the Rulesof Court dims in light of the importance of the constitutional issues raisedby the petitioner.32

PETITIONER MAY SEEK RECOURSE DIRECTLYWITH THIS HONORABLE COURT

26. It is not denied that the Supreme Court is a court of last resort, and must

so remain if it is to satisfactorily perform the functions assigned to it by the fundamental

charter and immemorial tradition.33 However, in cases involving compelling issues and

those which are of paramount interest and importance may be directly filed with this

29 Association of Small Landowners in the Philippines, Inc. v. Secretary of Agrarian Reform, SOURCE,citingEx Parte Levitt, 303 US 633. (Emphasis supplied)

30

SOURCE31 Macalintal v. Comelec, G.R No. 157013 (July 10, 2003).32 Id.33 See Uy v. Contreras, supra; Manalo v. Gloria, 236 SCRA 130 [1994]; People v. Court of Appeals, 301

SCRA 566 (1999).


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Honorable Court. Thus, in Kilosbayan v. Guingona,34 this Honorable Court brushed aside

the hierarchy of courts due to the importance of the issues therein to determine

whether or not the branches have kept themselves within the limits of the Constitution

and the laws and that they have not abused the discretion given to them

27. In Chavez v. PEA-Amari, this Honorable Court had occasion to state:

PEA and AMARI claim petitioner ignored the judicial hierarchy by seekingrelief directly from the Court. The principle of hierarchy of courts appliesgenerally to cases involving factual questions. As it is not a trier of facts,

the Court cannot entertain cases involving factual issues. The instantcase, however, raises constitutional issues of transcendental importanceto the public. 22 The Court can resolve this case without determining anyfactual issue related to the case. Also, the instant case is a petition formandamus which falls under the original jurisdiction of the Court underSection 5, Article VIII of the Constitution. We resolve to exercise primaryjurisdiction over the instant case.

28. Moreover, in Santiago v. Vasquez,35 this Honorable Court ruled that

petitions for certiorari, prohibition, or mandamus, though cognizable by other courts,

may directly be filed with the Supreme Court if the redress desired cannot be obtained

in the appropriate courts or where exceptional compelling circumstances justify

availment of a remedy within and calling for the exercise of our primary jurisdiction.

The petition shall now go to the substantial constitutional issues.

EXECUTIVE ORDER NO. 464VIOLATES THE PUBLIC RIGHT TO INFORMATION.

THE PUBLIC RIGHT TO INFORMATIONIS A CONSTITUTIONALLY

GUARANTEED RIGHT.

29. The Bill of Rights in the 1987 Constitution provides that

The right of the people to information on matters of publicconcern shall be recognized. Access to official records, and todocuments, and papers pertaining to official acts, transactions, ordecisions, as well as to government research data used as basis

34 232 SCRA 110.35 205 SCRA 152.


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for policy development, shall be afforded the citizen, subject tosuch limitations as may be provided by law.36

30. This right, under the Constitution, is a self-executory right. It is a public

right where the real parties-in-interest are the people. As if to underscore the peculiar

nature of the provisions under the Bill of Rights, Commissioner Bernas, in his

sponsorship speech differentiated the rights under the Bill of Rights and those under

Social Justice as follows:37

The principal concern of the Bill of Rights is strictly on thetraditional freedoms of liberal constitutionalism. The principalcharacteristic of these traditional freedoms is that they guaranteefreedom from the state and protection against the state, and they do notneed any further implementing action by the legislature. They are limitson the legislature and every other official person or body. I mentionedthis because in recent years, largely through the influence of socialismand with the abundant help from the Popes and from communicators likeus and so forth, there have arisen what are called social and economicrights. In the scheme of our work, I consider these social and economicrights as principally the concern of other committees, particularly of theCommittee on Social Justice. What distinguished these new rights fromthe traditional liberties in the Bill of Rights is that, in the strict sense, they

are not rights which operate without implementing legislation, but ratherthey are more properly claims or demands on state. They needimplementing action by the state. Without implementing action, theygenerally cannot be enforced against anybody by judicial action. So whatwe are dealing with are those which are operative by themselves and donot need implementing action. (emphasis supplied)

31. This Honorable Court has had occasion to pass upon the self-executing

nature of the right to information embodied in the Constitution. As held in the cases of

Legaspi vs. CSC38

and Aquino-Sarmiento vs. Morato39

, the constitutional right toinformation is self-executory. This provision after all, supplies the rules by means of

which the right to information may be enjoyed40 by guaranteeing the right and

mandating the duty to afford access to sources of information. Hence, the fundamental

right therein recognized may be asserted by the people upon the ratification of the

Constitution without need for any ancillary act of the Legislature.41

36 Section 7, Article III, 1987 Constitution37 I RECORD OF THE CONSTITUTIONALCOMMISSION 686 (1986).38 150 SCRA 530 (1987).39 203 SCRA 515 (1991).40 Cooley, A Treatise on the Constitutional Limitations 167 (1972);See alsoPhilippine National Bank vs.Gancayco, 15 SCRA 91 (1965) and Perez vs. Alpuerto, 200 SCRA 591 (1991).41 Cooley, A Treatise on the Constitutional Limitations 165 (1972);See alsoAlmonte vs. Vasquez, 244SCRA 286 (1995).


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32. The Supreme Court has held that the right to information is not a private

right, but a public right, which may be asserted by any citizen. It is an attribute of

sovereignty in a republican system. The sovereign has the right of access to information

on matters of public concern as part of its governing power. Correspondingly, on the

part of the representative lies the duty to afford access to such information.42 There can

be no realistic perception by the public of the nations problems, nor a meaningful

democratic decision-making if they are denied access to information of general

interest.43 The free flow of information about the affairs of government paves the way

for debate in public policy, and fosters accountability in government. The peoples right

to official information is not only a political imperative.44

PUBLIC INFORMATION INCLUDESINFORMATION VITAL TO LEGISLATION

LEGITIMATELY REQUESTED BY

CONGRESS.

33. A legislative inquiry, in aid of legislation, is a source of information on

matters of public concern. A legislative inquiry is, in itself, a matter of public concern.

34. Article VI, Section 21, of the 1987 Constitution provides that

The Senate or the House of Representatives or any of itsrespective committees may conduct inquiries in aid of legislation inaccordance with its duly published rules of procedure.

35. The subject matter with which the Legislative can inquire into is

unlimited. In the case ofArnault vs. Nazareno, the Supreme Court has said that, It

would be difficult to define any limits by which the subject matter of its (Congress)

inquiry can be bounded.45

42 Nepomuceno A. Malaluan, Democracy, Development and Access to Official Information in the

Philippines, Action for Economic Reforms (April 2001). (Paper presented at the Conference on theFreedom of Information and Civil Society in Asia held at the Aoyanna-Gakuin University in Tokyo, Japanon 13-14 April 2001. The conference was organized by the International Clearinghouse Japan and attendedby delegates from Japan, Indonesia, Thailand, India, South Korea and the Philippines.)43 Baldoza vs. Hon.Dimaano, 71 SCRA 14 (1976).44 Nepomuceno A. Malaluan, Securing Greater Government Transparencyin Action for EconomicReforms. (This short piece was published in the Yellow Pad column of the 25 June 2002 issue of theBusinessWorld.)45 Arnault vs. Nazareno, 87 Phil. 29, at 46.


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36. More often than not, the sources of this information are the public

officials under the Executive Branch of government. Every matter drawn out through

the process of legislative inquiry thus becomes a matter of public concern. Being a

matter of public concern, then the public in general has the right to know about it.

THE RIGHT TO PUBLIC INFORMATIONPREVAILS OVER EXECUTIVE

PRIVILEGE.

37. The exercise of a privilege cannot prevail over the exercise of a right,

more so, if that right is a public one enshrined in the Constitution. Thus, the privilege of

the executive in withholding or disclosing information cannot take precedence over the

public right to information on matters of public concern. The privilege must be

exercised in consideration of the public right to information.

38. Since this constitutionally-guaranteed right prevails over the privilege of

the Chief Executive, then the latter cannot curtail nor prevent the exercise of this right,

even through the issuance of an executive fiat.

39. Executive issuances, like the assailed E.O., must conform to the

Constitution, and existing laws and statutes. They cannot arrogate some form of validity

or legality unto themselves. Otherwise, though stamped with the imprimatur of the

highest public official of the land, they shall be void and have no force and effect of law.

EXECUTIVE ORDER NO. 464 VIOLATESTHE POLICY OF FULL PUBLIC DISCLOSURE.

THE POLICY OF PUBLIC DISCLOSUREIS ENSHRINED IN THE1987CONSTITUTION.

40. Article II, Section 28, of the 1987 Constitution provides:

Subject to reasonable conditions prescribed by law, the State adopts andimplements a policy of full public disclosure of all its transactionsinvolving public interest.


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41. The policy of full public disclosure, though not self-executory, is

complementary to the public right to information under the Bill of Rights. According to

constitutional law expert Bernas:

(T)he right to information guarantees the right of the people to demandinformation; this provision recognizes the duty of officialdom to give informationeven if nobody demands.46

A LEGISLATIVE INQUIRY IS A VENUEFOR THE EXERCISE OF THIS POLICY.

42. Legislative inquiries, in aid of legislation, are venues for the full and public

disclosure of governmental transactions involving public interest. Certain contracts and

transactions entered into by Government have to be examined and inquired into as a

necessary means to enact proper legislation to either strengthen or correct such

transactions.

43. The assailed Executive Order infringes upon this policy in that it tries to

stifle the full and public disclosure of governmental transactions involving public interest

by restricting the public officials concerned from making such disclosures.

EXECUTIVE ORDER NO. 464 VIOLATESTHE PRINCIPLE OF ACCOUNTABILITY OF PUBLIC OFFICIALS.

44. Article XI, Section 1, of the 1987 Constitution provides:

Public office is a public trust. Public officers and employees must at alltimes be accountable to the people, serve them with utmostresponsibility, integrity, loyalty, and efficiency, act with patriotism andjustice, and lead modest lives.

THE PUBLIC RIGHT TO INFORMATIONAND THE POLICY OF FULL PUBLIC

DISCLOSURE ARE ESSENTIAL TO THE

ACCOUNTABILITY OF PUBLIC

OFFICIALS.

45. In the case of Chavez vs. PEA47, the Supreme Court held that

46 Bernas, The 1987 Constitution of the Republic of the Philippines: A Commentary, 1996 ed., at 93.47 Chavez v. Public Estates Authority, 384 SCRA 152 (2002), at 184.


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Sec. 7, Art. III, and Sec. 28, Art. II, of the Constitution seek topromote transparency in policy-making and in the operations of thegovernment, as well as provide the people sufficient information toexercise effectively other constitutional rights. These twin provisions areessential to the exercise of freedom of expression. If the governmentdoes not disclose its official acts, transactions, and decisions to citizens,whatever citizens say, even if expressed without any restraint will bespeculative and amount to nothing. These twin provisions are alsoessential to hold public officials at all times x x x accountable to thepeople, for unless citizens have the proper information, they cannot holdpublic officials accountable for anything. Armed with the rightinformation, citizens can participate in public discussions leading to theformulation of government policies and their effective implementation.An informed citizenry is essential to the existence and proper functioningof any democracy.

46. If the public right to information and the policy of full public disclosure

are restricted or, worse, curtailed, then the accountability of public officials is likewise

restricted or curtailed. This goes against the grain of good governance and renders as

nugatory the constitutional declaration of public office as a public trust.

UNDER THE DOCTRINE OFSEPARATION OF POWERS,THERE IS A CHECK-AND-BALANCEFUNCTION BETWEEN THE CO-EQUALBRANCHES OF GOVERNMENT.

47. The system of public accountability, under the doctrine of separation of

powers, allows for checks and balances between the co-equal branches of

government. The net effect of this is that, in general, no one branch of government is

able to act without the cooperation of at least one of the other branches. The purpose

of separation of powers and checks and balances is to prevent concentration of

powers in one department and thereby to avoid tyranny.48

LEGISLATIVE INQURIES,IN AID OF

LEGISLATION,ARE AN INTEGRAL ANDNECESSARY PART OF THE CHECK-AND-BALANCE FUNCTION.

48 Bernas, 603.


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48. Congress, as a co-equal branch of government, more often than not,

exercises its check-and-balance function or responsibility through the inquiries it

conducts in aid of legislation. It is through the legislative inquiry that Congress would

be able to examine the acts and decisions of the executive branch and tell whether

legislation is needed to address such acts or decisions. In a sense, therefore, the

accountability of the officials from the executive branch are highlighted, as an inquiry

into executive acts and decisions necessarily has implications on how they have held

themselves out to the people.

49. Executive Order No. 464 denies Congress of its checks and balances

function. Its enactment verily hampers or restricts a vital mechanism for the

accountability of public officials, rendering the constitutional declaration of public office

as a public trust nugatory.

THE EXECUTIVE ORDER UNDERMINED THE ROLE OF THE LEGISLATURE,THEREBY VIOLATING THE PRINCIPLE OF SEPARATION OF POWERS.

50. The executive branchs reliance on the principle of separation of powers

as its legal basis for the questioned Executive Order is misplaced. It actually violated this

fundamental principle of democracy.

51. The doctrine of separation of powers is intended to prevent a

concentration of authority in one person or group of persons that might lead to an

irreversible error or abuse in its exercise to the detriment of our republican institutions.

It is intended to secure action, to forestall overaction, to prevent despotism and obtain

efficiency.49

49 Cruz, Philippine Political Law, 57.


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52. The principle of separation of powers essentially means that the

legislature is generally limited to the enactment of laws and may not enforce or apply

them; the executive to the enforcement of laws and may not enact or apply them; and

the judiciary to the application and interpretation of laws and may not enact or enforce

them. Separation of powers does not however mean that the branches of the

government are independent of each otherthe keynote of conduct of the various

agencies of the government under the doctrine of separation of powers, as properly

understood, is not independence but interdependence.50

53. E.O. 464 violated the principle of separation of powers when it effectively

defeats the power of Congress to call on any witness it deems material and relevant in

the conduct its constitutional obligation of law making and its power of inquiry. It

prescribes sweeping prior restraint, as exercised by the President, on public officials to

appear when requested to do so by either House, thereby undermining the role of the

legislature, a co-equal and independent body, in the performance of its constitutional

obligation of law making. It goes against the principle of separation of powers when it

refused to abide by the principles of cooperation and insisted on separateness, thereby

undermining governmental coordination and interdependence.

54. Implicit from the express power of legislation is the power of legislative

investigations inquiry in aid of legislation. The recent series of Senate investigations

are in fact an exercise of legislative power. For instance, the 28 September Senate

Hearing was aimed at study[ing] existing laws to provide for security of

communications in the highest command authority of the government in view of the

wiretapping of the President of the Republic.51 Subsequent to the issuance of E.O. 464,

all possible resource persons to the Senate inquiries either did not appear before the

Senate or voluntarily excused themselves from the hearings per instruction of the

50 Id, at 75.51 Senate Resolution No. 295.


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President that no officer of the AFP is authorized to appear before any legislative

investigation.

55. InArnault vs. Nazareno,52 the Honorable Supreme Court observed that

the power of inquiry is an essential and appropriate auxiliary to the legislative function.

A legislative body cannot legislate wisely or effectively in the absence of information

respecting the conditions which the legislation is intended to effect or

change.Recourse must be had to others who do possess it. Due to the issuance of EO

464, the Senate was effectively prevented from acquiring information that would have

aided it in its legislative functions.

56. By requiring essentially all officials of the executive department to secure

consent from the President prior to their appearance before legislative investigations,

and with the President bent on withholding such consent, E.O. 464 effectively prohibits

all executive officials from appearing before legislative investigations, unduly hampering

the exercise by the legislature of its powers and performance of its constitutional

obligations.

EO 464 GRANTS THE PRESIDENT THE POWER OF PRIOR RESTRAINT ONPUBLIC OFFICIALS TO APPEAR BEFORE CONGRESSIONAL INQUIRY.

57. The prerogative of the legislature to call on members of the executive in

order that it may properly exercise its law-making mandate under the Constitution is

underscored in the following provision of the Constitution, which says in part:

The heads of departments may upon their own initiative, with theconsent of the President, or upon the request of either House, as therules of each House shall provide, appear before and be heard by suchHouse on any matter pertaining to their departments.53

52 GR L-3820, 18 July 1950.53 Art. VI, Sec. 22.


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58. From the above, it is significant to note that the disjunctive or

contemplates two situations when the department heads may appear before a legislative

inquiry. First, when they do so on their own initiative; and second, when their

appearance is requested by either House of Congress. Clearly, in the first instance, it is

necessary that there be prior permission of the President, as it is qualified by the clause,

with the consent of the President. This qualification is however not present in the

second instance. Hence, when requested by either House of Congress, there need not

be prior consent of the President or the Chief Executive.54

59. It must be noted that the quoted portion of the Constitution appears

under Article VI, the article on the Legislative, and not in the article on the Executive,

further indicating that this provision pertains more to the exercise of the Legislative of

its powers of inquiry, and not to the Executives power over Executive officials.

60. The foregoing provision finds greater weight and meaning when

contrasted with the express authority conferred by the 1935 Constitution upon the

President to prohibit the department heads from appearing before any House if the

public interest so required when the President stated the same in writing. Article VI,

Section 24 of the 1935 Constitutional provision states:

The heads of departments upon their own initiative or

upon the request of either House may appear before andbe heard by such House on any matter pertaining to theirdepartments unless the public interest shall requireotherwise and the President shall so state in writing.

61. The 1987 Constitution has indeed come a long way. It has done away

with the ability of the President to have the discretion or latitude to refuse reporting

before the legislative body or its committees by the simple expediency of raising public

interest concern. The intent is clear in the light of the context from which the 1987

constitution proceeded, i.e., from a state of martial law and one-man rule.

54 SeeIsagani Cruz, Separate Opinion: Executive Order No.464, Inquirer News Service first posted 1:09am(Mla time) Oct.1, 2005.


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62. E.O. 464 retards and reverses this pr

sc petition eo464

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