Consti Cases (privileges).pdf

E. Privileges 1. In re: Bermudez G.R. No. 76180 October 24, 1986 IN RE: SATURNINO V. BERMUDEZ, petitioner. R E S O L U T IO N PER CURIAM: In a petition for declaratory relief impleading no respondents, petitioner, as a lawyer, quotes the first paragraph of Section 5 (not Section 7 as erroneously stated) of Article XVIII of the proposed 1986 Constitution, which provides in full as follows: Sec. 5. The six-year term of the incumbent President and Vice-President elected in the February 7, 1986 election is, for purposes of synchronization of elections, hereby extended to noon of June 30, 1992. The first regular elections for the President and Vice-President under this Constitution shall be held on the second Monday of May, 1992. Claiming that the said provision "is not clear" as to whom it refers, he then asks the Court "to declare and answer the question of the construction and definiteness as to who, among the present incumbent President Corazon Aquino and Vice-President Salvador Laurel and the elected President Ferdinand E. Marcos and Vice-President Arturo M. Tolentino being referred to under the said Section 7 (sic) of ARTICLE XVIII of the TRANSITORY PROVISIONS of the proposed 1986 Constitution refers to, . ... The petition is dismissed outright for lack of jurisdiction and for lack for cause of action. Prescinding from petitioner's lack of personality to sue or to bring this action, (Tan vs. Macapagal, 43 SCRA 677), it is elementary that this Court assumes no jurisdiction over petitions for declaratory relief. More importantly, the petition amounts in effect to a suit against the incumbent President of the Republic, President Corazon C. Aquino, and it is equally

elementary that incumbent Presidents are immune from suit or from being brought to court during the period of their incumbency and tenure. The petition furthermore states no cause of action. Petitioner's allegation of ambiguity or vagueness of the aforequoted provision is manifestly gratuitous, it being a matter of public record and common public knowledge that the Constitutional Commission refers therein to incumbent President Corazon C. Aquino and Vice-President Salvador H. Laurel, and to no other persons, and provides for the extension of their term to noon of June 30, 1992 for purposes of synchronization of elections. Hence, the second paragraph of the cited section provides for the holding on the second Monday of May, 1992 of the first regular elections for the President and Vice-President under said 1986 Constitution. In previous cases, the legitimacy of the government of President Corazon C. Aquino was likewise sought to be questioned with the claim that it was not established pursuant to the 1973 Constitution. The said cases were dismissed outright by this court which held that: Petitioners have no personality to sue and their petitions state no cause of action. For the legitimacy of the Aquino government is not a justiciable matter. It belongs to the realm of politics where only the people of the Philippines are the judge. And the people have made the judgment; they have accepted the government of President Corazon C. Aquino which is in effective control of the entire country so that it is not merely a de facto government but in fact and law a de jure government. Moreover, the community of nations has recognized the legitimacy of tlie present government. All the eleven members of this Court, as reorganized, have sworn to uphold the fundamental law of the Republic under her government. (Joint Resolution of May 22, 1986 in G.R. No. 73748 [Lawyers League for a Better Philippines, etc. vs. President Corazon C. Aquino, et al.]; G.R. No. 73972 [People's Crusade for Supremacy of the Constitution. etc. vs. Mrs. Cory Aquino, et al.]; and G.R. No. 73990 [Councilor Clifton U. Ganay vs. Corazon C. Aquino, et al.]) For the above-quoted reason, which are fully applicable to the petition at bar, mutatis mutandis, there can be no question that President Corazon C. Aquino and Vice-President Salvador H. Laurel are the incumbent and legitimate President and Vice-President of the Republic of the Philippines.or the above-quoted reasons, which are fully applicable to the petition at bar,

ACCORDINGLY, the petition is hereby dismissed. Teehankee, C.J., Feria, Yap, Fernan, Narvasa, Alampay and Paras, JJ., concur. MELENCIO-HERRERA, J., concurring: GUTIERREZ, Jr., J., concurring: FELICIANO, JJ., concurring. The petitioner asks the Court to declare who are "the incumbent President and Vice President elected in the February 7, 1986 elections" as stated in Article XVIII, Section 5 of the Draft Constitution adopted by the Constitutional Commission of 1986. We agree that the petition deserves outright dismissal as this Court has no original jurisdiction over petitions for declaratory relief. As to lack of cause of action, the petitioner's prayer for a declaration as to who were elected President and Vice President in the February 7, 1986 elections should be addressed not to this Court but to other departments of government constitutionally burdened with the task of making that declaration. The 1935 Constitution, the 1913 Constitution as amended, and the 1986 Draft Constitution uniformly provide 'that boards of canvassers in each province and city shall certified who were elected President and Vice President in their respective areas. The certified returns are transmitted to the legislature which proclaims, through the designated Presiding Head, who were duty elected. Copies of the certified returns from the provincial and city boards of canvassers have not been furnished this Court nor is there any need to do so. In the absence of a legislature, we cannot assume the function of stating, and neither do we have any factual or legal capacity to officially declare, who were elected President and Vice President in the February 7, 1986 elections. As to who are the incumbent President and Vice President referred to in the 1986 Draft Constitution, we agree that there is no doubt the 1986

Constitutional Commission referred to President Corazon C. Aquino and Vice President Salvador H. Laurel. Finally, we agree with the Resolution of the Court in G.R. Nos. 73748, 73972, and 73990. For the foregoing reasons, we vote to DISMISS the instant petition. CRUZ, J., concurring: I vote to dismiss this petition on the ground that the Constitution we are asked to interpret has not yet been ratified and is therefore not yet effective. I see here no actual conflict of legal rights susceptible of judicial determination at this time. (Aetna Life Insurance Co. vs. Haworth, 300 U.S. 227; PACU vs. Secretary of Education, 97 Phil. 806.)

2. Soliven v. Makasiar G.R. No. 82585 November 14, 1988 MAXIMO V. SOLIVEN, ANTONIO V. ROCES, FREDERICK K. AGCAOLI, and GODOFREDO L. MANZANAS, petitioners, 
 vs.
 THE HON. RAMON P. MAKASIAR, Presiding Judge of the Regional Trial Court of Manila, Branch 35, UNDERSECRETARY SILVESTRE BELLO III, of the Department of Justice, LUIS C. VICTOR, THE CITY FISCAL OF MANILA and PRESIDENT CORAZON C. AQUINO, respondents. G.R. No. 82827 November 14, 1988 LUIS D. BELTRAN, petitioner, 
 vs.
 THE HON. RAMON P. MAKASIAR, Presiding Judge of Branch 35 of the Regional Trial Court, at Manila, THE HON. LUIS VICTOR, CITY FISCAL OF MANILA, PEOPLE OF THE PHILIPPINES, SUPERINTENDENT OF THE WESTERN POLICE DISTRICT, and THE MEMBERS OF THE PROCESS SERVING UNIT AT THE REGIONAL TRIAL COURT OF MANILA, respondents. G.R. No. 83979 November 14, 1988. LUIS D. BELTRAN, petitioner, 
 vs.
 EXECUTIVE SECRETARY CATALINO MACARAIG, SECRETARY OF JUSTICE SEDFREY ORDOÑEZ, UNDERSECRETARY OF JUSTICE SILVESTRE BELLO III, THE CITY FISCAL OF MANILA JESUS F. GUERRERO, and JUDGE RAMON P. MAKASIAR, Presiding Judge of Branch 35 of the Regional Trial Court, at Manila, respondents. Angara, Abello, Concepcion, Regala and Cruz for petitioners in G.R. No. 82585. Perfecto V. Fernandez, Jose P. Fernandez and Cristobal P. Fernandez for petitioner in G.R. Nos. 82827 and 83979. RESOLUTION

PER CURIAM: In these consolidated cases, three principal issues were raised: (1) whether or not petitioners were denied due process when informations for libel were filed against them although the finding of the existence of a prima faciecase was still under review by the Secretary of Justice and, subsequently, by the President; (2) whether or not the constitutional rights of Beltran were violated when respondent RTC judge issued a warrant for his arrest without personally examining the complainant and the witnesses, if any, to determine probable cause; and (3) whether or not the President of the Philippines, under the Constitution, may initiate criminal proceedings against the petitioners through the filing of a complaint-affidavit. Subsequent events have rendered the first issue moot and academic. On March 30, 1988, the Secretary of Justice denied petitioners' motion for reconsideration and upheld the resolution of the Undersecretary of Justice sustaining the City Fiscal's finding of a prima facie case against petitioners. A second motion for reconsideration filed by petitioner Beltran was denied by the Secretary of Justice on April 7, 1988. On appeal, the President, through the Executive Secretary, affirmed the resolution of the Secretary of Justice on May 2, 1988. The motion for reconsideration was denied by the Executive Secretary on May 16, 1988. With these developments, petitioners' contention that they have been denied the administrative remedies available under the law has lost factual support. It may also be added that with respect to petitioner Beltran, the allegation of denial of due process of law in the preliminary investigation is negated by the fact that instead of submitting his counter- affidavits, he filed a "Motion to Declare Proceedings Closed," in effect waiving his right to refute the complaint by filing counter-affidavits. Due process of law does not require that the respondent in a criminal case actually file his counter-affidavits before the preliminary investigation is deemed completed. All that is required is that the respondent be given the opportunity to submit counteraffidavits if he is so minded. The second issue, raised by petitioner Beltran, calls for an interpretation of the constitutional provision on the issuance of warrants of arrest. The pertinent provision reads:

Art. III, Sec. 2. The right of the people to be secure in their persons, houses, papers and effects against unreasonable searches and seizures of whatever nature and for any purpose shall be inviolable, and no search warrant or warrant of arrest shall issue except upon probable cause to be determined personally by the judge after examination nder oath or affirmation of the complainant and the witnesses he may produce, and particularly describing the place to be searched and the persons or things to be seized. The addition of the word "personally" after the word "determined" and the deletion of the grant of authority by the 1973 Constitution to issue warrants to "other responsible officers as may be authorized by law," has apparently convinced petitioner Beltran that the Constitution now requires the judge to personally examine the complainant and his witnesses in his determination of probable cause for the issuance of warrants of arrest. This is not an accurate interpretation. What the Constitution underscores is the exclusive and personal responsibility of the issuing judge to satisfy himself of the existence of probable cause. In satisfying himself of the existence of probable cause for the issuance of a warrant of arrest, the judge is not required to personally examine the complainant and his witnesses. Following established doctrine and procedure, he shall: (1) personally evaluate the report and the supporting documents submitted by the fiscal regarding the existence of probable cause and, on the basis thereof, issue a warrant of arrest; or (2) if on the basis thereof he finds no probable cause, he may disregard the fiscal's report and require the submission of supporting affidavits of witnesses to aid him in arriving at a conclusion as to the existence of probable cause. Sound policy dictates this procedure, otherwise judges would be unduly laden with the preliminary examination and investigation of criminal complaints instead of concentrating on hearing and deciding cases filed before their courts. On June 30, 1987, the Supreme Court unanimously adopted Circular No. 12, setting down guidelines for the issuance of warrants of arrest. The procedure therein provided is reiterated and clarified in this resolution. It has not been shown that respondent judge has deviated from the prescribed procedure. Thus, with regard to the issuance of the warrants of

arrest, a finding of grave abuse of discretion amounting to lack or excess of jurisdiction cannot be sustained. Anent the third issue, petitioner Beltran argues that "the reasons which necessitate presidential immunity from suit impose a correlative disability to file suit." He contends that if criminal proceedings ensue by virtue of the President's filing of her complaint-affidavit, she may subsequently have to be a witness for the prosecution, bringing her under the trial court's jurisdiction. This, continues Beltran, would in an indirect way defeat her privilege of immunity from suit, as by testifying on the witness stand, she would be exposing herself to possible contempt of court or perjury. The rationale for the grant to the President of the privilege of immunity from suit is to assure the exercise of Presidential duties and functions free from any hindrance or distraction, considering that being the Chief Executive of the Government is a job that, aside from requiring all of the office holder's time, also demands undivided attention. But this privilege of immunity from suit, pertains to the President by virtue of the office and may be invoked only by the holder of the office; not by any other person in the President's behalf. Thus, an accused in a criminal case in which the President is complainant cannot raise the presidential privilege as a defense to prevent the case from proceeding against such accused. Moreover, there is nothing in our laws that would prevent the President from waiving the privilege. Thus, if so minded the President may shed the protection afforded by the privilege and submit to the court's jurisdiction. The choice of whether to exercise the privilege or to waive it is solely the President's prerogative. It is a decision that cannot be assumed and imposed by any other person. As regards the contention of petitioner Beltran that he could not be held liable for libel because of the privileged character or the publication, the Court reiterates that it is not a trier of facts and that such a defense is best left to the trial court to appreciate after receiving the evidence of the parties. As to petitioner Beltran's claim that to allow the libel case to proceed would produce a "chilling effect" on press freedom, the Court finds no basis at this stage to rule on the point.

The petitions fail to establish that public respondents, through their separate acts, gravely abused their discretion as to amount to lack of jurisdiction. Hence, the writs of certiorari and prohibition prayed for cannot issue. WHEREFORE, finding no grave abuse of discretion amounting to excess or lack of jurisdiction on the part of the public respondents, the Court Resolved to DISMISS the petitions in G. R. Nos. 82585, 82827 and 83979. The Order to maintain the status quo contained in the Resolution of the Court en banc dated April 7, 1988 and reiterated in the Resolution dated April 26, 1988 is LIFTED. Fernan, C.J., Narvasa, Melencio-Herrera, Cruz, Paras, Feliciano, Gancayco, Padilla, Bidin, Sarmiento, Cortes, Griño-Aquino Medialdea and Regalado, JJ., concur. Separate Opinions

GUTIERREZ, JR., J., concurring: I concur with the majority opinion insofar as it involves the three principal issues mentioned in its opening statement. However, as to the more important issue on whether or not the prosecution of the libel case would produce a "chilling effect" on press freedom, I beg to reserve my vote. I believe this is the more important issue in these petitions and it should be resolved now rather that later. Consistent with our decision in Salonga v. Cruz Pano (134 SCRA 438 [1985]), the Court should not hesitate to quash a criminal prosecution in the interest of more enlightened and substantial justice where it is not alone the criminal liability of an accused in a seemingly minor libel case which is involved but broader considerations of governmental power versus a preferred freedom. We have in these four petitions the unusual situation where the highest official of the Republic and one who enjoys unprecedented public support asks for the prosecution of a newspaper columnist, the publisher and

chairman of the editorial board, the managing editor and the business manager in a not too indubitable a case for alleged libel. I am fully in accord with an all out prosecution if the effect will be limited to punishing a newspaperman who, instead of observing accuracy and fairness, engages in unwarranted personal attacks, irresponsible twisting of facts, of malicious distortions of half-truths which tend to cause dishonor, discredit, or contempt of the complainant. However, this case is not a simple prosecution for libel. We have as complainant a powerful and popular President who heads the investigation and prosecution service and appoints members of appellate courts but who feels so terribly maligned that she has taken the unorthodox step of going to court inspite of the invocations of freedom of the press which would inevitably follow. I believe that this Court should have acted on this issue now instead of leaving the matter to fiscals and defense lawyers to argue before a trial judge. There is always bound to be harassment inherent in any criminal prosecution. Where the harassment goes beyond the usual difficulties encountered by any accused and results in an unwillingness of media to freely criticize government or to question government handling of sensitive issues and public affairs, this Court and not a lower tribunal should draw the demarcation line. As early as March 8, 1918, the decision in United States v. Bustos (37 Phil. 731) stated that "(c)omplete liberty to comment on the conduct of public men is a scalpel in the case of free speech. The sharp incision of its probe relieves the abscesses of officialdom. Men in public life may suffer under a hostile and unjust accusation; the wound can be assuaged with the balm of a clear conscience." The Court pointed out that while defamation is not authorized, criticism is to be expected and should be borne for the common good. In People v. Perfecto (43 Phil. 887 [1922]), the Court stated: xxx xxx xxx ... No longer is there a Minister of the Crown own or a person in authority of such exalted position that the citizen must speak of him only with bated breath. "In the eye of our Constitution and laws, every man is a sovereign,

a ruler and a freeman, and has equal rights with every other man." (at p. 900) In fact, the Court observed that high official position, instead of affording immunity from slanderous and libelous charges, would actually invite attacks by those who desire to create sensation. It would seem that what would ordinarily be slander if directed at the typical person should be examined from various perspectives if directed at a high government official. Again, the Supreme Court should draw this fine line instead of leaving it to lower tribunals. This Court has stressed as authoritative doctrine in Elizalde v. Gutierrez (76 SCRA 448 [1977]) that a prosecution for libel lacks justification if the offending words find sanctuary within the shelter of the free press guaranty. In other words, a prosecution for libel should not be allowed to continue, where after discounting the possibility that the words may not be really that libelous, there is likely to be a chilling effect, a patently inhibiting factor on the willingness of newspapermen, especially editors and publishers to courageously perform their critical role in society. If, instead of merely reading more carefully what a columnist writes in his daily column, the editors tell their people to lay off certain issues or certain officials, the effect on a free press would be highly injurious. Because many questions regarding press freedom are left unanswered by our resolution, I must call attention to our decisions which caution that "no inroads on press freedom should be allowed in the guise of punitive action visited on what otherwise should be characterized as libel." (Lopez v. Court of Appeals, 34 SCRA 117 [1970]; See also the citations in Elizalde v. Gutierrez, supra). The United States Supreme Court is even more emphatic, to wit: In deciding the question now, we are compelled by neither precedent nor policy to give any more weight to the epithet "libel" than we have to other "mere labels" of state law. N. A. A. C. P. v. Button, 371 US 415, 429, 9L ed 2d 405, 415, 83 S Ct 328. Like insurrection, contempt, advocacy of unlawful acts, breach of the peace, obscenity, solicitation of legal business, and the other various other formulae for the repression of expression that have been challenged in this Court, libel can claim no talismanic immunity from constitutional limitations. It must be measured by standards that satisfy the First Amendment.

xxx xxx xxx Those who won our independence believed ... that public discussion is a political duty; and that this should be a fundamental principle of the American government. They recognized the risk to which all human institutions are subject. But they knew that order cannot be secured merely through fear of punishment for its infraction; that it is hazardous to discourage thought, hope and imagination; that fear breeds repression; that repression breeds hate; that hate menaces stable government; that the path of safety lies in the opportunity to discuss freely supposed grievances and proposed remedies; and that the fitting remedy for evil counsel is good ones. Believing in the power of reason as applied through public discussion, they eschewed silence coerced by law—the argument of force in its worst form. ... Thus we consider this case against the background of a profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide open, and that it may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials. ... (at pp. 700-701) Shunting aside the individual liability of Mr. Luis Beltran, is there a prima facie showing that Messrs. Maximo Soliven, Antonio V. Roces, Frederick K. Agcaoili, and Godofredo L. Manzanas knowingly participated in a wilful purveying of falsehood? Considering the free speech aspects of these petitions, should not a differentiated approach to their particular liabilities be taken instead of lumping up everybody with the offending columnist? I realize that the law includes publishers and editors but perhaps the "chilling effect" issue applies with singular effectivity to publishers and editors vis-avis newspaper columnists. There is no question that, ordinarily, libel is not protected by the free speech clause but we have to understand that some provocative words, which if taken literally may appear to shame or disparage a public figure, may really be intended to provoke debate on public issues when uttered or written by a media personality. Will not a criminal prosecution in the type of case now before us dampen the vigor and limit the variety of public debate? There are many other questions arising from this unusual case which have not been considered. I, of course, concur with the Court's opinion because it has decided to limit the issues to narrowly drawn ones. I see no reason to disagree with the way the Court has resolved them. The first issue on prematurity is moot.

The second issue discusses a procedure now embodied in the recently amended Rules of Court on how a Judge should proceed before he issues a warrant of arrest. Anent the third issue, considerations of public policy dictate that an incumbent President should not be sued. At the same time, the President cannot stand by helplessly bereft of legal remedies if somebody vilifies or maligns him or her. The Court has decided to defer the "chilling effect" issue for a later day. To this, I take exception. I know that most of our fiscals and judges are courageous individuals who would not allow any considerations of possible consequences to their careers to stand in the way of public duty. But why should we subject them to this problem? And why should we allow the possibility of the trial court treating and deciding the case as one for ordinary libel without bothering to fully explore the more important areas of concern, the extremely difficult issues involving government power and freedom of expression. However, since we have decided to defer the "chilling effect" issue for a later day, I limit myself to reiterating the dissenting words of Mr. Justice Jackson in the American case of Beaurnhais v. Illinois (343 U. S. 250) when he said: If one can claim to announce the judgment of legal history on any subject, it is that criminal libel laws are consistent with the concept of ordered liberty only when applied with safeguards evolved to prevent their invasion of freedom of expression. In the trial of the libel case against the petitioners, the safeguards in the name of freedom of expression should be faithfully applied. Separate Opinions GUTIERREZ, JR., J., concurring: I concur with the majority opinion insofar as it involves the three principal issues mentioned in its opening statement. However, as to the more important issue on whether or not the prosecution of the libel case would produce a "chilling effect" on press freedom, I beg to reserve my vote. I believe this is the more important issue in these petitions and it should be resolved now rather that later.

Consistent with our decision in Salonga v. Cruz Pano (134 SCRA 438 [1985]), the Court should not hesitate to quash a criminal prosecution in the interest of more enlightened and substantial justice where it is not alone the criminal liability of an accused in a seemingly minor libel case which is involved but broader considerations of governmental power versus a preferred freedom. We have in these four petitions the unusual situation where the highest official of the Republic and one who enjoys unprecedented public support asks for the prosecution of a newspaper columnist, the publisher and chairman of the editorial board, the managing editor and the business manager in a not too indubitable a case for alleged libel. I am fully in accord with an all out prosecution if the effect will be limited to punishing a newspaperman who, instead of observing accuracy and fairness, engages in unwarranted personal attacks, irresponsible twisting of facts, of malicious distortions of half-truths which tend to cause dishonor, discredit, or contempt of the complainant. However, this case is not a simple prosecution for libel. We have as complainant a powerful and popular President who heads the investigation and prosecution service and appoints members of appellate courts but who feels so terribly maligned that she has taken the unorthodox step of going to court inspite of the invocations of freedom of the press which would inevitably follow. I believe that this Court should have acted on this issue now instead of leaving the matter to fiscals and defense lawyers to argue before a trial judge. There is always bound to be harassment inherent in any criminal prosecution. Where the harassment goes beyond the usual difficulties encountered by any accused and results in an unwillingness of media to freely criticize government or to question government handling of sensitive issues and public affairs, this Court and not a lower tribunal should draw the demarcation line. As early as March 8, 1918, the decision in United States v. Bustos (37 Phil. 731) stated that "(c)omplete liberty to comment on the conduct of public men is a scalpel in the case of free speech. The sharp incision of its probe relieves the abscesses of officialdom. Men in public life may suffer under a hostile and unjust accusation; the wound can be assuaged with the balm of a clear conscience." The Court pointed out that while defamation is not

authorized, criticism is to be expected and should be borne for the common good. In People v. Perfecto (43 Phil. 887 [1922]), the Court stated: xxx xxx xxx ... No longer is there a Minister of the Crown own or a person in authority of such exalted position that the citizen must speak of him only with bated breath. "In the eye of our Constitution and laws, every man is a sovereign, a ruler and a freeman, and has equal rights with every other man." (at p. 900) In fact, the Court observed that high official position, instead of affording immunity from slanderous and libelous charges, would actually invite attacks by those who desire to create sensation. It would seem that what would ordinarily be slander if directed at the typical person should be examined from various perspectives if directed at a high government official. Again, the Supreme Court should draw this fine line instead of leaving it to lower tribunals. This Court has stressed as authoritative doctrine in Elizalde v. Gutierrez (76 SCRA 448 [1977]) that a prosecution for libel lacks justification if the offending words find sanctuary within the shelter of the free press guaranty. In other words, a prosecution for libel should not be allowed to continue, where after discounting the possibility that the words may not be really that libelous, there is likely to be a chilling effect, a patently inhibiting factor on the willingness of newspapermen, especially editors and publishers to courageously perform their critical role in society. If, instead of merely reading more carefully what a columnist writes in his daily column, the editors tell their people to lay off certain issues or certain officials, the effect on a free press would be highly injurious. Because many questions regarding press freedom are left unanswered by our resolution, I must call attention to our decisions which caution that "no inroads on press freedom should be allowed in the guise of punitive action visited on what otherwise should be characterized as libel." (Lopez v. Court of Appeals, 34 SCRA 117 [1970]; See also the citations in Elizalde v. Gutierrez, supra). <äre||anº•1àw>

The United States Supreme Court is even more emphatic, to wit:

In deciding the question now, we are compelled by neither precedent nor policy to give any more weight to the epithet "libel" than we have to other "mere labels" of state law. N. A. A. C. P. v. Button, 371 US 415, 429, 9L ed 2d 405, 415, 83 S Ct 328. Like insurrection, contempt, advocacy of unlawful acts, breach of the peace, obscenity, solicitation of legal business, and the other various other formulae for the repression of expression that have been challenged in this Court, libel can claim no talismanic immunity from constitutional limitations. It must be measured by standards that satisfy the First Amendment. xxx xxx xxx Those who won our independence believed ... that public discussion is a political duty; and that this should be a fundamental principle of the American government. They recognized the risk to which all human institutions are subject. But they knew that order cannot be secured merely through fear of punishment for its infraction; that it is hazardous to discourage thought, hope and imagination; that fear breeds repression; that repression breeds hate; that hate menaces stable government; that the path of safety lies in the opportunity to discuss freely supposed grievances and proposed remedies; and that the fitting remedy for evil counsel is good ones. Believing in the power of reason as applied through public discussion, they eschewed silence coerced by law—the argument of force in its worst form. ... Thus we consider this case against the background of a profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide open, and that it may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials. ... (at pp. 700-701) Shunting aside the individual liability of Mr. Luis Beltran, is there a prima facie showing that Messrs. Maximo Soliven, Antonio V. Roces, Frederick K. Agcaoili, and Godofredo L. Manzanas knowingly participated in a wilful purveying of falsehood? Considering the free speech aspects of these petitions, should not a differentiated approach to their particular liabilities be taken instead of lumping up everybody with the offending columnist? I realize that the law includes publishers and editors but perhaps the "chilling effect" issue applies with singular effectivity to publishers and editors vis-avis newspaper columnists. There is no question that, ordinarily, libel is not protected by the free speech clause but we have to understand that some

provocative words, which if taken literally may appear to shame or disparage a public figure, may really be intended to provoke debate on public issues when uttered or written by a media personality. Will not a criminal prosecution in the type of case now before us dampen the vigor and limit the variety of public debate? There are many other questions arising from this unusual case which have not been considered. I, of course, concur with the Court's opinion because it has decided to limit the issues to narrowly drawn ones. I see no reason to disagree with the way the Court has resolved them. The first issue on prematurity is moot. The second issue discusses a procedure now embodied in the recently amended Rules of Court on how a Judge should proceed before he issues a warrant of arrest. Anent the third issue, considerations of public policy dictate that an incumbent President should not be sued. At the same time, the President cannot stand by helplessly bereft of legal remedies if somebody vilifies or maligns him or her. The Court has decided to defer the "chilling effect" issue for a later day. To this, I take exception. I know that most of our fiscals and judges are courageous individuals who would not allow any considerations of possible consequences to their careers to stand in the way of public duty. But why should we subject them to this problem? And why should we allow the possibility of the trial court treating and deciding the case as one for ordinary libel without bothering to fully explore the more important areas of concern, the extremely difficult issues involving government power and freedom of expression. However, since we have decided to defer the "chilling effect" issue for a later day, I limit myself to reiterating the dissenting words of Mr. Justice Jackson in the American case of Beaurnhais v. Illinois (343 U. S. 250) when he said: If one can claim to announce the judgment of legal history on any subject, it is that criminal libel laws are consistent with the concept of ordered liberty only when applied with safeguards evolved to prevent their invasion of freedom of expression. In the trial of the libel case against the petitioners, the safeguards in the name of freedom of expression should be faithfully applied.

3. Almonte v. Vasquez G.R. No. 95367 May 23, 1995 COMMISSIONER JOSE T. ALMONTE, VILLAMOR C. PEREZ, NERIO ROGADO, and ELISA RIVERA, petitioners,
 vs.
 HONORABLE CONRADO M. VASQUEZ and CONCERNED CITIZENS, respondents. MENDOZA, J.: This is a petition for certiorari, prohibition, and mandamus to annul the subpoena duces tecum and orders issued by respondent Ombudsman, requiring petitioners Nerio Rogado and Elisa Rivera, as chief accountant and record custodian, respectively, of the Economic Intelligence and Investigation Bureau (EIIB) to produce "all documents relating to Personal Services Funds for the year 1988 and all evidence, such as vouchers (salary) for the whole plantilla of EIIB for 1988" and to enjoin him from enforcing his orders. Petitioner Jose T. Almonte was formerly Commissioner of the EIIB, while Villamor C. Perez is Chief of the EIIB's Budget and Fiscal Management Division. The subpoena duces tecum was issued by the Ombudsman in connection with his investigation of an anonymous letter alleging that funds representing savings from unfilled positions in the EIIB had been illegally disbursed. The letter, purporting to have been written by an employee of the EIIB and a concerned citizen, was addressed to the Secretary of Finance, with copies furnished several government offices, including the Office of the Ombudsman. The letter reads in pertinent parts: 1 These are the things that I have been observing. During the implementation of E.O. 127 on May 1, 1988, one hundred ninety (190) personnel were dismissed. Before that implementation, we had a monthly savings of P500,000.00 from unfilled plantilla position plus the implementation of RA 6683 wherein seventy (70) regular employees availed a total amount of P1,400,000.00 was saved from the government monthly. The question is, how do they used or disbursed this savings? The

EIIB has a syndicate headed by the Chief of Budget Division who is manipulating funds and also the brain of the so called "ghost agents" or the "Emergency Intelligence Agents" (EIA). The Commissioner of EIIB has a biggest share on this. Among his activities are: a) Supporting RAM wherein he is involved. He gives big amount especially during the Dec. Failed coup. b) Payment for thirty five (30) mini UZI's. c) Payment for the purchased of Maxima '87 for personal used of the Commissioner. d) Another observation was the agents under the Director of NCR EIIB is the sole operating unit within Metro Manila which was approved by no less than the Commissioner due to anomalous activities of almost all agents assigned at the central office directly under the Commissioner. Retired Brig. Gen. Almonte as one of the Anti-Graft board member of the Department of Finance should not tolerate this. However, the Commissioner did not investigate his own men instead, he placed them under the 15-30 payroll. e) Many more which are personal. 2. Sir, my question is this. Can your good office investigate EII intelligence funds particularly Personal Services (01) Funds? I wonder why the Dep't of Budget & Mgmt. cannot compel EIIB to submit an actual filled up position because almost half of it are vacant and still they are releasing it. Are EIIB plantilla position classified? It is included in the Personal Services Itemization (PSI) and I believe it is not classified and a ruling from Civil Service Commission that EIIB is not exempted from Civil Service. Another info, when we had salary differential last Oct '88 all money for the whole plantilla were released and from that alone, Millions were saved and converted to ghost agents of EIA. 3. Another thing that I have observed was the Chief Budget Division possesses high caliber firearms such as a mini UZI, Armalite rifle and two (2) 45 cal. pistol issued to him by the Assistant Commissioner wherein he is not an agent of EIIB and authorized as such according to memorandum order number 283 signed by the President of the Republic of the Philippines effective 9 Jan. 1990.

Another observation was when EIIB agents apprehended a certain civilian who possesses numerous assorted high powered firearms. Agents plus one personnel from the legal proclaimed only five (5) firearms and the remaining was pilfered by them. Another observation is almost all EIIB agents collects payroll from the big time smuggler syndicate monthly and brokers every week for them not to be apprehended. Another observation is the commissioner allocates funds coming from the intelligence funds to the media to sustain their good image of the bureau. In his comment 1 on the letter-complaint, petitioner Almonte denied that as a result of the separation of personnel, the EIIB had made some savings. He averred that the only funds released to his agency by the Department of Budget and Management (DBM) were those corresponding to 947 plantilla positions which were filled. He also denied that there were "ghost agents" in the EIIB and claimed that disbursements for "open" (i.e., "overt" personnel) and "closed" (i.e., "covert" personnel) plantillas of the agency had been cleared by the Commission on Audit (COA); that the case of the 30 Uzis had already been investigated by Congress, where it was shown that it was not the EIIB but an agent who had spent for the firearms and they were only loaned to the EIIB pending appropriation by Congress; that, contrary to the charge that a Maxima car had been purchased for his use, he was using a government issued car from the NICA; that it was his prerogative as Commissioner to "ground" agents in the EIIB main office so that they could be given reorientation and retraining; that the allegation that the EIIB operatives pilfered smuggled firearms was without factual basis because the firearms were the subject of seizure proceedings before the Collector of Customs, Port of Manila; that the EIIB had been uncompromising toward employees found involved in anomalous activities; and that intelligence funds had not been used for media propaganda and if media people went to the EIIB it was because of newsworthy stories. Petitioner asked that the complaint be dismissed and the case considered closed. Similarly petitioner Perez, budget chief of the EIIB, denied in his comment 2 dated April 3, 1990 that savings had been realized from the implementation of E.O. No. 127, since the DBM provided allocations for only the remaining 947 personnel. He said that the disbursement of funds for the plantilla positions for "overt" and "covert" personnel had been

cleared by the COA and that the high-powered firearms had been issued for the protection of EIIB personnel attending court hearings and the Finance Officer in withdrawing funds from the banks. The Graft Investigation Officer of the Ombudsman's office, Jose F. Saño, found the comments unsatisfactory, being "unverified and plying only on generalizations without meeting specifically the points raised by complainant as constitutive of the alleged anomalies." 3 He, therefore, asked for authority to conduct a preliminary investigation. Anticipating the grant of his request, he issued a subpoena 4 to petitioners Almonte and Perez, requiring them to submit their counter-affidavits and the affidavits of their witnesses, as well as a subpoena duces tecum 5 to the Chief of the EIIB's Accounting Division ordering him to bring "all documents relating to Personal Services Funds for the year 1988 and all evidence, such as vouchers (salary) for the whole plantilla of EIIB for 1988." Petitioners Almonte and Perez moved to quash the subpoena and the subpoena duces tecum. In his Order dated June 15, 1990, 6 respondent Ombudsman granted the motion to quash the subpoena in view of the fact that there were no affidavits filed against petitioners. But he denied their motion to quash the subpoena duces tecum. He ruled that petitioners were not being forced to produce evidence against themselves, since the subpoena duces tecum was directed to the Chief Accountant, petitioner Nerio Rogado. In addition the Ombudsman ordered the Chief of the Records a Section of the EIIB, petitioner Elisa Rivera, to produce before the investigator "all documents relating to Personnel Service Funds, for the year 1988, and all documents, salary vouchers for the whole plantilla of the EIIB for 1988, within ten (10) days from receipt hereof." Petitioners Almonte and Perez moved for a reconsideration, arguing that Rogado and Rivera were EIIB employees under their supervision and that the Ombudsman was doing indirectly what he could not do directly, i.e., compelling them (petitioners Almonte and Perez) to produce evidence against themselves. Petitioners' motion was denied in respondent Ombudsman's order dated August 6, 1990. Hence, this petition which questions the orders of June 15, 1990 and August 6, 1990 of respondent Ombudsman. To put this case in perspective it should be stated at the outset that it does not concern a demand by a citizen for information under the freedom of

information guarantee of the Constitution. 7 Rather it concerns the power of the Office of the Ombudsman to obtain evidence in connection with an investigation conducted by it vis-a-vis the claim of privilege of an agency of the Government. Thus petitioners raise the following issues: 8 I. WHETHER OR NOT A CASE BROUGHT ABOUT BY AN UNSIGNED AND UNVERIFIED LETTER COMPLAINT IS AN "APPROPRIATE CASE" WITHIN THE CONCEPT OF THE CONSTITUTION IN WHICH PUBLIC RESPONDENT CAN OBLIGE PETITIONERS BY VIRTUE OF HIS SUBPOENA DUCES TECUM TO PRODUCE TO HIM "ALL DOCUMENTS RELATING TO PERSONAL SERVICES FUNDS FOR THE YEAR 1988 AND ALL EVIDENCES, SUCH AS VOUCHERS (SALARY) FOR THE WHOLE PLANTILLA OF EIIB FOR 1988." II. WHETHER OR NOT "ALL DOCUMENTS RELATING TO PERSONAL SERVICES FUNDS FOR THE YEAR 1988 AND ALL EVIDENCES, SUCH AS VOUCHERS (SALARY) FOR THE WHOLE PLANTILLA OF EIIB FOR 1988" ARE CLASSIFIED AND, THEREFORE, BEYOND THE REACH OF PUBLIC RESPONDENT'S SUBPOENA DUCES TECUM. I. There are several subsidiary issues raised by petitioners, but the principal ones revolve on the question whether petitioners can be ordered to produce documents relating to personal services and salary vouchers of EIIB employees on the plea that such documents are classified. Disclosure of the documents in question is resisted on the ground that "knowledge of EIIB's documents relative to its Personal Services Funds and its plantilla . . . will necessarily [lead to] knowledge of its operations, movements, targets, strategies, and tactics and the whole of its being" and this could "destroy the EIIB." 9 Petitioners do not question the power of the Ombudsman to issue a subpoena duces tecum nor the relevancy or materiality of the documents required to be produced, to the pending investigation in the Ombudsman's office. Accordingly, the focus of discussion should be on the Government's claim of privilege.

A. At common law a governmental privilege against disclosure is recognized with respect to state secrets bearing on military, diplomatic and similar matters. This privilege is based upon public interest of such paramount importance as in and of itself transcending the individual interests of a private citizen, even though, as a consequence thereof, the plaintiff cannot enforce his legal rights. 10 In addition, in the litigation over the Watergate tape subpoena in 1973, the U.S. Supreme Court recognized the right of the President to the confidentiality of his conversations and correspondence, which it likened to "the claim of confidentiality of judicial deliberations." Said the Court in United States v. Nixon: 11 The expectation of a President to the confidentiality of his conversations and correspondence, like the claim of confidentiality of judicial deliberations, for example, has all the values to which we accord deference for the privacy of all citizens and, added to those values, is the necessity for protection of the public interest in candid, objective, and even blunt or harsh opinions in Presidential decision-making. A President and those who assist him must be free to explore alternatives in the process of shaping policies and making decisions and to do so in a way many would be unwilling to express except privately. These are the considerations justifying a presumptive privilege for Presidential communications. The privilege is fundamental to the operation of the government and inextricably rooted in the separation of powers under the Constitution. . . . Thus, the Court for the first time gave executive privilege a constitutional status and a new name, although not necessarily a new birth. 12 "The confidentiality of judicial deliberations" mentioned in the opinion of the Court referred to the fact that Justices of the U.S. Supreme Court and judges of lower federal courts have traditionally treated their working papers and judicial notes as private property. A 1977 proposal in the U.S. Congress that Justices and judges of lower federal courts "should be encouraged to make such arrangements as will assure the preservation and eventual availability of their personal papers, especially the deposit of their papers in the same depository they select for [their] Public Papers" 13 was rebuffed by the Justices who, in a letter to the Chairman of the Subcommittee on Regulation and Government Information of the U.S.

Senate, referred to "difficult concerns respecting the appropriate separation that must be maintained between the legislative branch and this Court." 14 There are, in addition to such privileges, statutorily-created ones such as the Government's privilege to withhold the identity of persons who furnish information of violations of laws. 15 With respect to the privilege based on state secret, the rule was stated by the U.S. Supreme Court as follows: Judicial control over the evidence in a case cannot be abdicated to the caprice of executive officers. Yet we will not go so far as to say that the court may automatically require a complete disclosure to the judge before the claim of privilege will be accepted in any case. It may be possible to satisfy the court, from all the circumstances of the case, that there is a reasonable danger that compulsion of the evidence will expose military matters which, in the interest of national security, should not be divulged. When this is the case, the occasion for the privilege is appropriate, and the court should not jeopardize the security which the privilege is meant to protect by insisting upon an examination of the evidence, even by the judge alone, in chambers. . . . In each case, the showing of necessity which is made will determine how far the court should probe in satisfying itself that the occasion for invoking the privilege is appropriate. Where there is a strong showing of necessity, the claim of privilege should not be lightly accepted, but even the most compelling necessity cannot overcome the claim of privilege if the court is ultimately satisfied that military secrets are at stake. A fortiori, where necessity is dubious, a formal claim of privilege, made under the circumstances of this case, will have to prevail. 16 On the other hand, where the claim of confidentiality does not rest on the need to protect military, diplomatic or other national security secrets but on a general public interest in the confidentiality of his conversations, courts have declined to find in the Constitution an absolute privilege of the President against a subpoena considered essential to the enforcement of criminal laws. 17 B. In the case at bar, there is no claim that military or diplomatic secrets will be disclosed by the production of records pertaining to the personnel of the EIIB. Indeed, EIIB's function is the gathering and evaluation of intelligence

reports and information regarding "illegal activities affecting the national economy, such as, but not limited to, economic sabotage, smuggling, tax evasion, dollar salting." 18 Consequently, while in cases which involve state secrets it may be sufficient to determine from the circumstances of the case that there is reasonable danger that compulsion of the evidence will expose military matters without compelling production, 19 no similar excuse can be made for a privilege resting on other considerations. Nor has our attention been called to any law or regulation which considers personnel records of the EIIB as classified information. To the contrary, COA Circular No. 88-293, which petitioners invoke to support their contention that there is adequate safeguard against misuse of public funds, provides that the "only item of expenditure which should be treated strictly confidential" is that which refers to the "purchase of information and payment of rewards." Thus, part V, No. 7 of the Circular reads: The only item of expenditure which should be treated as strictly confidential because it falls under the category of classified information is that relating to purchase of information and payment of rewards. However, reasonable records should be maintained and kept for inspection of the Chairman, Commission on Audit or his duly authorized representative. All other expenditures are to be considered unclassified supported by invoices, receipts and other documents, and, therefore, subject to reasonable inquiry by the Chairman or his duly authorized representative. 20 It should be noted that the regulation requires that "reasonable records" be kept justifying the confidential or privileged character of the information relating to informers. There are no such reasonable records in this case to substitute for the records claimed to be confidential. The other statutes and regulations 21 invoked by petitioners in support of their contention that the documents sought in the subpoena duces tecum of the Ombudsman are classified merely indicate the confidential nature of the EIIB's functions, but they do not exempt the EIIB from the duty to account for its funds to the proper authorities. Indeed by denying that there were savings made from certain items in the agency and alleging that the DBM had released to the EIIB only the allocations needed for the 947 personnel retained after its reorganization, petitioners in effect invited inquiry into the veracity of their claim. If, as petitioners claim, the subpoenaed records have been examined by the COA and found by it to be regular in all respects, there is no reason why they cannot be shown to another agency of the

government which by constitutional mandate is required to look into any complaint concerning public office. On the other hand, the Ombudsman is investigating a complaint that several items in the EIIB were filled by fictitious persons and that the allotments for these items in 1988 were used for illegal purposes. The plantilla and other personnel records are relevant to his investigation. He and his Deputies are designated by the Constitution "protectors of the people" and as such they are required by it "to act promptly on complaints in any form or manner against public officials or employees of the Government, or any subdivision, agency or instrumentality thereof, including government-owned or controlled corporation." 22 His need for the documents thus outweighs the claim of confidentiality of petitioners. What is more, while there might have been compelling reasons for the claim of privilege in 1988 when it was asserted by petitioners, now, seven years later, these reasons may have been attenuated, if they have not in fact ceased. The agents whose identities could not then be revealed may have ceased from the service of the EIIB, while the covert missions to which they might have been deployed might either have been accomplished or abandoned. On the other hand, the Ombudsman's duty to investigate the complaint that there were in 1988 unfilled positions in the EIIB for which continued funding was received by its officials and put to illegal use, remains. Above all, even if the subpoenaed documents are treated as presumptively privileged, this decision would only justify ordering their inspection in camera but not their nonproduction. However, as concession to the nature of the functions of the EIIB and just to be sure no information of a confidential character is disclosed, the examination of records in this case should be made in strict confidence by the Ombudsman himself. Reference may be made to the documents in any decision or order which the Ombudsman may render or issue but only to the extent that it will not reveal covert activities of the agency. Above all, there must be a scrupulous protection of the documents delivered. With these safeguards outlined, it is believed that a satisfactory resolution of the conflicting claims of the parties is achieved. It is not amiss to state that even matters of national security have been inquired into in appropriate in camera proceedings by the courts. In Lansang v. Garcia 23 this Court held closed door sessions, with only the immediate

parties and their counsel present, to determine claims that because of subversion there was imminent danger to public safety warranting the suspension of the writ of habeas corpus in 1971. Again in Marcos v. Manglapus 24 the Court met behind closed doors to receive military briefings on the threat posed to national security by the return to the country of the former President and his family. In the United States, a similar inquiry into the danger to national security as a result of the publication of classified documents on the Vietnam war was upheld by the U.S. Supreme Court. 25 We see no reason why similar safeguards cannot be made to enable an agency of the Government, like the Office of the Ombudsman, to carry out its constitutional duty to protect public interests 26 while insuring the confidentiality of classified documents. C. Petitioners contend that under Art. XI, § 13(4) the Ombudsman can act only "in any appropriate case, and subject to such limitations as may be provided by law" and that because the complaint in this case is unsigned and unverified, the case is not an appropriate one. This contention lacks merit. As already stated, the Constitution expressly enjoins the Ombudsman to act on any complaint filed "in any form or manner" concerning official acts or omissions. Thus, Art. XI, § 12 provides: The Ombudsman and his Deputies, as protectors of the people, shall act promptly on complaints filed in any form or manner against public officials or employees of the Government, or any subdivision, agency, or instrumentality thereof, including government-owned or controlled corporations and shall in appropriate cases, notify the complainants of the action taken and the result thereof. (Emphasis added) Similarly, the Ombudsman Act of 1989 (Rep. Act No. 6770) provides in § 26(2): The Office of the Ombudsman shall receive complaints from any source in whatever form concerning an official act or omission. It shall act on the complaint immediately and if it finds the same entirely baseless, it shall dismiss the same and inform the complainant of such dismissal citing the reasons therefor. If it finds a reasonable ground to investigate further, it shall first furnish the respondent public officer or employee with a summary of the complaint and require him to submit a written answer within seventy-

two hours from receipt thereof. If the answer is found satisfactory, it shall dismiss the case. (Emphasis added) Accordingly, in Diaz v. Sandiganbayan 27 the Court held that testimony given at a fact-finding investigation and charges made in a pleading in a case in court constituted a sufficient basis for the Ombudsman to commence investigation, because a formal complaint was really not necessary. Rather than referring to the form of complaints, therefore, the phrase "in an appropriate case" in Art. XI, § 12 means any case concerning official act or omission which is alleged to be "illegal, unjust, improper, or inefficient." 28 The phrase "subject to such limitations as may be provided by law" refers to such limitations as may be provided by Congress or, in the absence thereof, to such limitations as may be imposed by the courts. Such limitations may well include a requirement that the investigation be concluded in camera, with the public excluded, as exception to the general nature of the proceedings in the Office of the Ombudsman. 29 A reconciliation is thereby made between the demands of national security and the requirement of accountability enshrined in the Constitution. 30 What has been said above disposes of petitioners' contention that the anonymous letter-complaint against them is nothing but a vexatious prosecution. It only remains to say that the general investigation in the Ombudsman' s office is precisely for the purpose of protecting those against whom a complaint is filed against hasty, malicious, and oppressive prosecution as much as securing the State from useless and expensive trials. There may also be benefit resulting from such limited in camera inspection in terms of increased public confidence that the privilege is not being abused and increased likelihood that no abuse is in fact occurring. II. Nor is there violation of petitioner's right to the equal protection of the laws. Petitioners complain that "in all forum and tribunals . . . the aggrieved parties . . . can only hale respondents via their verified complaints or sworn statements with their identities fully disclosed," while in proceedings before the Office of the Ombudsman anonymous letters suffice to start an investigation. In the first place, there can be no objection to this procedure because it is provided in the Constitution itself. In the second place, it is

apparent that in permitting the filing of complaints "in any form and in a manner," the framers of the Constitution took into account the well-known reticence of the people which keep them from complaining against official wrongdoings. As this Court had occasion to point out, the Office of the Ombudsman is different from the other investigatory and prosecutory agencies of the government because those subject to its jurisdiction are public officials who, through official pressure and influence, can quash, delay or dismiss investigations held against them. 31 On the other hand complainants are more often than not poor and simple folk who cannot afford to hire lawyers. 32 III. Finally, it is contended that the issuance of the subpoena duces tecum would violate petitioners' right against self-incrimination. It is enough to state that the documents required to be produced in this case are public records and those to whom the subpoena duces tecum is directed are government officials in whose possession or custody the documents are. Moreover, if, as petitioners claim the disbursement by the EIIB of funds for personal service has already been cleared by the COA, there is no reason why they should object to the examination of the documents by respondent Ombudsman. WHEREFORE, the petition is DISMISSED, but it is directed that the inspection of subpoenaed documents be made personally in camera by the Ombudsman, and with all the safeguards outlined in this decision. SO ORDERED. Narvasa, C.J., Feliciano, Padilla, Regalado, Davide, Jr., Romero, Bellosillo, Melo, Quiason, Puno and Vitug, JJ., concur. Francisco, J., is on leave.

Separate Opinions

KAPUNAN, J., dissenting: The well-written ponencia of Mr. Justice Mendoza would postulate that the Economic Intelligence and Investigation Bureau (EIIB) documents relating to the Personal Services Funds for the year 1988 and all documentary evidence, including salary vouchers for the whole plantilla of the EIIB for 1988 be produced before the Ombudsman over the objections of the EIIB Commissioner on the ground that the documents contain highly confidential matters, apart from the fact that the expenditures had been cleared in audit by the Commission on Audit (COA). The reasons relied upon in the ponencia are a) that the EIIB documents at issue are not classified under COA (Commission on Audit) Circular No. 88-293, Part V No. 7 which limits such matters exclusively to expenditures relating to the purchase of information and payment of rewards; and b) the documents relating to disbursement and expenditures of the EIIB for personal funds had already been previously examined by the Commission on Audit when such outlay had been passed upon in audit in the said Office, such that there is no confidentiality privilege to protect. With due respect, I beg to disagree. Disclosure of the documents as required by the Ombudsman would necessarily defeat the legal mandate of the EIIB as the intelligence arm of the executive branch of government relating to matters affecting the economy of the nation. As such, EIIB's functions are related to matters affecting national security. In the performance of its function in relation with the gathering of intelligence information executive privilege could as well be invoked by the EIIB, especially in relation to its covert operations. The determination, by the executive branch, through its appropriate agencies, of a question as affecting the national security is a policy decision for which this Court has neither the competence nor the mandate to infringe upon. In the absence of a clear showing a grave abuse of discretion on the part of the Executive, acting through its (national security) agencies, I am of the opinion that we cannot interfere with a determination, properly made, on a question affecting economic security lest we are prepared to ride roughshod over certain prerogatives of our political

branches. In an area obviously affecting the national security, disclosure of confidential information on the promptings of some dissatisfied employees would potentially disturb a number of carefully laid-out operations dependent on secrecy and I am not prepared to do this. The characterization of the documents as classified information is not a shield for wrongdoing but a barrier against the burden some requests for information which necessarily interfere with the proper performance of their duties. To give in, at every turn, to such requests would be greatly disruptive of governmental functions. More so in this case, since expenditures of the EIIB for personal funds had already been previously examined and passed upon in audit by the Commission on Audit. There has been no allegation of any irregularity in the COA's earlier examination, and in the absence of substantiated allegations, the previous determination ought to be accorded our respect unless we want to encourage unnecessary and tiresome forays and investigations into government activities which would not only end up nowhere but which would also disrupt or derail such activities. The confidentiality privilege invoked by petitioners attaches in the exercise of the functions of the EIIB, as presidential immunity is bestowed by reason of the political functions of the Chief Executive, as a separate and co-equal branch of government. By the same parity of reasoning, the disclosure of the EIIB documents required to be examined by the Ombudsman even in camera proceedings will under the pretext of ascertaining the proper disbursements of the EIIB funds will unnecessarily impair the performance by the EIIB of its functions especially those affecting national security. The constitutional right allowing disclosure of governmental documents, i.e., the right to information on matters of public concern is not absolute. While access to official records may not be prohibited, it may be regulated. 1Regulation includes appropriate authority to determine what documents are of public concern, the manner of access to information contained in such documents and to withhold information under certain circumstances, particularly, as in this case, those circumstances affecting the national security. 2 Besides, as I emphasized earlier, the determination of the legality of EIIB's disbursements of funds allocated to it are properly within the competence of the Commission on Audit, which as the ponencia of Justice Mendoza finds, has been cleared in audit. The Commission on Audit had adopted, as

in the past, measures to protect "classified information" pertaining to examination of expenditures of intelligence agencies. In the present case, disclosure of information to any other agency would unnecessarily expose the covert operations of EIIB, as a government agency charged with national security functions. I, therefore, vote to give due course to the petition.

Separate Opinions KAPUNAN, J., dissenting: The well-written ponencia of Mr. Justice Mendoza would postulate that the Economic Intelligence and Investigation Bureau (EIIB) documents relating to the Personal Services Funds for the year 1988 and all documentary evidence, including salary vouchers for the whole plantilla of the EIIB for 1988 be produced before the Ombudsman over the objections of the EIIB Commissioner on the ground that the documents contain highly confidential matters, apart from the fact that the expenditures had been cleared in audit by the Commission on Audit (COA). The reasons relied upon in the ponencia are a) that the EIIB documents at issue are not classified under COA (Commission on Audit) Circular No. 88-293, Part V No. 7 which limits such matters exclusively to expenditures relating to the purchase of information and payment of rewards; and b) the documents relating to disbursement and expenditures of the EIIB for personal funds had already been previously examined by the Commission on Audit when such outlay had been passed upon in audit in the said Office, such that there is no confidentiality privilege to protect. With due respect, I beg to disagree. Disclosure of the documents as required by the Ombudsman would necessarily defeat the legal mandate of the EIIB as the intelligence arm of the executive branch of government relating to matters affecting the economy of the nation. As such, EIIB's functions are related to matters affecting national security. In the performance of its function in relation with

the gathering of intelligence information executive privilege could as well be invoked by the EIIB, especially in relation to its covert operations. The determination, by the executive branch, through its appropriate agencies, of a question as affecting the national security is a policy decision for which this Court has neither the competence nor the mandate to infringe upon. In the absence of a clear showing a grave abuse of discretion on the part of the Executive, acting through its (national security) agencies, I am of the opinion that we cannot interfere with a determination, properly made, on a question affecting economic security lest we are prepared to ride roughshod over certain prerogatives of our political branches. In an area obviously affecting the national security, disclosure of confidential information on the promptings of some dissatisfied employees would potentially disturb a number of carefully laid-out operations dependent on secrecy and I am not prepared to do this. The characterization of the documents as classified information is not a shield for wrongdoing but a barrier against the burden some requests for information which necessarily interfere with the proper performance of their duties. To give in, at every turn, to such requests would be greatly disruptive of governmental functions. More so in this case, since expenditures of the EIIB for personal funds had already been previously examined and passed upon in audit by the Commission on Audit. There has been no allegation of any irregularity in the COA's earlier examination, and in the absence of substantiated allegations, the previous determination ought to be accorded our respect unless we want to encourage unnecessary and tiresome forays and investigations into government activities which would not only end up nowhere but which would also disrupt or derail such activities. The confidentiality privilege invoked by petitioners attaches in the exercise of the functions of the EIIB, as presidential immunity is bestowed by reason of the political functions of the Chief Executive, as a separate and co-equal branch of government. By the same parity of reasoning, the disclosure of the EIIB documents required to be examined by the Ombudsman even in camera proceedings will under the pretext of ascertaining the proper disbursements of the EIIB funds will unnecessarily impair the performance by the EIIB of its functions especially those affecting national security. The constitutional right allowing disclosure of governmental documents, i.e., the right to information on matters of public concern is not

absolute. While access to official records may not be prohibited, it may be regulated. 1Regulation includes appropriate authority to determine what documents are of public concern, the manner of access to information contained in such documents and to withhold information under certain circumstances, particularly, as in this case, those circumstances affecting the national security. 2 Besides, as I emphasized earlier, the determination of the legality of EIIB's disbursements of funds allocated to it are properly within the competence of the Commission on Audit, which as the ponencia of Justice Mendoza finds, has been cleared in audit. The Commission on Audit had adopted, as in the past, measures to protect "classified information" pertaining to examination of expenditures of intelligence agencies. In the present case, disclosure of information to any other agency would unnecessarily expose the covert operations of EIIB, as a government agency charged with national security functions. I, therefore, vote to give due course to the petition. Footnotes 1 Rollo, pp. 36-37. 2 Id., p. 38. 3 Id., p. 39. 4 Id., p. 41. 5 Id., p. 42. 6 Id., pp. 53-54. 7 Art. III, § 7 provides: "The right of the people to information on matters of public concern shall be recognized. Access to official records, and to documents, and papers pertaining to official acts, transactions, or decisions, as well as to government research data used as basis for policy development, shall be afforded the citizen, subject to such limitations as may be provided by law." 8 Petitioners' Memorandum, p. 6.

9 Petitioners' Memorandum, p. 27. 10 Anno., Government Privilege Against Disclosure of Official Information, 95 L. Ed. §§3-4 and 7, pp. 427-29, 434. 11 418 U.S. 683, 708-9, 41 L. Ed. 2d 1039, 1061-4 (1973). 12 Freund, The Supreme Court 1973 Term — Foreword: On Presidential Privilege, 88 HARV. L. REV. 13, 18-35 (1974). 13 Final Report of the National Study Commission on Records and Documents of Federal Officials (March 31, 1977), quoted in BLOCH & KRATTENMAKER, SUPREME COURT POLITICS: THE INSTITUTION AND ITS PROCEDURES 677-87 (1994). 14 Letter of Chief Justice William H. Rehnquist dated June 7, 1993 to Sen. Joseph I. Lieberman, Chairman, Subcommittee on Regulation and Government Information, U.S. Senate, quoted in BLOCH & KRATTENMAKER, id., at 687-8. 15 COA Circular No. 88-293. 16 United States v. Reynolds, 345 U.S. 1, 10-11, 97 L. Ed. 727, 734-35 (1953). In this case the U.S. Supreme Court reversed a lower court order requiring the government to produce documents relating to the crash of a military aircraft which had been engaged in a secret mission to test electronic equipment. The fact conceded by respondents, that the aircraft was on secret military mission, justified nonproduction of the report of the accident. It was apparent the report contained state secrets which in the interest of national security could not be divulged even in the chambers of the judge or in camera. There was "a reasonable danger that the investigation report would contain references to the secret electronic equipment which was the primary concern of the mission." 17 In United States v. Nixon, 418 U.S. 683, 41 L. Ed. 2d 1039 (1974), the Court, while acknowledging that the President's need "for complete candor and objectivity from advisers calls for great deference from the courts," nonetheless held that such generalized claim of confidentiality could not prevail over the "specific need for evidence in a pending criminal trial." Accordingly the Court ordered the tapes of conversations of President Nixon to be turned over to the trial judge for in camera inspection to

determine whether they were relevant and admissible apart from being privileged. Similarly in Nixon v. Administrator of General Services, 433 U.S. 425, 53 L. Ed. 2d 867 (1977) it was held that the mere screening of tapes and other records of President Nixon's conversations with employees of the Federal Government, to be done by professional archivists for the purpose of "legitimate historical and governmental purpose," constituted "a very limited intrusion . . . into executive confidentiality comparable to those held to justify in camera inspection." 433 U.S. at 451-52, 53 L. Ed. 2d. at 896-97. Accordingly the validity of the law, entitled "Presidential Recordings and Materials Preservation Act," was upheld against the claim that "the Presidential privilege shields the records from archival scrutiny." 18 E.O. No. 127. 19 United States v. Reynolds, supra note 16. 20 Quoted in Petitioners' Memorandum, p. 27. 21 Petitioners cite in their Memorandum, at p. 19, the following: § 19. Release of Intelligence and Confidential Funds. — Intelligence and confidential funds provided for in the budgets of departments, bureaus, offices or other agencies of the national government, including amounts from savings authorized by Special Provisions to be used for intelligence and counter-intelligence activities, shall be released only upon approval of the President of the Philippines. (RA 6642-GAA for CY 1988). Effective immediately, all requests for the allocation or release of intelligence funds shall indicate in full detail the specific purposes for which said funds shall be spent and shall explain the circumstances giving rise to the necessity for the expenditure and the particular aims to be accomplished. (Letter of Instructions No. 1282 dated January 12, 1983). Any disbursement of intelligence funds should not be allowed in audit, unless it is in strict compliance with the provisions of Letters of Instruction 
 No. . . . and 1282. Any officer or employee who violates the provisions of the aforementioned Letter of Instruction shall be dealt with administratively without prejudice to any criminal action that may be warranted. (Memorandum Circular No. 1290 of the Office of the President dated August 19, 1985).

22 Art. XI, §12. 23 42 SCRA 448 (1971). 24 117 SCRA 668 (1989). 25 New York Times Co. v. United States [The Pentagon Papers Case], 403 U.S. 713, 29 L. Ed. 2d 822 (1971). 26 Art. XI, §13. The Office of the Ombudsman shall have the following powers, functions, and duties: (1) Investigate on its own, or on complaint by any person, any act or omission of any public official, employee, office or agency, when such act or omission appears to be illegal, unjust, improper, or inefficient. (2) Direct, upon complaint or at its own instance, any public official or employee of the Government, or any subdivision, agency or instrumentality thereof, as well as of any government-owned or controlled corporation with original charter, to perform and expedite any act or duty required by law, or to stop, prevent and correct any abuse or impropriety in the performance of duties. (3) Direct the officer concerned to take appropriate action against a public official or employee at fault, and recommend his removal, suspension, demotion, fine, censure, or prosecution, and ensure compliance therewith. (4) Direct the officer concerned, in any appropriate case, and subject to such limitations as may be provided by law, to furnish it with copies of documents relating to contracts or transactions entered into by his office involving the disbursement or use of public funds or properties, and report any irregularity to the Commission on Audit for appropriate action. (5) Request any government agency for assistance and information necessary in the discharge of its responsibilities, and to examine, if necessary, pertinent records and documents. xxx xxx xxx

(7) Determine the causes of inefficiency, red tape, mismanagement, fraud, and corruption in the Government and make recommendations or their elimination and the observance of high standards of ethics and efficiency. In the performance of his functions the Ombudsman is given under Republic Act No. 6770, § 15(8) the power to issue subpoena and subpoena duces tecum. 27 219 SCRA 675 (1993). 28 Art. XI, § 13(1). 29 Art. XI, § 13(6) requires the Office of the Ombudsman to "publicize matters covered by its investigation when circumstances so warrant and with due prudence." 30 Art. XI, § 1 provides: "Public office is a public trust. Public officers and employees must at all times be accountable to the people, serve them with utmost responsibility, integrity, loyalty, and efficiency, act with patriotism and justice and lead modest lives." 31 Deloso v. Domingo, 191 SCRA 545, 551 (1990). 32 2 RECORD OF THE CONSTITUTIONAL COMMISSION, pp. 369-370. KAPUNAN, J., dissenting: 1 BERNAS, I THE CONSTITUTION OF THE REPUBLIC OF THE PHILIPPINES, 265 (1987). 2 See id., at 267.

4. Estrada v. Desierto G.R. No. 146710-15

March 2, 2001

JOSEPH E. ESTRADA, petitioner, 
 vs.
 ANIANO DESIERTO, in his capacity as Ombudsman, RAMON GONZALES, VOLUNTEERS AGAINST CRIME AND CORRUPTION, GRAFT FREE PHILIPPINES FOUNDATION, INC., LEONARD DE VERA, DENNIS FUNA, ROMEO CAPULONG and ERNESTO B. FRANCISCO, JR., respondent. ---------------------------------------G.R. No. 146738

March 2, 2001

JOSEPH E. ESTRADA, petitioner, 
 vs.
 GLORIA MACAPAGAL-ARROYO, respondent. PUNO, J.: On the line in the cases at bar is the office of the President. Petitioner Joseph Ejercito Estrada alleges that he is the President on leave while respondent Gloria Macapagal-Arroyo claims she is the President. The warring personalities are important enough but more transcendental are the constitutional issues embedded on the parties' dispute. While the significant issues are many, the jugular issue involves the relationship between the ruler and the ruled in a democracy, Philippine style. First, we take a view of the panorama of events that precipitated the crisis in the office of the President. In the May 11, 1998 elections, petitioner Joseph Ejercito Estrada was elected President while respondent Gloria Macapagal-Arroyo was elected Vice-President. Some ten (10) million Filipinos voted for the petitioner believing he would rescue them from life's adversity. Both petitioner and the respondent were to serve a six-year term commencing on June 30, 1998. From the beginning of his term, however, petitioner was plagued by a plethora of problems that slowly but surely eroded his popularity. His sharp

descent from power started on October 4, 2000. Ilocos Sur Governor, Luis "Chavit" Singson, a longtime friend of the petitioner, went on air and accused the petitioner, his family and friends of receiving millions of pesos from jueteng lords.1 The exposẻ immediately ignited reactions of rage. The next day, October 5, 2000, Senator Teofisto Guingona, Jr., then the Senate Minority Leader, took the floor and delivered a fiery privilege speech entitled "I Accuse." He accused the petitioner of receiving some P220 million in jueteng money from Governor Singson from November 1998 to August 2000. He also charged that the petitioner took from Governor Singson P70 million on excise tax on cigarettes intended for Ilocos Sur. The privilege speech was referred by then Senate President Franklin Drilon, to the Blue Ribbon Committee (then headed by Senator Aquilino Pimentel) and the Committee on Justice (then headed by Senator Renato Cayetano) for joint investigation.2 The House of Representatives did no less. The House Committee on Public Order and Security, then headed by Representative Roilo Golez, decided to investigate the exposẻ of Governor Singson. On the other hand, Representatives Heherson Alvarez, Ernesto Herrera and Michael Defensor spearheaded the move to impeach the petitioner. Calls for the resignation of the petitioner filled the air. On October 11, Archbishop Jaime Cardinal Sin issued a pastoral statement in behalf of the Presbyteral Council of the Archdiocese of Manila, asking petitioner to step down from the presidency as he had lost the moral authority to govern. 3 Two days later or on October 13, the Catholic Bishops Conference of the Philippines joined the cry for the resignation of the petitioner.4 Four days later, or on October 17, former President Corazon C. Aquino also demanded that the petitioner take the "supreme self-sacrifice" of resignation.5 Former President Fidel Ramos also joined the chorus. Early on, or on October 12, respondent Arroyo resigned as Secretary of the Department of Social Welfare and Services6 and later asked for petitioner's resignation.7 However, petitioner strenuously held on to his office and refused to resign. The heat was on. On November 1, four (4) senior economic advisers, members of the Council of Senior Economic Advisers, resigned. They were Jaime Augusto Zobel de Ayala, former Prime Minister Cesar Virata, former Senator Vicente Paterno and Washington Sycip.8 On November 2,

Secretary Mar Roxas II also resigned from the Department of Trade and Industry.9 On November 3, Senate President Franklin Drilon, and House Speaker Manuel Villar, together with some 47 representatives defected from the ruling coalition, Lapian ng Masang Pilipino.10 The month of November ended with a big bang. In a tumultuous session on November 13, House Speaker Villar transmitted the Articles of Impeachment11 signed by 115 representatives, or more than 1/3 of all the members of the House of Representatives to the Senate. This caused political convulsions in both houses of Congress. Senator Drilon was replaced by Senator Pimentel as Senate President. Speaker Villar was unseated by Representative Fuentebella.12 On November 20, the Senate formally opened the impeachment trial of the petitioner. Twenty-one (21) senators took their oath as judges with Supreme Court Chief Justice Hilario G. Davide, Jr., presiding.13 The political temperature rose despite the cold December. On December 7, the impeachment trial started.14 The battle royale was fought by some of the marquee names in the legal profession. Standing as prosecutors were then House Minority Floor Leader Feliciano Belmonte and Representatives Joker Arroyo, Wigberto Tañada, Sergio Apostol, Raul Gonzales, Oscar Moreno, Salacnib Baterina, Roan Libarios, Oscar Rodriguez, Clavel Martinez and Antonio Nachura. They were assisted by a battery of private prosecutors led by now Secretary of Justice Hernando Perez and now Solicitor General Simeon Marcelo. Serving as defense counsel were former Chief Justice Andres Narvasa, former Solicitor General and Secretary of Justice Estelito P. Mendoza, former City Fiscal of Manila Jose Flaminiano, former Deputy Speaker of the House Raul Daza, Atty. Siegfried Fortun and his brother, Atty. Raymund Fortun. The day to day trial was covered by live TV and during its course enjoyed the highest viewing rating. Its high and low points were the constant conversational piece of the chattering classes. The dramatic point of the December hearings was the testimony of Clarissa Ocampo, senior vice president of Equitable-PCI Bank. She testified that she was one foot away from petitioner Estrada when he affixed the signature "Jose Velarde" on documents involving a P500 million investment agreement with their bank on February 4, 2000.15 After the testimony of Ocampo, the impeachment trial was adjourned in the spirit of Christmas. When it resumed on January 2, 2001, more bombshells were exploded by the prosecution. On January 11, Atty. Edgardo Espiritu

who served as petitioner's Secretary of Finance took the witness stand. He alleged that the petitioner jointly owned BW Resources Corporation with Mr. Dante Tan who was facing charges of insider trading.16 Then came the fateful day of January 16, when by a vote of 11-1017 the senator-judges ruled against the opening of the second envelope which allegedly contained evidence showing that petitioner held P3.3 billion in a secret bank account under the name "Jose Velarde." The public and private prosecutors walked out in protest of the ruling. In disgust, Senator Pimentel resigned as Senate President.18 The ruling made at 10:00 p.m. was met by a spontaneous outburst of anger that hit the streets of the metropolis. By midnight, thousands had assembled at the EDSA Shrine and speeches full of sulphur were delivered against the petitioner and the eleven (11) senators. On January 17, the public prosecutors submitted a letter to Speaker Fuentebella tendering their collective resignation. They also filed their Manifestation of Withdrawal of Appearance with the impeachment tribunal. 19Senator Raul Roco quickly moved for the indefinite postponement of the impeachment proceedings until the House of Representatives shall have resolved the issue of resignation of the public prosecutors. Chief Justice Davide granted the motion.20 January 18 saw the high velocity intensification of the call for petitioner's resignation. A 10-kilometer line of people holding lighted candles formed a human chain from the Ninoy Aquino Monument on Ayala Avenue in Makati City to the EDSA Shrine to symbolize the people's solidarity in demanding petitioner's resignation. Students and teachers walked out of their classes in Metro Manila to show their concordance. Speakers in the continuing rallies at the EDSA Shrine, all masters of the physics of persuasion, attracted more and more people.21 On January 19, the fall from power of the petitioner appeared inevitable. At 1:20 p.m., the petitioner informed Executive Secretary Edgardo Angara that General Angelo Reyes, Chief of Staff of the Armed Forces of the Philippines, had defected. At 2:30 p.m., petitioner agreed to the holding of a snap election for President where he would not be a candidate. It did not diffuse the growing crisis. At 3:00 p.m., Secretary of National Defense Orlando Mercado and General Reyes, together with the chiefs of all the armed services went to the EDSA Shrine.22 In the presence of former Presidents Aquino and Ramos and hundreds of thousands of cheering

demonstrators, General Reyes declared that "on behalf of Your Armed Forces, the 130,000 strong members of the Armed Forces, we wish to announce that we are withdrawing our support to this government."23 A little later, PNP Chief, Director General Panfilo Lacson and the major service commanders gave a similar stunning announcement.24 Some Cabinet secretaries, undersecretaries, assistant secretaries, and bureau chiefs quickly resigned from their posts.25 Rallies for the resignation of the petitioner exploded in various parts of the country. To stem the tide of rage, petitioner announced he was ordering his lawyers to agree to the opening of the highly controversial second envelope.26There was no turning back the tide. The tide had become a tsunami. January 20 turned to be the day of surrender. At 12:20 a.m., the first round of negotiations for the peaceful and orderly transfer of power started at Malacañang'' Mabini Hall, Office of the Executive Secretary. Secretary Edgardo Angara, Senior Deputy Executive Secretary Ramon Bagatsing, Political Adviser Angelito Banayo, Asst. Secretary Boying Remulla, and Atty. Macel Fernandez, head of the Presidential Management Staff, negotiated for the petitioner. Respondent Arroyo was represented by now Executive Secretary Renato de Villa, now Secretary of Finance Alberto Romulo and now Secretary of Justice Hernando Perez.27 Outside the palace, there was a brief encounter at Mendiola between pro and antiEstrada protesters which resulted in stone-throwing and caused minor injuries. The negotiations consumed all morning until the news broke out that Chief Justice Davide would administer the oath to respondent Arroyo at high noon at the EDSA Shrine. At about 12:00 noon, Chief Justice Davide administered the oath to respondent Arroyo as President of the Philippines.28 At 2:30 p.m., petitioner and his family hurriedly left Malacañang Palace.29 He issued the following press statement:30 "20 January 2001 STATEMENT FROM PRESIDENT JOSEPH EJERCITO ESTRADA At twelve o'clock noon today, Vice President Gloria Macapagal-Arroyo took her oath as President of the Republic of the Philippines. While along with many other legal minds of our country, I have strong and serious doubts

about the legality and constitutionality of her proclamation as President, I do not wish to be a factor that will prevent the restoration of unity and order in our civil society. It is for this reason that I now leave Malacañang Palace, the seat of the presidency of this country, for the sake of peace and in order to begin the healing process of our nation. I leave the Palace of our people with gratitude for the opportunities given to me for service to our people. I will not shirk from any future challenges that may come ahead in the same service of our country. I call on all my supporters and followers to join me in to promotion of a constructive national spirit of reconciliation and solidarity. May the Almighty bless our country and beloved people. MABUHAY! (Sgd.) JOSEPH EJERCITO ESTRADA" It also appears that on the same day, January 20, 2001, he signed the following letter:31 "Sir: By virtue of the provisions of Section 11, Article VII of the Constitution, I am hereby transmitting this declaration that I am unable to exercise the powers and duties of my office. By operation of law and the Constitution, the VicePresident shall be the Acting President. (Sgd.) JOSEPH EJERCITO ESTRADA" A copy of the letter was sent to former Speaker Fuentebella at 8:30 a.m. on January 20.23 Another copy was transmitted to Senate President Pimentel on the same day although it was received only at 9:00 p.m.33 On January 22, the Monday after taking her oath, respondent Arroyo immediately discharged the powers the duties of the Presidency. On the same day, this Court issued the following Resolution in Administrative Matter No. 01-1-05-SC, to wit:

"A.M. No. 01-1-05-SC — In re: Request of Vice President Gloria Macapagal-Arroyo to Take her Oath of Office as President of the Republic of the Philippines before the Chief Justice — Acting on the urgent request of Vice President Gloria Macapagal-Arroyo to be sworn in as President of the Republic of the Philippines, addressed to the Chief Justice and confirmed by a letter to the Court, dated January 20, 2001, which request was treated as an administrative matter, the court Resolve unanimously to confirm the authority given by the twelve (12) members of the Court then present to the Chief Justice on January 20, 2001 to administer the oath of office of Vice President Gloria Macapagal-Arroyo as President of the Philippines, at noon of January 20, 2001. 1âwphi1.nêt

This resolution is without prejudice to the disposition of any justiciable case that may be filed by a proper party." Respondent Arroyo appointed members of her Cabinet as well as ambassadors and special envoys.34 Recognition of respondent Arroyo's government by foreign governments swiftly followed. On January 23, in a reception or vin d' honneur at Malacañang, led by the Dean of the Diplomatic Corps, Papal Nuncio Antonio Franco, more than a hundred foreign diplomats recognized the government of respondent Arroyo.35 US President George W. Bush gave the respondent a telephone call from the White House conveying US recognition of her government.36 On January 24, Representative Feliciano Belmonte was elected new Speaker of the House of Representatives.37The House then passed Resolution No. 175 "expressing the full support of the House of Representatives to the administration of Her Excellency, Gloria MacapagalArroyo, President of the Philippines."38 It also approved Resolution No. 176 "expressing the support of the House of Representatives to the assumption into office by Vice President Gloria Macapagal-Arroyo as President of the Republic of the Philippines, extending its congratulations and expressing its support for her administration as a partner in the attainment of the nation's goals under the Constitution."39 On January 26, the respondent signed into law the Solid Waste Management Act.40 A few days later, she also signed into law the Political Advertising ban and Fair Election Practices Act.41 On February 6, respondent Arroyo nominated Senator Teofisto Guingona, Jr., as her Vice President.42 The next day, February 7, the Senate adopted

Resolution No. 82 confirming the nomination of Senator Guingona, Jr. 43Senators Miriam Defensor-Santiago, Juan Ponce Enrile, and John Osmena voted "yes" with reservations, citing as reason therefor the pending challenge on the legitimacy of respondent Arroyo's presidency before the Supreme Court. Senators Teresa Aquino-Oreta and Robert Barbers were absent.44 The House of Representatives also approved Senator Guingona's nomination in Resolution No. 178.45 Senator Guingona, Jr. took his oath as Vice President two (2) days later.46 On February 7, the Senate passed Resolution No. 83 declaring that the impeachment court is functus officio and has been terminated.47 Senator Miriam Defensor-Santiago stated "for the record" that she voted against the closure of the impeachment court on the grounds that the Senate had failed to decide on the impeachment case and that the resolution left open the question of whether Estrada was still qualified to run for another elective post.48 Meanwhile, in a survey conducted by Pulse Asia, President Arroyo's public acceptance rating jacked up from 16% on January 20, 2001 to 38% on January 26, 2001.49 In another survey conducted by the ABS-CBN/SWS from February 2-7, 2001, results showed that 61% of the Filipinos nationwide accepted President Arroyo as replacement of petitioner Estrada. The survey also revealed that President Arroyo is accepted by 60% in Metro Manila, by also 60% in the balance of Luzon, by 71% in the Visayas, and 55% in Mindanao. Her trust rating increased to 52%. Her presidency is accepted by majorities in all social classes: 58% in the ABC or middle-toupper classes, 64% in the D or mass class, and 54% among the E's or very poor class.50 After his fall from the pedestal of power, the petitioner's legal problems appeared in clusters. Several cases previously filed against him in the Office of the Ombudsman were set in motion. These are: (1) OMB Case No. 0-00-1629, filed by Ramon A. Gonzales on October 23, 2000 for bribery and graft and corruption; (2) OMB Case No. 0-00-1754 filed by the Volunteers Against Crime and Corruption on November 17, 2000 for plunder, forfeiture, graft and corruption, bribery, perjury, serious misconduct, violation of the Code of Conduct for Government Employees, etc; (3) OMB Case No. 0-00-1755 filed by the Graft Free Philippines Foundation, Inc. on November 24, 2000 for plunder, forfeiture, graft and corruption, bribery, perjury, serious misconduct; (4) OMB Case No.

0-00-1756 filed by Romeo Capulong, et al., on November 28, 2000 for malversation of public funds, illegal use of public funds and property, plunder, etc.; (5) OMB Case No. 0-00-1757 filed by Leonard de Vera, et al., on November 28, 2000 for bribery, plunder, indirect bribery, violation of PD 1602, PD 1829, PD 46, and RA 7080; and (6) OMB Case No. 0-00-1758 filed by Ernesto B. Francisco, Jr. on December 4, 2000 for plunder, graft and corruption. A special panel of investigators was forthwith created by the respondent Ombudsman to investigate the charges against the petitioner. It is chaired by Overall Deputy Ombudsman Margarito P. Gervasio with the following as members, viz: Director Andrew Amuyutan, Prosecutor Pelayo Apostol, Atty. Jose de Jesus and Atty. Emmanuel Laureso. On January 22, the panel issued an Order directing the petitioner to file his counter-affidavit and the affidavits of his witnesses as well as other supporting documents in answer to the aforementioned complaints against him. Thus, the stage for the cases at bar was set. On February 5, petitioner filed with this Court GR No. 146710-15, a petition for prohibition with a prayer for a writ of preliminary injunction. It sought to enjoin the respondent Ombudsman from "conducting any further proceedings in Case Nos. OMB 0-00-1629, 1754, 1755, 1756, 1757 and 1758 or in any other criminal complaint that may be filed in his office, until after the term of petitioner as President is over and only if legally warranted." Thru another counsel, petitioner, on February 6, filed GR No. 146738 for Quo Warranto. He prayed for judgment "confirming petitioner to be the lawful and incumbent President of the Republic of the Philippines temporarily unable to discharge the duties of his office, and declaring respondent to have taken her oath as and to be holding the Office of the President, only in an acting capacity pursuant to the provisions of the Constitution." Acting on GR Nos. 146710-15, the Court, on the same day, February 6, required the respondents "to comment thereon within a non-extendible period expiring on 12 February 2001." On February 13, the Court ordered the consolidation of GR Nos. 146710-15 and GR No. 146738 and the filing of the respondents' comments "on or before 8:00 a.m. of February 15." On February 15, the consolidated cases were orally argued in a four-hour hearing. Before the hearing, Chief Justice Davide, Jr.51 and Associate Justice Artemio Panganiban52 recused themselves on motion of petitioner's counsel, former Senator Rene A. Saguisag. They debunked the charge of

counsel Saguisag that they have "compromised themselves by indicating that they have thrown their weight on one side" but nonetheless inhibited themselves. Thereafter, the parties were given the short period of five (5) days to file their memoranda and two (2) days to submit their simultaneous replies. In a resolution dated February 20, acting on the urgent motion for copies of resolution and press statement for "Gag Order" on respondent Ombudsman filed by counsel for petitioner in G.R. No. 146738, the Court resolved: "(1) to inform the parties that the Court did not issue a resolution on January 20, 2001 declaring the office of the President vacant and that neither did the Chief Justice issue a press statement justifying the alleged resolution; (2) to order the parties and especially their counsel who are officers of the Court under pain of being cited for contempt to refrain from making any comment or discussing in public the merits of the cases at bar while they are still pending decision by the Court, and (3) to issue a 30-day status quo order effective immediately enjoining the respondent Ombudsman from resolving or deciding the criminal cases pending investigation in his office against petitioner, Joseph E. Estrada and subject of the cases at bar, it appearing from news reports that the respondent Ombudsman may immediately resolve the cases against petitioner Joseph E. Estrada seven (7) days after the hearing held on February 15, 2001, which action will make the cases at bar moot and academic."53 The parties filed their replies on February 24. On this date, the cases at bar were deemed submitted for decision. The bedrock issues for resolution of this Court are: I Whether the petitions present a justiciable controversy.

II Assuming that the petitions present a justiciable controversy, whether petitioner Estrada is a President on leave while respondent Arroyo is an Acting President. III Whether conviction in the impeachment proceedings is a condition precedent for the criminal prosecution of petitioner Estrada. In the negative and on the assumption that petitioner is still President, whether he is immune from criminal prosecution. IV Whether the prosecution of petitioner Estrada should be enjoined on the ground of prejudicial publicity. We shall discuss the issues in seriatim. I Whether or not the cases At bar involve a political question Private respondents54 raise the threshold issue that the cases at bar pose a political question, and hence, are beyond the jurisdiction of this Court to decide. They contend that shorn of its embroideries, the cases at bar assail the "legitimacy of the Arroyo administration." They stress that respondent Arroyo ascended the presidency through people power; that she has already taken her oath as the 14th President of the Republic; that she has exercised the powers of the presidency and that she has been recognized by foreign governments. They submit that these realities on ground constitute the political thicket, which the Court cannot enter. We reject private respondents' submission. To be sure, courts here and abroad, have tried to lift the shroud on political question but its exact latitude still splits the best of legal minds. Developed by the courts in the 20th century, the political question doctrine which rests on the principle of separation of powers and on prudential considerations, continue to be

refined in the mills of constitutional law.55 In the United States, the most authoritative guidelines to determine whether a question is political were spelled out by Mr. Justice Brennan in the 1962 case or Baker v. Carr,56 viz: "x x x Prominent on the surface of any case held to involve a political question is found a textually demonstrable constitutional commitment of the issue to a coordinate political department or a lack of judicially discoverable and manageable standards for resolving it, or the impossibility of deciding without an initial policy determination of a kind clearly for non-judicial discretion; or the impossibility of a court's undertaking independent resolution without expressing lack of the respect due coordinate branches of government; or an unusual need for unquestioning adherence to a political decision already made; or the potentiality of embarrassment from multifarious pronouncements by various departments on question. Unless one of these formulations is inextricable from the case at bar, there should be no dismissal for non justiciability on the ground of a political question's presence. The doctrine of which we treat is one of 'political questions', not of 'political cases'." In the Philippine setting, this Court has been continuously confronted with cases calling for a firmer delineation of the inner and outer perimeters of a political question.57 Our leading case is Tanada v. Cuenco,58 where this Court, through former Chief Justice Roberto Concepcion, held that political questions refer "to 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. It is concerned with issues dependent upon the wisdom, not legality of a particular measure." To a great degree, the 1987 Constitution has narrowed the reach of the political question doctrine when it expanded the power of judicial review of this court not only to settle actual controversies involving rights which are legally demandable and enforceable but also to determine whether or not there has been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of government. 59 Heretofore, the judiciary has focused on the "thou shalt not's" of the Constitution directed against the exercise of its jurisdiction.60With the new provision, however, courts are given a greater prerogative to determine what it can do to prevent grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of government. Clearly, the new provision did not just grant the Court

power of doing nothing. In sync and symmetry with this intent are other provisions of the 1987 Constitution trimming the so called political thicket. Prominent of these provisions is section 18 of Article VII which empowers this Court in limpid language to "x x x review, in an appropriate proceeding filed by any citizen, the sufficiency of the factual basis of the proclamation of martial law or the suspension of the privilege of the writ (of habeas corpus) or the extension thereof x x x." Respondents rely on the case of Lawyers League for a Better Philippines and/or Oliver A. Lozano v. President Corazon C. Aquino, et al.61 and related cases62 to support their thesis that since the cases at bar involve the legitimacy of the government of respondent Arroyo, ergo, they present a political question. A more cerebral reading of the cited cases will show that they are inapplicable. In the cited cases, we held that the government of former President Aquino was the result of a successful revolution by the sovereign people, albeit a peaceful one. No less than the Freedom Constitution63 declared that the Aquino government was installed through a direct exercise of the power of the Filipino people "in defiance of the provisions of the 1973 Constitution, as amended." In is familiar learning that the legitimacy of a government sired by a successful revolution by people power is beyond judicial scrutiny for that government automatically orbits out of the constitutional loop. In checkered contrast, the government of respondent Arroyo is not revolutionary in character. The oath that she took at the EDSA Shrine is the oath under the 1987 Constitution.64 In her oath, she categorically swore to preserve and defend the 1987 Constitution. Indeed, she has stressed that she is discharging the powers of the presidency under the authority of the 1987 Constitution. In fine, the legal distinction between EDSA People Power I EDSA People Power II is clear. EDSA I involves the exercise of the people power of revolution which overthrew the whole government. EDSA II is an exercise of people power of freedom of speech and freedom of assembly to petition the government for redress of grievances which only affected the office of the President. EDSA I is extra constitutional and the legitimacy of the new government that resulted from it cannot be the subject of judicial review, but EDSA II is intra constitutional and the resignation of the sitting President that it caused and the succession of the Vice President as President are subject to judicial review. EDSA I presented a political question; EDSA II involves

legal questions. A brief discourse on freedom of speech and of the freedom of assembly to petition the government for redress of grievance which are the cutting edge of EDSA People Power II is not inappropriate. Freedom of speech and the right of assembly are treasured by Filipinos. Denial of these rights was one of the reasons of our 1898 revolution against Spain. Our national hero, Jose P. Rizal, raised the clarion call for the recognition of freedom of the press of the Filipinos and included it as among "the reforms sine quibus non."65 The Malolos Constitution, which is the work of the revolutionary Congress in 1898, provided in its Bill of Rights that Filipinos shall not be deprived (1) of the right to freely express his ideas or opinions, orally or in writing, through the use of the press or other similar means; (2) of the right of association for purposes of human life and which are not contrary to public means; and (3) of the right to send petitions to the authorities, individually or collectively." These fundamental rights were preserved when the United States acquired jurisdiction over the Philippines. In the Instruction to the Second Philippine Commission of April 7, 1900 issued by President McKinley, it is specifically provided "that no law shall be passed abridging the freedom of speech or of the press or of the rights of the people to peaceably assemble and petition the Government for redress of grievances." The guaranty was carried over in the Philippine Bill, the Act of Congress of July 1, 1902 and the Jones Law, the Act of Congress of August 29, 1966.66 Thence on, the guaranty was set in stone in our 1935 Constitution,67 and the 197368 Constitution. These rights are now safely ensconced in section 4, Article III of the 1987 Constitution, viz: "Sec. 4. No law shall be passed abridging the freedom of speech, of expression, or of the press, or the right of the people peaceably to assemble and petition the government for redress of grievances." The indispensability of the people's freedom of speech and of assembly to democracy is now self-evident. The reasons are well put by Emerson: first, freedom of expression is essential as a means of assuring individual fulfillment; second, it is an essential process for advancing knowledge and discovering truth; third, it is essential to provide for participation in decisionmaking by all members of society; and fourth, it is a method of achieving a more adaptable and hence, a more stable community of maintaining the precarious balance between healthy cleavage and necessary consensus."69 In this sense, freedom of speech and of assembly

provides a framework in which the "conflict necessary to the progress of a society can take place without destroying the society."70In Hague v. Committee for Industrial Organization,71 this function of free speech and assembly was echoed in the amicus curiae filed by the Bill of Rights Committee of the American Bar Association which emphasized that "the basis of the right of assembly is the substitution of the expression of opinion and belief by talk rather than force; and this means talk for all and by all."72 In the relatively recent case of Subayco v. Sandiganbayan, 73 this Court similar stressed that "… it should be clear even to those with intellectual deficits that when the sovereign people assemble to petition for redress of grievances, all should listen. For in a democracy, it is the people who count; those who are deaf to their grievances are ciphers." Needless to state, the cases at bar pose legal and not political questions. The principal issues for resolution require the proper interpretation of certain provisions in the 1987 Constitution, notably section 1 of Article II, 74 and section 875 of Article VII, and the allocation of governmental powers under section 1176 of Article VII. The issues likewise call for a ruling on the scope of presidential immunity from suit. They also involve the correct calibration of the right of petitioner against prejudicial publicity. As early as the 1803 case of Marbury v. Madison,77 the doctrine has been laid down that "it is emphatically the province and duty of the judicial department to say what the law is . . ." Thus, respondent's in vocation of the doctrine of political question is but a foray in the dark. II Whether or not the petitioner
 Resigned as President We now slide to the second issue. None of the parties considered this issue as posing a political question. Indeed, it involves a legal question whose factual ingredient is determinable from the records of the case and by resort to judicial notice. Petitioner denies he resigned as President or that he suffers from a permanent disability. Hence, he submits that the office of the President was not vacant when respondent Arroyo took her oath as President. The issue brings under the microscope the meaning of section 8, Article VII of the Constitution which provides:

"Sec. 8. In case of death, permanent disability, removal from office or resignation of the President, the Vice President shall become the President to serve the unexpired term. In case of death, permanent disability, removal from office, or resignation of both the President and Vice President, the President of the Senate or, in case of his inability, the Speaker of the House of Representatives, shall then act as President until the President or Vice President shall have been elected and qualified. x x x." The issue then is whether the petitioner resigned as President or should be considered resigned as of January 20, 2001 when respondent took her oath as the 14th President of the Public. Resignation is not a high level legal abstraction. It is a factual question and its elements are beyond quibble: there must be an intent to resign and the intent must be coupled by acts of relinquishment.78 The validity of a resignation is not government by any formal requirement as to form. It can be oral. It can be written. It can be express. It can be implied. As long as the resignation is clear, it must be given legal effect. In the cases at bar, the facts show that petitioner did not write any formal letter of resignation before he evacuated Malacañang Palace in the afternoon of January 20, 2001 after the oath-taking of respondent Arroyo. Consequently, whether or not petitioner resigned has to be determined from his act and omissions before, during and after January 20, 2001 or by the totality of prior, contemporaneous and posterior facts and circumstantial evidence bearing a material relevance on the issue. Using this totality test, we hold that petitioner resigned as President. To appreciate the public pressure that led to the resignation of the petitioner, it is important to follow the succession of events after the exposẻ of Governor Singson. The Senate Blue Ribbon Committee investigated. The more detailed revelations of petitioner's alleged misgovernance in the Blue Ribbon investigation spiked the hate against him. The Articles of Impeachment filed in the House of Representatives which initially was given a near cipher chance of succeeding snowballed. In express speed, it gained the signatures of 115 representatives or more than 1/3 of the House of Representatives. Soon, petitioner's powerful political allies began deserting him. Respondent Arroyo quit as Secretary of Social Welfare. Senate President Drilon and former Speaker Villar defected with 47

representatives in tow. Then, his respected senior economic advisers resigned together with his Secretary of Trade and Industry. As the political isolation of the petitioner worsened, the people's call for his resignation intensified. The call reached a new crescendo when the eleven (11) members of the impeachment tribunal refused to open the second envelope. It sent the people to paroxysms of outrage. Before the night of January 16 was over, the EDSA Shrine was swarming with people crying for redress of their grievance. Their number grew exponentially. Rallies and demonstration quickly spread to the countryside like a brush fire. As events approached January 20, we can have an authoritative window on the state of mind of the petitioner. The window is provided in the "Final Days of Joseph Ejercito Estrada," the diary of Executive Secretary Angara serialized in the Philippine Daily Inquirer.79 The Angara Diary reveals that in the morning of January 19, petitioner's loyal advisers were worried about the swelling of the crowd at EDSA, hence, they decided to create an ad hoc committee to handle it. Their worry would worsen. At 1:20 p.m., petitioner pulled Secretary Angara into his small office at the presidential residence and exclaimed: "Ed, seryoso na ito. Kumalas na si Angelo (Reyes) (Ed, this is serious. Angelo has defected.)"80 An hour later or at 2:30 p.m., the petitioner decided to call for a snap presidential election and stressed he would not be a candidate. The proposal for a snap election for president in May where he would not be a candidate is an indicium that petitioner had intended to give up the presidency even at that time. At 3:00 p.m., General Reyes joined the sea of EDSA demonstrators demanding the resignation of the petitioner and dramatically announced the AFP's withdrawal of support from the petitioner and their pledge of support to respondent Arroyo. The seismic shift of support left petitioner weak as a president. According to Secretary Angara, he asked Senator Pimentel to advise petitioner to consider the option of "dignified exit or resignation."81 Petitioner did not disagree but listened intently.82 The sky was falling fast on the petitioner. At 9:30 p.m., Senator Pimentel repeated to the petitioner the urgency of making a graceful and dignified exit. He gave the proposal a sweetener by saying that petitioner would be allowed to go abroad with enough funds to support him and his family. 83 Significantly, the petitioner expressed no objection to the suggestion for a graceful and dignified exit but said he would never leave the country.84 At 10:00 p.m., petitioner revealed to Secretary Angara, "Ed, Angie (Reyes) guaranteed that I would have five days to a week in the

palace."85

This is proof that petitioner had reconciled himself to the reality that he had to resign. His mind was already concerned with the five-day grace period he could stay in the palace. It was a matter of time.

The pressure continued piling up. By 11:00 p.m., former President Ramos called up Secretary Angara and requested, "Ed, magtulungan tayo para magkaroon tayo ng (let's cooperate to ensure a) peaceful and orderly transfer of power."86 There was no defiance to the request. Secretary Angara readily agreed. Again, we note that at this stage, the problem was already about a peaceful and orderly transfer of power. The resignation of the petitioner was implied. The first negotiation for a peaceful and orderly transfer of power immediately started at 12:20 a.m. of January 20, that fateful Saturday. The negotiation was limited to three (3) points: (1) the transition period of five days after the petitioner's resignation; (2) the guarantee of the safety of the petitioner and his family, and (3) the agreement to open the second envelope to vindicate the name of the petitioner.87 Again, we note that the resignation of petitioner was not a disputed point. The petitioner cannot feign ignorance of this fact. According to Secretary Angara, at 2:30 a.m., he briefed the petitioner on the three points and the following entry in the Angara Diary shows the reaction of the petitioner, viz: "x x x I explain what happened during the first round of negotiations. The President immediately stresses that he just wants the five-day period promised by Reyes, as well as to open the second envelope to clear his name. If the envelope is opened, on Monday, he says, he will leave by Monday. The President says. "Pagod na pagod na ako. Ayoko na masyado nang masakit. Pagod na ako sa red tape, bureaucracy, intriga. (I am very tired. I don't want any more of this – it's too painful. I'm tired of the red tape, the bureaucracy, the intrigue.) I just want to clear my name, then I will go."88

Again, this is high grade evidence that the petitioner has resigned. The intent to resign is clear when he said "x x x Ayoko na masyado nang masakit." "Ayoko na" are words of resignation. The second round of negotiation resumed at 7:30 a.m. According to the Angara Diary, the following happened: "Opposition's deal 7:30 a.m. – Rene arrives with Bert Romulo and (Ms. Macapagal's spokesperson) Rene Corona. For this round, I am accompanied by Dondon Bagatsing and Macel. Rene pulls out a document titled "Negotiating Points." It reads: '1. The President shall sign a resignation document within the day, 20 January 2001, that will be effective on Wednesday, 24 January 2001, on which day the Vice President will assume the Presidency of the Republic of the Philippines. 2. Beginning to day, 20 January 2001, the transition process for the assumption of the new administration shall commence, and persons designated by the Vice President to various positions and offices of the government shall start their orientation activities in coordination with the incumbent officials concerned. 3. The Armed Forces of the Philippines and the Philippine National Police shall function under the Vice President as national military and police authority effective immediately. 4. The Armed Forced of the Philippines, through its Chief of Staff, shall guarantee the security of the President and his family as approved by the national military and police authority (Vice President). 5. It is to be noted that the Senate will open the second envelope in connection with the alleged savings account of the President in the Equitable PCI Bank in accordance with the rules of the Senate, pursuant to the request to the Senate President. Our deal

We bring out, too, our discussion draft which reads: The undersigned parties, for and in behalf of their respective principals, agree and undertake as follows: '1. A transition will occur and take place on Wednesday, 24 January 2001, at which time President Joseph Ejercito Estrada will turn over the presidency to Vice President Gloria Macapagal-Arroyo. '2. In return, President Estrada and his families are guaranteed security and safety of their person and property throughout their natural lifetimes. Likewise, President Estrada and his families are guarantee freedom from persecution or retaliation from government and the private sector throughout their natural lifetimes. This commitment shall be guaranteed by the Armed Forces of the Philippines (AFP) through the Chief of Staff, as approved by the national military and police authorities – Vice President (Macapagal). '3. Both parties shall endeavor to ensure that the Senate sitting as an impeachment court will authorize the opening of the second envelope in the impeachment trial as proof that the subject savings account does not belong to President Estrada. '4. During the five-day transition period between 20 January 2001 and 24 January 2001 (the 'Transition Period"), the incoming Cabinet members shall receive an appropriate briefing from the outgoing Cabinet officials as part of the orientation program. During the Transition Period, the AFP and the Philippine National Police (PNP) shall function Vice President (Macapagal) as national military and police authorities. Both parties hereto agree that the AFP chief of staff and PNP director general shall obtain all the necessary signatures as affixed to this agreement and insure faithful implementation and observance thereof. Vice President Gloria Macapagal-Arroyo shall issue a public statement in the form and tenor provided for in "Annex A" heretofore attached to this agreement."89

The second round of negotiation cements the reading that the petitioner has resigned. It will be noted that during this second round of negotiation, the resignation of the petitioner was again treated as a given fact. The only unsettled points at that time were the measures to be undertaken by the parties during and after the transition period. According to Secretary Angara, the draft agreement, which was premised on the resignation of the petitioner was further refined. It was then, signed by their side and he was ready to fax it to General Reyes and Senator Pimentel to await the signature of the United Opposition. However, the signing by the party of the respondent Arroyo was aborted by her oathtaking. The Angara diary narrates the fateful events, viz;90 "xxx 11:00 a.m. – Between General Reyes and myself, there is a firm agreement on the five points to effect a peaceful transition. I can hear the general clearing all these points with a group he is with. I hear voices in the background. Agreement. The agreement starts: 1. The President shall resign today, 20 January 2001, which resignation shall be effective on 24 January 2001, on which day the Vice President will assume the presidency of the Republic of the Philippines. xxx The rest of the agreement follows: 2. The transition process for the assumption of the new administration shall commence on 20 January 2001, wherein persons designated by the Vice President to various government positions shall start orientation activities with incumbent officials. '3. The Armed Forces of the Philippines through its Chief of Staff, shall guarantee the safety and security of the President and his families throughout their natural lifetimes as approved by the national military and police authority – Vice President.

'4. The AFP and the Philippine National Police (PNP) shall function under the Vice President as national military and police authorities. '5. Both parties request the impeachment court to open the second envelope in the impeachment trial, the contents of which shall be offered as proof that the subject savings account does not belong to the President. The Vice President shall issue a public statement in the form and tenor provided for in Annex "B" heretofore attached to this agreement. 11:20 a.m. – I am all set to fax General Reyes and Nene Pimentel our agreement, signed by our side and awaiting the signature of the United opposition. And then it happens. General Reyes calls me to say that the Supreme Court has decided that Gloria Macapagal-Arroyo is President and will be sworn in at 12 noon. 'Bakit hindi naman kayo nakahintay? Paano na ang agreement (why couldn't you wait? What about the agreement)?' I asked. Reyes answered: 'Wala na, sir (it's over, sir).'

I ask him: Di yung transition period, moot and academic na?' And General Reyes answers: ' Oo nga, I delete na natin, sir (yes, we're deleting the part).' Contrary to subsequent reports, I do not react and say that there was a double cross. But I immediately instruct Macel to delete the first provision on resignation since this matter is already moot and academic. Within moments, Macel erases the first provision and faxes the documents, which have been signed by myself, Dondon and Macel, to Nene Pimentel and General Reyes. I direct Demaree Ravel to rush the original document to General Reyes for the signatures of the other side, as it is important that the provisions on security, at least, should be respected.

I then advise the President that the Supreme Court has ruled that Chief Justice Davide will administer the oath to Gloria at 12 noon. The President is too stunned for words: Final meal 12 noon – Gloria takes her oath as president of the Republic of the Philippines. 12:20 p.m. – The PSG distributes firearms to some people inside the compound. The president is having his final meal at the presidential Residence with the few friends and Cabinet members who have gathered. By this time, demonstrators have already broken down the first line of defense at Mendiola. Only the PSG is there to protect the Palace, since the police and military have already withdrawn their support for the President. 1 p.m. – The President's personal staff is rushing to pack as many of the Estrada family's personal possessions as they can. During lunch, Ronnie Puno mentions that the president needs to release a final statement before leaving Malacañang. The statement reads: At twelve o'clock noon today, Vice President Gloria Macapagal-Arroyo took her oath as President of the Republic of the Philippines. While along with many other legal minds of our country, I have strong and serious doubts about the legality and constitutionality of her proclamation as President, I do not wish to be a factor that will prevent the restoration of unity and order in our civil society. It is for this reason that I now leave Malacañang Palace, the seat of the presidency of this country, for the sake of peace and in order to begin the healing process of our nation. I leave the Palace of our people with gratitude for the opportunities given to me for service to our people. I will not shirk from any future challenges that may come ahead in the same service of our country.

I call on all my supporters and followers to join me in the promotion of a constructive national spirit of reconciliation and solidarity. May the Almighty bless our country and our beloved people. MABUHAY!"' It was curtain time for the petitioner. In sum, we hold that the resignation of the petitioner cannot be doubted. It was confirmed by his leaving Malacañang. In the press release containing his final statement, (1) he acknowledged the oath-taking of the respondent as President of the Republic albeit with reservation about its legality; (2) he emphasized he was leaving the Palace, the seat of the presidency, for the sake of peace and in order to begin the healing process of our nation. He did not say he was leaving the Palace due to any kind inability and that he was going to re-assume the presidency as soon as the disability disappears: (3) he expressed his gratitude to the people for the opportunity to serve them. Without doubt, he was referring to the past opportunity given him to serve the people as President (4) he assured that he will not shirk from any future challenge that may come ahead in the same service of our country. Petitioner's reference is to a future challenge after occupying the office of the president which he has given up; and (5) he called on his supporters to join him in the promotion of a constructive national spirit of reconciliation and solidarity. Certainly, the national spirit of reconciliation and solidarity could not be attained if he did not give up the presidency. The press release was petitioner's valedictory, his final act of farewell. His presidency is now in the part tense. It is, however, urged that the petitioner did not resign but only took a temporary leave dated January 20, 2001 of the petitioner sent to Senate President Pimentel and Speaker Fuentebella is cited. Again, we refer to the said letter, viz: "Sir. By virtue of the provisions of Section II, Article VII of the Constitution, I am hereby transmitting this declaration that I am unable to exercise the powers and duties of my office. By operation of law and the Constitution, the Vice President shall be the Acting president.

(Sgd.) Joseph Ejercito Estrada" To say the least, the above letter is wrapped in mystery.91 The pleadings filed by the petitioner in the cases at bar did not discuss, may even intimate, the circumstances that led to its preparation. Neither did the counsel of the petitioner reveal to the Court these circumstances during the oral argument. It strikes the Court as strange that the letter, despite its legal value, was never referred to by the petitioner during the week-long crisis. To be sure, there was not the slightest hint of its existence when he issued his final press release. It was all too easy for him to tell the Filipino people in his press release that he was temporarily unable to govern and that he was leaving the reins of government to respondent Arroyo for the time bearing. Under any circumstance, however, the mysterious letter cannot negate the resignation of the petitioner. If it was prepared before the press release of the petitioner clearly as a later act. If, however, it was prepared after the press released, still, it commands scant legal significance. Petitioner's resignation from the presidency cannot be the subject of a changing caprice nor of a whimsical will especially if the resignation is the result of his reputation by the people. There is another reason why this Court cannot given any legal significance to petitioner's letter and this shall be discussed in issue number III of this Decision. After petitioner contended that as a matter of fact he did not resign, he also argues that he could not resign as a matter of law. He relies on section 12 of RA No. 3019, otherwise known as the Anti-graft and Corrupt Practices Act, which allegedly prohibits his resignation, viz: "Sec. 12. No public officer shall be allowed to resign or retire pending an investigation, criminals or administrative, or pending a prosecution against him, for any offense under this Act or under the provisions of the Revised Penal Code on bribery." A reading of the legislative history of RA No. 3019 will hardly provide any comfort to the petitioner. RA No. 3019 originated form Senate Bill No. 293. The original draft of the bill, when it was submitted to the Senate, did not contain a provision similar to section 12 of the law as it now stands. However, in his sponsorship speech, Senator Arturo Tolentino, the author of the bill, "reserved to propose during the period of amendments the inclusion of a provision to the effect that no public official who is under prosecution for any act of graft or corruption, or is under administrative

investigation, shall be allowed to voluntarily resign or retire."92 During the period of amendments, the following provision was inserted as section 15: "Sec. 15. Termination of office – No public official shall be allowed to resign or retire pending an investigation, criminal or administrative, or pending a prosecution against him, for any offense under the Act or under the provisions of the Revised Penal Code on bribery. The separation or cessation of a public official form office shall not be a bar to his prosecution under this Act for an offense committed during his incumbency."93 The bill was vetoed by then President Carlos P. Garcia who questioned the legality of the second paragraph of the provision and insisted that the President's immunity should extend after his tenure. Senate Bill No. 571, which was substantially similar Senate Bill No. 293, was thereafter passed. Section 15 above became section 13 under the new bill, but the deliberations on this particular provision mainly focused on the immunity of the President, which was one of the reasons for the veto of the original bill. There was hardly any debate on the prohibition against the resignation or retirement of a public official with pending criminal and administrative cases against him. Be that as it may, the intent of the law ought to be obvious. It is to prevent the act of resignation or retirement from being used by a public official as a protective shield to stop the investigation of a pending criminal or administrative case against him and to prevent his prosecution under the Anti-Graft Law or prosecution for bribery under the Revised Penal Code. To be sure, no person can be compelled to render service for that would be a violation of his constitutional right.94 A public official has the right not to serve if he really wants to retire or resign. Nevertheless, if at the time he resigns or retires, a public official is facing administrative or criminal investigation or prosecution, such resignation or retirement will not cause the dismissal of the criminal or administrative proceedings against him. He cannot use his resignation or retirement to avoid prosecution. There is another reason why petitioner's contention should be rejected. In the cases at bar, the records show that when petitioner resigned on January 20, 2001, the cases filed against him before the Ombudsman were OMB Case Nos. 0-00-1629, 0-00-1755, 0-00-1756, 0-00-1757 and 0-00-1758. While these cases have been filed, the respondent

Ombudsman refrained from conducting the preliminary investigation of the petitioner for the reason that as the sitting President then, petitioner was immune from suit. Technically, the said cases cannot be considered as pending for the Ombudsman lacked jurisdiction to act on them. Section 12 of RA No. 3019 cannot therefore be invoked by the petitioner for it contemplates of cases whose investigation or prosecution do not suffer from any insuperable legal obstacle like the immunity from suit of a sitting President. Petitioner contends that the impeachment proceeding is an administrative investigation that, under section 12 of RA 3019, bars him from resigning. We hold otherwise. The exact nature of an impeachment proceeding is debatable. But even assuming arguendo that it is an administrative proceeding, it can not be considered pending at the time petitioner resigned because the process already broke down when a majority of the senatorjudges voted against the opening of the second envelope, the public and private prosecutors walked out, the public prosecutors filed their Manifestation of Withdrawal of Appearance, and the proceedings were postponed indefinitely. There was, in effect, no impeachment case pending against petitioner when he resigned. III Whether or not the petitioner Is only temporarily unable to Act as President. We shall now tackle the contention of the petitioner that he is merely temporarily unable to perform the powers and duties of the presidency, and hence is a President on leave. As aforestated, the inability claim is contained in the January 20, 2001 letter of petitioner sent on the same day to Senate President Pimentel and Speaker Fuentebella. Petitioner postulates that respondent Arroyo as Vice President has no power to adjudge the inability of the petitioner to discharge the powers and duties of the presidency. His significant submittal is that "Congress has the ultimate authority under the Constitution to determine whether the President is incapable of performing his functions in the manner provided for in section 11 of article VII."95 This contention is the centerpiece of petitioner's stance that he is a President on leave and respondent Arroyo is only an Acting President.

An examination of section 11, Article VII is in order. It provides: "SEC. 11. Whenever the President transmits to the President of the Senate and the Speaker of the House of Representatives his written declaration that he is unable to discharge the powers and duties of his office, and until he transmits to them a written declaration to the contrary, such powers and duties shall be discharged by the Vice-President as Acting President. Whenever a majority of all the Members of the Cabinet transmit to the President of the Senate and to the Speaker of the House of Representatives their written declaration that the President is unable to discharge the powers and duties of his office, the Vice-President shall immediately assume the powers and duties of the office as Acting President. Thereafter, when the President transmits to the President of the Senate and to the Speaker of the House of Representatives his written declaration that no inability exists, he shall reassume the powers and duties of his office. Meanwhile, should a majority of all the Members of the Cabinet transmit within five days to the President of the Senate and to the Speaker of the House of Representatives their written declaration that the President is unable to discharge the powers and duties of his office, the Congress shall decide the issue. For that purpose, the Congress shall convene, if it is not in session, within forty-eight hours, in accordance with its rules and without need of call. If the Congress, within ten days after receipt of the last written declaration, or, if not in session, within twelve days after it is required to assemble, determines by a two-thirds vote of both Houses, voting separately, that the President is unable to discharge the powers and duties of his office, the Vice-President shall act as President; otherwise, the President shall continue exercising the powers and duties of his office."




That is the law. Now, the operative facts: 1. Petitioner, on January 20, 2001, sent the above letter claiming inability to the Senate President and Speaker of the House;

2. Unaware of the letter, respondent Arroyo took her oath of office as President on January 20, 2001 at about 12:30 p.m.;
 3. Despite receipt of the letter, the House of Representatives passed on January 24, 2001 House Resolution No. 175;96
 On the same date, the House of the Representatives passed House Resolution No. 17697 which states: "RESOLUTION EXPRESSING THE SUPPORT OF THE HOUSE OF REPRESENTATIVES TO THE ASSUMPTION INTO OFFICE BY VICE PRESIDENT GLORIA MACAPAGAL-ARROYO AS PRESIDENT OF THE REPUBLIC OF THE PHILIPPINES, EXTENDING ITS CONGRATULATIONS AND EXPRESSING ITS SUPPORT FOR HER ADMINISTRATION AS A PARTNER IN THE ATTAINMENT OF THE NATION'S GOALS UNDER THE CONSTITUTION WHEREAS, as a consequence of the people's loss of confidence on the ability of former President Joseph Ejercito Estrada to effectively govern, the Armed Forces of the Philippines, the Philippine National Police and majority of his cabinet had withdrawn support from him; WHEREAS, upon authority of an en banc resolution of the Supreme Court, Vice President Gloria Macapagal-Arroyo was sworn in as President of the Philippines on 20 January 2001 before Chief Justice Hilario G. Davide, Jr.; WHEREAS, immediately thereafter, members of the international community had extended their recognition to Her Excellency, Gloria Macapagal-Arroyo as President of the Republic of the Philippines; WHEREAS, Her Excellency, President Gloria Macapagal-Arroyo has espoused a policy of national healing and reconciliation with justice for the purpose of national unity and development; WHEREAS, it is axiomatic that the obligations of the government cannot be achieved if it is divided, thus by reason of the constitutional duty of the House of Representatives as an institution and that of the individual members thereof of fealty to the supreme will of the people, the House of Representatives must ensure to the people a stable, continuing government and therefore must remove all obstacles to the attainment thereof;

WHEREAS, it is a concomitant duty of the House of Representatives to exert all efforts to unify the nation, to eliminate fractious tension, to heal social and political wounds, and to be an instrument of national reconciliation and solidarity as it is a direct representative of the various segments of the whole nation; WHEREAS, without surrending its independence, it is vital for the attainment of all the foregoing, for the House of Representatives to extend its support and collaboration to the administration of Her Excellency, President Gloria Macapagal-Arroyo, and to be a constructive partner in nation-building, the national interest demanding no less: Now, therefore, be it Resolved by the House of Representatives, To express its support to the assumption into office by Vice President Gloria Macapagal-Arroyo as President of the Republic of the Philippines, to extend its congratulations and to express its support for her administration as a partner in the attainment of the Nation's goals under the Constitution. Adopted, (Sgd.) FELICIANO BELMONTE JR.
 Speaker This Resolution was adopted by the House of Representatives on January 24, 2001. (Sgd.) ROBERTO P. NAZARENO
 Secretary General" On February 7, 2001, the House of the Representatives passed House Resolution No. 17898 which states: "RESOLUTION CONFIRMING PRESIDENT GLORIA MACAPAGALARROYO'S NOMINATION OF SENATOR TEOFISTO T. GUINGONA, JR. AS VICE PRESIDENT OF THE REPUBLIC OF THE PHILIPPINES WHEREAS, there is a vacancy in the Office of the Vice President due to the assumption to the Presidency of Vice President Gloria MacapagalArroyo;

WHEREAS, pursuant to Section 9, Article VII of the Constitution, the President in the event of such vacancy shall nominate a Vice President from among the members of the Senate and the House of Representatives who shall assume office upon confirmation by a majority vote of all members of both Houses voting separately; WHEREAS, Her Excellency, President Gloria Macapagal-Arroyo has nominated Senate Minority Leader Teofisto T. Guingona Jr., to the position of Vice President of the Republic of the Philippines; WHEREAS, Senator Teofisto T. Guingona Jr., is a public servant endowed with integrity, competence and courage; who has served the Filipino people with dedicated responsibility and patriotism; WHEREAS, Senator Teofisto T. Guingona, Jr. possesses sterling qualities of true statesmanship, having served the government in various capacities, among others, as Delegate to the Constitutional Convention, Chairman of the Commission on Audit, Executive Secretary, Secretary of Justice, Senator of the Philippines – qualities which merit his nomination to the position of Vice President of the Republic: Now, therefore, be it Resolved as it is hereby resolved by the House of Representatives, That the House of Representatives confirms the nomination of Senator Teofisto T. Guingona, Jr. as the Vice President of the Republic of the Philippines. Adopted, (Sgd.) FELICIANO BELMONTE JR.
 Speaker This Resolution was adopted by the House of Representatives on February 7, 2001. (Sgd.) ROBERTO P. NAZARENO
 Secretary General" (4) Also, despite receipt of petitioner's letter claiming inability, some twelve (12) members of the Senate signed the following:

"RESOLUTION WHEREAS, the recent transition in government offers the nation an opportunity for meaningful change and challenge; WHEREAS, to attain desired changes and overcome awesome challenges the nation needs unity of purpose and resolve cohesive resolute (sic) will; WHEREAS, the Senate of the Philippines has been the forum for vital legislative measures in unity despite diversities in perspectives; WHEREFORE, we recognize and express support to the new government of President Gloria Macapagal-Arroyo and resolve to discharge and overcome the nation's challenges." 99 On February 7, the Senate also passed Senate Resolution No. 82100 which states: "RESOLUTION CONFIRMING PRESIDENT GLORIA MACAPAGAL ARROYO'S NOMINATION OF SEM. TEOFISTO T. GUINGONA, JR. AS VICE PRESIDENT OF THE REPUBLIC OF THE PHILIPPINES WHEREAS, there is vacancy in the Office of the Vice President due to the assumption to the Presidency of Vice President Gloria Macapagal-Arroyo; WHEREAS, pursuant to Section 9 Article VII of the Constitution, the President in the event of such vacancy shall nominate a Vice President from among the members of the Senate and the House of Representatives who shall assume office upon confirmation by a majority vote of all members of both Houses voting separately; WHEREAS, Her Excellency, President Gloria Macapagal-Arroyo has nominated Senate Minority Leader Teofisto T. Guingona, Jr. to the position of Vice President of the Republic of the Philippines; WHEREAS, Sen. Teofisto T. Guingona, Jr. is a public servant endowed with integrity, competence and courage; who has served the Filipino people with dedicated responsibility and patriotism; WHEREAS, Sen. Teofisto T. Guingona, Jr. possesses sterling qualities of true statemanship, having served the government in various capacities,

among others, as Delegate to the Constitutional Convention, Chairman of the Commission on Audit, Executive Secretary, Secretary of Justice, Senator of the land - which qualities merit his nomination to the position of Vice President of the Republic: Now, therefore, be it Resolved, as it is hereby resolved, That the Senate confirm the nomination of Sen. Teofisto T. Guingona, Jr. as Vice President of the Republic of the Philippines. Adopted, (Sgd.) AQUILINO Q. PIMENTEL JR.
 President of the Senate

This Resolution was adopted by the Senate on February 7, 2001. (Sgd.) LUTGARDO B. BARBO
 Secretary of the Senate" On the same date, February 7, the Senate likewise passed Senate Resolution No. 83101 which states: "RESOLUTION RECOGNIZING THAT THE IMPEACHMENT COURT IS FUNCTUS OFFICIO Resolved, as it is hereby resolved. That the Senate recognize that the Impeachment Court is functus officioand has been terminated. Resolved, further, That the Journals of the Impeachment Court on Monday, January 15, Tuesday, January 16 and Wednesday, January 17, 2001 be considered approved. Resolved, further, That the records of the Impeachment Court including the "second envelope" be transferred to the Archives of the Senate for proper safekeeping and preservation in accordance with the Rules of the Senate. Disposition and retrieval thereof shall be made only upon written approval of the Senate president. Resolved, finally. That all parties concerned be furnished copies of this Resolution.

Adopted, (Sgd.) AQUILINO Q. PIMENTEL, JR.
 President of the Senate This Resolution was adopted by the Senate on February 7, 2001. (Sgd.) LUTGARDO B. BARBO
 Secretary of the Senate" (5) On February 8, the Senate also passed Resolution No. 84 "certifying to the existence of vacancy in the Senate and calling on the COMELEC to fill up such vacancy through election to be held simultaneously with the regular election on May 14, 2001 and the Senatorial candidate garnering the thirteenth (13th) highest number of votes shall serve only for the unexpired term of Senator Teofisto T. Guingona, Jr.' (6) Both houses of Congress started sending bills to be signed into law by respondent Arroyo as President. (7) Despite the lapse of time and still without any functioning Cabinet, without any recognition from any sector of government, and without any support from the Armed Forces of the Philippines and the Philippine National Police, the petitioner continues to claim that his inability to govern is only momentary. What leaps to the eye from these irrefutable facts is that both houses of Congress have recognized respondent Arroyo as the President. Implicitly clear in that recognition is the premise that the inability of petitioner Estrada. Is no longer temporary. Congress has clearly rejected petitioner's claim of inability. The question is whether this Court has jurisdiction to review the claim of temporary inability of petitioner Estrada and thereafter revise the decision of both Houses of Congress recognizing respondent Arroyo as president of the Philippines. Following Tañada v. Cuenco,102 we hold that this Court cannot exercise its judicial power or this is an issue "in regard to which full discretionary authority has been delegated to the Legislative xxx branch of the government." Or to use the language in Baker vs. Carr, 103 there is a "textually demonstrable or a lack of judicially discoverable and manageable standards for resolving it." Clearly, the Court cannot pass

upon petitioner's claim of inability to discharge the power and duties of the presidency. The question is political in nature and addressed solely to Congress by constitutional fiat. It is a political issue, which cannot be decided by this Court without transgressing the principle of separation of powers. In fine, even if the petitioner can prove that he did not resign, still, he cannot successfully claim that he is a President on leave on the ground that he is merely unable to govern temporarily. That claim has been laid to rest by Congress and the decision that respondent Arroyo is the de jure, president made by a co-equal branch of government cannot be reviewed by this Court. IV Whether or not the petitioner enjoys immunity from suit. Assuming he enjoys immunity, the extent of the immunity Petitioner Estrada makes two submissions: first, the cases filed against him before the respondent Ombudsman should be prohibited because he has not been convicted in the impeachment proceedings against him; and second, he enjoys immunity from all kinds of suit, whether criminal or civil. Before resolving petitioner's contentions, a revisit of our legal history executive immunity will be most enlightening. The doctrine of executive immunity in this jurisdiction emerged as a case law. In the 1910 case of Forbes, etc. vs. Chuoco Tiaco and Crosfield,104 the respondent Tiaco, a Chinese citizen, sued petitioner W. Cameron Forbes, Governor-General of the Philippine Islands. J.E. Harding and C.R. Trowbridge, Chief of Police and Chief of the Secret Service of the City of Manila, respectively, for damages for allegedly conspiring to deport him to China. In granting a writ of prohibition, this Court, speaking thru Mr. Justice Johnson, held: " The principle of nonliability, as herein enunciated, does not mean that the judiciary has no authority to touch the acts of the Governor-General; that he may, under cover of his office, do what he will, unimpeded and unrestrained. Such a construction would mean that tyranny, under the guise of the execution of the law, could walk defiantly abroad, destroying rights of person and of property, wholly free from interference of courts or

legislatures. This does not mean, either that a person injured by the executive authority by an act unjustifiable under the law has n remedy, but must submit in silence. On the contrary, it means, simply, that the governors-general, like the judges if the courts and the members of the Legislature, may not be personally mulcted in civil damages for the consequences of an act executed in the performance of his official duties. The judiciary has full power to, and will, when the mater is properly presented to it and the occasion justly warrants it, declare an act of the Governor-General illegal and void and place as nearly as possible in status quo any person who has been deprived his liberty or his property by such act. This remedy is assured to every person, however humble or of whatever country, when his personal or property rights have been invaded, even by the highest authority of the state. The thing which the judiciary can not do is mulct the Governor-General personally in damages which result from the performance of his official duty, any more than it can a member of the Philippine Commission of the Philippine Assembly. Public policy forbids it. Neither does this principle of nonliability mean that the chief executive may not be personally sued at all in relation to acts which he claims to perform as such official. On the contrary, it clearly appears from the discussion heretofore had, particularly that portion which touched the liability of judges and drew an analogy between such liability and that of the GovernorGeneral, that the latter is liable when he acts in a case so plainly outside of his power and authority that he can not be said to have exercised discretion in determining whether or not he had the right to act. What is held here is that he will be protected from personal liability for damages not only when he acts within his authority, but also when he is without authority, provided he actually used discretion and judgement, that is, the judicial faculty, in determining whether he had authority to act or not. In other words, in determining the question of his authority. If he decide wrongly, he is still protected provided the question of his authority was one over which two men, reasonably qualified for that position, might honestly differ; but he s not protected if the lack of authority to act is so plain that two such men could not honestly differ over its determination. In such case, be acts, not as Governor-General but as a private individual, and as such must answer for the consequences of his act." Mr. Justice Johnson underscored the consequences if the Chief Executive was not granted immunity from suit, viz"xxx. Action upon important matters

of state delayed; the time and substance of the chief executive spent in wrangling litigation; disrespect engendered for the person of one of the highest officials of the state and for the office he occupies; a tendency to unrest and disorder resulting in a way, in distrust as to the integrity of government itself."105 Our 1935 Constitution took effect but it did not contain any specific provision on executive immunity. Then came the tumult of the martial law years under the late President Ferdinand E. Marcos and the 1973 Constitution was born. In 1981, it was amended and one of the amendments involved executive immunity. Section 17, Article VII stated: "The President shall be immune from suit during his tenure. Thereafter, no suit whatsoever shall lie for official acts done by him or by others pursuant to his specific orders during his tenure. The immunities herein provided shall apply to the incumbent President referred to in Article XVII of this Constitution. In his second Vicente G. Sinco professional Chair lecture entitled, "Presidential Immunity and All The King's Men: The Law of Privilege As a Defense To Actions For Damages,"106 petitioner's learned counsel, former Dean of the UP College of Law, Atty. Pacificao Agabin, brightened the modifications effected by this constitutional amendment on the existing law on executive privilege. To quote his disquisition: "In the Philippines, though, we sought to do the Americans one better by enlarging and fortifying the absolute immunity concept. First, we extended it to shield the President not only form civil claims but also from criminal cases and other claims. Second, we enlarged its scope so that it would cover even acts of the President outside the scope of official duties. And third, we broadened its coverage so as to include not only the President but also other persons, be they government officials or private individuals, who acted upon orders of the President. It can be said that at that point most of us were suffering from AIDS (or absolute immunity defense syndrome)." The Opposition in the then Batasan Pambansa sought the repeal of this Marcosian concept of executive immunity in the 1973 Constitution. The move was led by them Member of Parliament, now Secretary of Finance, Alberto Romulo, who argued that the after incumbency immunity granted to President Marcos violated the principle that a public office is a public trust.

He denounced the immunity as a return to the anachronism "the king can do no wrong."107 The effort failed. The 1973 Constitution ceased to exist when President Marcos was ousted from office by the People Power revolution in 1986. When the 1987 Constitution was crafted, its framers did not reenact the executive immunity provision of the 1973 Constitution. The following explanation was given by delegate J. Bernas vis:108 "Mr. Suarez. Thank you. The last question is with reference to the Committee's omitting in the draft proposal the immunity provision for the President. I agree with Commissioner Nolledo that the Committee did very well in striking out second sentence, at the very least, of the original provision on immunity from suit under the 1973 Constitution. But would the Committee members not agree to a restoration of at least the first sentence that the President shall be immune from suit during his tenure, considering that if we do not provide him that kind of an immunity, he might be spending all his time facing litigation's, as the President-in-exile in Hawaii is now facing litigation's almost daily? Fr. Bernas. The reason for the omission is that we consider it understood in present jurisprudence that during his tenure he is immune from suit. Mr. Suarez. So there is no need to express it here. Fr. Bernas. There is no need. It was that way before. The only innovation made by the 1973 Constitution was to make that explicit and to add other things. Mr. Suarez. On that understanding, I will not press for any more query, Madam President. I think the Commissioner for the clarifications." We shall now rule on the contentions of petitioner in the light of this history. We reject his argument that he cannot be prosecuted for the reason that he must first be convicted in the impeachment proceedings. The impeachment trial of petitioner Estrada was aborted by the walkout of the prosecutors and by the events that led to his loss of the presidency. Indeed, on

February 7, 2001, the Senate passed Senate Resolution No. 83 "Recognizing that the Impeachment Court is Functus Officio."109 Since, the Impeachment Court is now functus officio, it is untenable for petitioner to demand that he should first be impeached and then convicted before he can be prosecuted. The plea if granted, would put a perpetual bar against his prosecution. Such a submission has nothing to commend itself for it will place him in a better situation than a non-sitting President who has not been subjected to impeachment proceedings and yet can be the object of a criminal prosecution. To be sure, the debates in the Constitutional Commission make it clear that when impeachment proceedings have become moot due to the resignation of the President, the proper criminal and civil cases may already be filed against him, viz:110 "xxx Mr. Aquino. On another point, if an impeachment proceeding has been filed against the President, for example, and the President resigns before judgement of conviction has been rendered by the impeachment court or by the body, how does it affect the impeachment proceeding? Will it be necessarily dropped? Mr. Romulo. If we decide the purpose of impeachment to remove one from office, then his resignation would render the case moot and academic. However, as the provision says, the criminal and civil aspects of it may continue in the ordinary courts." This is in accord with our ruling In Re: Saturnino Bermudez111 that 'incumbent Presidents are immune from suit or from being brought to court during the period of their incumbency and tenure" but not beyond. Considering the peculiar circumstance that the impeachment process against the petitioner has been aborted and thereafter he lost the presidency, petitioner Estrada cannot demand as a condition sine qua non to his criminal prosecution before the Ombudsman that he be convicted in the impeachment proceedings. His reliance on the case of Lecaroz vs. Sandiganbayan112 and related cases113 are inapropos for they have a different factual milieu. We now come to the scope of immunity that can be claimed by petitioner as a non-sitting President. The cases filed against petitioner Estrada are criminal in character. They involve plunder, bribery and graft and corruption. By no stretch of the imagination can these crimes, especially plunder which

carries the death penalty, be covered by the alleged mantle of immunity of a non-sitting president. Petitioner cannot cite any decision of this Court licensing the President to commit criminal acts and wrapping him with posttenure immunity from liability. It will be anomalous to hold that immunity is an inoculation from liability for unlawful acts and conditions. The rule is that unlawful acts of public officials are not acts of the State and the officer who acts illegally is not acting as such but stands in the same footing as any trespasser.114 Indeed, critical reading of current literature on executive immunity will reveal a judicial disinclination to expand the privilege especially when it impedes the search for truth or impairs the vindication of a right. In the 1974 case of US v. Nixon,115 US President Richard Nixon, a sitting President, was subpoenaed to produce certain recordings and documents relating to his conversations with aids and advisers. Seven advisers of President Nixon's associates were facing charges of conspiracy to obstruct Justice and other offenses, which were committed in a burglary of the Democratic National Headquarters in Washington's Watergate Hotel during the 972 presidential campaign. President Nixon himself was named an unindicted co-conspirator. President Nixon moved to quash the subpoena on the ground, among others, that the President was not subject to judicial process and that he should first be impeached and removed from office before he could be made amenable to judicial proceedings. The claim was rejected by the US Supreme Court. It concluded that "when the ground for asserting privilege as to subpoenaed materials sought for use in a criminal trial is based only on the generalized interest in confidentiality, it cannot prevail over the fundamental demands of due process of law in the fair administration of criminal justice." In the 1982 case of Nixon v. Fitzgerald, 116 the US Supreme Court further held that the immunity of the president from civil damages covers only "official acts." Recently, the US Supreme Court had the occasion to reiterate this doctrine in the case of Clinton v. Jones117 where it held that the US President's immunity from suits for money damages arising out of their official acts is inapplicable to unofficial conduct. There are more reasons not to be sympathetic to appeals to stretch the scope of executive immunity in our jurisdiction. One of the great themes of the 1987 Constitution is that a public office is a public trust.118 It declared as a state policy that "the State shall maintain honesty and integrity in the public service and take positive and effective measures against graft and

corruptio."119 it ordained that "public officers and employees must at all times be accountable to the people, serve them with utmost responsibility, integrity, loyalty, and efficiency act with patriotism and justice, and lead modest lives."120 It set the rule that 'the right of the State to recover properties unlawfully acquired by public officials or employees, from them or from their nominees or transferees, shall not be barred by prescription, latches or estoppel."121 It maintained the Sandiganbayan as an anti-graft court.122 It created the office of the Ombudsman and endowed it with enormous powers, among which is to "investigate on its own, or on complaint by any person, any act or omission of any public official, employee, office or agency, when such act or omission appears to be illegal, unjust improper or inefficient."123 The Office of the Ombudsman was also given fiscal autonomy.124 These constitutional policies will be devalued if we sustain petitioner's claim that a non-sitting president enjoys immunity from suit for criminal acts committed during his incumbency. V Whether or not the prosecution of petitioner Estrada should be enjoined due to prejudicial publicity Petitioner also contends that the respondent Ombudsman should be stopped from conducting the investigation of the cases filed against him due to the barrage of prejudicial publicity on his guilt. He submits that the respondent Ombudsman has developed bias and is all set file the criminal cases violation of his right to due process. There are two (2) principal legal and philosophical schools of thought on how to deal with the rain of unrestrained publicity during the investigation and trial of high profile cases.125 The British approach the problem with the presumption that publicity will prejudice a jury. Thus, English courts readily stay and stop criminal trials when the right of an accused to fair trial suffers a threat.126 The American approach is different. US courts assume a skeptical approach about the potential effect of pervasive publicity on the right of an accused to a fair trial. They have developed different strains of tests to resolve this issue, i.e., substantial; probability of irreparable harm, strong likelihood, clear and present danger, etc.

This is not the first time the issue of trial by publicity has been raised in this Court to stop the trials or annul convictions in high profile criminal cases. 127 In People vs. Teehankee, Jr.,128 later reiterated in the case of Larranaga vs. court of Appeals, et al.,129 we laid down the doctrine that: "We cannot sustain appellant's claim that he was denied the right to impartial trial due to prejudicial publicity. It is true that the print and broadcast media gave the case at bar pervasive publicity, just like all high profile and high stake criminal trials. Then and now, we rule that the right of an accused to a fair trial is not incompatible to a free press. To be sure, responsible reporting enhances accused's right to a fair trial for, as well pointed out, a responsible press has always been regarded as the criminal field xxx. The press does not simply publish information about trials but guards against the miscarriage of justice by subjecting the police, prosecutors, and judicial processes to extensive public scrutiny and criticism. Pervasive publicity is not per se prejudicial to the right of an accused to fair trial. The mere fact that the trial of appellant was given a day-to-day, gavelto-gavel coverage does not by itself prove that the publicity so permeated the mind of the trial judge and impaired his impartiality. For one, it is impossible to seal the minds of members of the bench from pre-trial and other off-court publicity of sensational criminal cases. The state of the art of our communication system brings news as they happen straight to our breakfast tables and right to our bedrooms. These news form part of our everyday menu of the facts and fictions of life. For another, our idea of a fair and impartial judge is not that of a hermit who is out of touch with the world. We have not installed the jury system whose members are overly protected from publicity lest they lose there impartially. xxx xxx xxx. Our judges are learned in the law and trained to disregard off-court evidence and on-camera performances of parties to litigation. Their mere exposure to publications and publicity stunts does not per se fatally infect their impartiality. At best, appellant can only conjure possibility of prejudice on the part of the trial judge due to the barrage of publicity that characterized the investigation and trial of the case. In Martelino, et al. v. Alejandro, et al., we rejected this standard of possibility of prejudice and adopted the test of actual prejudice as we ruled that to warrant a finding of prejudicial publicity, there must be allegation and proof that the judges have been unduly

influenced, not simply that they might be, by the barrage of publicity. In the case at a bar, the records do not show that the trial judge developed actual bias against appellants as a consequence of the extensive media coverage of the pre-trial and trial of his case. The totality of circumstances of the case does not prove that the trial judge acquired a fixed opinion as a result of prejudicial publicity, which is incapable of change even by evidence presented during the trial. Appellant has the burden to prove this actual bias and he has not discharged the burden.' We expounded further on this doctrine in the subsequent case of Webb vs. Hon. Raul de Leon, etc.130 and its companion cases, viz: "Again petitioners raise the effect of prejudicial publicity on their right to due process while undergoing preliminary investigation. We find no procedural impediment to its early invocation considering the substantial risk to their liberty while undergoing a preliminary investigation. xxx The democratic settings, media coverage of trials of sensational cases cannot be avoided and oftentimes, its excessiveness has been aggravated by kinetic developments in the telecommunications industry. For sure, few cases can match the high volume and high velocity of publicity that attended the preliminary investigation of the case at bar. Our daily diet of facts and fiction about the case continues unabated even today. Commentators still bombard the public with views not too many of which are sober and sublime. Indeed, even the principal actors in the case – the NBI, the respondents, their lawyers and their sympathizers have participated in this media blitz. The possibility of media abuses and their threat to a fair trial notwithstanding, criminal trials cannot be completely closed to the press and public. In the seminal case of Richmond Newspapers, Inc. v. Virginia, it was xxx a. b. The historical evidence of the evolution of the criminal trial in AngloAmerican justice demonstrates conclusively that at the time this Nation's organic laws were adopted, criminal trials both here and in England had long been presumptively open, thus giving assurance

that the proceedings were conducted fairly to all concerned and discouraging perjury, the misconduct of participants, or decisions based on secret bias or partiality. In addition, the significant community therapeutic value of public trials was recognized when a shocking crime occurs a community reaction of outrage and public protest often follows, and thereafter the open processes of justice serve an important prophylactic purpose, providing an outlet for community concern, hostility and emotion. To work effectively, it is important that society's criminal process satisfy the appearance of justice,' Offutt v. United States, 348 US 11, 14, 99 L ED 11, 75 S Ct 11, which can best be provided by allowing people to observe such process. From this unbroken, uncontradicted history, supported by reasons as valid today as in centuries past, it must be concluded that a presumption of openness inheres in the very nature of a criminal trial under this Nation's system of justice, Cf., e,g., Levine v. United States, 362 US 610, 4 L Ed 2d 989, 80 S Ct 1038.
 
 c.

The freedoms of speech. Press and assembly, expressly guaranteed by the First Amendment, share a common core purpose of assuring freedom of communication on matters relating to the functioning of government. In guaranteeing freedom such as those of speech and press, the First Amendment can be read as protecting the right of everyone to attend trials so as give meaning to those explicit guarantees; the First Amendment right to receive information and ideas means, in the context of trials, that the guarantees of speech and press, standing alone, prohibit government from summarily closing courtroom doors which had long been open to the public at the time the First Amendment was adopted. Moreover, the right of assembly is also relevant, having been regarded not only as an independent right but also as a catalyst to augment the free exercise of the other First Amendment rights with which the draftsmen deliberately linked it. A trial courtroom is a public place where the people generally and representatives of the media have a right to be present, and where their presence historically has been thought to enhance the integrity and quality of what takes place.
 


d. Even though the Constitution contains no provision which be its terms guarantees to the public the right to attend criminal trials, various

fundamental rights, not expressly guaranteed, have been recognized as indispensable to the enjoyment of enumerated rights. The right to attend criminal trial is implicit in the guarantees of the First Amendment: without the freedom to attend such trials, which people have exercised for centuries, important aspects of freedom of speech and of the press be eviscerated.
 Be that as it may, we recognize that pervasive and prejudicial publicity under certain circumstances can deprive an accused of his due process right to fair trial. Thus, in Martelino, et al. vs. Alejandro, et al., we held that to warrant a finding of prejudicial publicity there must be allegation and proof that the judges have been unduly influenced, not simply that they might be, by the barrage of publicity. In the case at bar, we find nothing in the records that will prove that the tone and content of the publicity that attended the investigation of petitioners fatally infected the fairness and impartiality of the DOJ Panel. Petitioners cannot just rely on the subliminal effects of publicity on the sense of fairness of the DOJ Panel, for these are basically unbeknown and beyond knowing. To be sure, the DOJ Panel is composed of an Assistant Chief State Prosecutor and Senior State Prosecutors. Their long experience in criminal investigation is a factor to consider in determining whether they can easily be blinded by the klieg lights of publicity. Indeed, their 26-page Resolution carries no indubitable indicia of bias for it does not appear that they considered any extra-record evidence except evidence properly adduced by the parties. The length of time the investigation was conducted despite its summary nature and the generosity with which they accommodated the discovery motions of petitioners speak well of their fairness. At no instance, we note, did petitioners seek the disqualification of any member of the DOJ Panel on the ground of bias resulting from their bombardment of prejudicial publicity." (emphasis supplied) Applying the above ruling, we hold that there is not enough evidence to warrant this Court to enjoin the preliminary investigation of the petitioner by the respondent Ombudsman. Petitioner needs to offer more than hostile headlines to discharge his burden of proof.131 He needs to show more weighty social science evidence to successfully prove the impaired capacity of a judge to render a bias-free decision. Well to note, the cases against the petitioner are still undergoing preliminary investigation by a special panel of prosecutors in the office of the respondent Ombudsman. No allegation whatsoever has been made by the

petitioner that the minds of the members of this special panel have already been infected by bias because of the pervasive prejudicial publicity against him. Indeed, the special panel has yet to come out with its findings and the Court cannot second guess whether its recommendation will be unfavorable to the petitioner. 1âwphi1.nêt

The records show that petitioner has instead charged respondent Ombudsman himself with bias. To quote petitioner's submission, the respondent Ombudsman "has been influenced by the barrage of slanted news reports, and he has buckled to the threats and pressures directed at him by the mobs."132 News reports have also been quoted to establish that the respondent Ombudsman has already prejudged the cases of the petitioner133 and it is postulated that the prosecutors investigating the petitioner will be influenced by this bias of their superior. Again, we hold that the evidence proffered by the petitioner is insubstantial. The accuracy of the news reports referred to by the petitioner cannot be the subject of judicial notice by this Court especially in light of the denials of the respondent Ombudsman as to his alleged prejudice and the presumption of good faith and regularity in the performance of official duty to which he is entitled. Nor can we adopt the theory of derivative prejudice of petitioner, i.e., that the prejudice of respondent Ombudsman flows to his subordinates. In truth, our Revised Rules of Criminal Procedure, give investigation prosecutors the independence to make their own findings and recommendations albeit they are reviewable by their superiors.134 They can be reversed but they can not be compelled cases which they believe deserve dismissal. In other words, investigating prosecutors should not be treated like unthinking slot machines. Moreover, if the respondent Ombudsman resolves to file the cases against the petitioner and the latter believes that the findings of probable cause against him is the result of bias, he still has the remedy of assailing it before the proper court. VI. Epilogue A word of caution to the "hooting throng." The cases against the petitioner will now acquire a different dimension and then move to a new stage - - the Office of the Ombudsman. Predictably, the call from the majority for instant justice will hit a higher decibel while the gnashing of teeth of the

minority will be more threatening. It is the sacred duty of the respondent Ombudsman to balance the right of the State to prosecute the guilty and the right of an accused to a fair investigation and trial which has been categorized as the "most fundamental of all freedoms."135To be sure, the duty of a prosecutor is more to do justice and less to prosecute. His is the obligation to insure that the preliminary investigation of the petitioner shall have a circus-free atmosphere. He has to provide the restraint against what Lord Bryce calls "the impatient vehemence of the majority." Rights in a democracy are not decided by the mob whose judgment is dictated by rage and not by reason. Nor are rights necessarily resolved by the power of number for in a democracy, the dogmatism of the majority is not and should never be the definition of the rule of law. If democracy has proved to be the best form of government, it is because it has respected the right of the minority to convince the majority that it is wrong. Tolerance of multiformity of thoughts, however offensive they may be, is the key to man's progress from the cave to civilization. Let us not throw away that key just to pander to some people's prejudice. IN VIEW WHEREOF, the petitions of Joseph Ejercito Estrada challenging the respondent Gloria Macapagal-Arroyo as the de jure 14th President of the Republic are DISMISSED. SO ORDERED. Footnotes 1

Philippine Daily Inquirer (PDI), October 5, 2000, pp. A1 and A17.

2

PDI, October 6, 2000, pp. A1 and A18.

3

Ibid., October 12, 2000, pp. A1 and A17.

4

Ibid., October 14, 2000, p. A1.

5

Ibid., October 18, 2000, p. A1.

6

Ibid., October 13, 2000, pp. A1 and A21.

7

Ibid., October 26, 2000, p. A1.

8

Ibid., November 2, 2000, p. A1.

9

Ibid., November 3, 2000, p. A1.

10

Ibid., November 4, 2000, p. A1.

The complaint for impeachment was based on the following grounds: bribery, graft and corruption, betrayal of public trust, and culpable violation of the Constitution. 11

12

Ibid., November 14, 2000, p. A1.

13

Ibid., November 21, 2000, p. A1.

14

Ibid., December 8, 2000, p. A1.

15

Ibid., December 23, 2000, pp. A1 and A19.

16

Ibid., January 12, 2001, p. A1.

Those who voted "yes" to open the envelope were: Senators Pimentel, Guingona, Drilon, Cayetano, Roco, Legarda, Magsaysay, Flavier, Biazon, Osmeña III. Those who vote "no" were Senators Ople, Defensor-Santiago, John Osmeña, Aquino-Oreta, Coseteng, Enrile, Honasan, Jaworski, Revilla, Sotto III and Tatad. 17

18

Philippine Star, January 17, 2001, p. 1.

19

Ibid., January 18, 2001, p. 4.

20

Ibid., p. 1.

21

Ibid., January 19, 2001, pp. 1 and 8.

"Erap's Final Hours Told" by Edgardo Angara, (hereinafter referred to as "Angara Diary"), PDI, February 4, 2001, p. A16. 22

23

Philippine Star, January 20, 2001, p. 4.

24

PDI, February 4, 2001, p. A16.

25

Philippine Star, January 20, 2001, pp. 1 and 11.

26

Ibid., January 20, 2001, p. 3.

27

PDI, February 5, 2001, pp. A1 and A6.

28

Philippine Star, January 21, 2001, p. 1.

29

PDI, February 6, 2001, p. A12.

30

Annex A, DOJ-OSG, Joint Comment; Rollo, G.R. Nos. 146710-15, p. 288.

31

Annex A-1, Petition, G.R. Nos. 146710-15; Rollo, p. 34.

32

Ibid.

33

Annex A, Petition, G.R. Nos. 146710-15; Rollo, p. 33.

Philippine Star, January 21, 2001, p. 1; January 23, 2001, pp. 1 and 4; January 24, 2001, p. 3; PDI, January 25, 2001, pp. A1 and A15. 34

35

Philippine Star, January 24, 2001, p. 1.

36

PDI, January 25, 2001, p. 1.

37

Ibid., p. 2.

38

Annex C, DOJ-OSG Joint Comment; Rollo, GR Nos. 146710-15, p. 290.

39

Annex D, id; ibid., p. 292.

40

PDI, January 27, 2001, p. 1.

41

PDI, February 13, 2001, p. A2.

42

Philippine Star, February 13, 2001, p. A2.

43

Annex E, id.; ibid., p. 295.

44

PDI, February 8, 2001, pp. A1 & A19.

45

Annex F, id.; ibid., p. 297.

46

PDI, February 10, 2001, p. A2.

47

Annex G, id.; ibid., p. 299.

48

PDI, February 8, 2001, p. A19.

49

Philippine Star, February 3, 2001, p. 4.

"Acceptance of Gloria is Nationwide," Mahar Mangahas, Manila Standard, February 16, 2001, p. 14. 50

See The Chief Justice's Extended Explanation for his Voluntary Inhibition; Rollo, GR Nos. 146710-15, pp. 525-527. 51

See Letter of Inhibition of Associate Justice Panganiban; Rollo, GR No. 146738, pp.120-125. 52

53

Rollo, G.R. No. 146738, p. 134.

Leonard de Vera and Dennis Funa; see their Memorandum, pp. 16-27; Rollo, GR Nos. 146710-15, Vol. III, pp. 809-820. 54

55

Gunther and Sullivan, Constitutional law, 13th ed., pp. 45-46.

56

369 US 186, 82 S.Ct. 691, 7 L. ed 2d 663, 686 (1962).

See e.g., Integrated Bar of the Philippines v. Hon. Zamora, et al., GR No. 141284, 15 August 2000; Miranda v. Aguirre, 314 SCRA 603 (1999); Santiago v. Guingona, 298 SCRA 756 (1998); Tatad v. Secretary of the Department of Energy, 281 SCRA 330 (1997); Marcos v. Manglapus, 177 SCRA 668 (1989); Gonzales v. COMELEC, 129 Phil 7 (1967); Mabanag v. Lopez Vito, 78 Phil 1 (1947); Avelino v. Cuenco 83 Phil. 17 (1949); Vera v. Avelino, 77 Phil 192 (1946); Alejandrino v. Quezon, 46 Phil 83 (1942). 57

58

103 Phil 1051, 1068 (1957).

59

Section 1, Article VIII, 1987 Constitution.

Note that the early treatises on Constitutional Law are discourses on limitations of power typical of which is, Cooley's Constitutional Limitations. 60

Joint Resolution, Lawyers League for a Better Philippines and/or Oliver A. Lozano v. Pres. Corazon C. Aquino, et al., GR No. 73748; People's Crusade for Supremacy of the Constitution, etc. v. Mrs. Cory Aquino, et al., GR No. 73972; and Councilor Clifton U. Ganay v. Corazon C. Aquino, et al., GR No. 73990, May 22, 1986. 61

62

Letter of Association Justice Reynato S. Puno, 210 SCRA 597 [1992].

63

Proclamation No. 3 (1986).

64

It states:

I, Gloria Macapagal-Arroyo, Vice President of the Philippines, do solemnly swear that I will faithfully and conscientiously fulfill my duties as President o the Philippines, preserve and defend its Constitution, execute its laws, do justice to every man, and consecrate myself to the service of the nation. So help me God. (Annex I, Comment of the Ombudsman; Rollo, GR Nos. 146710-15, Vol. II, p. 332) See "Filipinas Despues de Cien Años" (The Philippines a Century Hence), p. 62. 65

The guaranty was taken from Amendment I of the US Constitution which provides: "Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievance." 66

67

See section 8, Article IV.

68

See section 9, Article IV.

69

Emerson, The System of Freedom of Expression, 1970 ed., p. 6, et seq.

Ibid. See also concurring opinion of Justice Branders in Whitney v. California (74 US 357, 375-76) where he said "… the greatest menace to freedom is an inert people …" 70

71

307 US 496 (1939).

Chafee, Jr., Free Speech in the United States, 1946 ed., pp. 413-415, 421. 72

73

260 SCRA 798 (1996).

74

Section 1, Article II of the 1987 Constitution reads:

"The Philippines is a democratic and republican State. Sovereignty resides in the people and all government authority emanates from them." 75

Infra at 26.

76

Infra at 41.

77

1 Cranch (5 US) 137, 2 L ed 60 (1803).

78

Gonzales v. Hernandez, 2 SCRA 228 (1961).

79

See its February 4, 5, and 6, 2001 issues.

80

PDI, February 4, 2001, p. A1.

81

Ibid.

82

Ibid.

83

Ibid.

84

Ibid.

85

Ibid.

86

PDI, February 5, 2001, p. A1.

87

Ibid., p. A-1.

88

Ibid.

89

PDI, February 5, 2001, P. A6.

90

PDI, February 6, 2001, p. A1.

In the Angara diary which appeared in the PDI issue of February 5, 2001, Secretary Angara stated that the letter came from Asst. Secretary Boying Remulla; that he and Political Adviser Banayo opposed it; and that PMS head Macel Fernandez believed that the petitioner would not sign the letter. 91

Congressional Record, 4th Congress, 2nd Session, March 4, 1959, pp. 603-604. 92

93

Id., May 9, 1959, p. 1988

Section 18 (2), Article III of the 1987 Constitution provides: "No involuntary servitude in any form shall exist except as a punishment for a crime whereof the party shall have been duly convicted." 94

95

Reply Memorandum, p. 3; Rollo, GR Nos. 146710-15, Vol. IV.

96

House Resolution No. 175, 11th Congress, 3rd Session (2001), reads:

"RESOLUTION EXPRESSING THE FULL SUPPORT OF THE HOUSE OF REPRESENTATIVES TO THE ADMINISTRATION OF HER EXCELLENCY, GLORIA MACAPAGAL-ARROYO, PRESIDENT OF THE PHILIPPINES WHEREAS, on January 20, 2001, Vice President Gloria Macapagal-Arroyo was sworn in as the 14th President of the Philippines; WHEREAS, her ascension to the highest office of the land under the dictum, "the voice of the people is the voice of God" establishes the basis of her mandate on integrity and morality in government; WHEREAS, the House of Representatives joins the church, youth, labor and business sectors in fully supporting the President's strong determination to succeed; WHEREAS, the House of Representatives is likewise one with the people in supporting President Gloria Macapagal-Arroyo's call to start the healing and cleansing process for a divided nation in order to 'build an edifice of peace, progress and economic stability' for the country: Now, therefore, be it Resolved by the House of Representatives, To express its full support to the administration of Her Excellency, Gloria Macapagal-Arroyo, 14th President of the Philippines. Adopted, (Sgd.) FELICIANO BELMONTE JR.

Speaker This Resolution was adopted by the House of Representatives on January 24, 2001. (Sgd.) ROBERTO P. NAZARENO Secretary General" 97

11th Congress, 3rd Session (2001).

98

11th Congress, 3rd Session (2001).

Annex 2, Comment of Private Respondents De Vera, et al.; Rollo, GR No. 146710-15, Vol. II, p. 231. 99

100

11th Congress, 3rd Session (2001).

101

11th Congress, 3rd Session (2001).

102

103 Phil 1051, 1067 (1957).

103

Baker vs. Carr, supra at 686 headnote 29.

104

16 Phil 534 (1910).

The logical basis for executive immunity from suit was originally founded upon the idea that the "King can do no wrong". [R.J. Gray, Private Wrongs of Public Servants, 47 Cal. L. Rev., 303 (1959)]. The concept thrived at the time of absolute monarchies in medieval England when it was generally accepted that the seat of sovereignty and governmental power resides in the throne. During that historical, juncture, it was believed that allowing the King to be sued in his courts was a contradiction to the sovereignty of the King. 105

With the development of democratic thoughts and institutions, this kind of rationalization eventually lost its moral force. In the United States, for example, the common law maxim regarding the King's infallibility had limited reception among the framers of the Constitution. [J. Long, How to Sue the President: A Proposal for Legislation Establishing the Extent of Presidential Immunity, 30 Val. U. L. Rev. 283 (1995)]. Still, the doctrine of presidential immunity found its way of surviving in modern political times,

retaining both its relevance and vitality. The privilege, however, is now justified for different reasons. First, the doctrine is rooted in the constitutional tradition of separation of powers and supported by history. [Nixon v. Fitzgerald, 451 U. S. 731 (1982)]. The separation of powers principle is viewed as demanding the executive's independence from the judiciary, so that the President should not be subject to the judiciary's whim. Second, by reason of public convenience, the grant is to assure the exercise of presidential duties and functions free from any hindrance or distraction, considering that the Chief Executive is a job that, aside from requiring all of the office-holder's time, also demands undivided attention. [Soliven v. Makasiar, 167 SCRA 393 (1988)]. Otherwise, the time and substance of the chief executive will be spent on wrangling litigation, disrespect upon his person will be generated, and distrust in the government will soon follow. [Forbes v. Chouco Tiaco, 16 Phil. 534 (1910)]. Third, on grounds of public policy, it was recognized that the gains from discouraging official excesses might be more than offset by the losses from diminished zeal [Agabin, op cit., at 121.]. Without immunity, the president would be disinclined to exercise decision-making functions in a manner that might detrimentally affect an individual or group of individuals. [See H. Schechter, Immunity of Presidential Aides from Criminal Prosecution, 57 Geo. Wash. L. Rev. 779 (1989)]. 106

62 Phil. L.J. 113 (1987).

107

See Bulletin Today, August 16, 1984, p. 1; December 18, 1984, p. 7.

Records of the Constitutional Commission of 1986, Vol. II, Records, p. 423, July 29, 1986. 108

109

Supra at 47.

110

Records of Constitutional Commission, Vol. II, July 28, 1986, p. 355.

111

145 SCRA 160 (1986).

112

128 SCRA 324 (1984).

In Re: Raul Gonzalez, 160 SCRA 771 (1988); Cuenco v. Fernan, 158 SCRA 29 (1988); and Jarque v. Desierto, A.C. No. 4509, 250 SCRA xi-xiv (1995)., 113

114

Wallace v. Board of Education, 280 Ala. 635, 197 So 2d 428 (1967).

115

418 US 683, 94 S. Ct. 3090, 41 L ed 1039 (1974).

116

457 US 731, 73 L ed. 349, 102 S Ct. 2690 (1982).

117

520 U.S. 681 (1997).

118

See section 1, Art. XI of the 1987 Constitution.

119

See section 27, Art. II of the 1987 Constitution.

120

See, section 1, Art. XI of the 1987 Constitution.

121

See section 15, Art. XI of the 1987 Constitution.

122

See section 4, Art. XI of the 1987 Constitution.

123

See section 13 (1), Art. XI of the 1987 Constitution.

124

See section 14, Art. XI of the 1987 Constitution.

See Brandwood, Notes: "You Say 'Fair Trial' and I say 'Free Press:' British and American Approaches to Protecting Defendants' Rights in High Profile Trials," NYU Law Rev., Vol. 75, No. 5, pp. 1412-1451 (November 2000). 125

126

Id., p. 1417.

See e.g., Martelino, et al. v. Alejandro, et. al., 32 SCRA 106 (1970); People v. Teehankee, 249 SCRA 54 (1995) 127

128

249 SCRA 54 (1955)

129

287 SCRA 581 at pp. 596-597 (1998)

130

247 SCRA 652 (1995)

Extensive publicity did not result in the conviction of well known personalities. E.g., OJ Simpson, John Mitchell, William Kennedy Smith and Imelda Marcos. 131

Memorandum, pp. 29-30; Rollo, GR Nos. 146710-15, Vol. III, pp. 572-573. 132

134

See section 4, Rule 112.

135

Estes v. Texas, 381 US 532, 540 (1965). CONCURRING OPINION

VITUG, J.: This nation has a great and rich history authored by its people. The EDSA Revolution of 2001 could have been one innocuous phenomenon buried in the pages of our history but for its critical dimensions. Now, EDSA 2 would be far from being just another event in our annals. To this day, it is asked – Is Mr. Joseph Ejercito Estrada still the President of the Republic of the Philippines? To retort, one is to trace the events that led to the denouement of the incumbency of Mr. Joseph Ejercito Estrada. Mr. Estrada, herein petitioner, was elected to office by not less than 10 million Filipinos in the elections of May 1998, served well over two years until January 2001. Formally impeached by the Lower House of Representatives for cases of Graft and Corruption, Bribery, Betrayal of Public Trust and Culpable violation of the Constitution, he was tried by the Senate. The Impeachment Tribunal was tasked to decide on the fate of Mr. Estrada- if convicted, he would be removed from office and face prosecution with the regular courts or, if acquitted, he would remain in office. An evidence, however, presented by the prosecution tagged as the "second envelope" would have it differently. The denial by the impeachment court of the pleas to have the dreaded envelope opened promptly put the trial into a halt. Within hours after the controversial Senate decision, an angered people trooped again to the site of the previous uprising in 1986 that toppled the 20-year rule of former President Ferdinand E. Marcos - EDSA. Arriving in trickles, the motley gathering swelled to an estimated million on the fourth day, with several hundreds more nearing Mendiola reportedly poised to storm Malacañang. In the morning of 20 January 2001, the people waited for Erap to step down and to heed the call for him to resign. At this time, Estrada was a picture of a man, elected into the Presidency, but beleaguered by solitude-empty of

the support by the military and the police, abandoned most of his cabinet members, and with hardly any firm succor from constituents. And despite the alleged popularity that brought him to power, mass sentiment now appeared to be for his immediate ouster. With this capsule, the constitutional successor of Estrada in the person of Gloria Macapagal-Arroyo, then incumbent Vice-President, took the cue and requested the Chief Justice her oath-taking. In a letter, sent through "fax" at about half past seven o'clock in the morning of 20 January 2001, read: "The undersigned respectfully informs this Honorable Court that Joseph Ejercito Estrada is permanently incapable of performing the duties of his office resulting in his permanent disability to govern the serve his unexpired term. Almost all of his cabinet members have resigned and the Philippine National police have withdrawn their support for Joseph Ejercito Estrada. Civil society has likewise refused to recognize him as President. "In view of this, I am assuming the position of the president of the Republic of the Philippines. Accordingly, I would like to take my oath as President of the republic before the Honorable Chief Justice Hilario G. Davide. Jr., today, 20 January 2001, 12:00 noon at EDSA Shrine, Quezon City, Metro Manila. "May I have the honor to invite the members of the Honorable Court to attend the oath-taking." The tribunal, aware of the grave national crisis which had the marks of yet intensifying into possible catastrophic proportion, agreed to honor the request: Therefore, the Court, cognizant that it had to keep its doors open, had to help assure that the judicial process was seen to be functioning. As the hours passed, however, the extremely volatile situation was getting more precarious by the minute, and the combustible ingredients were all but ready to ignite. The country was faced with a phenomenon --- the phenomenon of a people, who, in the exercise of sovereignty perhaps too limitless to be explicitly contained and constrained by the limited words and phrases of the constitution, directly sought to remove their president from office. On that morning of the 20th of January, the his tribunal was confronted with a dilemma ----- should it choose a literal and narrow view of the constitution, invoke the rule of strict law, and exercise its characteristics reticence? Or was it propitious for it to itself take a hand? The first was fraught with danger and evidently too risky to accept. The second could

very well help avert imminent bloodshed. Given the realities; the Court was left hardly with choice. Paradoxically, the first option would almost certainly imperil the Constitution, the second could save it. The confirmatory resolution was issued following the en banc session of the Court on 22 January 2001; it read: "A.M. No. 01-1-05-SC- In re: Request of Vice-President Gloria MacapagalArroyo to take her Oath of Office as President of the Philippines before the Chief Justice- Acting on the urgent request of Vice President Gloria Macapagal-Arroyo to be sworn in as President of the Republic of the Philippines, addressed to the Chief Justice and confirmed letter to the Court, dated January 20, 2001, which request was treated as an administrative matter, the Court resolved unanimously to CONFIRM the authority given by the twelve (12) members of the Court then present to the Chief justice on January 20, 2001 to administer the oath of office to Vice President Gloria Macapagal-Arroyo as President of the Philippines, at noon of January 20, 2001. "This resolution is without prejudice to the disposition of any justiceable case which may be filed by a proper party." At high noon on the 20th January 2001, Gloria Macapagal-Arroyo was sworn in as the 14th President of the Republic of the Philippines. EDSA, once again, had its momentous role in yet another "bloodless revolution." The Court could not have remained placid amidst the worsening situation at the time. It could not in conscience allow the high-strung emotions and passions of EDSA to reach the gates of Malacañang. The military and police defections created stigma that could not be left unguarded by a vacuum in the presidency. The danger was simply overwhelming. The extra-ordinariness of the reality called for an extra-ordinary solution. The court has chosen to prevent rather than cure an enigma incapable of being recoiled. The alarming social unrest ceased as the emergence of a new leadership so unfolded. The promise of healing the battered nation engulfed the spirit but it was not to last. Questions were raised on the legitimacy of Mme. Macapagal-Arroyo's assumption to office. Mr. Estrada would insist that he was still President and that Mme. Macapagal-Arroyo took over only in an acting capacity.

So it is argued, Mr. Estrada remains to be the President because under the 1987 Constitution, the Vice-President may assume the presidency only in its explicitly prescribed instances; to wit, firstly, in case of death, permanent disability, removal from office, or resignation of the President,1secondly, when

the President of the Senate and the Speaker of the House of representatives his written declaration that he is unable to discharge the powers and duties of his office, 2 and thirdly, when a majority of all the members of the cabinet transmit to the President and to the speaker of the House of representatives their written declaration that the President is unable to discharge the powers and duties of his office, 3 the latter two grounds being culled as the "disability."

Mr. Estrada believes that he cannot be considered to have relinquished his office for none of the above situations have occurred. The conditions for constitutional succession have not been met. He states that he has merely been "temporarily incapacitated" to discharge his duties, and he invokes his letters to both Chambers of the Congress consistent with section 11 of Article VII of the 1987 Constitution. The twin letters, dated 20 January 2001, to the two houses read: "By virtue of the provisions of Section 11, Article VII of the Constitution, I am hereby transmitting this declaration that I am unable to exercise the powers and duties of my office. By operation of law and the Constitution, the Vice-President shall be acting President."

Truly, the grounds raised in the petition are as dubitable as the petitioner's real motive in filling the case. The pressing issue must now catapult to its end. Resignation is an act of giving up or the act of an officer by which he renounces his office indefinitely. In order to constitute a complete and operative act of resignation, the officer or employee must show a clear intention to relinquish or surrender his position accompanied by an act of relinquishment. Resignation implies, of the intention to surrender, renounce, relinquish the office. 4 Mr. Estrada imports that he did not resign from the presidency because the word "resignation" has not once been embodied in his letters or said in his statements. I am unable to oblige. The contemporary acts of Estrada during those four critical days of January are evident of his intention to relinquish his office. Scarcity of words may not easily cloak reality and hide true

intentions. Crippled to discharge his duties, the embattled President acceded to have negotiations conducted for a smooth transition of power. The belated proposals of the President to have the impeachment Court allow the opening of the controversial envelope and to postpone his resignation until 24 January 2001 were both rejected. On the morning of 20 January 2001, the President sent to congress the following letter ---

"By virtue of the provisions of Section II, Article VII, of the Constitution, I am hereby transmitting this declaration that I am unable to exercise the powers and duties of my office. By operation of law and the Constitution, the vicepresident shall be the acting president." Receipt of the letter by the Speaker of the lower house was placed at around eight o'clock in the morning but the Senate president was said to have received a copy only on the evening of that day. Nor this Court turn a blind eye to the paralyzing events which left petitioner to helplessness and inutility in office – not so much by the confluence of events that forces him to step down the seat of power in a poignant and teary farewell as the recognition of the will of the governed to whom he owned allegiance. In his "valedictory message," he wrote: "At twelve o'clock noon today, Vice President Gloria Macapagal-Arroyo took her oath as President of the Republic of the Philippines. While along with many other legal minds of our country, I have strong and serious doubts about the legality and constitutionality of her proclamation as President, I do not wish to be a factor that will prevent the restoration of unity and order in our civil society. "It is for this reason that I now leave Malacañang Palace, the seat of the presidency of this country, for the sake of peace and in order to begin the healing process of our nation. I leave the palace of our people with gratitude for the opportunities given to me for service to our people. I will not shirk from any future challenges that may come ahead in the same service of our country. "I call on all my supporters and followers to join me in the promotion of a constructive national spirit of reconciliation and solidarity. "May the Almighty bless our country and our beloved people.

"MABUHAY!

Abandonment of office is a species of resignation, 5 and it connotes the giving up of the office although not attending by the formalities normally observed in resignation. Abandonment may be effected by a positive act or can be the result of an omission, whether deliberate or not. 6 Mr. Joseph Estrada invokes "temporary incapacity" under Section 11, Article VII of the Constitution. This assertion is difficult to sustain since the temporary incapacity contemplated clearly envisions those that are personal, either by physical or mental in nature, 7 and innate to the individual. If it were otherwise, when then would the disability last? Would it be when the confluent causes which have brought about that disability are completely set in reverse? Surely, the idea fails to register well to the simple mind. Neither can it be implied that the takeover has installed a revolutionary government. A revolutionary government is one which has taken the seat of power by force or in defiance of the legal processes. Within the political context, a revolution is a complete overthrow of the established government.8 In its delimited concept, it is characterized often,9 albeit not always,10 by violence as a means and specificable range of goals as ends. In contrast, EDSA 2 did not envision radical changes. The government structure has remained intact. Succession to the presidency has been by the duly-elected Vice-president of the Republic. The military and the police, down the line, have felt to be so acting in obedience to their mandate as the protector of the people. Any revolution, whether it is violent or not, involves a radical change. Huntington sees revolution as being "a rapid, fundamental and violent domestic change in the dominant values and myths of society in its political institution, social structure, leadership, government activity and policies.11 " The distinguished A.J. Milne makes a differentiation between constitutional political action and a revolutionary political action. A constitutional political action, according to him, is a political within a legal framework and rests upon a moral commitment to uphold the authority of law. A revolutionary political action, on the other hand, acknowledges no such moral commitment. The latter is directly towards overthrowing the existing legal order and replacing it with something else.12 And what, one might ask, is

the "legal order" referred to? It is an authoritative code of a polity comprising enacted rules, along with those in the Constitution13 and concerns itself with structures rather than personalities in the establishments. Accordingly, structure would prefer to the different branches of the government and personalities would be the power-holders. If determination would be made whether a specific legal order is intact or not, what can be vital is not the change in the personalities but a change in the structure.

The ascension of Mme. Macapagal-Arroyo to the presidency has resulted neither in the obligation of the legal order. The constitutionally-established government structures, embracing various offices under the executive branch, of the judiciary, of the legislature, of the constitutional commissions and still other entities, including the Armed Forces of the Philippines and the Philippine National Police and local governments as well, have all remained intact and functioning. An insistence that the events in January 2001 transgressed the letter of the Constitution is to ignore the basic tenet of constitutionalism and to functionalize the clearly preponderant facts.

More than just an eloquent piece of frozen document, the Constitution should be deemed to be a living testament and memorial of the sovereign will of the people from whom all government authority emanates. Certainly, this fundamental statement is not without meaning. Nourished by time, it grows and copes with the changing milieu. The framers of the constitution could not have anticipated all conditions that might arise in the aftermath of events. A constitution does not deal in details, but enunciates the general tenets that are intended to apply to all facts that may come about but which can be brought within its directions. 14 Behind its conciseness is its inclusiveness and its apertures overridingly lie, not fragmented but integrated and encompassing, its spirit and its intent. The Constitution cannot be permitted to deteriorate into just a petrified code of legal maxims and hand-tied to its restrictive letters and wordings, rather than be the pulsating law that it is. Designed to be an enduring instrument, its interpretation is not be confined to the conditions and outlook which prevail at the time of its adoption15 instead, it must be given flexible to bring it in

accord with the vicissitudes of changing and advancing affairs of men.16 Technicalities and play of words cannot frustrate the inevitable because there is an immense difference between legalism and justice. If only to secure our democracy and to keep the social order – technicalities must give away. It has been said that the real essence of justice does not emanate from quibblings over patchwork legal technicality but proceeds from the spirit's gut consciousness of the dynamic role as a brick in the ultimate development of social edifice.17 Anything else defeats the spirit and intent of the Constitution for which it is formulated and reduces its mandate to irrelevance and obscurity.

All told the installation of Mme. Macapagal-Arroyo perhaps came close to, but not quite, the revolutionary government that we know. The new government, now undoubtedly in effective control of the entire country, domestically and internationally recognized to be legitimate, acknowledging a previous pronouncement of the court, 18 is a de jure government both in fact and in law. The basic structures, the principles, the directions, the intent and the spirit of the 1987 Constitution have been saved and preserved. Inevitably, Gloria Macapagal-Arroyo is the President, not merely an Acting President, of the Republic of the Philippines. A reminder of an elder to the youth. After two non-violent civilian uprising within just a short span of years between them, it might be said that popular mass action is fast becoming an institutionalized enterprise. Should the streets now be the venue for the exercise of popular democracy? Where does one draw the line between the rule of law and the rule of the mob, or between "People Power" and "Anarchy?" If, as the sole justification for its being, the basis of the Arroyo presidency lies alone on those who were at EDSA, then it does rest on loose and shifting sands and might tragically open a Pandora's box more potent than the malaise it seeks to address. Conventional wisdom dictates the indispensable need for great sobriety and extreme circumspection on our part. In this kind of arena, let us be assumed that we are not overcome by senseless adventurism and opportunism. The country must not grow oblivious to the innate perils of people power for no bond can be stretched far too much to its breaking point. To abuse is to destroy that which we may hold dear. 1

Section 8, Article VII, 1987 Constitution

2

Section 11, 1st paragraph, Article VII, 1987 Constitution

3

Ibid., 2nd paragraph

4

Ortiz vs. Comelec, 162 SCRA 812

Sangguniang Bayan ng San Andres vs. Court of Appeals, G.R. No. 11883, 16 January 1998 5

6

Cruz, Carlos L., The Law on Public Officers, p. 174, 1997 Edition

7

"Mr. SUAREZ. xxx

"May we now go to Section 11, page 5. This refers to the President's written declaration of inability to discharge the powers and duties of the Office of the President. Can this written declaration to be done for and in behalf of the President if, for example, the President is in no position to sign his name, like he suffers an accident and both his arms get to be amputated? "Mr. REGALADO. We have not a situation like that even in the jurisdiction from which we borrowed this provision, but we feel that in remote situation that the Commissioner has cited in that the President cannot make a written declaration, I suppose an alternative would be considered wherein he can so expressly manifest in an authentic manner what should be contained in a written declaration. xxx "Mr. SUAREZ. xxx I am thinking in terms of what happened to the President Wilson. Really, the physical disability of the gentleman was never made clear to the historians. But suppose a situation will happen in our country where the President may suffer coma and gets to be unconscious, which is practically a total inability to discharge the powers and duties of his office, how can he submit a written declaration of inability to perform the duties and functions of his office? "x x x x x x x x x "FR. BERNAS. Precisely. The second paragraph is to take care of the Wilson situation. "Mr. SUAREZ. I see.

"Mr. REGALADO. The Wilson situation was in 1917. Precisely, this twentyfifth Amendment to the American Constitution as adopted on February 10, 1967 prevent a recurrence of such situation. Besides, it was not only the Wilson matter. As I have already mentioned here, they have had situations in the United States, including those of President Garfield, President Wilson, President Roosevelt and President Eisenhower." (11 RECORDS, PP. 421-423) 8

Gitlow vs. Kiely, 44 F. 2d as cited in 46 CJS 1086

9

Ibid.

10

Ibid.

Zarocin, Theories of Revolution in Contemporary Historiography, 88 POLITICAL SCIENCE QUARTERLY 11

Milne, Philosophy and Political Action, The Case of Civil Rights, 21 Political Studies, 453, 456 (1973) 12

Fernandez, LAW and POLITY: Towards a System Concept of Legal validity, 46 Philippines Law Journal, 390-391 (1971) 13

14

16 American Jurisprudence 2d.

15

State ex rel Columbus vs. Keterrer, 127 Ohio St 483, 189 NE 252

John Hancock Mut. Life Ins. Co. vs. Ford Motors Co., 322 Mich 209, 39 NW 2d 763 16

Battles in the Supreme Court by Justice Artemio Panganiban, pp. 103-104 17

Lawyers' League for a Better Philippines vs. President Corazon C. Aquino, et al., G.R. No. 73748, May 22, 1986. 18

CONCURRING OPINION MENDOZA, J.:

In issue in these cases is the legitimacy of the presidency of respondent Gloria Macapagal-Arroyo. In G.R. No. 146738, the petition for quo warranto seeks a declaration that petitioner Joseph Ejercito Estrada is the lawful President of the Philippines and that respondent Gloria Macapagal-Arroyo is merely acting President on account o the former's temporary disability. On the other hand, in G.R. Nos. 146710-15, the petition seeks to prohibit respondent Ombudsman Aniano Desierto from investigating charges of plunder, bribery, malversation of public funds, and graft and corruption against petitioner Estrada on the theory that, being still President, he is immune from suit. In both cases, a preliminary question is raised by respondents whether the legitimacy of Gloria Macapagal-Arroyo's presidency is a justiciable controversy. Respondent Gloria Macapagal-Arroyo contends that the matter is not justiciable because of "the virtual impossibility of undoing what has been done, namely, the transfer of constitutional power to Gloria Macapagal-Arroyo as a result of the events starting from the expose of Ilocos Sur Governor Luis 'Chavit' Singson in October 2000."1 In support of this contention, respondent cites the following statements of this Court concerning the Aquino government which it is alleged applies to her administration: . . . [T]he legitimacy of the Aquino government is not a justiciable matter. It belongs to the realm of politics where only the people of the Philippines are the judge. And the people have made the judgment; they have accepted the government of President Corazon C. Aquino which is in effective control of the entire country so that it is not merely a de facto government but is in fact and law a de jure government. Moreover, the community of nations has recognized the legitimacy of the present government. All the eleven members of this Court, as reorganized, have sworn to uphold the fundamental law of the Republic under her government.2 From the natural law point of view, the right of revolution has been defined as "an inherent right of a people to cast out their rulers, change their policy or effect radical reforms in their system of government or institutions by force or a general uprising when the legal and constitutional methods of making such change have proved inadequate or are so obstructed as to be unavailable." It has been said that "the locus of positive law-making power lies with the people of the state" and from there is derived" the right of the

people to abolish, to reform and to alter any existing form of government without regard to the existing constitution."3 But the Aquino government was a revolutionary government which was established following the overthrow of the 1973 Constitution. The legitimacy of a revolutionary government cannot be the subject of judicial review. If a court decides the question at all qua court, it must necessarily affirm the existence and authority of such government under which it is exercising judicial power.4 As Melville Weston long ago put it, "the men who were judges under the old regime and the men who are called to be judges under the new have each to decide as individuals what they are to do; and it may be that they choose at grave peril with the factional outcome still uncertain."5 This is what the Court did in Javellana v. Executive Secretary6 when it held that the question of validity of the 1973 Constitution was political and affirmed that it was itself part of the new government. As the Court said in Occena v. COMELEC7 and Mitra v. COMELEC,8 "[P]etitioners have come to the wrong forum. We sit as a Court duty-bound to uphold and apply that Constitution. . . . It is much too late in the day to deny the force and applicability of the 1973 Constitution." In contrast, these cases do not involve the legitimacy of a government. They only involve the legitimacy of the presidency of respondent Gloria Macapagal-Arroyo, and the claim of respondents is precisely that Macapagal-Arroyo's ascension to the presidency was in accordance with the Constitution.9 Indeed, if the government of respondent Gloria Macapagal-Arroyo is a revolutionary one, all talk about the fact that it was brought about by succession due to resignation or permanent disability of petitioner Joseph Ejercito Estrada is useless. All that respondents have to show is that in the contest for power Macapagal-Arroyo's government is the successful one and is now accepted by the people and recognized by the community of nations. But that is not the case here. There was no revolution such as that which took place in February 1986. There was no overthrow of the existing legal order and its replacement by a new one, no nullification of the Constitution. What is involved in these cases is similar to what happened in 1949 in Avelino v. Cuenco.10 In that case, in order to prevent Senator Lorenzo M. Tañada from airing charges against Senate President Jose Avelino, the

latter refused to recognize him, as a result of which tumult broke out in the Senate gallery, as if by pre-arrangement, as the Court noted, and Avelino suddenly adjourned the session and, followed by six senators, walked out of the session hall. The remaining senators then declared the position of President of the Senate vacant and elected Senator Mariano Jesus Cuenco acting president. The question was whether respondent Cuenco had been validly elected acting president of the Senate, considering that there were only 12 senators (out of 24) present, one senator (Sen. Confesor) being abroad while another one (Sen. Sotto) was ill in the hospital. Although in the beginning this Court refused to take cognizance of a petition for quo warranto brought to determine the rightful president of the Senate, among other things, in view of the political nature of the controversy, involving as it did an internal affair of a coequal branch of the government, in the end this Court decided to intervene because of the national crisis which developed as a result of the unresolved question of presidency of the Senate. The situation justifying judicial intervention was described, thus: We can take judicial notice that legislative work has been at a standstill; the normal and ordinary functioning of the Senate has been hampered by the non-attendance to sessions of about one-half of the members; warrants of arrest have been issued, openly defied, and remained unexecuted like mere scraps of paper, notwithstanding the fact that the persons to be arrested are prominent persons with well-known addresses and residences and have been in daily contact with news reporters and photographers. Farce and mockery have been interspersed with actions and movements provoking conflicts which invite bloodshed. . . . Indeed there is no denying that the situation, as obtaining in the upper chamber of Congress, is highly explosive. It had echoed in the House of Representatives. It has already involved the President of the Philippines. The situation has created a veritable national crisis, and it is apparent that solution cannot be expected from any quarter other than this Supreme Court, upon which the hopes of the people for an effective settlement are pinned.11 In voting to assume jurisdiction, Chief Justice Paras wrote: "[T]his Court has no other alternative but to meet the challenge of the situation which demands the utmost of judicial temper and judicial statesmanship. As herein before stated, the present crisis in the Senate is one that

imperatively calls for the intervention of this Court."12 Questions raised concerning respondent Gloria Macapagal-Arroyo's presidency similarly justify, in my view, judicial intervention in these cases. Nor is our power to fashion appropriate remedies in these cases in doubt. Respondents contend that there is nothing else that can be done about the assumption into office of respondent Gloria Macapagal-Arroyo. What has been done cannot be undone. It is like toothpaste, we are told, which, once squeezed out of the tube, cannot be put back. Both literally and figuratively, the argument is untenable. The toothpaste can be put back into the tube. Literally, it can be put back by opening the bottom of the tube — that is how toothpaste is put in tubes at manufacture in the first place. Metaphorically, the toothpaste can also be put back. In G.R. No. 146738, a writ can be issued ordering respondent Gloria Macapagal-Arroyo to vacate the Office of the President so that petitioner Joseph E. Estrada can be reinstated should the judgment in these cases be in his favor. Whether such writ will be obeyed will be a test of our commitment to the rule of law. In election cases, people accept the decisions of courts even if they be against the results as proclaimed. Recognition given by foreign governments to the presidency poses no problem. So, as far as the political question argument of respondents is anchored on the difficulty or impossibility of devising effective judicial remedies, this defense should not bar inquiry into the legitimacy of the Macapagal-Arroyo administration. This brings me to the main issue, whether respondent Gloria MacapagalArroyo's ascension to the Presidency was in accordance with the Constitution. Art. VII. §8 provides in pertinent parts: In case of death, permanent disability, removal from office, or resignation of the President, the Vice-President shall become the President to serve the unexpired term. In case of death, permanent disability, removal from office, or resignation of both the President and Vice-President, the President of the Senate or, in case of his inability, the Speaker of the House of Representatives, shall then act as President until the President or VicePresident shall have been elected and qualified. The events that led to the departure of petitioner Joseph E. Estrada from office are well known and need not be recounted in great detail here. They began in October 2000 when allegations of wrong doings involving bribe-

taking, illegal gambling (jueteng), and other forms of corruption were made against petitioner before the Blue Ribbon Committee of the Senate. On November 13, 2000, petitioner was impeached by the House of Representatives and, on December 7, impeachment proceedings were begun in the Senate during which more serious allegations of graft and corruption against petitioner were made and were only stopped on January 16, 2001 when 11 senators, sympathetic to petitioner, succeeded in suppressing damaging evidence against petitioner. As a result, the impeachment trial was thrown into an uproar as the entire prosecution panel walked out and Senate President Aquilino Pimentel resigned after casting his vote against petitioner. The events, as seen through the eyes of foreign correspondents, are vividly recounted in the following excerpts from the Far Eastern Economic Review and Time Magazine quoted in the Memorandum of petitioner in G.R. Nos. 146710-15, thus: 1. The decision immediately sent hundreds of Filipinos out into the streets, triggering rallies that swelled into a massive four-day demonstration. But while anger was apparent among the middle classes, Estrada, a master of the common touch, still retained largely passive support among the poorest Filipinos. Citing that mandate and exploiting the letter of the Constitution, which stipulates that a written resignation be presented, he refused to step down even after all of the armed forced, the police and most of his cabinet withdrew their support for him. [FAR EASTERN ECONOMIC REVIEW, "More Power to The Powerful", id, at p. 18].
 2. When an entire night passed without Estrada's resignation, tens of thousands of frustrated protesters marched on Malacañang to demand that the president leave office. An air force fighter jet and four military helicopters buzzed the palace to remind the president that had lost the reins of power. [FAR EASTERN ECONOMIC REVIEW, supra, ibid].
 3. While the television cameras were focused on the rallies – and the commentators became lost in reveries about People Power revisited – behind-the-scenes negotiations had been going on

non-stop between military factions loyal to Estrada and those who advocated a quick coup to depose the President. Chief of Staff Reyes and Defense Secretary Mercado had made their fateful call to Estrada after luncheon attended by all the top commanders. The officers agreed that renouncing Estrada was the best course, in part because some commanders were urging more drastic resolution. If the military did not come to a consensus, there loomed the possibility of factional fighting or, worse, civil war. [TIME, "People Power Redux", id at p. 18]
 4. It finally took a controversial Supreme Court declaration that the presidency was effectively vacant to persuade Estrada to pack up and move out to his family home in Manila – still refusing to sign a letter of resignation and insisting that he was the legal president [FAR EASTERN ECONOMIC REVIEW, "More Power to the Powerful", supra, ibid.]. Petitioner then sent two letters, one to the Senate President and the other to the Speaker of the House, indicating that he was unable to perform the duties of his Office.13
 To recall these events is to note the moral framework in which petitioner's fall from power took place. Petitioner's counsel claimed petitioner was forced out of Malacañang Palace, seat of the Presidency, because petitioner was "threatened with mayhem."14 What, the President of the Philippines, who under the Constitution is the commander-in-chief of all the armed forces, threatened with mayhem? This can only happen because he had lost his moral authority as the elected President. Indeed, the people power movement did not just happen at the call of some ambitious politicians, military men, businessmen and/or prelates. It came about because the people, rightly or wrongly, believed the allegations of graft and corruption made by Luis "Chavit" Singson, Emma Lim, Edgardo Espiritu, and other witnesses against petitioner. Their testimonies during the impeachment trial were all televised and heard by millions of people throughout the length and breadth of this archipelago. As a result, petitioner found himself on January 19, 2001 deserted as most of his cabinet members resigned, members of the Armed Forces of the Philippines and the Philippine National Police withdrew their support of the President, while

civil society announced its loss of trust and confidence in him. Public office is a public trust. Petitioner lost the public's trust and as a consequence remained President only in name. Having lost the command of the armed forces and the national police, he found Himself vulnerable to threats of mayhem. This is the confession of one who is beaten. After all, the permanent disability referred to in the Constitution can be physical, mental or moral, rendering the President unable to exercise the powers and functions of his office. As his close adviser wrote in his diary of the final hours of petitioner's presidency: The President says: "Pagod na pagod na ako. Ayoko na-masyado nang masakit. Pagod na ako sa red tape, bureaucracy, intriga. (I am very tired. I don't want any more of this-it's too painful. I'm tired of the red tape, the bureaucracy, the intrigue.)15 Angara himself shared this view of petitioner's inability. He wrote in his diary: "Let us be realistic," I counter. "The President does not have the capability to organize a counter-attack. He does not have the AFP or the Philippine National Police on his side. He is not only in a corner – he is also down."16 This is the clearest proof that petitioner was totally and permanently disabled at least as of 11 P.M. of Friday, January 19, 2001. Hence the negotiations for the transfer of power to the respondent Vice-President Gloria Macapagal-Arroyo. It belies petitioner's claim that he was not permanently disabled but only temporarily unable to discharge the powers and duties of his office and therefore can only be temporarily replaced by respondent Gloria Macapagal-Arroyo under Art. VII, §11. From this judgment that petitioner became permanently disabled because he had lost the public's trust, I except extravagant claims of the right of the people to change their government. While Art. II, §1 of the Constitution says that "sovereignty resides in the people and all government authority emanates from them," it also says that "the Philippines is a democratic and republican state." This means that ours is a representative democracy — as distinguished from a direct democracy — in which the sovereign will of the people is expressed through the ballot, whether in an election,

referendum, initiative, recall (in the case of local officials) or plebiscite. Any exercise of the powers of sovereignty in any other way is unconstitutional. Indeed, the right to revolt cannot be recognized as a constitutional principle. A constitution to provide for the right of the people to revolt will carry with it the seeds of its own destruction. Rather, the right to revolt is affirmed as a natural right. Even then, it must be exercised only for weighty and serious reasons. As the Declaration of Independence of July 4, 1776 of the American Congress states: We hold these Truths to be self-evident, that all Men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty, and the Pursuit of Happiness — That to secure these Rights, Governments are instituted among Men, deriving their just Powers from the Consent of the Governed, that whenever any Form of Government becomes destructive of these Ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its Foundation on such Principles, and organizing its Powers in such Form, as to them shall seem most likely to effect their Safety and Happiness. Prudence, indeed, will dictate that Governments long established should not be changed for light and transient Causes; and accordingly all Experience hath shewn, that Mankind are more disposed to suffer, while Evils are sufferable, than to right themselves by abolishing the Forms to which they are accustomed. But when a long Train of Abuses and Usurpations, pursuing invariably the same Object, evinces a Design to reduce them under absolute Despotism, it is their Right, it is their Duty, to throw off such Government, and to provide new Guards for their future Security.17 Here, as I have already indicated, what took place at EDSA from January 16 to 20, 2001 was not a revolution but the peaceful expression of popular will. The operative fact which enabled Vice-President Gloria MacapagalArroyo to assume the presidency was the fact that there was a crisis, nay a vacuum, in the executive leadership which made the government rife for seizure by lawless elements. The presidency was up for grabs, and it was imperative that the rule of succession in the Constitution be enforced. But who is to declare the President's permanent disability, petitioner asks? The answer was given by petitioner himself when he said that he was already tired and wanted no more of popular demonstrations and rallies against him; when he and his advisers negotiated with respondent Gloria

Macapagal-Arroyo's advisers for a transition of powers from him to her; when petitioner's own Executive Secretary declared that petitioner was not only in a corner but was down. Nor is it correct for petitioner to say that the present situation is similar to our situation during the period (from 1941 to 1943) of our occupation by the Japanese, when we had two presidents, namely, Manuel L. Quezon and Jose P. Laurel. This is turning somersault with history. The Philippines had two presidents at that time for the simple reason that there were then two governments — the de facto government established by Japan as belligerent occupant, of which Laurel was president, and the de jure Commonwealth Government in exile of President Manuel L. Quezon. That a belligerent occupant has a right to establish a government in enemy territory is a recognized principle of international law.18 But today we have only one government, and it is the one set up in the 1987 Constitution. Hence, there can only be one President. Having reached the conclusion that petitioner Joseph E. Estrada is no longer President of the Philippines, I find no need to discuss his claim of immunity from suit. I believe in the canon of adjudication that the Court should not formulate a rule of constitutional law broader than is required by the precise facts to which it is applied. The only question left for resolution is whether there was massive prejudicial publicity attending the investigation by the Ombudsman of the criminal charges against petitioner. The test in this jurisdiction is whether there has been "actual, not merely possible, prejudice"19 caused to petitioner as a result of publicity. There has been no proof of this, and so I think this claim should simply be dismissed. For the foregoing reasons, I vote to dismiss the petitions in these cases.

(Sgd.) VICENTE V. MENDOZA Associate Justice

Footnotes 1

Joint Memorandum of the Secretary of Justice and Solicitor General, p. 15.

Lawyers League for a Better Philippines v. President Corazon C. Aquino, G.R. No. 73746, May 22, 1986. 2

3

Letter of Associate Justice Reynato S. Puno, 210 SCRA 589, 597 (1992).

4

Luther v. Borden, 7 How. 1 (1848).

5

Political Questions, 38 Harv. L. Rev. 296, 305 (1925).

6

50 SCRA 30 (1973).

7

104 SCRA ! (1981).

8

104 SCRA 59 (1981).

9

Joint Memorandum of the Secretary of Justice and Solicitor General, p. 2.

10

83 Phil. 17 (1949).

11

83 Phil. At 76 (Perfecto, J., concurring).

12

Id. at 25-26 (concurring and dissenting).

13

Memorandum for Petitioner, G.R. Nos, 146710-15, pp. 5-6.

14

Petition, G.R. No. 146738, p. 13.

15

Edgardo Angara, Erap's Final Hours Told, Philippine Daily Inquirier, p. A6, February 6, 2001.

16

Id. (emphasis added).

17

Emphasis added.

Co Kim Cham v. Valdez, 75 Phil. 113 (1945); Peralta v. Director of Prisons, 75 Phil. 285 (1945); Laurel v. Misa, 77 Phil. 856 (1947). 18

19

See Martelino v. Alejandro, 32 SCRA 106 (1970).

5. In re: Petition for the Writ of Amparo and Habeas Data in favour of Noriel H. Rodriguez G.R. No. 191805

April 16, 2013

IN THE MATTER OF THE PETITION FOR THE WRIT OF AMPARO AND HABEAS DATA IN FAVOR OF NORIEL RODRIGUEZ, NORIEL RODRIGUEZ, Petitioner, 
 vs.
 GLORIA MACAPAGAL-ARROYO, GEN. VICTOR S. IBRADO, PDG JESUS AME VERSOZA, LT. GEN. DELFIN BANGIT, MAJ. GEN. NESTOR Z. OCHOA, P/CSUPT. AMETO G. TOLENTINO, P/SSUPT. JUDE W. SANTOS, COL. REMIGIO M. DE VERA, an officer named MATUTINA, LT. COL. MINA, CALOG, GEORGE PALACPAC under the name "HARRY," ANTONIO CRUZ, ALDWIN "BONG" PASICOLAN and VINCENT CALLAGAN,Respondents. x-----------------------x G.R. No. 193160 IN THE MATTER OF THE PETITION FOR THE WRIT OF AMPARO AND HABEAS DATA IN FAVOR OF NORIEL RODRIGUEZ, POLICE DIR. GEN. JESUS A. VERSOZA, P/SSUPT. JUDE W. SANTOS, BGEN. REMEGIO M. DE VERA, 1ST LT. RYAN S. MATUTINA, LT. COL. LAURENCE E. MINA, ANTONIO C. CRUZ, ALDWIN C. PASICOLAN and VICENTE A. CALLAGAN, Petitioners, 
 vs.
 NORIEL H. RODRIGUEZ, Respondent. RESOLUTION SERENO, CJ.: On 15 November 2011, the Court promulgated its Decision in the present case, the dispositive portion of which reads: WHEREFORE, we resolve to GRANT the Petition for Partial Review in G.R. No. 191805 and DENY the Petition for Review in G.R. No. 193160. The Decision of the Court of Appeals is hereby AFFIRMED WITH MODIFICATION.

The case is dismissed with respect to respondents former President Gloria Macapagal-Arroyo, P/CSupt. Ameto G. Tolentino, and P/SSupt. Jude W. Santos, Calog, George Palacpac, Antonio Cruz, Aldwin Pasicolan and Vincent Callagan for lack of merit. This Court directs the Office of the Ombudsman (Ombudsman) and the Department of Justice (DOJ) to take the appropriate action with respect to any possible liability or liabilities, within their respective legal competence, that may have been incurred by respondents Gen. Victor lbrado, PDG. Jesus Verzosa, Lt. Gen. Delfin Bangit, Maj. Gen. Nestor Ochoa, Brig. Gen. Remegio De Vera, 1st Lt. Ryan Matutina, and Lt. Col. Laurence Mina. The Ombudsman and the DOJ are ordered to submit to this Court the results of their action within a period of six months from receipt of this Decision. In the event that herein respondents no longer occupy their respective posts, the directives mandated in this Decision and in the Court of Appeals are enforceable against the incumbent officials holding the relevant positions. Failure to comply with the foregoing shall constitute contempt of court. SO ORDERED. After a careful examination of the records, the Court was convinced that the Court of Appeals correctly found sufficient evidence proving that the soldiers of the 17th Infantry Battalion, 5th Infantry Division of the military abducted petitioner Rodriguez on 6 September 2009, and detained and tortured him until 17 September 2009. Pursuant to the Decision ordering the Office of the Ombudsman to take further action, Ombudsman Conchita Carpio Morales sent this Court a letter dated 23 May 2012, requesting an additional two-month period, or until 24 July 2012, within which to submit a report. The Ombudsman stated that Noriel Rodriguez (Rodriguez) and his family refused to cooperate with the investigation for security reasons. On 6 January 2012, respondents filed their Motion for Reconsideration, 1 arguing that the soldiers belonging to the 17th Infantry Battalion, 5th Infantry Division of the military cannot be held accountable for authoring the abduction and torture of petitioner. Their arguments revolve solely on the claim that respondents were never specifically mentioned by name as having performed, permitted, condoned, authorized, or allowed the

commission of any act or incurrence omission which would violate or threaten with violation the rights to life, liberty, and security of petitionerrespondent and his family.2 On 18 January 2013, the Ombudsman submitted the Investigation Report, as compliance with the Court’s directive to take appropriate action with respect to possible liabilities respondents may have incurred. The exhaustive report detailed the steps taken by the Field Investigation Office (FIO) of the Office of the Ombudsman, concluding that no criminal, civil, or administrative liabilities may be imputed to the respondents. It was reflected therein that the lawyers for the Rodriguezes had manifested to the FIO that the latter are hesitant to appear before them for security reasons, viz: Karapatan (a non-governmental organization that provides legal assistance to victims of human rights violations and their families) could not locate Noriel and Rodel. As of this writing, the Rodriguezes refused to participate in the present fact-finding investigation ‘for security reasons.’ Atty. Yambot disclosed (through a Manifestation dated March 30, 2012 that despite efforts to convince Noriel to participate in the present proceedings, the latter ‘remains unconvinced and unwilling to this date.’ Recent information, however, revealed that Noriel and his family are no longer interested in participating in the present case. Instead of appearing before this Office for a conference under oath, SPO1 Robert B. Molina submitted an Affidavit dated June 13, 2012 stating that on September 15, 2009, at around 11:00 o’clock in the morning, Wilma H. Rodriguez appeared before the Gonzaga Police Station and requested to enter into the blotter that her son, Noriel, was allegedly missing in Sitio Comunal, Gonzaga, Cagayan. Thereupon, he gathered information relative to Wilma’s report "but the community residence failed to reveal anything".3 The other accounts – specifically that of respondent Antonino C. Cruz, Special Investigator II of the Commission on Human Rights (CHR), as well as the claims of respondents Mina and De Vera that they had disclosed to the CHR that Noriel had become an agent ("asset") of the 17th Infantry Battalion – have been thoroughly evaluated and ruled upon in our Decision. The OMB further laments, "If only he (Noriel) could be asked to verify the circumstances under which he executed these subsequent affidavits, his inconsistent claims will finally be settled," and that "(I)f there is one person

who can attest on whether detention and torture were indeed committed by any of the Subjects herein, it is Noriel Rodriguez himself, the supposed victim."4 The purported unwillingness of the petitioner to appear or participate at this stage of the proceedings due to security reasons does not affect the rationale of the writ granted by the CA, as affirmed by this Court. In any case, the issue of the existence of criminal, civil, or administrative liability which may be imputed to the respondents is not the province of amparo proceedings -- rather, the writ serves both preventive and curative roles in addressing the problem of extrajudicial killings and enforced disappearances. It is preventive in that it breaks the expectation of impunity in the commission of these offenses, and it is curative in that it facilitates the subsequent punishment of perpetrators by inevitably leading to subsequent investigation and action.5 In this case then, the thrust of ensuring that investigations are conducted and the rights to life, liberty, and security of the petitioner, remains. We deny the motion for reconsideration. The writ of amparo partakes of a summary proceeding that requires only substantial evidence to make the appropriate interim and permanent reliefs available to the petitioner. As explained in the Decision, it is not an action to determine criminal guilt requiring proof beyond reasonable doubt, or liability for damages requiring preponderance of evidence, or even administrative responsibility requiring substantial evidence. The totality of evidence as a standard for the grant of the writ was correctly applied by this Court, as first laid down in Razon v. Tagitis: The fair and proper rule, to our mind, is to consider all the pieces of evidence adduced in their totality, and to consider any evidence otherwise inadmissible under our usual rules to be admissible if it is consistent with the admissible evidence adduced. In other words, we reduce our rules to the most basic test of reason – i.e., to the relevance of the evidence to the issue at hand and its consistency with all other pieces of adduced evidence. Thus, even hearsay evidence can be admitted if it satisfies this basic minimum test.6 (Emphasis supplied.) No reversible error may be attributed to the grant of the privilege of the writ by the CA, and the present motion for reconsideration raises no new issues that would convince us otherwise.

Respondents’ claim that they were not competently identified as the soldiers who abducted and detained the petitioner, or that there was no mention of their names in the documentary evidence, is baseless. The CA rightly considered Rodriguez’s Sinumpaang Salaysay7 as a meticulous and straightforward account of his horrific ordeal with the military, detailing the manner in which he was captured and maltreated on account of his suspected membership in the NPA.8 Petitioner narrated that at dawn on 9 September 2009, he noticed a soldier with the name tag "Matutina," who appeared to be an official because the other soldiers addressed him as "sir."9 He saw Matutina again at 11:00 p.m. on 15 September 2009, when his abductors took him to a military operation in the mountains. His narration of his suffering included an exhaustive description of his physical surroundings, personal circumstances, and perceived observations. He likewise positively identified respondents 1st Lt. Matutina and Lt. Col. Mina to be present during his abduction, detention and torture.10 These facts were further corroborated by Hermie Antonio Carlos in his Sinumpaang Salaysay dated 16 September 2009,11 wherein he recounted in detail the circumstances surrounding the victim’s capture. Respondents’ main contention in their Return of the Writ was correctly deemed illogical and contradictory by the CA. They claim that Rodriguez had complained of physical ailments due to activities in the CPP-NPA, yet nevertheless signified his desire to become a double-agent for the military. The CA stated: In the Return of the Writ, respondent AFP members alleged that petitioner confided to his military handler, Cpl. Navarro, that petitioner could no longer stand the hardships he experienced in the wilderness, and that he wanted to become an ordinary citizen again because of the empty promises of the CPP-NPA. However, in the same Return, respondents state that petitioner agreed to become a double agent for the military and wanted to re-enter the CPP-NPA, so that he could get information regarding the movement directly from the source. If petitioner was tired of life in the wilderness and desired to become an ordinary citizen again, it defies logic that he would agree to become an undercover agent and work alongside soldiers in the mountains – or the wilderness he dreads – to locate the hideout of his alleged NPA comrades.12 (Emphasis supplied.) Respondents conveniently neglect to address the findings of both the CA and this Court that aside from the abduction of Rodriguez, respondents,

specifically 1st Lt. Matutina, had violated and threatened the former’s right to security when they made a visual recording of his house, as well as the photos of his relatives. The CA found that the soldiers even went as far as taking videos of the photos of petitioner’s relatives hung on the wall of the house, and the innermost portions of the house.13 There is no reasonable justification for this violation of the right to privacy and security of petitioner’s abode, which strikes at the very heart and rationale of the Rule on the Writ of Amparo. More importantly, respondents also neglect to address our ruling that the failure to conduct a fair and effective investigation similarly amounted to a violation of, or threat to Rodriguez’s rights to life, liberty, and security.14 The writ’s curative role is an acknowledgment that the violation of the right to life, liberty, and security may be caused not only by a public official’s act, but also by his omission. Accountability may attach to respondents who are imputed with knowledge relating to the enforced disappearance and who carry the burden of disclosure; or those who carry, but have failed to discharge, the burden of extraordinary diligence in the investigation of the enforced disappearance.15 The duty to investigate must be undertaken in a serious manner and not as a mere formality preordained to be ineffective.16 The CA found that respondents Gen. Ibrado, PDG Verzosa, LT. Gen. Bangit, Maj. Gen. Ochoa, Col. De Vera, and Lt. Col. Mina conducted a perfunctory investigation which relied solely on the accounts of the military. Thus, the CA correctly held that the investigation was superficial, onesided, and depended entirely on the report prepared by 1st Lt. Johnny Calub. No efforts were undertaken to solicit petitioner’s version of the incident, and no witnesses were questioned regarding it.17 The CA also took into account the palpable lack of effort from respondent Versoza, as the chief of the Philippine National Police. WHEREFORE, in view of the foregoing, the Motion for Reconsideration is hereby DENIED with FINALITY. Let a copy of this Resolution be furnished the Ombudsman for whatever appropriate action she may still take under circumstances. SO ORDERED. MARIA LOURDES P. A. SERENO
 Chief Justice

WE CONCUR: ANTONIO T. CARPIO


PRESBITERO J. VELASCO, JR. Associate Justice

TERESITA J. LEONARDO-DE CASTRO Associate Justice

ARTURO D. BRION Associate Justice

DIOSDADO M. PERALTA Associate Justice

LUCAS P. BERSAMIN Associate Justice

MARIANO C. DEL CASTILLO Associate Justice

ROBERTO A. ABAD Associate Justice

MARTIN S. VILLARAMA, JR. Associate Justice

JOSE PORTUGAL PEREZ Associate Justice

JOSE CATRAL MENDOZA Associate Justice

BIENVENIDO L. REYES Associate Justice

ESTELA M. PERLAS-BERNABE Associate Justice

MARVIC MARIO VICTOR F. LEONEN
 Associate Justice C E RTI F I CATI O N Pursuant to Section 13, Article VIII of the constitution, I certify that the conclusions in the above Resolution had been reached in consultation before the case was assigned to the writer of the opinion of the Court. MARIA LOURDES P. A. SERENO
 Chief Justice Footnotes

1

Rollo, pp. 567-594.

2

Id. at 575.

3

P. 7, Investigation Report, CPL-C-11-2608.

4

Id. at p. 22.

Secretary of National Defense v. Manalo, G.R. No. 180906, 7 October 2008, 568 SCRA 1, 43. 5

6

G.R. No. 182498, 3 December 2009, 606 SCRA 598, 692.

7

dated 4 December 2009

8

CA rollo (G.R. No. 191805), pp. 14-23.

9

Rollo, (G.R. No. 191805), pp. 31-32, as cited in the Decision.

10

Id. at 17-23.

11

Id. at 42.

12

Rollo (G.R. No. 191805), pp. 63-64.

13

Id. at 67.

14

Page 35 of the Decision.

15

Supra note 3.

16

Supra note 5 at 42.

17

Rollo (G.R. No. 191805), pp. 66, 68

6. Neri v. Senate Committee on Accountability of Public Officers and Investigations G.R. No. 180643

September 4, 2008

ROMULO L. NERI, petitioner, 
 vs.
 SENATE COMMITTEE ON ACCOUNTABILITY OF PUBLIC OFFICERS AND INVESTIGATIONS, SENATE COMMITTEE ON TRADE AND COMMERCE, AND SENATE COMMITTEE ON NATIONAL DEFENSE AND SECURITY, respondents. RESOLUTION LEONARDO-DE CASTRO, J.: Executive privilege is not a personal privilege, but one that adheres to the Office of the President. It exists to protect public interest, not to benefit a particular public official. Its purpose, among others, is to assure that the nation will receive the benefit of candid, objective and untrammeled communication and exchange of information between the President and his/her advisers in the process of shaping or forming policies and arriving at decisions in the exercise of the functions of the Presidency under the Constitution. The confidentiality of the President’s conversations and correspondence is not unique. It is akin to the confidentiality of judicial deliberations. It possesses the same value as the right to privacy of all citizens and more, because it is dictated by public interest and the constitutionally ordained separation of governmental powers. In these proceedings, this Court has been called upon to exercise its power of review and arbitrate a hotly, even acrimoniously, debated dispute between the Court’s co-equal branches of government. In this task, this Court should neither curb the legitimate powers of any of the co-equal and coordinate branches of government nor allow any of them to overstep the boundaries set for it by our Constitution. The competing interests in the case at bar are the claim of executive privilege by the President, on the one hand, and the respondent Senate Committees’ assertion of their power to conduct legislative inquiries, on the other. The particular facts and circumstances of the present case, stripped of the politically and emotionally charged rhetoric from both sides and viewed in the light of settled constitutional and legal doctrines, plainly lead to the conclusion that the claim of executive privilege must be upheld. Assailed in this motion for reconsideration is our Decision dated March 25, 2008 (the "Decision"), granting the petition for certiorari filed by petitioner Romulo L.

Neri against the respondent Senate Committees on Accountability of Public Officers and Investigations,1 Trade and Commerce,2 and National Defense and Security (collectively the "respondent Committees").3 A brief review of the facts is imperative. On September 26, 2007, petitioner appeared before respondent Committees and testified for about eleven (11) hours on matters concerning the National Broadband Project (the "NBN Project"), a project awarded by the Department of Tr a n s p o r t a t i o n a n d C o m m u n i c a t i o n s ( " D O T C " ) t o Z h o n g X i n g Telecommunications Equipment ("ZTE"). Petitioner disclosed that then Commission on Elections ("COMELEC") Chairman Benjamin Abalos offered him P200 Million in exchange for his approval of the NBN Project. He further narrated that he informed President Gloria Macapagal Arroyo ("President Arroyo") of the bribery attempt and that she instructed him not to accept the bribe. However, when probed further on President Arroyo and petitioner’s discussions relating to the NBN Project, petitioner refused to answer, invoking "executive privilege." To be specific, petitioner refused to answer questions on: (a) whether or not President Arroyo followed up the NBN Project,4 (b) whether or not she directed him to prioritize it,5 and (c) whether or not she directed him to approve it.6 Respondent Committees persisted in knowing petitioner’s answers to these three questions by requiring him to appear and testify once more on November 20, 2007. On November 15, 2007, Executive Secretary Eduardo R. Ermita wrote to respondent Committees and requested them to dispense with petitioner’s testimony on the ground of executive privilege.7The letter of Executive Secretary Ermita pertinently stated: Following the ruling in Senate v. Ermita, the foregoing questions fall under conversations and correspondence between the President and public officials which are considered executive privilege (Almonte v. Vasquez, G.R. 95637, 23 May 1995; Chavez v. PEA, G.R. 133250, July 9, 2002). Maintaining the confidentiality of conversations of the President is necessary in the exercise of her executive and policy decision making process. The expectation of a President to the confidentiality of her conversations and correspondences, like the value which we accord deference for the privacy of all citizens, is the necessity for protection of the public interest in candid, objective, and even blunt or harsh opinions in Presidential decision-making. Disclosure of conversations of the President will have a chilling effect on the President, and will hamper her in the effective discharge of her duties and responsibilities, if she is not protected by the confidentiality of her conversations.

The context in which executive privilege is being invoked is that the information sought to be disclosed might impair our diplomatic as well as economic relations with the People’s Republic of China. Given the confidential nature in which these information were conveyed to the President, he cannot provide the Committee any further details of these conversations, without disclosing the very thing the privilege is designed to protect. In light of the above considerations, this Office is constrained to invoke the settled doctrine of executive privilege as refined in Senate v. Ermita, and has advised Secretary Neri accordingly. Considering that Sec. Neri has been lengthily interrogated on the subject in an unprecedented 11-hour hearing, wherein he has answered all questions propounded to him except the foregoing questions involving executive privilege, we therefore request that his testimony on 20 November 2007 on the ZTE / NBN project be dispensed with. On November 20, 2007, petitioner did not appear before respondent Committees upon orders of the President invoking executive privilege. On November 22, 2007, the respondent Committees issued the show-cause letter requiring him to explain why he should not be cited in contempt. On November 29, 2007, in petitioner’s reply to respondent Committees, he manifested 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. He also manifested his willingness to appear and testify should there be new matters to be taken up. He just requested that he be furnished "in advance as to what else" he "needs to clarify." Respondent Committees found petitioner’s 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; In Re: P.S. Res. Nos. 127,129,136 & 144; and privilege speeches of Senator Lacson and Santiago (all on the ZTE-NBN Project), citing petitioner in contempt of respondent Committees and ordering his arrest and detention at the Office of the Senate Sergeant-atArms until such time that he would appear and give his testimony. On the same date, petitioner moved for the reconsideration of the above Order. 8 He insisted that he had not shown "any contemptible conduct worthy of contempt and arrest." He emphasized his willingness to testify on new matters, but respondent Committees did not respond to his request for advance notice of questions. He also mentioned the petition for certiorari he previously filed with this Court on December 7, 2007. According to him, this should restrain

respondent Committees from enforcing the order dated January 30, 2008 which declared him in contempt and directed his arrest and detention. Petitioner then filed his Supplemental Petition for Certiorari (with Urgent Application for TRO/Preliminary Injunction) on February 1, 2008. In the Court’s Resolution dated February 4, 2008, the parties were required to observe the status quo prevailing prior to the Order dated January 30, 2008. On March 25, 2008, the Court granted his petition for certiorari on two grounds: first, the communications elicited by the three (3) questions were covered by executive privilege; and second, respondent Committees committed grave abuse of discretion in issuing the contempt order. Anent the first ground, we considered the subject communications as falling under the presidential communications privilege because (a) they related to a quintessential and nondelegable power of the President, (b) they were received by a close advisor of the President, and (c) respondent Committees failed to adequately show a compelling need that would justify the limitation of the privilege and the unavailability of the information elsewhere by an appropriate investigating authority. As to the second ground, we found that respondent Committees committed grave abuse of discretion in issuing the contempt order because (a) there was a valid claim of executive privilege, (b) their invitations to petitioner did not contain the questions relevant to the inquiry, (c) there was a cloud of doubt as to the regularity of the proceeding that led to their issuance of the contempt order, (d) they violated Section 21, Article VI of the Constitution because their inquiry was not in accordance with the "duly published rules of procedure," and (e) they issued the contempt order arbitrarily and precipitately. On April 8, 2008, respondent Committees filed the present motion for reconsideration, anchored on the following grounds: I CONTRARY TO THIS HONORABLE COURT’S DECISION, THERE IS NO DOUBT THAT THE ASSAILED ORDERS WERE ISSUED BY RESPONDENT COMMITTEES PURSUANT TO THE EXERCISE OF THEIR LEGISLATIVE POWER, AND NOT MERELY THEIR OVERSIGHT FUNCTIONS. II CONTRARY TO THIS HONORABLE COURT’S DECISION, THERE CAN BE NO PRESUMPTION THAT THE INFORMATION WITHHELD IN THE INSTANT CASE IS PRIVILEGED. III

CONTRARY TO THIS HONORABLE COURT’S DECISION, THERE IS NO FACTUAL OR LEGAL BASIS TO HOLD THAT THE COMMUNICATIONS ELICITED BY THE SUBJECT THREE (3) QUESTIONS ARE COVERED BY EXECUTIVE PRIVILEGE, CONSIDERING THAT: A. THERE IS NO SHOWING THAT THE MATTERS FOR WHICH EXECUTIVE PRIVILEGE IS CLAIMED CONSTITUTE STATE SECRETS. B. EVEN IF THE TESTS ADOPTED BY THIS HONORABLE COURT IN THE DECISION IS APPLIED, THERE IS NO SHOWING THAT THE ELEMENTS OF PRESIDENTIAL COMMUNICATIONS PRIVILEGE ARE PRESENT. C. ON THE CONTRARY, THERE IS ADEQUATE SHOWING OF A C O M P E L L I N G N E E D TO J U S T I F Y T H E D I S C L O S U R E O F T H E INFORMATION SOUGHT. D. TO UPHOLD THE CLAIM OF EXECUTIVE PRIVILEGE IN THE INSTANT CASE WOULD SERIOUSLY IMPAIR THE RESPONDENTS’ PERFORMANCE OF THEIR PRIMARY FUNCTION TO ENACT LAWS. E. FINALLY, THE CONSTITUTIONAL RIGHT OF THE PEOPLE TO INFORMATION, AND THE CONSTITUTIONAL POLICIES ON PUBLIC ACCOUNTABILITY AND TRANSPARENCY OUTWEIGH THE CLAIM OF EXECUTIVE PRIVILEGE. IV CONTRARY TO THIS HONORABLE COURT’S DECISION, RESPONDENTS DID NOT COMMIT GRAVE ABUSE OF DISCRETION IN ISSUING THE ASSAILED CONTEMPT ORDER, CONSIDERING THAT: A. THERE IS NO LEGITIMATE CLAIM OF EXECUTIVE PRIVILEGE IN THE INSTANT CASE. B. RESPONDENTS DID NOT VIOLATE THE SUPPOSED REQUIREMENTS LAID DOWN IN SENATE V. ERMITA. C. RESPONDENTS DULY ISSUED THE CONTEMPT ORDER IN ACCORDANCE WITH THEIR INTERNAL RULES. D. RESPONDENTS DID NOT VIOLATE THE REQUIREMENTS UNDER ARTICLE VI, SECTION 21 OF THE CONSTITUTION REQUIRING THAT ITS RULES OF PROCEDURE BE DULY PUBLISHED, AND WERE DENIED DUE PROCESS WHEN THE COURT CONSIDERED THE OSG’S INTERVENTION

ON THIS ISSUE WITHOUT GIVING RESPONDENTS THE OPPORTUNITY TO COMMENT. E. RESPONDENTS’ ISSUANCE OF THE CONTEMPT ORDER IS NOT ARBITRARY OR PRECIPITATE. In his Comment, petitioner charges respondent Committees with exaggerating and distorting the Decision of this Court. He avers that there is nothing in it that prohibits respondent Committees from investigating the NBN Project or asking him additional questions. According to petitioner, the Court merely applied the rule on executive privilege to the facts of the case. He further submits the following contentions: first, the assailed Decision did not reverse the presumption against executive secrecy laid down in Senate v. Ermita; second, respondent Committees failed to overcome the presumption of executive privilege because it appears that they could legislate even without the communications elicited by the three (3) questions, and they admitted that they could dispense with petitioner’s testimony if certain NEDA documents would be given to them; third, the requirement of specificity applies only to the privilege for State, military and diplomatic secrets, not to the necessarily broad and allencompassing presidential communications privilege; fourth, there is no right to pry into the President’s thought processes or exploratory exchanges; fifth, petitioner is not covering up or hiding anything illegal; sixth, the Court has the power and duty to annul the Senate Rules; seventh, the Senate is not a continuing body, thus the failure of the present Senate to publish its Rules of Procedure Governing Inquiries in Aid of Legislation (Rules) has a vitiating effect on them; eighth, the requirement for a witness to be furnished advance copy of questions comports with due process and the constitutional mandate that the rights of witnesses be respected; and ninth, neither petitioner nor respondent has the final say on the matter of executive privilege, only the Court. For its part, the Office of the Solicitor General maintains that: (1) there is no categorical pronouncement from the Court that the assailed Orders were issued by respondent Committees pursuant to their oversight function; hence, there is no reason for them "to make much" of the distinction between Sections 21 and 22, Article VI of the Constitution; (2) presidential communications enjoy a presumptive privilege against disclosure as earlier held in Almonte v. Vasquez 9 and Chavez v. Public Estates Authority (PEA) 10 ; (3) the communications elicited by the three (3) questions are covered by executive privilege, because all the elements of the presidential communications privilege are present; (4) the subpoena ad testificandum issued by respondent Committees to petitioner is fatally defective under existing law and jurisprudence; (5) the failure of the present Senate to publish its Rules renders the same void; and (6) respondent Committees arbitrarily issued the contempt order.

Incidentally, respondent Committees’ objection to the Resolution dated March 18, 2008 (granting the Office of the Solicitor General’s Motion for Leave to Intervene and to Admit Attached Memorandum) only after the promulgation of the Decision in this case is foreclosed by its untimeliness. The core issues that arise from the foregoing respective contentions of the opposing parties are as follows: (1) whether or not there is a recognized presumptive presidential communications privilege in our legal system; (2) whether or not there is factual or legal basis to hold that the communications elicited by the three (3) questions are covered by executive privilege; (3) whether or not respondent Committees have shown that the communications elicited by 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 issuing the contempt order. We shall discuss these issues seriatim. I There Is a Recognized Presumptive
 Presidential Communications Privilege Respondent Committees ardently argue that the Court’s declaration that presidential communications are presumptively privileged reverses the "presumption" laid down in Senate v. Ermita11 that "inclines heavily against executive secrecy and in favor of disclosure." Respondent Committees then claim that the Court erred in relying on the doctrine in Nixon. Respondent Committees argue as if this were the first time the presumption in favor of the presidential communications privilege is mentioned and adopted in our legal system. That is far from the truth. The Court, in the earlier case of Almonte v. Vasquez,12 affirmed that the presidential communications privilege is fundamental to the operation of government and inextricably rooted in the separation of powers under the Constitution. Even Senate v. Ermita,13 the case relied upon by respondent Committees, reiterated this concept. There, the Court enumerated the cases in which the claim of executive privilege was recognized, among them Almonte v. Chavez, Chavez v. Presidential Commission on Good Government (PCGG),14 and Chavez v. PEA.15 The Court articulated in

these cases that "there are certain types of information which the government may withhold from the public,16" that there is a "governmental privilege against public disclosure with respect to state secrets regarding military, diplomatic and other national security matters";17 and that "the right to information does not extend to matters recognized as ‘privileged information’ under the separation of powers, by which the Court meant Presidential conversations, correspondences, and discussions in closed-door Cabinet meetings."18 Respondent Committees’ observation that this Court’s Decision reversed the "presumption that inclines heavily against executive secrecy and in favor of disclosure" arises from a piecemeal interpretation of the said Decision. The Court has repeatedly held that in order to arrive at the true intent and meaning of a decision, no specific portion thereof should be isolated and resorted to, but the decision must be considered in its entirety.19 Note that the aforesaid presumption is made in the context of the circumstances obtaining in Senate v. Ermita, which declared void Sections 2(b) and 3 of Executive Order (E.O.) No. 464, Series of 2005. The pertinent portion of the decision in the said case reads: From the above discussion on the meaning and scope of executive privilege, both in the United States and in this jurisprudence, a clear principle emerges. Executive privilege, whether asserted against Congress, the courts, or the public, is recognized only in relation to certain types of information of a sensitive character. While executive privilege is a constitutional concept, a claim thereof may be valid or not depending on the ground invoked to justify it and the context in which it is made. Noticeably absent is any recognition that executive officials are exempt from the duty to disclose information by the mere fact of being executive officials. Indeed, the extraordinary character of the exemptions indicates that the presumption inclines heavily against executive secrecy and in favor of disclosure. (Emphasis and underscoring supplied) Obviously, the last sentence of the above-quoted paragraph in Senate v. Ermita refers to the "exemption" being claimed by the executive officials mentioned in Section 2(b) of E.O. No. 464, solely by virtue of their positions in the Executive Branch. This means that when an executive official, who is one of those mentioned in the said Sec. 2(b) of E.O. No. 464, claims to be exempt from disclosure, there can be no presumption of authorization to invoke executive privilege given by the President to said executive official, such that the presumption in this situation inclines heavily against executive secrecy and in favor of disclosure.

Senate v. Ermita 20 expounds on the premise of the foregoing ruling in this wise: Section 2(b) in relation to Section 3 virtually provides that, once the head of office determines that a certain information is privileged, such determination is presumed to bear the President’s authority and has the effect of prohibiting the official from appearing before Congress, subject only to the express pronouncement of the President that it is allowing the appearance of such official. These provisions thus allow the President to authorize claims of privilege by mere silence. Such presumptive authorization, however, is contrary to the exceptional nature of the privilege. Executive privilege, as already discussed, is recognized with respect to information the confidential nature of which is crucial to the fulfillment of the unique role and responsibilities of the executive branch, or in those instances where exemption from disclosure is necessary to the discharge of highly important executive responsibilities. The doctrine of executive privilege is thus premised on the fact that certain information must, as a matter of necessity, be kept confidential in pursuit of the public interest. The privilege being, by definition, an exemption from the obligation to disclose information, in this case to Congress, the necessity must be of such high degree as to outweigh the public interest in enforcing that obligation in a particular case. In light of this highly exceptional nature of the privilege, the Court finds it essential to limit to the President the power to invoke the privilege. She may of course authorize the Executive Secretary to invoke the privilege on her behalf, in which case the Executive Secretary must state that the authority is "By order of the President", which means that he personally consulted with her. The privilege being an extraordinary power, it must be wielded only by the highest official in the executive hierarchy. In other words, the President may not authorize her subordinates to exercise such power. There is even less reason to uphold such authorization in the instant case where the authorization is not explicit but by mere silence. Section 3, in relation to Section 2(b), is further invalid on this score. The constitutional infirmity found in the blanket authorization to invoke executive privilege granted by the President to executive officials in Sec. 2(b) of E.O. No. 464 does not obtain in this case. In this case, it was the President 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 petitioner Neri in the course of the Senate Committees’ investigation. Thus, the factual setting of this case markedly differs from that passed upon in Senate v. Ermita.

Moreover, contrary to the claim of respondents, the Decision in this present case hews closely to the ruling in Senate v. Ermita,21 to wit: Executive privilege The phrase "executive privilege" is not new in this jurisdiction. It has been used even prior to the promulgation of the 1986 Constitution. Being of American origin, it is best understood in light of how it has been defined and used in the legal literature of the United States. Schwart defines executive privilege as "the power of the Government to withhold information from the public, the courts, and the Congress. Similarly, Rozell defines it as "the right of the President and high-level executive branch officers to withhold information from Congress, the courts, and ultimately the public." x x x In this jurisdiction, the doctrine of executive privilege was recognized by this Court in Almonte v. Vasquez. Almonte used the term in reference to the same privilege subject of Nixon. It quoted the following portion of the Nixon decision which explains the basis for the privilege: "The expectation of a President to the confidentiality of his conversations and correspondences, like the claim of confidentiality of judicial deliberations, for example, he has all the values to which we accord deference for the privacy of all citizens and, added to those values, is the necessity for protection of the public interest in candid, objective, and even blunt or harsh opinions in Presidential decision-making. A President and those who assist him must be free to explore alternatives in the process of shaping policies and making decisions and to do so in a way many would be unwilling to express except privately. These are the considerations justifying a presumptive privilege for Presidential communications. The privilege is fundamental to the operation of government and inextricably rooted in the separation of powers under the Constitution x x x " (Emphasis and italics supplied) Clearly, therefore, even Senate v. Ermita adverts to "a presumptive privilege for Presidential communication," which was recognized early on in Almonte v. Vasquez. To construe the passage in Senate v. Ermita adverted to in the Motion for Reconsideration of respondent Committees, referring to the non-existence of a "presumptive authorization" of an executive official, to mean that the "presumption" in favor of executive privilege "inclines heavily against executive secrecy and in favor of disclosure" is to distort the ruling in the Senate v. Ermita and make the same engage in self-contradiction. Senate v. Ermita22 expounds on the constitutional underpinning of the relationship between the Executive Department and the Legislative Department to explain

why there should be no implied authorization or presumptive authorization to invoke executive privilege by the President’s subordinate officials, as follows: When Congress exercises its power of inquiry, the only way for department heads to exempt themselves therefrom is by a valid claim of privilege. They are not exempt by the mere fact that they are department heads. Only one executive official may be exempted from this power - the President on whom executive power is vested, hence, beyond the reach of Congress except through the power of impeachment. It is based on he being the highest official of the executive branch, and the due respect accorded to a co-equal branch of governments which is sanctioned by a long-standing custom. (Underscoring supplied) 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. Any construction to the contrary will render meaningless the presumption accorded by settled jurisprudence in favor of executive privilege. In fact, Senate v. Ermita reiterates jurisprudence citing "the considerations justifying a presumptive privilege for Presidential communications."23 II There Are Factual and Legal Bases to
 Hold that the Communications Elicited by the
 Three (3) Questions Are Covered by Executive Privilege Respondent Committees claim that the communications elicited by the three (3) questions are not covered by executive privilege because the elements of the presidential communications privilege are not present. A. The power to enter into an executive agreement is a "quintessential and non-delegable presidential power." First, respondent Committees contend that the power to secure a foreign loan does not relate to a "quintessential and non-delegable presidential power," because the Constitution does not vest it in the President alone, but also in the Monetary Board which is required to give its prior concurrence and to report to Congress. This argument is unpersuasive.

The fact that a power is subject to the concurrence of another entity does not make such power less executive. "Quintessential" is defined as the most perfect embodiment of something, the concentrated essence of substance.24 On the other hand, "non-delegable" means that a power or duty cannot be delegated to another or, even if delegated, the responsibility remains with the obligor.25 The power to enter into an executive agreement is in essence an executive power. This authority of the President to enter into executive agreements without the concurrence of the Legislature has traditionally been recognized in Philippine jurisprudence.26 Now, the fact that the President has to secure the prior concurrence of the Monetary Board, which shall submit to Congress a complete report of its decision before contracting or guaranteeing foreign loans, does not diminish the executive nature of the power. The inviolate doctrine of separation of powers among the legislative, executive and judicial branches of government by no means prescribes absolute autonomy in the discharge by each branch of that part of the governmental power assigned to it by the sovereign people. There is the corollary doctrine of checks and balances, which has been carefully calibrated by the Constitution to temper the official acts of each of these three branches. Thus, by analogy, the fact that certain legislative acts require action from the President for their validity does not render such acts less legislative in nature. A good example is the power to pass a law. Article VI, Section 27 of the Constitution mandates that every bill passed by Congress shall, before it becomes a law, be presented to the President who shall approve or veto the same. The fact that the approval or vetoing of the bill is lodged with the President does not render the power to pass law executive in nature. This is because the power to pass law is generally a quintessential and non-delegable power of the Legislature. In the same vein, the executive power to enter or not to enter into a contract to secure foreign loans does not become less executive in nature because of conditions laid down in the Constitution. The final decision in the exercise of the said executive power is still lodged in the Office of the President. B. The "doctrine of operational proximity" was laid down precisely to limit the scope of the presidential communications privilege but, in any case, it is not conclusive. Second, respondent Committees also seek reconsideration of the application of the "doctrine of operational proximity" for the reason that "it maybe misconstrued to expand the scope of the presidential communications privilege to communications between those who are ‘operationally proximate’ to the President but who may have "no direct communications with her."

It must be stressed that the doctrine of "operational proximity" was laid down in In re: Sealed Case 27 precisely to limit the scope of the presidential communications privilege. The U.S. court was aware of the dangers that a limitless extension of the privilege risks and, therefore, carefully cabined its reach by explicitly confining it to White House staff, and not to staffs of the agencies, and then only to White House staff that has "operational proximity" to direct presidential decision-making, thus: We are aware that such an extension, unless carefully circumscribed to accomplish the purposes of the privilege, could pose a significant risk of expanding to a large swath of the executive branch a privilege that is bottomed on a recognition of the unique role of the President. In order to limit this risk, the presidential communications privilege should be construed as narrowly as is consistent with ensuring that the confidentiality of the President’s decisionmaking process is adequately protected. Not every person who plays a role in the development of presidential advice, no matter how remote and removed from the President, can qualify for the privilege. In particular, the privilege should not extend to staff outside the White House in executive branch agencies. Instead, the privilege should apply only to communications authored or solicited and received by those members of an immediate White House advisor’s staff who have broad and significant responsibility for investigation and formulating the advice to be given the President on the particular matter to which the communications relate. Only communications at that level are close enough to the President to be revelatory of his deliberations or to pose a risk to the candor of his advisers. See AAPS, 997 F.2d at 910 (it is "operational proximity" to the President that matters in determining whether "[t]he President’s confidentiality interests" is implicated). (Emphasis supplied) In the case at bar, the danger of expanding the privilege "to a large swath of the executive branch" (a fear apparently entertained by respondents) is absent because the official involved here is a member of the Cabinet, thus, properly within the term "advisor" of the President; in fact, her alter ego and a member of her official family. Nevertheless, in circumstances in which the official involved is far too remote, this Court also mentioned in the Decision the organizational test laid down in Judicial Watch, Inc. v. Department of Justice.28 This goes to show that the operational proximity test used in the Decision is not considered conclusive in every case. In determining which test to use, the main consideration is to limit the availability of executive privilege only to officials who stand proximate to the President, not only by reason of their function, but also by reason of their positions in the Executive’s organizational structure. Thus, respondent Committees’ fear that the scope of the privilege would be

unnecessarily expanded with the use of the operational proximity test is unfounded. C. The President’s claim of executive privilege is not merely based on a generalized interest; and in balancing respondent Committees’ and the President’s clashing interests, the Court did not disregard the 1987 Constitutional provisions on government transparency, accountability and disclosure of information. Third, respondent Committees claim that the Court erred in upholding the President’s invocation, through the Executive Secretary, of executive privilege because (a) between respondent Committees’ specific and demonstrated need and the President’s generalized interest in confidentiality, there is a need to strike the balance in favor of the former; and (b) in the balancing of interest, the Court disregarded the provisions of the 1987 Philippine Constitution on government transparency, accountability and disclosure of information, specifically, Article III, Section 7;29 Article II, Sections 2430 and 28;31 Article XI, Section 1;32 Article XVI, Section 10;33 Article VII, Section 20;34 and Article XII, Sections 9,35 21,36 and 22.37 It must be stressed that the President’s claim of executive privilege is not merely founded on her generalized interest in confidentiality. The Letter dated November 15, 2007 of Executive Secretary Ermita specified presidential communications privilege in relation to diplomatic and economic relations with another sovereign nation as the bases for the claim. Thus, the Letter stated: The context in which executive privilege is being invoked is that the information sought to be disclosed might impair our diplomatic as well as economic relations with the People’s Republic of China. Given the confidential nature in which this information were conveyed to the President, he cannot provide the Committee any further details of these conversations, without disclosing the very thing the privilege is designed to protect. (emphasis supplied) Even in Senate v. Ermita, it was held that Congress must not require the Executive to state the reasons for the claim with such particularity as to compel disclosure of the information which the privilege is meant to protect. This is a matter of respect for a coordinate and co-equal department. It is easy to discern the danger that goes with the disclosure of the President’s communication with her advisor. The NBN Project involves a foreign country as a party to the agreement. It was actually a product of the meeting of minds between officials of the Philippines and China. Whatever the President says about the agreement - particularly while official negotiations are ongoing - are matters which China will surely view with particular interest. There is danger in such kind of exposure. It could adversely affect our diplomatic as well as

economic relations with the People’s Republic of China. We reiterate the importance of secrecy in matters involving foreign negotiations as stated in United States v. Curtiss-Wright Export Corp., 38 thus: The nature of foreign negotiations requires caution, and their success must often depend on secrecy, and even when brought to a conclusion, a full disclosure of all the measures, demands, or eventual concessions which may have been proposed or contemplated would be extremely impolitic, for this might have a pernicious influence on future negotiations or produce immediate inconveniences, perhaps danger and mischief, in relation to other powers. The necessity of such caution and secrecy was one cogent reason for vesting the power of making treaties in the President, with the advice and consent of the Senate, the principle on which the body was formed confining it to a small number of members. To admit, then, a right in the House of Representatives to demand and to have as a matter of course all the papers respecting a negotiation with a foreign power would be to establish a dangerous precedent. US jurisprudence clearly guards against the dangers of allowing Congress access to all papers relating to a negotiation with a foreign power. In this jurisdiction, the recent case of Akbayan Citizens Action Party, et al. v. Thomas G. Aquino, et al.39upheld the privileged character of diplomatic negotiations. In Akbayan, the Court stated: Privileged character of diplomatic negotiations The privileged character of diplomatic negotiations has been recognized in this jurisdiction. In discussing valid limitations on the right to information, the Court in Chavez v. PCGG held that "information on inter-government exchanges prior to the conclusion of treaties and executive agreements may be subject to reasonable safeguards for the sake of national interest." Even earlier, the same privilege was upheld in People’s Movement for Press Freedom (PMPF) v. Manglapus wherein the Court discussed the reasons for the privilege in more precise terms. In PMPF v. Manglapus, the therein petitioners were seeking information from the President’s representatives on the state of the then on-going negotiations of the RP-US Military Bases Agreement. The Court denied the petition, stressing that "secrecy of negotiations with foreign countries is not violative of the constitutional provisions of freedom of speech or of the press nor of the freedom of access to information." The Resolution went on to state, thus: The nature of diplomacy requires centralization of authority and expedition of decision which are inherent in executive action. Another essential characteristic of diplomacy is its confidential nature.Although much has

been said about "open" and "secret" diplomacy, with disparagement of the latter, Secretaries of State Hughes and Stimson have clearly analyzed and justified the practice. In the words of Mr. Stimson: "A complicated negotiation …cannot be carried through without many, many private talks and discussion, man to man; many tentative suggestions and proposals. Delegates from other countries come and tell you in confidence of their troubles at home and of their differences with other countries and with other delegates; they tell you of what they would do under certain circumstances and would not do under other circumstances… If these reports… should become public… who would ever trust American Delegations in another conference? (United States Department of State, Press Releases, June 7, 1930, pp. 282-284) xxxx There is frequent criticism of the secrecy in which negotiation with foreign powers on nearly all subjects is concerned. This, it is claimed, is incompatible with the substance of democracy. As expressed by one writer, "It can be said that there is no more rigid system of silence anywhere in the world." (E.J. Young, Looking Behind the Censorship, J. B. Lipincott Co., 1938) President Wilson in starting his efforts for the conclusion of the World War declared that we must have "open covenants, openly arrived at." He quickly abandoned his thought. No one who has studied the question believes that such a method of publicity is possible. In the moment that negotiations are started, pressure groups attempt to "muscle in." An ill-timed speech by one of the parties or a frank declaration of the concession which are exacted or offered on both sides would quickly lead to a widespread propaganda to block the negotiations. After a treaty has been drafted and its terms are fully published, there is ample opportunity for discussion before it is approved. (The New American Government and Its Works, James T. Young, 4th Edition, p. 194) (Emphasis and underscoring supplied) Still in PMPF v. Manglapus, the Court adopted the doctrine in U.S. v. CurtissWright Export Corp. that the President is the sole organ of the nation in its negotiations with foreign countries,viz: "x x x In this vast external realm, with its important, complicated, delicate and manifold problems, the President alone has the power to speak or listen as a representative of the nation. He makes treaties with the advice and consent of the Senate; but he alone negotiates. Into the field of negotiation the Senate cannot intrude; and Congress itself is powerless to invade it. As Marshall said in

his great arguments of March 7, 1800, in the House of Representatives, "The President is the sole organ of the nation in its external relations, and its sole representative with foreign nations." Annals, 6th Cong., col. 613… (Emphasis supplied; underscoring in the original) Considering that the information sought through the three (3) questions subject of this Petition involves the President’s dealings with a foreign nation, with more reason, this Court is wary of approving the view that Congress may peremptorily inquire into not only official, documented acts of the President but even her confidential and informal discussions with her close advisors on the pretext that said questions serve some vague legislative need. Regardless of who is in office, this Court can easily foresee unwanted consequences of subjecting a Chief Executive to unrestricted congressional inquiries done with increased frequency and great publicity. No Executive can effectively discharge constitutional functions in the face of intense and unchecked legislative incursion into the core of the President’s decision-making process, which inevitably would involve her conversations with a member of her Cabinet. With respect to respondent Committees’ invocation of constitutional prescriptions regarding the right of the people to information and public accountability and transparency, the Court finds nothing in these arguments to support respondent Committees’ case. There is no debate as to the importance of the constitutional right of the people to information and the constitutional policies on public accountability and transparency. These are the twin postulates vital to the effective functioning of a democratic government. The citizenry can become prey to the whims and caprices of those to whom the power has been delegated if they are denied access to information. And the policies on public accountability and democratic government would certainly be mere empty words if access to such information of public concern is denied. In the case at bar, this Court, in upholding executive privilege with respect to three (3) specific questions, did not in any way curb the public’s right to information or diminish the importance of public accountability and transparency. This Court did not rule that the Senate has no power to investigate the NBN Project in aid of legislation. There is nothing in the assailed Decision that prohibits respondent Committees from inquiring into the NBN Project. They could continue the investigation and even call petitioner Neri to testify again. He himself has repeatedly expressed his willingness to do so. Our Decision merely excludes from the scope of respondents’ investigation the three (3) questions that elicit answers covered by executive privilege and rules that petitioner cannot be

compelled to appear before respondents to answer the said questions. We have discussed the reasons why these answers are covered by executive privilege. That there is a recognized public interest in the confidentiality of such information is a recognized principle in other democratic States. To put it simply, the right to information is not an absolute right. Indeed, the constitutional provisions cited by respondent Committees do not espouse an absolute right to information. By their wording, the intention of the Framers to subject such right to the regulation of the law is unmistakable. The highlighted portions of the following provisions show the obvious limitations on the right to information, thus: Article III, Sec. 7. The right of the people to information on matters of public concern shall be recognized. Access to official records, and to documents, and papers pertaining to official records, and to documents, and papers pertaining to official acts, transactions, or decisions, as well as to government research data used as basis for policy development, shall be afforded the citizen, subject to such limitations as may be provided by law. Article II, Sec. 28. Subject to reasonable conditions prescribed by law, the State adopts and implements a policy of full public disclosure of all its transactions involving public interest. (Emphasis supplied) In Chavez v. Presidential Commission on Good Government,40 it was stated that there are no specific laws prescribing the exact limitations within which the right may be exercised or the correlative state duty may be obliged. Nonetheless, it enumerated the recognized restrictions to such rights, among them: (1) national security matters, (2) trade secrets and banking transactions, (3) criminal matters, and (4) other confidential information. National security matters include state secrets regarding military and diplomatic matters, as well as information on intergovernment exchanges prior to the conclusion of treaties and executive agreements. It was further held that even where there is no need to protect such state secrets, they must be "examined in strict confidence and given scrupulous protection." Incidentally, the right primarily involved here is the right of respondent Committees to obtain information allegedly in aid of legislation, not the people’s right to public information. This is the reason why we stressed in the assailed Decision the distinction between these two rights. As laid down in Senate v. Ermita, "the demand of a citizen for the production of documents pursuant to his right to information does not have the same obligatory force as a subpoena duces tecum issued by Congress" and "neither does the right to information grant a citizen the power to exact testimony from government officials." As pointed out,

these rights belong to Congress, not to the individual citizen. It is worth mentioning at this juncture that the parties here are respondent Committees and petitioner Neri and that there was no prior request for information on the part of any individual citizen. This Court will not be swayed by attempts to blur the distinctions between the Legislature's right to information in a legitimate legislative inquiry and the public's right to information. For clarity, it must be emphasized that the assailed Decision did not enjoin respondent Committees from inquiring into the NBN Project. All that is expected from them is to respect matters that are covered by executive privilege. III. Respondent Committees Failed to Show That
 the Communications Elicited by the Three Questions
 Are Critical to the Exercise of their Functions In their Motion for Reconsideration, respondent Committees devote an unusually lengthy discussion on the purported legislative nature of their entire inquiry, as opposed to an oversight inquiry. At the outset, it must be clarified that the Decision did not pass upon the nature of respondent Committees’ inquiry into the NBN Project. To reiterate, this Court recognizes respondent Committees’ power to investigate the NBN Project in aid of legislation. However, this Court 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 respondent Committees’ questions can be sufficiently supported by the expedient of mentioning statutes and/or pending bills to which their inquiry as a whole may have relevance. The jurisprudential test laid down by this Court in past decisions on executive privilege is that the presumption of privilege can only be overturned by a showing of compelling need for disclosure of the information covered by executive privilege. In the Decision, the majority held that "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 an appropriate investigating authority." In the Motion for Reconsideration, respondent Committees argue that the information elicited by the three (3) questions are necessary in the discharge of their legislative functions, among them, (a) to consider the three (3) pending Senate Bills, and (b) to curb graft and corruption. We remain unpersuaded by respondents’ assertions.

In U.S. v. Nixon, the U.S. Court held that executive privilege is subject to balancing against other interests and it is necessary to resolve the competing interests in a manner that would preserve the essential functions of each branch. There, the Court weighed between presidential privilege and the legitimate claims of the judicial process. In giving more weight to the latter, the Court ruled that the President's generalized assertion of privilege must yield to the demonstrated, specific need for evidence in a pending criminal trial. The Nixon Court ruled that an absolute and unqualified privilege would stand in the way of the primary constitutional duty of the Judicial Branch to do justice in criminal prosecutions. The said Court further ratiocinated, through its ruling extensively quoted in the Honorable Chief Justice Puno's dissenting opinion, as follows: "... this presumptive privilege must be considered in light of our historic commitment to the rule of law. This is nowhere more profoundly manifest than in our view that 'the twofold aim (of criminal justice) is that guild shall not escape or innocence suffer.' Berger v. United States, 295 U.S., at 88, 55 S.Ct., at 633. We have elected to employ an adversary system of criminal justice in which the parties contest all issues before a court of law. The need to develop all relevant facts in the adversary system is both fundamental and comprehensive. The ends of criminal justice would be defeated if judgments were to be founded on a partial or speculative presentation of the facts. The very integrity of the judicial system and public confidence in the system depend on full disclosure of all the facts, within the framework of the rules of evidence. To ensure that justice is done, it is imperative to the function of courts that compulsory process be available for the production of evidence needed either by the prosecution or by the defense. xxx xxx xxx The right to the production of all evidence at a criminal trial similarly has constitutional dimensions. The Sixth Amendment explicitly confers upon every defendant in a criminal trial the right 'to be confronted with the witness against him' and 'to have compulsory process for obtaining witnesses in his favor.' Moreover, the Fifth Amendment also guarantees that no person shall be deprived of liberty without due process of law. It is the manifest duty of the courts to vindicate those guarantees, and to accomplish that it is essential that all relevant and admissible evidence be produced. In this case we must weigh the importance of the general privilege of confidentiality of Presidential communications in performance of the

President's responsibilities against the inroads of such a privilege on the fair administration of criminal justice. (emphasis supplied) xxx xxx xxx ...the allowance of the privilege to withhold evidence that is demonstrably relevant in a criminal trial would cut deeply into the guarantee of due process of law and gravely impair the basic function of the courts. A President's acknowledged need for confidentiality in the communications of his office is general in nature, whereas the constitutional need for production of relevant evidence in a criminal proceeding is specific and central to the fair adjudication of a particular criminal case in the administration of justice. Without access to specific facts a criminal prosecution may be totally frustrated. The President's broad interest in confidentiality of communication will not be vitiated by disclosure of a limited number of conversations preliminarily shown to have some bearing on the pending criminal cases. We conclude that when the ground for asserting privilege as to subpoenaed materials sought for use in a criminal trial is based only on the generalized interest in confidentiality, it cannot prevail over the fundamental demands of due process of law in the fair administration of criminal justice. The generalized assertion of privilege must yield to the demonstrated, specific need for evidence in a pending criminal trial. (emphasis supplied) In the case at bar, we are not confronted with a court’s need for facts in order to adjudge liability in a criminal case but rather with the Senate’s need for information in relation to its legislative functions. This leads us to consider once again just how critical is the subject information in the discharge of respondent Committees’ functions. The burden to show this is on the respondent Committees, since they seek to intrude into the sphere of competence of the President in order to gather information which, according to said respondents, would "aid" them in crafting legislation. Senate Select Committee on Presidential Campaign Activities v. Nixon41 expounded on the nature of a legislative inquiry in aid of legislation in this wise: The sufficiency of the Committee's showing of need has come to depend, therefore, entirely on whether the subpoenaed materials are critical to the performance of its legislative functions. There is a clear difference between Congress' legislative tasks and the responsibility of a grand jury, or any institution engaged in like functions. While fact-finding by a legislative committee is undeniably a part of its task, legislative judgments normally depend more

on the predicted consequences of proposed legislative actions and their political acceptability, than on precise reconstruction of past events; Congress frequently legislates on the basis of conflicting information provided in its hearings. In contrast, the responsibility of the grand jury turns entirely on its ability to determine whether there is probable cause to believe that certain named individuals did or did not commit specific crimes. If, for example, as in Nixon v. Sirica, one of those crimes is perjury concerning the content of certain conversations, the grand jury's need for the most precise evidence, the exact text of oral statements recorded in their original form, is undeniable. We see no comparable need in the legislative process, at least not in the circumstances of this case. Indeed, whatever force there might once have been in the Committee's argument that the subpoenaed materials are necessary to its legislative judgments has been substantially undermined by subsequent events. (Emphasis supplied) 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. Also, the bare standard of "pertinency" set in Arnault cannot be lightly applied to the instant case, which unlike Arnault involves a conflict between two (2) separate, co-equal and coordinate Branches of the Government. Whatever test we may apply, the starting point in resolving the conflicting claims between the Executive and the Legislative Branches is the recognized existence of the presumptive presidential communications privilege. This is conceded even in the Dissenting Opinion of the Honorable Chief Justice Puno, which states: A hard look at Senate v. Ermita ought to yield the conclusion that it bestowed a qualified presumption in favor of the Presidential communications privilege. As shown in the previous discussion, U.S. v. Nixon, as well as the other related Nixon cases Sirica and Senate Select Committee on Presidential Campaign Activities, et al., v. Nixon in the D.C. Court of Appeals, as well as subsequent cases all recognize that there is a presumptive privilege in favor of Presidential communications. The Almonte case quoted U.S. v. Nixon and recognized a presumption in favor of confidentiality of Presidential communications. The presumption in favor of Presidential communications puts the burden on the respondent Senate 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. Here, 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 is not clear what matters relating to these bills could not be

determined without the said information sought by the three (3) questions. As correctly pointed out by the Honorable Justice Dante O. Tinga in his Separate Concurring Opinion: …If respondents are operating under the premise that the president and/or her executive officials have committed wrongdoings that need to be corrected or prevented from recurring by remedial legislation, the answer to those three questions will not necessarily bolster or inhibit respondents from proceeding with such legislation. They could easily presume the worst of the president in enacting such legislation. For sure, a factual basis for situations covered by bills is not critically needed before legislatives bodies can come up with relevant legislation unlike in the adjudication of cases by courts of law. Interestingly, during the Oral Argument before this Court, the counsel for respondent Committees impliedly admitted that the Senate could still come up with legislations even without petitioner answering the three (3) questions. In other words, the information being elicited is not so critical after all. Thus: CHIEF JUSTICE PUNO So can you tell the Court how critical are these questions to the lawmaking function of the Senate. For instance, question Number 1 whether the President followed up the NBN project. According to the other counsel this question has already been asked, is that correct? ATTY. AGABIN Well, the question has been asked but it was not answered, Your Honor. CHIEF JUSTICE PUNO Yes. But my question is how critical is this to the lawmaking function of the Senate? ATTY. AGABIN I believe it is critical, Your Honor. CHIEF JUSTICE PUNO Why? ATTY. AGABIN

For instance, with respect to the proposed Bill of Senator Miriam Santiago, she would like to indorse a Bill to include Executive Agreements had been used as a device to the circumventing the Procurement Law. CHIEF JUSTICE PUNO But the question is just following it up. ATTY. AGABIN I believe that may be the initial question, Your Honor, because if we look at this problem in its factual setting as counsel for petitioner has observed, there are intimations of a bribery scandal involving high government officials. CHIEF JUSTICE PUNO Again, about the second question, were you dictated to prioritize this ZTE, is that critical to the lawmaking function of the Senate? Will it result to the failure of the Senate to cobble a Bill without this question? ATTY. AGABIN I think it is critical to lay the factual foundations for a proposed amendment to the Procurement Law, Your Honor, because the petitioner had already testified that he was offered a P200 Million bribe, so if he was offered a P200 Million bribe it is possible that other government officials who had something to do with the approval of the contract would be offered the same amount of bribes. CHIEF JUSTICE PUNO Again, that is speculative. ATTY. AGABIN That is why they want to continue with the investigation, Your Honor. CHIEF JUSTICE PUNO How about the third question, whether the President said to go ahead and approve the project after being told about the alleged bribe. How critical is that to the lawmaking function of the Senate? And the question is may they craft a Bill a remedial law without forcing petitioner Neri to answer this question? ATTY. AGABIN

Well, they can craft it, Your Honor, based on mere speculation. And sound legislation requires that a proposed Bill should have some basis in fact.42 The failure of the counsel for respondent Committees to pinpoint the specific need for the information sought or how the withholding of the information sought will hinder the accomplishment of their legislative purpose is very evident in the above oral exchanges. Due to the failure of the respondent Committees to successfully discharge this burden, the presumption in favor of confidentiality of presidential communication stands. The implication of the said presumption, like any other, is to dispense with the burden of proof as to whether the disclosure will significantly impair the President’s performance of her function. Needless to state this is assumed, by virtue of the presumption. Anent respondent Committees’ bewailing that they would have to "speculate" regarding the questions covered by the privilege, this does not evince a compelling need for the information sought. Indeed, Senate Select Committee on Presidential Campaign Activities v. Nixon43 held that while fact-finding by a legislative committee is undeniably a part of its task, legislative judgments normally depend more on the predicted consequences of proposed legislative actions and their political acceptability than on a precise reconstruction of past events. It added that, normally, Congress legislates on the basis of conflicting information provided in its hearings. We cannot subscribe to the respondent Committees’ self-defeating proposition that without the answers to the three (3) questions objected to as privileged, the distinguished members of the respondent Committees cannot intelligently craft legislation. 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 in instances when the purpose of the inquiry is legislative in nature. This is because curbing graft and corruption is merely an oversight function of Congress.44 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. In any event, whether or not investigating graft and corruption is a legislative or oversight function of Congress, respondent Committees’ investigation cannot transgress bounds set by the Constitution. In Bengzon, Jr. v. Senate Blue Ribbon Committee,45 this Court ruled: The "allocation of constitutional boundaries" is a task that this Court must perform under the Constitution. Moreover, as held in a recent case, "the political question doctrine neither interposes an obstacle to judicial determination of the rival claims. The jurisdiction to delimit constitutional boundaries has been

given to this Court. It cannot abdicate that obligation mandated by the 1987 Constitution, although said provision by no means does away with the applicability of the principle in appropriate cases.46 (Emphasis supplied) There, the Court further ratiocinated that "the contemplated inquiry by respondent Committee is not really ‘in aid of legislation’ because it is not related to a purpose within the jurisdiction of Congress, since the aim of the investigation is to find out whether or not the relatives of the President or Mr. Ricardo Lopa had violated Section 5 of R.A. No. 3019, the Anti-Graft and Corrupt Practices Act, a matter that appears more within the province of the courts rather than of the Legislature."47 (Emphasis and underscoring supplied) The general thrust and the tenor of the three (3) questions is to trace the alleged bribery to the Office of the President.48While it may be a worthy endeavor to investigate the potential culpability of high government officials, including the President, in a given government transaction, it is simply not a task for the Senate to perform. The role of the Legislature is to make laws, not to determine anyone’s guilt of a crime or wrongdoing. Our Constitution has not bestowed upon the Legislature the latter role. Just as the Judiciary cannot legislate, neither can the Legislature adjudicate or prosecute. Respondent Committees claim that they are conducting an inquiry in aid of legislation and a "search for truth," which in respondent Committees’ view appears to be equated with the search for persons responsible for "anomalies" in government contracts. No matter how noble the intentions of respondent Committees are, they cannot assume the power reposed upon our prosecutorial bodies and courts. The determination of who is/are liable for a crime or illegal activity, the investigation of the role played by each official, the determination of who should be haled to court for prosecution and the task of coming up with conclusions and finding of facts regarding anomalies, especially the determination of criminal guilt, are not functions of the Senate. Congress is neither a law enforcement nor a trial agency. Moreover, 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, i.e. legislation. Investigations conducted solely to gather incriminatory evidence and "punish" those investigated are indefensible. There is no Congressional power to expose for the sake of exposure.49 In this regard, the pronouncement in Barenblatt v. United States50 is instructive, thus: Broad as it is, the power is not, however, without limitations. Since Congress may only investigate into the areas in which it may potentially legislate

or appropriate, it cannot inquire into matters which are within the exclusive province of one of the other branches of the government. Lacking the judicial power given to the Judiciary, it cannot inquire into matters that are exclusively the concern of the Judiciary. Neither can it supplant the Executive in what exclusively belongs to the Executive. (Emphasis supplied.) At this juncture, it is important to stress that complaints relating to the NBN Project have already been filed against President Arroyo and other personalities before the Office of the Ombudsman. Under our Constitution, it is the Ombudsman who has the duty "to investigate any act or omission of any public official, employee, office or agency when such act or omission appears to be illegal, unjust, improper, or inefficient."51 The Office of the Ombudsman is the body properly equipped by the Constitution and our laws to preliminarily determine whether or not the allegations of anomaly are true and who are liable therefor. The same holds true for our courts upon which the Constitution reposes the duty to determine criminal guilt with finality. Indeed, the rules of procedure in the Office of the Ombudsman and the courts are welldefined and ensure that the constitutionally guaranteed rights of all persons, parties and witnesses alike, are protected and safeguarded. Should respondent Committees uncover information related to a possible crime in the course of their investigation, they have the constitutional duty to refer the matter to the appropriate agency or branch of government. Thus, the Legislature’s need for information in an investigation of graft and corruption cannot be deemed compelling enough to pierce the confidentiality of information validly covered by executive privilege. As discussed above, the Legislature can still legislate on graft and corruption even without the information covered by the three (3) questions subject of the petition. Corollarily, respondent Committees justify their rejection of petitioner’s claim of executive privilege on the ground that there is no privilege when the information sought might involve a crime or illegal activity, despite the absence of an administrative or judicial determination to that effect. Significantly, however, in Nixon v. Sirica,52 the showing required to overcome the presumption favoring confidentiality turned, not on the nature of the presidential conduct that the subpoenaed material might reveal, but, instead, on the nature and appropriateness of the function in the performance of which the material was sought, and the degree to which the material was necessary to its fulfillment. Respondent Committees assert that Senate Select Committee on Presidential Campaign Activities v. Nixon does not apply to the case at bar because, unlike in the said case, no impeachment proceeding has been initiated at present. The

Court is not persuaded. While it is true that no impeachment proceeding has been initiated, however, complaints relating to the NBN Project have already been filed against President Arroyo and other personalities before the Office of the Ombudsman. As the Court has said earlier, the prosecutorial and judicial arms of government are the bodies equipped and mandated by the Constitution and our laws to determine whether or not the allegations of anomaly in the NBN Project are true and, if so, who should be prosecuted and penalized for criminal conduct. Legislative inquiries, unlike court proceedings, are not subject to the exacting standards of evidence essential to arrive at accurate factual findings to which to apply the law. Hence, Section 10 of the Senate Rules of Procedure Governing Inquiries in Aid of Legislation provides that "technical rules of evidence applicable to judicial proceedings which do not affect substantive rights need not be observed by the Committee." Court rules which prohibit leading, hypothetical, or repetitive questions or questions calling for a hearsay answer, to name a few, do not apply to a legislative inquiry. Every person, from the highest public official to the most ordinary citizen, has the right to be presumed innocent until proven guilty in proper proceedings by a competent court or body. IV Respondent Committees Committed Grave
 Abuse of Discretion in Issuing the Contempt Order Respondent Committees insist that they did not commit grave abuse of discretion in issuing the contempt order because (1) there is no legitimate claim of executive privilege; (2) they did not violate the requirements laid down in Senate v. Ermita; (3) they issued the contempt order in accordance with their internal Rules; (4) they did not violate the requirement under Article VI, Section 21 of the Constitution requiring the publication of their Rules; and (5) their issuance of the contempt order is not arbitrary or precipitate. We reaffirm our earlier ruling. The legitimacy of the claim of executive privilege having been fully discussed in the preceding pages, we see no reason to discuss it once again. Respondent Committees’ second argument rests on the view that the ruling in Senate v. Ermita, requiring invitations or subpoenas to contain the "possible needed statute which prompted the need for the inquiry" along with the "usual indication of the subject of inquiry and the questions relative to and in furtherance thereof" is not provided for by the Constitution and is merely an obiter dictum.

On the contrary, the Court sees the rationale and necessity of compliance with these requirements. An unconstrained congressional investigative power, like an unchecked Executive, generates its own abuses. Consequently, claims that the investigative power of Congress has been abused (or has the potential for abuse) have been raised many times.53 Constant exposure to congressional subpoena takes its toll on the ability of the Executive to function effectively. The requirements set forth in Senate v. Ermita are modest mechanisms that would not unduly limit Congress’ power. The legislative inquiry must be confined to permissible areas and thus, prevent the "roving commissions" referred to in the U.S. case, Kilbourn v. Thompson.54 Likewise, witnesses have their constitutional right to due process. They should be adequately informed what matters are to be covered by the inquiry. It will also allow them to prepare the pertinent information and documents. To our mind, these requirements concede too little political costs or burdens on the part of Congress when viewed vis-à-vis the immensity of its power of inquiry. The logic of these requirements is well articulated in the study conducted by William P. Marshall,55 to wit: A second concern that might be addressed is that the current system allows committees to continually investigate the Executive without constraint. One process solution addressing this concern is to require each investigation be tied to a clearly stated purpose. At present, the charters of some congressional committees are so broad that virtually any matter involving the Executive can be construed to fall within their province. Accordingly, investigations can proceed without articulation of specific need or purpose. A requirement for a more precise charge in order to begin an inquiry should immediately work to limit the initial scope of the investigation and should also serve to contain the investigation once it is instituted. Additionally, to the extent clear statements of rules cause legislatures to pause and seriously consider the constitutional implications of proposed courses of action in other areas, they would serve that goal in the context of congressional investigations as well. The key to this reform is in its details. A system that allows a standing committee to simply articulate its reasons to investigate pro forma does no more than imposes minimal drafting burdens. Rather, the system must be designed in a manner that imposes actual burdens on the committee to articulate its need for investigation and allows for meaningful debate about the merits of proceeding with the investigation.(Emphasis supplied) Clearly, petitioner’s request to be furnished an advance copy of questions is a reasonable demand that should have been granted by respondent Committees.

Unfortunately, the Subpoena Ad Testificandum dated November 13, 2007 made no specific reference to any pending Senate bill. It did not also inform petitioner of the questions to be asked. As it were, the subpoena merely commanded him to "testify on what he knows relative to the subject matter under inquiry." Anent the third argument, respondent Committees contend that their Rules of Procedure Governing Inquiries in Aid of Legislation (the "Rules") 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. We cannot turn a blind eye to possible violations of the Constitution simply out of courtesy. In this regard, the pronouncement in Arroyo v. De Venecia56 is enlightening, thus: "Cases both here and abroad, in varying forms of expression, all deny to the courts the power to inquire into allegations that, in enacting a law, a House of Congress failed to comply with its own rules, in the absence of showing that there was a violation of a constitutional provision or the rights of private individuals. United States v. Ballin, Joseph & Co., the rule was stated thus: ‘The Constitution empowers each House to determine its rules of proceedings. It may not by its rules ignore constitutional restraints or violate fundamental rights, and there should be a reasonable relation between the mode or method of proceeding established by the rule and the result which is sought to be attained." In the present case, the Court’s exercise of its power of judicial review is warranted because there appears to be a clear abuse of the power of contempt on the part of respondent Committees. Section 18 of the Rules provides that: "The Committee, by a vote of majority of all its members, may punish for contempt any witness before it who disobey any order of the Committee or refuses to be sworn or to testify or to answer proper questions by the Committee or any of its members." (Emphasis supplied) In the assailed Decision, we said that there is a cloud of doubt as to the validity of the contempt order because during the deliberation of the three (3) respondent Committees, only seven (7) Senators were present. This number could hardly fulfill the majority requirement needed by respondent Committee on Accountability of Public Officers and Investigations which has a membership of seventeen (17) Senators and respondent Committee on National Defense and Security which has a membership of eighteen (18) Senators. With respect to respondent Committee on Trade and Commerce which has a membership of

nine (9) Senators, only three (3) members were present.57 These facts prompted us to quote in the Decision the exchanges between Senators Alan Peter Cayetano and Aquilino Pimentel, Jr. whereby the former raised the issue of lack of the required majority to deliberate and vote on the contempt order. When asked about such voting during the March 4, 2008 hearing before this Court, Senator Francis Pangilinan stated that any defect in the committee voting had been cured because two-thirds of the Senators effectively signed for the Senate in plenary session.58 Obviously the deliberation of the 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 the respondent Committees, the contempt order was prepared and thereafter presented to the other members for signing. As a result, the contempt order which was issued on January 30, 2008 was not a faithful representation of the proceedings that took place on said date. Records clearly show that not all of those who signed the contempt order were present during the January 30, 2008 deliberation when the matter was taken up. Section 21, Article VI of the Constitution states 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 rights of person appearing in or affected by such inquiries shall be respected. (Emphasis supplied) All the limitations embodied in the foregoing provision form part of the witness’ settled expectation. If the limitations are not observed, the witness’ settled expectation is shattered. Here, how could there be a majority vote when the members in attendance are not enough to arrive at such majority? Petitioner has the right to expect that he can be cited in contempt only through a majority vote in a proceeding in which the matter has been fully deliberated upon. There is a greater measure of protection for the witness when the concerns and objections of the members are fully articulated in such proceeding. We do not believe that respondent Committees have the discretion to set aside their rules anytime they wish. This is especially true here where what is involved is the contempt power. It must be stressed that the Rules are not promulgated for their benefit. More than anybody else, it is the witness who has the highest stake in the proper observance of the Rules. Having touched the subject of the Rules, we now proceed to respondent Committees’ fourth argument. Respondent Committees argue that the Senate does not have to publish its Rules because the same was published in 1995 and

in 2006. Further, they claim that the Senate is a continuing body; thus, it is not required to republish the Rules, unless the same is repealed or amended. On the nature of the Senate as a "continuing body," this Court sees fit to issue a clarification. Certainly, there is no debate that the Senate as an institution is "continuing", as it is not dissolved as an entity with each national election or change in the composition of its members. However, in the conduct of its day-today business the Senate of each Congress acts separately and independently of the Senate of the Congress before it. The Rules of the Senate itself confirms this when it states: RULE XLIV
 UNFINISHED BUSINESS SEC. 123. Unfinished business at the end of the session shall be taken up at the next session in the same status. All pending matters and proceedings shall terminate upon the expiration of one (1) Congress, but may be taken by the succeeding Congress as if present for the first time. (emphasis supplied) Undeniably from the foregoing, all pending matters and proceedings, i.e. unpassed bills and even legislative investigations, of the Senate of a particular Congress are considered terminated upon the expiration of that Congress and it is merely optional on the Senate of the succeeding Congress to take up such unfinished matters, not in the same status, but as if presented for the first time. The logic and practicality of such a rule is readily apparent considering that the Senate of the succeeding Congress (which will typically have a different composition as that of the previous Congress) should not be bound by the acts and deliberations of the Senate of which they had no part. If the Senate is a continuing body even with respect to the conduct of its business, then pending matters will not be deemed terminated with the expiration of one Congress but will, as a matter of course, continue into the next Congress with the same status. This dichotomy of the continuity of the Senate as an institution and of the opposite nature of the conduct of its business is reflected in its Rules. The Rules of the Senate (i.e. the Senate’s main rules of procedure) states: RULE LI
 AMENDMENTS TO, OR REVISIONS OF, THE RULES SEC. 136. At the start of each session in which the Senators elected in the preceding elections shall begin their term of office, the President may endorse the Rules to the appropriate committee for amendment or revision.

The Rules may also be amended by means of a motion which should be presented at least one day before its consideration, and the vote of the majority of the Senators present in the session shall be required for its approval. (emphasis supplied) RULE LII
 DATE OF TAKING EFFECT SEC. 137. These Rules shall take effect on the date of their adoption and shall remain in force until they are amended or repealed. (emphasis supplied) Section 136 of the Senate Rules quoted above takes into account the new composition of the Senate after an election and the possibility of the amendment or revision of the Rules at the start of each session in which the newly elected Senators shall begin their term. However, it is evident that the Senate has determined that its main rules are intended to be valid from the date of their adoption until they are amended or repealed. Such language is conspicuously absent from the Rules. The Rules simply state "(t)hese Rules shall take effect seven (7) days after publication in two (2) newspapers of general circulation."59 The latter does not explicitly provide for the continued effectivity of such rules until they are amended or repealed. In view of the difference in the language of the two sets of Senate rules, it cannot be presumed that the Rules (on legislative inquiries) would continue into the next Congress. The Senate of the next Congress may easily adopt different rules for its legislative inquiries which come within the rule on unfinished business. The language of Section 21, Article VI of the Constitution requiring that the inquiry be conducted in accordance with the duly published rules of procedure is categorical. It is incumbent upon the Senate to publish the rules for its legislative inquiries in each Congress or otherwise make the published rules clearly state that the same shall be effective in subsequent Congresses or until they are amended or repealed to sufficiently put public on notice. If it was the intention of the Senate for its present rules on legislative inquiries to be effective even in the next Congress, it could have easily adopted the same language it had used in its main rules regarding effectivity. Lest the Court be misconstrued, it should likewise be stressed that not all orders issued or proceedings conducted pursuant to the subject Rules are null and void. Only those that result in violation of the rights of witnesses should be considered null and void, considering that the rationale for the publication is to protect the rights of witnesses as expressed in Section 21, Article VI of the

Constitution. Sans such violation, orders and proceedings are considered valid and effective. Respondent Committees’ last argument is that their issuance of the contempt order is not precipitate or arbitrary. Taking into account the totality of circumstances, we find no merit in their argument. As we have stressed before, petitioner is not an unwilling witness, and contrary to the assertion of respondent Committees, petitioner did not assume that they no longer had any other questions for him. He repeatedly manifested his willingness to attend subsequent hearings and respond to new matters. His only request was that he be furnished a copy of the new questions in advance to enable him to adequately prepare as a resource person. He did not attend the November 20, 2007 hearing because Executive Secretary Ermita requested respondent Committees to dispense with his testimony on the ground of executive privilege. Note that petitioner is an executive official under the direct control and supervision of the Chief Executive. Why punish petitioner for contempt when he was merely directed by his superior? Besides, save for the three (3) questions, he was very cooperative during the September 26, 2007 hearing. On the part of respondent Committees, this Court observes their haste and impatience. Instead of ruling on Executive Secretary Ermita’s claim of executive privilege, they curtly dismissed it as unsatisfactory and ordered the arrest of petitioner. They could have informed petitioner of their ruling and given him time to decide whether to accede or file a motion for reconsideration. After all, he is not just an ordinary witness; he is a high- ranking official in a co-equal branch of government. He is an alter ego of the President. The same haste and impatience marked the issuance of the contempt order, despite the absence of the majority of the members of the respondent Committees, and their subsequent disregard of petitioner’s motion for reconsideration alleging the pendency of his petition for certiorari before this Court. On a concluding note, we are not unmindful of the fact that the Executive and the Legislature are political branches of government. In a free and democratic society, the interests of these branches inevitably clash, but each must treat the other with official courtesy and respect. This Court wholeheartedly concurs with the proposition that it is imperative for the continued health of our democratic institutions that we preserve the constitutionally mandated checks and balances among the different branches of government. In the present case, it is respondent Committees’ contention that their determination on the validity of executive privilege should be binding on the

Executive and the Courts. It is their assertion that their internal procedures and deliberations cannot be inquired into by this Court supposedly in accordance with the principle of respect between co-equal branches of government. Interestingly, it is a courtesy that they appear to be unwilling to extend to the Executive (on the matter of executive privilege) or this Court (on the matter of judicial review). It moves this Court to wonder: In respondent Committees’ paradigm of checks and balances, what are the checks to the Legislature’s all-encompassing, awesome power of investigation? It is a power, like any other, that is susceptible to grave abuse. While this Court finds laudable the respondent Committees’ well-intentioned efforts to ferret out corruption, even in the highest echelons of government, such lofty intentions do not validate or accord to Congress powers denied to it by the Constitution and granted instead to the other branches of government. There is no question that any story of government malfeasance deserves an inquiry into its veracity. As respondent Committees contend, this is founded on the constitutional command of transparency and public accountability. The recent clamor for a "search for truth" by the general public, the religious community and the academe is an indication of a concerned citizenry, a nation that demands an accounting of an entrusted power. However, the best venue for this noble undertaking is not in the political branches of government. The customary partisanship and the absence of generally accepted rules on evidence are too great an obstacle in arriving at the truth or achieving justice that meets the test of the constitutional guarantee of due process of law. We believe the people deserve a more exacting "search for truth" than the process here in question, if that is its objective. WHEREFORE, respondent Committees’ Motion for Reconsideration dated April 8, 2008 is hereby DENIED. SO ORDERED. Puno, C.J., Quisumbing, Ynares-Santiago, Carpio, Austria-Martinez, Corona, Carpio-Morales, Azcuna, Tinga, Chico-Nazario, Velasco, Jr., Nachura, Reyes, Brion, JJ., concur. Dissenting Opinion - C.J. Puno
 Separate Opinion on the Motion for Reconsideration - J. Quisumbing
 Separate Dissenting Opinion - J. Azcuna
 Separate Opinion - J. Reyes Footnotes

1

Chaired by Hon. Senator Alan Peter S. Cayetano.

2

Chaired by Hon. Senator Manuel A. Roxas II.

3

Chaired by Hon. Senator Rodolfo G. Biazon.

Transcript of the September 26, 2007 Hearing of the respondent Committees, pp. 91-92. 4

5

Id., pp. 114-115.

6

Id., pp. 276-277.

7

See Letter dated November 15, 2007.

8

See Letter dated January 30, 2008.

9

G.R. No. 95367, May 23, 1995, 244 SCRA 286.

10

433 Phil. 506 (2002)

11

G.R. No. 169777, April 20, 2006, 488 SCRA 1.

12

Supra., note 9.

13

Supra., note 11.

14

G.R. No. 130716, December 9, 1998, 299 SCRA 744.

15

Supra., note 10.

16

Almonte v. Vasquez, supra., note 9.

17

Chavez v. PCGG, supra., note 14.

18

Senate v. Ermita, supra., note 11.

Telefunken Semiconductors Employees Union -FFW v. Court of Appeals, G.R. Nos. 143013-14, December 18, 2000, 348 SCRA 565,587; Valderama v. NLRC, G.R. No. 98239, April 25,1996, 256 SCRA 466, 472 citing Policarpio v. P.V.B. and Associated Ins. & Surety Co., Inc., 106 Phil. 125, 131 (1959). 19

20

Supra, note 11 at pp. 68-69

21

Id., at pp. 45-46

22

Id., at p. 58

23

Id., at p. 50

24

Webster Encyclopedic Unabridged Dictionary, Gramercy Books 1994, p. 1181.

Business Dictionary, http://www.businessdictionary.com/definition/nondelegable-duty.html 25

Usaffe Veterans Association, Inc. v. Treasurer of the Philippines, et al. (105 Phil. 1030, 1038); See also Commissioner of Internal Revenue v. John Gotamco & Sons, Inc. G.R. No. L-31092, February 27, 1987,148 SCRA 36, 39. 26

27

No. 96-3124, June 17, 1997, 121 F.3d 729,326 U.S. App. D.C. 276.

28

365 F 3d. 1108, 361 U.S. App. D.C. 183, 64 Fed. R. Evid. Serv.141.

Article III, Sec. 7. The right of the people to information on matters of public concern shall be recognized. Access to official records, and to documents, and papers pertaining to official records, and to documents, and papers pertaining to official acts, transactions, or decisions, as well as to government research data used as basis for policy development, shall be afforded the citizen, subject to such limitations as may be provided by law. 29

Article II, Sec. 24. The State recognizes the vital role of communication and information in nation-building. 30

Article II, Sec. 28. Subject to reasonable conditions prescribed by law, the State adopts and implements a policy of full public disclosure of all its transactions involving public interest. 31

Article XI, Sec. 1. Public office is a public trust. Public officers and employees must at all times be accountable to the people, serve them with utmost responsibility, integrity, loyalty, and efficiency, act with patriotism and justice, and lead modest lives. 32

Article XVI, Sec. 10. The State shall provide the policy environment for the full development of Filipino capability and the emergence of communications structures suitable to the needs and aspirations of the nation and the balanced flow of information into, out of, and across the country, in accordance with a policy that respects the freedom of speech and of the press. 33

Article VII, Sec. 20. The President may contract or guarantee foreign loans on behalf of the Republic of the Philippines with the prior concurrence of the 34

Monetary Board, and subject to such limitations as may be provided by law. The Monetary Board shall, within thirty days from the end of every quarter of the calendar year, submit to Congress a complete report of its decisions on applications for loans to be contracted or guaranteed by the Government or government-controlled corporations which would have the effect of increasing the foreign debt, and containing other matters as may be provided by law. Article XII, Sec. 9. The Congress may establish an independent economic and planning agency headed by the President, which shall, after consultations with the appropriate public agencies, various private sectors, and local government units, recommend to Congress, and implement continuing integrated and coordinated programs and policies for national development. Until the Congress provides otherwise, the National Economic and Development Authority shall function as the independent planning agency of the government. 35

Article XII, Sec. 21. Foreign loans may only be incurred in accordance with law and the regulation of the monetary authority. Information on foreign loans obtained or guaranteed by the Government shall be made available to the public. 36

Article XII, Sec. 22. Acts which circumvent or negate any of the provisions of this Article shall be considered inimical to the national interest and subject to criminal and civil sanctions, as may be provided by law. 37

38

14 F. Supp. 230, 299 U.S. 304 (1936).

39

G.R. No. 170516, promulgated July 16, 2008.

40

Supra note 14.

Senate Select Committee on Presidential Campaign Activities v. Nixon, 498 F. 2d 725 (D.C. Cir. 1974). 41

42

TSN, Oral Argument, March 4, 2008, pp. 417 - 422.

43

Supra, note 41 at pp. 725, 731-32.

Senate Select Committee on Presidential Campaign Activities v. Nixon held that Congress’ "asserted power to investigate and inform" was, standing alone, insufficient to overcome a claim of privilege and so refused to enforce the congressional subpoena. Id. 44

45

G.R. No. 89914, November 20, 1991, 203 SCRA 767.

46

Id., at p. 776.

47

Id., at p. 783.

The dialogue between petitioner and Senator Lacson is a good illustration, thus: 48

SEN. LACSON. Did you report the attempted bribe offer to the President? MR. NERI. I mentioned it to the President, Your Honor. SEN. LACSON: What did she tell you? MR. NERI. She told me, ‘Don’t accept it." SEN. LACSON. And then, that’s it? MR. NERI. Yeah, because we had other things to discuss during that time. SEN. LACSON. And then after the President told you, "Do not accept it," what did she do? How did you report it to the President? In the same context that it was offered to you? MR. NERI. I remember it was over the phone, Your Honor. SEN. LACSON. Hindi nga. Papaano ninyo ni-report, ‘Inoperan (offer) ako ng bribe na P200 million ni Chairman Abalos or what? How did you report it to her? MR.NERI. Well, I said, ‘Chairman Abalos offered me 200 million for this.’ SEN. LACSON. Okay. That clear? MR. NERI. I’m sorry. SEN. LACSON. That clear? MR. NERI. I think so, Your Honor. SEN. LACSON. And after she told you. ‘Do not accept it,’ what did she do? MR. NERI. I don’t know anymore, Your Honor, but I understand PAGC investigated it or-I was not privy to any action of PAGC. SEN. LACSON. You are not privy to any recommendation submitted by PAGC? MR. NERI. No, Your Honor.

SEN. LACSON. How did she react, was she shocked also like you or was it just casually responded to as, "Don’t accept." MR. NERI. It was over the phone, Your Honor, so I cannot see her facial expression. SEN. LACSON. Did it have something to do with your change of heart so to speak - your attitude towards the NBN project as proposed by ZTE? MR. NERI. Can you clarify, Your Honor, I don’t understand the change of heart. SEN. LACSON. Because, on March 26 and even on November 21, as early as November 21, 2006 during the NEDA Board Cabinet Meeting, you were in agreement with the President that it should be "pay as you use" and not take or pay. There should be no government subsidy and it should be BOT or BOO or any similar scheme and you were in agreement, you were not arguing. The President was not arguing with you, you were not arguing with the President, so you were in agreement and all of a sudden nauwi tayo doon sa lahat ng --- and proposal all in violation of the President’s Guidelines and in violation of what you thought of the project? MR. NERI. Well, we defer to the implementing agency’s choice as to how to implement the project. 49

Watkins v. United States, 354 U.S. 178 (1957).

50

360 U.A. 109, 3 L Ed. 2d 1115, 69 S CT 1081 (1959).

51

Article XI, Section 13, par.1 of the Constitution.

52

487 F. 2d 700.

Professor Christopher Schroeder (then with the Clinton Justice Department), for example, labeled some of Congress’s investigations as no more than "vendetta oversight" or "oversight that seems primarily interested in bringing someone down, usually someone close to the President or perhaps the President himself." Theodore Olson (the former Solicitor General in the Bush Justice Department), in turn, has argued that oversight has been used improperly by Congress to influence decision making of executive branch officials in a way that undercuts the President’s power to assure that laws are faithfully executed. (Marshall, The Limits on Congress’ Authority to Investigate the President, Marshall-Illinois.Doc, November 24, 2004.) 53

54

103 U.S. 168 (1880).

55

Kenan Professor of Law, University of North Carolina.

56

G.R. No. 127255, August 14, 1997, 277 SCRA 268.

57

Transcript of the January 30, 2008 proceedings pp. 5-7.

58

TSN, March 4, 2008, at pp. 529-530.

59

Section 24, Rules of Procedure Governing Inquiries in Aid of Legislation.