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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.