Philippines Petition for Legal Separation by cxu14214

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									                  R E P U BL I C O F T HE P HI L I P P I N E S
                              S u p r em e C ou r t
                                     M a n i la


ALTERNATIVE LAW GROUPS, INC. (ALG),
              Petitioner

       -   Versus-                              G.R. No. ___169667_____

HON. EDUARDO R. ERMITA,                         For Certiorari and
in his capacity as Executive                    Prohibition With
Secretary,                                      Application for Temporary
                                                Restraining Order.
              Respondent.
X-------------------------------------X



                    PETITION FOR CERTIORARI
                        AND PROHIBITION
       With Application for a Temporary Restraining Order


       PETITIONER, by counsel, respectfully states:



                               PRELIMINARY STATEMENT

       Among the fundamental freedoms that this Honorable Court has resolutely
guarded is the people’s right to information on matters of public concern.             The
Honorable Court has asserted that the right to information is essential to the effective
exercise of other constitutional rights.

       Two notable cases can be cited as leading jurisprudential pronouncements on
the right to information.

       In Chavez v. Public Estates Authority, 384 SCRA 152 (2002), the Honorable
Court explained the importance of the right to information, in relation to the state policy
of full transparency in all transactions involving public interest:

                These twin provisions of the Constitution seek to promote
       transparency in policy-making and in the operations of the government,
       as well as provide the people sufficient information to exercise effectively
       other constitutional rights. These twin provisions are essential to the
       exercise of freedom of expression. If the government does not disclose
       its official acts, transactions and decisions to citizens, whatever citizens
       say, even if expressed without any restraint, will be speculative and
       amount to nothing. These twin provisions are also essential to hold public
       officials "at all times x x x accountable to the people," for unless citizens
       have the proper information, they cannot hold public officials accountable
       for anything. Armed with the right information, citizens can participate in
         public discussions leading to the formulation of government policies and
         their effective implementation. An informed citizenry is essential to the
         existence and proper functioning of any democracy. As explained by the
         Court in Valmonte v. Belmonte, Jr. –

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



         In Chavez v. Presidential Commission on Good Government, 299 SCRA
744 (1998), the Honorable Court explained the direct connection between the right to
information and the people’s participation in the affairs of government, thus:


                 In general, writings coming into the hands of public officers in
         connection with their official functions must be accessible to the public,
         consistent with the policy of transparency of governmental affairs. This
         principle is aimed at affording the people an opportunity to determine
         whether those to whom they have entrusted the affairs of the
         government are honesty, faithfully and competently performing their
         functions as public servants. Undeniably, the essence of democracy lies
         in the free flow of thought; but thoughts and ideas must be well-informed
         so that the public would gain a better perspective of vital issues
         confronting them and, thus, be able to criticize as well as participate in
         the affairs of the government in a responsible, reasonable and effective
         manner. Certainly, it is by ensuring an unfettered and uninhibited
         exchange of ideas among a well-informed public that a government
         remains responsive to the changes desired by the people.2


         Ironically, the President of the Republic has misused the Honorable
Court’s decisions in these two cases to justify the recent issuance of
Executive Order No. 464, which, contrary to the principles enunciated in the
quoted decisions, violate the people’s right to information, defy the state
policy of full transparency, and curtail the people’s right to participate in
governance.


         In exposing the patent nullity of Executive Order No. 464, this Petition
invokes the people’s sacred freedoms to information, free speech and
expression, and full participation in governance. The Petition also asserts the
principles of full public disclosure, transparency and accountability, and
separation of powers, which, in essence, are likewise principles of liberty.

1
    Chavez v. Public Estates Authority, 384 SCRA 152 (2002), at 184-185.
2
    Chavez v. Presidential Commission on Good Government, 299 SCRA 744 (1998), at 767.


                                             2
                    NATURE AND PURPOSE OF THE PETITION

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

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

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

       1)     A judgment declaring null and void, for being unconstitutional, Executive
Order No. 464, entitled, “ENSURING OBSERVANCE OF THE PRINCIPLE OF SEPARATION
OF POWERS, ADHERENCE TO THE RULE ON EXECUTIVE PRIVILEGE, AND RESPECT FOR
THE RIGHTS OF PUBLIC OFFICIALS APPEARING IN LEGISLATIVE INQUIRIES IN AID OF
LEGISLATION UNDER THE CONSTITUTION, AND FOR OTHER PURPOSES.”                   (Executive
Order No. 464 shall be referred to herein as E.O. 464.)


       2)     A judgment commanding the respondent and all persons acting on the
basis of E.O. 464 to cease from implementing the said E.O. 464.


       3)     A Temporary Restraining Order and/or Writ of Preliminary Injunction
enjoining the respondent from implementing E.O. 464.



       The Petitioner respectfully manifests that, pursuant to Section 1, Rule 129
of the Rules of Court, the Honorable Court may take judicial notice of Executive
Order No. 464, as an official act of the executive department.                   For the
Honorable Court’s easy reference, however, a copy of the questioned Executive
Order is attached to this Petition as Annex “A.”



                               BASIS OF THE PETITION


       The Petition invokes the Honorable Court’s exercise of its sacred constitutional

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

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

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

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

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

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

following:



                        GROUNDS FOR GRANTING THE PETITION


                                            3
EXECUTIVE    ORDER     NO.    464   IS   NULL    AND       VOID      FOR    BEING
UNCONSTITUTIONAL AS IT VIOLATES THE FOLLOWING PROVISIONS OF THE
1987 CONSTITUTION:


     ARTICLE III, SECTION 7, WHICH GUARANTEES THE RIGHT OF
     THE PEOPLE TO INFORMATION ON MATTERS OF PUBLIC
     CONCERN.


     ARTICLE II, SECTION 28, WHICH PROVIDES THAT THE STATE
     ADOPTS     AND    IMPLEMENTS    A    POLICY      OF   FULL   PUBLIC
     DISCLOSURE OF ALL ITS TRANSACTIONS INVOLVING PUBLIC
     INTEREST.


     ARTICLE XI, SECTION 1, WHICH PROVIDES THAT PUBLIC
     OFFICERS    AND     EMPLOYEES       MUST    AT    ALL    TIMES        BE
     ACCOUNTABLE TO THE PEOPLE.


     ARTICLE III, SECTION 4, WHICH GUARANTEES THE FREEDOM
     OF SPEECH, OF EXPRESSION, AND OF THE PRESS, AND THE
     RIGHT OF THE PEOPLE PEACEABLY TO ASSEMBLE AND PETITION
     THE GOVERNMENT FOR REDRESS OF GRIEVANCES.


     ARTICLE XIII, SECTION 16, WHICH GUARANTES THE RIGHT OF
     THE PEOPLE AND THEIR ORGANIZATIONS TO EFFECTIVE AND
     REASONABLE PARTICIPATION AT ALL LEVELS OF SOCIAL,
     POLITICAL, AND ECONOMIC DECISION-MAKING.


     ARTICLE VI, SECTION 21, WHICH PROVIDES THAT THE SENATE
     OR     THE HOUSE OF REPRESENTATIVES OR ANY OF ITS
     RESPECTIVE COMMITTEES MAY CONDUCT INQUIRIES IN AID OF
     LEGISLATION IN ACCORDANCE WITH ITS DULY PUBLISHED
     RULES OF PROCEDURE.


THE EXECUTIVE, IN ISSUING EXECUTIVE ORDER NO. 464, AND IN
IMPLEMENTING     THE   SAID    ORDER,    ACTED   WITH        GRAVE    ABUSE       OF
DISCRETION AMOUNTING TO LACK OR EXCESS OF JURISDICTION AS THEY
TRANSGRESSED     CLEAR       CONSTITUTIONAL      GUARANTEES          AND        STATE
POLICIES.




                                     4
                                    THE PARTIES

                                    The Petitioner

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

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

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

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

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

governmental organizations that engage in developmental or alternative lawyering and

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



       2.     The petitioner has the following organizations as members:

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

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

       2.3.    Ateneo Human Rights Center (AHRC), one of the first university-
       based institutions engaged in the promotion of peace, development and human
       rights in the Philippines. Established in October 1986, the Center seeks to realize
       its mandate of protecting and promoting human rights advocates among
       lawyers, law students and grassroots leaders, the monitoring of the human rights
       situation in the Philippines and abroad, research and publication, public
       education on peace, development and human rights, legal assistance to indigent
       victims of human rights abuses, law school curriculum development and values
       formation.

       2.4.    Balay Alternative Legal Advocates for Development in
       Mindanaw, Inc. (BALAOD Mindanaw), a non-stock, non-profit organization
       that aims to help in the advancement of the legal and justice issues of different
       marginalized sectors and communities in Mindanao in the context of active
       peoples’ participation in governance. BALAOD promotes paralegal formation,
       provides other legal services to marginalized sectors and communities, conducts
       capability-building interventions on local legislation and dispute resolution,
       provides a venue for networking and alternative legal assistance for law
       practitioners, law schools and law students, and facilitates the creation of a
       favorable policy environment responsive to the needs of marginalized sectors
       and communities.




                                            5
2.5.    Children’s Legal Bureau (CLB), Inc., a Cebu-based non-stock, non-
profit organization envisioning a just world for children. CLB is committed to
empower communities in promoting justice for children through legal aid,
training, advocacy and networking. Its services include providing legal services
to abused children and children in conflict with the law, providing paralegal
trainings to communities and children, policy development and advocacy related
to child’s rights.

2.6.   Environmental Legal Assistance Center (ELAC), a non-
governmental organization that was organized to address the emerging
challenge of environment lawyering especially in the rural areas where
degradation of the environment is most felt. It aims to protect and assert
environmental rights and equitable access to and control of natural resource use
by communities in Palawan and the Visayas through effective developmental
legal assistance and community-based resource management. ELAC envisions
communities that are empowered and self determining stewards of natural
resources.

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

2.8.     Kaisahan Tungo sa Kaunlaran ng Kanayunan at Repormang
Pansakahan (KAISAHAN), a social development organization promoting a
sustainable and humane society through the empowerment of marginalized
sectors in rural areas, especially among farmers and farm workers, to undertake
their own development, participate fully in democratic processes and demand
their rightful share in the stewardship of the land and the fruits of their labor. Its
mission is to facilitate agrarian reform implementation and sustainable rural
development with various stakeholders at the national and local level, especially
farmers, farm workers toward the formation of sustainable integrated area a
development (SIAD) communities.

2.9.    Legal Rights and Natural Resources Center –Kasama sa
Kalikasan/Friends of the Earth-Philippines, Inc. (LRC-KSK/FOEI-Phils.),
a policy and legal research and advocacy institution that was organized as a non-
stock, non-profit, non-partisan, cultural, scientific and research foundation duly
registered with the Securities and Exchange Commission. The organization is
also the official Philippine affiliate of Friends of the Earth International. The goal
of LRC-KSK is to empower the marginalized and disenfranchised peoples directly
dependent on our natural resources so as to able to effect ecologically
sustainable, culturally appropriate, economically viable, gender sensitive,
equitable uses, management, conservation and development of our natural
resources.

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


                                      6
2.11. Participatory Research Organization of Communities and
Education Towards Struggle for Self-Reliance (PROCESS) Foundation-
PANAY, Inc., a non-government organization operating in Iloilo City, Antique,
and other areas in Panay Island. It seeks to empower the grassroots and
deprived sectors of society so that they can take control of their own destinies
towards a sustainable and ecologically sound environment.

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

2.13. Sentro ng Alternatibong Lingap Panligal (SALIGAN), a legal
resource non-governmental organization doing developmental legal work with
farmers, workers, the urban poor, women, and local communities. Founded in
1987, SALIGAN operates in different areas throughout the Philippines, through
its main office in Quezon City and its branches in Bicol Region and in Mindanao.
SALIGAN’s programs include Legal Education, Litigation, Policy Reform Work and
Research and Publications.

2.14. Tanggapang Panligal ng Katutubong Pilipino (PANLIPI), an
organization of lawyers and indigenous people’s advocates that pioneered and
continues to engage in development work among indigenous peoples in the
Philippines. It was established in 1985 and had since implemented programs for
the development of IP communities through: Developmental Legal Assistance,
Legal Education and Outreach, Institutional Capability Building, Ancestral
Domains Delineation and Resource Management Planning.

2.15. Tanggol Kalikasan (TK), a public interest environmental law office
which envisions an empowered society that relates with its environment in just
and sustainable manner for the equitable benefit of all Filipinos. Tanggol
Kalikasan’s mission is to facilitate the empowerment of communities and
institutions to manage their ecosystems through law and other creative
mechanisms. Conscious of the power of an organized and informed citizenry,
TK’s programs are aimed at encouraging greater citizen’s participation in
environmental law enforcement and policy-making in resource allocation.

2.16. Women’s Legal Bureau (WLB), a non-government legal organization
promoting and fighting for women’s human rights in accordance with feminist
and development perspectives and principles. Specifically, its mission is to
provide feminist legal services and actively engage in advocacy together with
other women’s groups to transform the law and the legal system in furtherance
of the right of women to self-determination and the advancement of their
dignity, rights and leadership. For most of its 12 years of operations, WLB has
been at the forefront of pioneering initiatives to promote and protect women’s
human rights in the country.

2.17. Women’s Legal Education, Advocacy and Defense Foundation,
Inc. (WomenLEAD), a feminist legal resource institution for women committed
to advancing women’s human rights through feminist methodologies in the
critique and analysis of law and the legal system. Through its core program
(Feminist Counseling and Legal Services), WomenLEAD’s core of lawyers and
paralegals engage in litigation to challenge laws, and the legal culture which
reinforces biases against women. Its other programs include training and
education, campaign on women’s issues, and research and publication.


                                    7
        3.      With the exception of the Ateneo Human Rights Center (AHRC), all ALG

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

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

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

of Filipino citizens.



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

representative of its member organizations and these organizations’ individual members,

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

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

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

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



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

undersigned counsel at the address stated below.




                                    The Respondent


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

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

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



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

implementing the questioned Executive Order No. 464.




                           JURISDICTIONAL ALLEGATIONS


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

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

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


                                             8
different divisions thereof, or before any other tribunal or agency, and that to the best

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

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

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

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

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

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



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

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

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



                    TIMELINESS AND URGENCY OF THE PETITION


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

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

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

RESPECT FOR THE RIGHTS OF PUBLIC OFFICIALS APPEARING IN LEGISLATIVE

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

PURPOSES.”




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

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

unconstitutional provisions assailed in this Petition.          The Executive continuously

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

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




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

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




                                              9
the issues involved pertain to fundamental freedoms guaranteed under the Constitution

and the very foundations of our system of government.




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

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

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

involving factual questions.          The instant case raises constitutional issues of

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

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




                                      THE MATERIAL FACTS


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

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

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

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

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

Purposes”, the pertinent sections of which provides:


                 xxx

          SECTION 1.        Appearance by Heads of Departments Before
          Congress. – In accordance with Article VI, Section 22 of the Constitution
          and to implement the Constitutional provisions on separation of powers
          between co-equal branches of the government, all heads of departments
          of the Executive Branch of the government shall secure the consent of
          the President prior to appearing before either House of Congress.

                When the security of the State or the public interest so requires
          and the President so states in writing, the appearance shall only be
          conducted in executive session.

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

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

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


                                              10
6713 or the Code of Conduct and Ethical Standards for Public Officials
and Employees provides that public officials and employees shall not use
or divulge confidential or classified information officially known to them
by reason of their office and not made available to the public to prejudice
the public interest.

        Executive privilege covers all confidential or classified information
between the President and the public officers covered by this Executive
Order, including:

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

(ii)    Military, diplomatic and other national security maters which in the
interest of national security should not be divulged (Almonte vs.
Vasquez, G.R. No. 95367, 23 May 1995; Chavez v. Presidential
Commission on Good Government, G.R. No. 130716, 9 December
1998);


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

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

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

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

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

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

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

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

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

SECTION 3.       Appearance of Other Public Officials Before
Congress. – All public officials enumerated in Section 2 (b) hereof shall
secure prior consent of the President prior to appearing before either
House of Congress to ensure the observance of the principle of
separation of powers, adherence to the rule on executive privilege and




                                     11
       respect for the rights of public officials appearing in inquiries in aid of
       legislation.”

       x x x (Emphasis supplied.)


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

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

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

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

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

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

mandate”.



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

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

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

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

inquiries made by Congress.



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

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

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

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



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

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

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

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

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

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

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

very serious threat to national security;


                                            12
       6.      After said testimony, however, the Armed Forces of the Philippines issued

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

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

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

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

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

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

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



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

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

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

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

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

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

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

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



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

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

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

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

Congressional hearings without seeking a written approval from the President.”



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

an investigation on the government’s North Rail Project, resulting from a privilege

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

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

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




                                            13
km. railway, which was awarded to the China National Machinery and Equipment Corp.

(CNMEC) using loans secured from China’s Export-import Bank (Eximbank).



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

Secretary Romulo Neri, Transportation Secretary Leandro Mendoza and Presidential

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

464.



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

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

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

sill do so because he was not covered by the President’s Executive Order 464. Midway

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

his wife and secretary that his office had been “padlocked”.



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

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

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

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

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

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

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

information that is otherwise kept secret to the public.




                                            14
                                       ISSUE



THE MAIN ISSUE IN THIS PETITION IS WHETHER OR NOT THE EXECUTIVE
COMMITTED GRAVE ABUSE OF DISCRETION AMOUNTING TO LACK OR
EXCESS OF JURISDICTION IN ISSUING EXECUTIVE ORDER NO. 464.


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

     the resolution of the constitutional issues raised at the outset of

     this petition, to wit:



     1)     IS    E.O.    464        NULL       AND    VOID        FOR   BEING
     UNCONSTITUTIONAL AS IT VIOLATES ARTICLE III, SECTION 7
     OF THE CONSTITUTION, WHICH GUARANTEES THE RIGHT OF
     THE PEOPLE TO INFORMATION ON MATTERS OF PUBLIC
     CONCERN?


     2)     IS    E.O.    464        NULL       AND    VOID        FOR   BEING
     UNCONSTITUTIONAL AS IT GOES AGAINST ARTICLE II, SECTION
     28 OF THE CONSTITUTION, WHICH PROVIDES THAT THE STATE
     ADOPTS      AND     IMPLEMENTS         A    POLICY     OF    FULL   PUBLIC
     DISCLOSURE OF ALL ITS TRANSACTIONS INVOLVING PUBLIC
     INTEREST?


     3)     IS    E.O.    464        NULL       AND    VOID        FOR   BEING
     UNCONSTITUTIONAL AS IT VIOLATES ARTICLE XI, SECTION 1
     OF THE CONSTITUTION, WHICH PROVIDES THAT PUBLIC
     OFFICERS     AND     EMPLOYEES             MUST   AT    ALL    TIMES    BE
     ACCOUNTABLE TO THE PEOPLE?


     4)     IS    E.O.    464        NULL       AND    VOID        FOR   BEING
     UNCONSTITUTIONAL           AS    IT    TRANSGRESSES          ARTICLE   III,
     SECTION 4, WHICH GUARANTEES THE FREEDOM OF SPEECH, OF
     EXPRESSION, AND OF THE PRESS, AND THE RIGHT OF THE
     PEOPLE      PEACABLY       TO    ASSEMBLE         AND       PETITION   THE
     GOVERNMENT FOR REDRESS OF GRIEVANCES?




                                           15
       5)      IS     E.O.      464    NULL        AND     VOID       FOR      BEING
       UNCONSTITUTIONAL FOR VIOLATING ARTICLE XIII, SECTION
       16, WHICH GUARANTES THE RIGHT OF THE PEOPLE AND THEIR
       ORGANIZATIONS              TO      EFFECTIVE         AND        REASONABLE
       PARTICIPATION AT ALL LEVELS OF SOCIAL, POLITICAL, AND
       ECONOMIC DECISION-MAKING?


       6)      IS     E.O.      464    NULL        AND     VOID       FOR      BEING
       UNCONSTITUTIONAL AS IT VIOLATES ARTICLE VI, SECTION 21
       OF THE CONSTITUTION, WHICH PROVIDES THAT THE SENATE
       OR    THE HOUSE OF REPRESENTATIVES OR ANY OF ITS
       RESPECTIVE COMMITTEES MAY CONDUCT INQUIRIES IN AID OF
       LEGISLATION IN ACCORDANCE WITH ITS DULY PUBLISHED
       RULES OF PROCEDURE?



       The petitioner respectfully submits that, in issuing and implementing

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

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

the 1987 Constitution.          The respondent’s implementation of such void and

unconstitutional order is a continuing commission of grave abuse of

discretion amounting to lack or excess of jurisdiction and a clear

transgression of the Constitution.            Such unlawful implementation of the

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

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

strictly comply with the mandates of the Constitution.




                                       DISCUSSION


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

petitioner’s legal personality to impugn the validity of E.O. 464.       In fact, the issue of

the petitioner’s standing to file this case is as important as, and integral to, the

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




                                              16
                       PETITIONER HAS THE REQUISITE STANDING
                          TO INSTITUTE THE PRESENT ACTION


THE PETITIONER HAS THE LEGAL
STANDING AS AN ORGANIZATION OF
CITIZENS OF THE PHILIPPINES WHO
HAVE PERSONAL AND SUBSTANTIAL
INTEREST IN THE OUTCOME OF THE
CASE.



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

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

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

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

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

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

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

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

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

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

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


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

Honorable Court categorically stated:

               The petitioner has standing to bring this taxpayer's suit
        because the petition seeks to compel PEA to comply with its
        constitutional duties. There are two constitutional issues
        involved here. First is the right of citizens to information on
        matters of public concern. x x x

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

                  "Besides, petitioner emphasizes, the matter of recovering
                  the ill-gotten wealth of the Marcoses is an issue of
                  'transcendental importance to the public.' He asserts that
                  ordinary taxpayers have a right to initiate and prosecute
                  actions questioning the validity of acts or orders of

4
    PHIL CONST. art. VIII, §1
5
    181 SCRA 623
6
    384 SCRA 152


                                              17
       government agencies or instrumentalities, if the issues
       raised are of 'paramount public interest,' and if they
       'immediately affect the social, economic and moral well
       being of the people.'

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

                  xxx               xxx               xxx

        In Tañada v. Tuvera, the Court asserted that when the issue
concerns a public right and the object of mandamus is to obtain
the enforcement of a public duty, the people are regarded as the
real parties in interest; and because it is sufficient that
petitioner is a citizen and as such is interested in the execution
of the laws, he need not show that he has any legal or special
interest in the result of the action. In the aforesaid case, the
petitioners sought to enforce their right to be informed on
matters of public concern, a right then recognized in Section 6, Article
IV of the 1973 Constitution, in connection with the rule that laws in order
to be valid and enforceable must be published in the Official Gazette or
otherwise effectively promulgated. In ruling for the petitioners' legal
standing, the Court declared that the right they sought to be enforced 'is
a public right recognized by no less than the fundamental law of the
land.'

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

        Further, in Albano v. Reyes, we said that while expenditure of
public funds may not have been involved under the questioned contract
for the development, management and operation of the Manila
International Container Terminal, 'public interest [was] definitely involved
considering the important role [of the subject contract] . . . in the
economic development of the country and the magnitude of the financial
consideration involved.'

       We concluded that, as a consequence, the disclosure
provision in the Constitution would constitute sufficient
authority for upholding the petitioner's standing.

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

       We rule that since the instant petition, brought by a
citizen, involves the enforcement of constitutional rights — to
information and to the equitable diffusion of natural resources —


                                    18
       matters of transcendental public importance, the petitioner has
       the requisite locus standi. (emphasis supplied)


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

direct bearing to the present case.



PETITIONER IS A GROUP OF CITIZENS
OF THE PHILIPPINES SEEKING TO
ENFORCE A CONSTITUTIONAL RIGHT.



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

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

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

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

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

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

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



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

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

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

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

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

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

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

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



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

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

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


7
    People v. Vera, 65 Phil. 56 (1937).
8
    Agan v. PIATCO, G.R. No. 155001, May 5, 2003 citing BAYAN v. Zamora, 342 SCRA 449, 562-563
    [2000]; Gonzales v. Narvasa,, 337 SCRA 733 [2000]; TELEBAP v. COMELEC, 289 SCRA 337 [1998].
9
    G.R. 160261, November 10, 2003


                                              19
personal interest.”10         This reiterates the case of Tañada v. Tuvera11 where the

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

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

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

action.



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

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

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

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

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

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

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

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

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

sought.14


THIS CASE INVOLVES
CONSTITUTIONAL ISSUES THAT ARE
OF TRANSCENDENTAL IMPORTANCE



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

substantial constitutional issues raised herein because of their transcendental


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

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

          “No reason exists in the case at bar for applying the general rule insisted upon by counsel for
          respondent. The circumstances which surround this case area different from those in the
          United States, inasmuch as if the relator is not a proper party to these proceedings no other
          person could be, as we have seen that it is not the duty of the law officer of the Government
          to appear and represent the people in cases of this character.”
11
     136 SCRA 27, 36-37 (1985).
12
     Chavez v. PEA-Amari Coastal Bay Development Corporation, 384 SCRA 152 [2002]
13
     PHIL. CONST. § 6, art. III.



                                                       20
importance to public interest. As early as the Emergency Power Cases,15 this Honorable

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

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

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

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

said16:


          Nevertheless, where a most compelling reason exists, such as when the
          matter is of transcendental importance and paramount interest to the
          nation, the Court must take the liberal approach that recognizes the legal
          standing of nontraditional plaintiffs, such as citizens and taxpayers, to
          raise constitutional issues that affect them. This Court thus did so in a
          case that involves the conservation of our forests for ecological needs.
          Until an exact balance is struck, the Court must accept an eclectic notion
          that can free itself from the bondage of legal nicety and hold trenchant
          technicalities subordinate to what may be considered to be of overriding
          concern.


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

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

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

rights.17



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

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

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

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

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

concern.




14
     BERNAS, THE 1987 CONSTITUTION OF THE REPUBLIC OF THE PHILIPPINES: A COMMENTARY 952 (2003).
15
     Araneta v. Dinglasan, 84 Phil. 368; Rodriguez v. Gella, 93 Phil. 603.
16
     Cruz v. Secretary of DENR, G.R. No. 135385, December 6, 2000.
17
     Araneta v. Dinglasan, 84 Phil. 368 (1949); Kilosbayan, Inc. v. Morato, 250 SCRA 130 (1995); Tatad v.
     Secretary of the Department of Energy, 281 SCRA 330 (1997); Santiago v. COMELEC, 270 SCRA 106
     (1997); KMU v. Garcia, Jr., 239 SCRA 386 (1994); Joya v. PCGG, 225 SCRA 368 (1993); Carpio v.
     Executive Secretary, 206 SCRA 290 (1992); Osmeña v. COMELEC, 199 SCRA 750 (1991); Basco v.
     PAGCOR, 197 SCRA 52 (1991); Guingona v. Carague, 196 SCRA 221 (1991); Francisco et al. v. House
     Speaker et al (G.R. 160261, November 10, 2003).


                                                   21
         11.     Indeed, objections to citizen’s suits for lack of sufficient personality or

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

interest of the case at bar, and in keeping with the Court’s duty, under the Constitution,

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

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

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

arguments put forward in this petition.



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

the present petition.



                THE PRESENT CONTROVERSY DOES NOT CONSTITUTE
                            A POLITICAL QUESTION


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

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

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

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

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

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

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

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



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

         What is involved here is the legality, not the wisdom of Republic Act
         7056. And even if we were to assume that the issue presented before us
         is political in nature, We would still not be precluded from resolving it
         under the expanded jurisdiction conferred upon us that now covers in
         proper cases even political questions (Daza v. Singson, 180 SCRA 496),
         provided naturally, that the question is not solely and exclusively political
         (as when the Executive extends recognition to a foreign government) but
         one which really necessitates a forthright determination of
         constitutionality, involving as it does a question of national importance.


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


                                                  22
                   On the other procedural issues raised, We held as early as
                   in the Emergency Power Cases (Araneta v. Dinglasan, 84
                   Phil. 368; Rodriguez v. Gella 93 Phil. 603) that where
                   serious constitutional questions are involved, "the
                   transcendental importance to the public of these cases
                   demands that they be settled promptly and definitely,
                   brushing aside if we must, technicalities of procedure."
                                      xx     xx      xx
           The language of Justice Laurel fits the case: "All await the decision of this
           Court on the constitutional question. Considering, therefore, the
           importance which the instant case has assumed and to prevent
           multiplicity of suits, strong reasons of public policy demand that (its)
           constitutionality . . . be now resolved." It may likewise be added that the
           exceptional character of the situation that confronts us, the paramount
           public interest and the undeniable necessity for ruling, the national
           election being barely six months away reinforce our stand.

           It would appear undeniable, therefore, that before us is an appropriate
           invocation of our jurisdiction to prevent the enforcement of an alleged
           unconstitutional statute. We are left with no choice then; we must act on
           the matter.
                                     xx     xx      xx

           To summarize, on the procedural issue, We hold in view of the foregoing
           considerations, that the issue presented to us in the case at bar, is
           justiciable rather than political. Even if the question were political in
           nature, it would still come within our powers of review under the
           expanded jurisdiction conferred upon us by Article VIII, Section 1 of the
           1987 Constitution, which includes the authority to determine whether
           grave abuse of discretion amounting to excess or lack of jurisdiction has
           been committed by any branch or instrumentality of the government. As
           for the other alleged procedural flaws — lack of court standing, etc.,
           assuming the existence of such flaws, the same may be brushed aside,
           conformably with existing doctrine so that the important constitutional
           issue raised may be addressed.

           Accordingly, We are left with no other alternative but to uphold the
           jurisdiction of the Court over the present cases. It goes without saying
           that We do this not because the Court is superior to the Executive and/or
           Legislative but simply because the Executive, the Legislative and this
           Court are subject to the Constitution as the supreme law.19




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

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

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

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

supplied.)




19
     G.R. No. 100318 (1991)



                                                23
         16.      The assailed executive order deals with public officials appearing in

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

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

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

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

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

government."



         17.      Whether the President’s executive order exceeds these constitutionally

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

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

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

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

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

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

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

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

limits on the exercise of powers conferred.23



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

also had occasion to observe that:

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

20
   L-10520, February 28, 1965
21
   SECTION 22. The heads of departments may upon their own initiative, with the consent of the
President, or upon the request of either House, as the rules of each House shall provide, appear before and
be heard by such House on any matter pertaining to their departments. Written questions shall be
submitted to the President of the Senate or the Speaker of the House of Representatives at least three days
before their scheduled appearance. Interpellations shall not be limited to written questions, but may cover
matters related thereto. When the security of the State or the public interest so requires and the President
so states in writing, the appearance shall be conducted in executive session.
22
   Florentino P. Florenciano, “The Application of Law: Some Recurring Aspects of the Process of Judicial
Review and Decision Making” 37 American Journal of Jurisprudence 17, expanded version of a 1990 Sherrill
Lecture delivered at the Yale Law School, 4 December 1990
23
   Bernas, The 1987 Constitution of the Republic of the Philippines: A Commentary, 861 (1996)


                                                    24
           refuse to assume jurisdiction even though questions of extreme political
           importance are necessarily involved. 24




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

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

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

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

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

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




                      THE PETITION POSES AN ACTUAL CONTROVERSY



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

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

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

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

direct adverse effect on the individual challenging it.26



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

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

is an actual case that is ripe for judicial review:


           When the judiciary mediates to allocate constitutional boundaries, it does
           not assert any superiority over the other departments; it does not in
           reality nullify or invalidate an act of legislature, but only asserts the
           solemn and sacred obligation assigned to it by the Constitution to
           determine conflicting claims of authority the rights which that instrument
           secures and guarantees to them. This is in truth all that is involved in
           what is termed “judicial supremacy” which properly is the power of
           judicial review under the Constitution.

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

24
     338 SCRA 121 (2000)
25
       Joya v. PCGG, G.R. No. 96541, August 24, 1993
26
       PACU v. Secretary of Education, 97 Phil. 806, 810 (1955); Tan v. Macapagal, 43 SCRA 678 (1972).
27
       63 Phil 139 (1936).


                                                     25
          limited further to the constitutional question raised or the very lis mota
          presented.

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




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

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

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

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

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

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

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

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

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

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

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



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

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

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

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

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

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

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

review:




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


                                                     26
         With particular regard to the requirement of proper party as applied in
         the cases before us, we hold that the same is satisfied by the petitioners
         and intervenors because each of them has sustained or is in danger of
         sustaining an immediate injury as a result of the acts or
         measures complained of.29 (Emphasis supplied)


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



                  In seeking to nullify an act of the Philippine Senate on the
         ground that it contravenes the Constitution, the petition no
         doubt raises a justiciable controversy. Where an action of the
         legislative branch is seriously alleged to have infringed the Constitution, it
         becomes not only the right but in fact the duty of the judiciary to settle
         the dispute.      xxx Once a “controversy as to the application or
         interpretation of constitutional provision is raised before this Court (as in
         the instant case), it becomes a legal issue which the Court is bound by
         constitutional mandate to decide.” (Emphasis supplied)


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

jurisdiction over cases whenever the petitioner has seriously and convincingly presented

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

ruled:


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



                      PETITIONER MAY SEEK RECOURSE DIRECTLY
                            WITH THIS HONORABLE COURT


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

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

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

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


29
     Association of Small Landowners in the Philippines, Inc. v. Secretary of Agrarian Reform, SOURCE,
     citing Ex Parte Levitt, 303 US 633. (Emphasis supplied)
30
     SOURCE
31
     Macalintal v. Comelec, G.R No. 157013 (July 10, 2003).
32
     Id.
33
     See Uy v. Contreras, supra; Manalo v. Gloria, 236 SCRA 130 [1994]; People v. Court of Appeals, 301
     SCRA 566 (1999).


                                                  27
Honorable Court. Thus, in Kilosbayan v. Guingona,34 this Honorable Court brushed aside

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

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

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



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



        PEA and AMARI claim petitioner ignored the judicial hierarchy by seeking
        relief directly from the Court. The principle of hierarchy of courts applies
        generally to cases involving factual questions. As it is not a trier of facts,
        the Court cannot entertain cases involving factual issues. The instant
        case, however, raises constitutional issues of transcendental importance
        to the public. 22 The Court can resolve this case without determining any
        factual issue related to the case. Also, the instant case is a petition for
        mandamus which falls under the original jurisdiction of the Court under
        Section 5, Article VIII of the Constitution. We resolve to exercise primary
        jurisdiction over the instant case.



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

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

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

in the appropriate courts or where exceptional compelling circumstances justify

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




              The petition shall now go to the substantial constitutional issues.


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


THE PUBLIC RIGHT TO INFORMATION
IS A CONSTITUTIONALLY
GUARANTEED RIGHT.


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


                       The right of the people to information on matters of 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

34
     232 SCRA 110.
35
     205 SCRA 152.


                                              28
                 for policy development, shall be afforded the citizen, subject to
                 such limitations as may be provided by law.36


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

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

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

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

Social Justice as follows:37



                The principal concern of the Bill of Rights is strictly on the
        traditional freedoms of liberal constitutionalism.                 The principal
        characteristic of these traditional freedoms is that they guarantee
        freedom from the state and protection against the state, and they do not
        need any further implementing action by the legislature. They are limits
        on the legislature and every other official person or body. I mentioned
        this because in recent years, largely through the influence of socialism
        and with the abundant help from the Popes and from communicators like
        us and so forth, there have arisen what are called social and economic
        rights. In the scheme of our work, I consider these social and economic
        rights as principally the concern of other committees, particularly of the
        Committee on Social Justice. What distinguished these new rights from
        the traditional liberties in the Bill of Rights is that, in the strict sense, they
        are not rights which operate without implementing legislation, but rather
        they are more properly “claims” or “demands” on state. They need
        implementing action by the state. Without implementing action, they
        generally cannot be enforced against anybody by judicial action. So what
        we are dealing with are those which are operative by themselves and do
        not need implementing action. (emphasis supplied)



        31.      This Honorable Court has had occasion to pass upon the self-executing
nature of the right to information embodied in the Constitution. As held in the cases of
Legaspi vs. CSC38 and Aquino-Sarmiento vs. Morato39, the constitutional right to
information is self-executory. This provision after all, supplies “the rules by means of
which the right to information may be enjoyed”40 by guaranteeing the right and
mandating the duty to afford access to sources of information. Hence, the fundamental
right therein recognized may be asserted by the people upon the ratification of the
Constitution without need for any ancillary act of the Legislature.41




36
   Section 7, Article III, 1987 Constitution
37
   I RECORD OF THE CONSTITUTIONAL COMMISSION 686 (1986).
38
   150 SCRA 530 (1987).
39
   203 SCRA 515 (1991).
40
   Cooley, A Treatise on the Constitutional Limitations 167 (1972); See also Philippine National Bank vs.
Gancayco, 15 SCRA 91 (1965) and Perez vs. Alpuerto, 200 SCRA 591 (1991).
41
   Cooley, A Treatise on the Constitutional Limitations 165 (1972); See also Almonte vs. Vasquez, 244
SCRA 286 (1995).


                                                    29
        32.      The Supreme Court has held that the right to information is not a private
right, but a public right, which may be asserted by any citizen. It is an attribute of
sovereignty in a republican system. The sovereign has the right of access to information
on matters of public concern as part of its governing power. Correspondingly, on the
part of the representative lies the duty to afford access to such information.42 There can
be no realistic perception by the public of the nation’s problems, nor a meaningful
democratic decision-making if they are denied access to information of general
interest.43 The free flow of information about the affairs of government paves the way
for debate in public policy, and fosters accountability in government. The people’s right
to official information is not only a political imperative.44



PUBLIC INFORMATION INCLUDES
INFORMATION VITAL TO LEGISLATION
LEGITIMATELY REQUESTED BY
CONGRESS.



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

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



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


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



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

unlimited. In the case of Arnault vs. Nazareno, the Supreme Court has said that, “It

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

inquiry can be bounded.” 45




42
   Nepomuceno A. Malaluan, Democracy, Development and Access to Official Information in the
Philippines, Action for Economic Reforms (April 2001). (Paper presented at the Conference on the
Freedom of Information and Civil Society in Asia held at the Aoyanna-Gakuin University in Tokyo, Japan
on 13-14 April 2001. The conference was organized by the International Clearinghouse Japan and attended
by delegates from Japan, Indonesia, Thailand, India, South Korea and the Philippines.)
43
   Baldoza vs. Hon.Dimaano, 71 SCRA 14 (1976).
44
   Nepomuceno A. Malaluan, Securing Greater Government Transparency in Action for Economic
Reforms. (This short piece was published in the Yellow Pad column of the 25 June 2002 issue of the
BusinessWorld.)
45
   Arnault vs. Nazareno, 87 Phil. 29, at 46.


                                                  30
       36.     More often than not, the sources of this information are the public

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

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

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



THE RIGHT TO PUBLIC INFORMATION
PREVAILS OVER EXECUTIVE
PRIVILEGE.


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

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

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

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

exercised in consideration of the public right to information.



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

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

even through the issuance of an executive fiat.



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

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

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

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



                      EXECUTIVE ORDER NO. 464 VIOLATES
                    THE POLICY OF FULL PUBLIC DISCLOSURE.


THE POLICY OF PUBLIC DISCLOSURE
IS ENSHRINED IN THE 1987
CONSTITUTION.



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


       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
           41.      The policy of full public disclosure, though not self-executory, is
complementary to the public right to information under the Bill of Rights.                   According to
constitutional law expert Bernas:


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


A LEGISLATIVE INQUIRY IS A VENUE
FOR THE EXERCISE OF THIS POLICY.



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

disclosure of governmental transactions involving public interest. Certain contracts and

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

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

transactions.



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

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

by restricting the public officials concerned from making such disclosures.



                       EXECUTIVE ORDER NO. 464 VIOLATES
              THE PRINCIPLE OF ACCOUNTABILITY OF PUBLIC OFFICIALS.



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


           Public office is a public trust. Public officers and employees must at 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.


THE PUBLIC RIGHT TO INFORMATION
AND THE POLICY OF FULL PUBLIC
DISCLOSURE ARE ESSENTIAL TO THE
ACCOUNTABILITY OF PUBLIC
OFFICIALS.



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


46
     Bernas, The 1987 Constitution of the Republic of the Philippines: A Commentary, 1996 ed., at 93.
47
     Chavez v. Public Estates Authority, 384 SCRA 152 (2002), at 184.


                                                      32
                  Sec. 7, Art. III, and Sec. 28, Art. II, of the Constitution seek to
           promote transparency in policy-making and in the operations of the
           government, as well as provide the people sufficient information to
           exercise effectively other constitutional rights. These twin provisions are
           essential to the exercise of freedom of expression. If the government
           does not disclose its official acts, transactions, and decisions to citizens,
           whatever citizens say, even if expressed without any restraint will be
           speculative and amount to nothing. These twin provisions are also
           essential to hold public officials ‘at all times x x x accountable to the
           people,’ for unless citizens have the proper information, they cannot hold
           public officials accountable for anything.          Armed with the right
           information, citizens can participate in public discussions leading to the
           formulation of government policies and their effective implementation.
           An informed citizenry is essential to the existence and proper functioning
           of any democracy.



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

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

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

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




UNDER THE DOCTRINE OF
SEPARATION OF POWERS,
THERE IS A CHECK-AND-BALANCE
FUNCTION BETWEEN THE CO-EQUAL
BRANCHES OF GOVERNMENT.



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

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

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

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

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

powers in one department and thereby to avoid tyranny.”48



LEGISLATIVE INQURIES, IN AID OF
LEGISLATION, ARE AN INTEGRAL AND
NECESSARY PART OF THE CHECK-AND-
BALANCE FUNCTION.




48
     Bernas, 603.


                                                33
           48.      Congress, as a co-equal branch of government, more often than not,

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

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

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

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

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

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

themselves out to the people.



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

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

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

as a public trust” nugatory.




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



           50.      The executive branch’s reliance on the principle of separation of powers

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

fundamental principle of democracy.



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

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

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

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

efficiency.49




49
     Cruz, Philippine Political Law, 57.


                                               34
          52.      The principle of separation of powers essentially means that the

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

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

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

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

government are independent of each other—“the keynote of conduct of the various

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

understood, is not independence but interdependence.”50



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

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

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

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

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

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

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

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

undermining governmental coordination and interdependence.




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

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

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

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

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

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

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

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




50
     Id, at 75.
51
     Senate Resolution No. 295.


                                               35
President that no officer of the AFP is authorized to appear before any legislative

investigation.



           55.     In Arnault vs. Nazareno,52 the Honorable Supreme Court observed that “

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

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

respecting       the   conditions   which   the        legislation   is   intended   to   effect   or

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

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

aided it in its legislative functions.



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

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

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

all executive officials from appearing before legislative investigations, unduly hampering

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

obligations.




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



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

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

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

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




52
     GR L-3820, 18 July 1950.
53
     Art. VI, Sec. 22.



                                                  36
        58.      From the above, it is significant to note that the disjunctive “or”

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

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

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

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

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

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

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



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

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

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

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



        60.      The foregoing provision finds greater weight and meaning when

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

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

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

Section 24 of the 1935 Constitutional provision states:


                 The heads of departments upon their own initiative or
                 upon the request of either House may appear before and
                 be heard by such House on any matter pertaining to their
                 departments unless the public interest shall require
                 otherwise and the President shall so state in writing.



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

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

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

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

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


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


                                                  37
        62.      E.O. 464 retards and reverses this progression towards transparency and

a more effective and efficient government.             It defeats the power of the Houses of

Congress to conduct its constitutional obligation of law making when it prescribes prior

restraint as exercised by the President on public officials to appear when requested to

do so by either House, a power which is clearly not granted by the Constitution to the

President.




THE TWIN PROVISIONS IN THE CONSTITUTION ON PUBLIC INFORMATION55
       AND PUBLIC DISCLOSURE56 SEEK TO PROVIDE THE PEOPLE
        SUFFICIENT INFORMATION TO EXERCISE EFFECTIVELY
                OTHER CONSTITUTIONAL RIGHTS.57


       63.       E.O. 464 likewise affects the constitutionally guaranteed right to freedom

of speech and expression enshrined in Section 4, Article III             and the rights of People’s

Organization expressed in Sections 15 and 16, Article XIII. It is significant to note that

the latter two Sections are two of the innovations included in the 1987 Constitution.

Section 15 provides that state shall respect the role of independent people’s

organizations for the purpose of enabling the people to pursue and protect their

legitimate and collective interests and aspirations through peaceful and lawful means.

Section 16 furthermore was more explicit in recognizing the right of the people and their

organizations to effective and reasonable participation at all levels of social, political and

economic decision-making.



        64.      Inquiries in aid of legislation and the information gathered from them,58

do not solely interest the legislative bodies (Senate and the House of Representatives)

and those they invite to shed light on issues involved in matters under consideration in

these proceedings. The citizens, people’s organization, and civil society in general, are

equally concerned about these proceedings precisely because they have the right to


55
   Sec. 7, ART. III, 1987 Philippine Constitution.
56
   Sec. 28, ART. II, 1987 Philippine Constitution.
57
   Chavez v. Public Estates Authority, 384 SCRA 152-243, at 184-185.(July 09, 2002).



                                                  38
participate in the political, social, and economic decision-making processes that affect

them.59       Therefore, as stakeholders, they may participate in the legislative proceedings

as a lawful and peaceful means of protecting their interests.60 Their participation in

these proceedings is largely dependent on an informed and intelligent consideration of

the different facts and issues involved. To express an intelligent and informed opinion,

in turn, entails availability and accessibility of complete and accurate information.

Clearly, the right to freedom of speech and expression, and the right to public

information and public disclosure are inextricably linked.



           65.      No less than this Honorable Court in Chavez v. Public Estates Authority61

in no uncertain terms enunciated that                   the exercise of the freedom of speech and

expression will become meaningful if the citizenry is well informed of the facts and

issues involved in matters that concern them, thus:



           These twin provisions [right to information and public disclosure] of
           the Constitution seek to promote transparency in policy-making and in
           the operations of the government, as well as provide the people
           sufficient information to exercise effectively other constitutional
           rights. These twin provisions are essential to the exercise of freedom of
           expression. If the government does not disclose its official acts,
           transactions and decisions to citizens, whatever citizens say,
           even if expressed without any restraint, will be speculative and
           amount to nothing. These twin provisions are also essential to hold
           public officials "at all times x x x accountable to the people,"29 for unless
           citizens have the proper information, they cannot hold public officials
           accountable for anything. Armed with the right information, citizens can
           participate in public discussions leading to the formulation of

58
   McGrain v. Daugherty, 273 U.S.,135 cited in Fr. Joaquin Bernas, S.J. [Hereinafter, BERNAS], The 1987
Constitution of the Republicof the Philippines: A Commentary (1996) , at 676.
59
  Art. XIII, Sec. 16, 1987 CONSTITUTION.; See also the Concurring Opinion of the Honorable Justice
Reynato Puno in Frivaldo v. Commission on Elections, et. al. G.R. No. 120295 (June 28, 1996) . In
discussing the sovereignty of the people he made mention of some important people-oriented provisions in
the 1987 Constitution, thus:
               Borne out of the 1986 people power EDSA revolution, our 1987 Constitution is more
           people-oriented. Thus, section 4 of Article II provides as a state policy that the prime
           duty of the Government is "to serve and protect the people." Section 1, Article XI also
           provides that ". . . public officers . . . must at all times be accountable to the people . . ."
           Sections 15 and 1 of Article XIII define the role and rights of people's organizations.
           Section 5(2) of Article XVI mandates that "[t]he state shall strengthen the patriotic spirit
           and nationalist consciousness of the military, and respect for people's rights in the
           performance of their duty." And section 2 of Article XVII provides that "amendments to
           this Constitution may likewise be directly proposed by the people through initiative . . ."
           All these provisions and more are intended to breathe more life to the sovereignty of our
           people.
60
     Id.
61
     384 SCRA 152-243 (July 09, 2002).


                                                         39
        government policies and their effective implementation. An
        informed citizenry is essential to the existence and proper functioning of
        any democracy. [Emphasis supplied]


        66.       Furthermore, the information gathered by the citizens and        people’s

organizations from these legislative inquiries become bases for subsequent decisions for

interventions or further actions in fora in addition to legislative proceedings.       Mass

actions, signature campaign, litigation, public discussions, for example, may be pursued

on the basis of these information. It is, important, therefore, that public officials who

have in their hands these information be allowed to divulge the same in inquiries in aid

of legislation.     E.O. 464 unduly interferes with and curtails the free flow of public

information.




         E.O. 464 IS NOT A VALID EXERCISE OF EXECUTIVE PRIVILEGE



        67.       One of the rationale for the issuance of the E.O. 464 is the rule on

executive privilege. For this purpose, the E.O. cited the case of Almonte v. Vasquez62,

Chavez v. Public Estates Authority63, Chavez v. PCGG64, and R.A. No. 6713. It is

submitted that a closer reading of these bases as well as other applicable laws and

jurisprudence will lead to the logical conclusion that the entire contents of such issuance

when put into actual operation will not constitute a valid exercise of executive privilege.



THE EO WHEN READ IN ITS ENTIRETY
AMOUNTS TO A CLAIM FOR
GENERALIZED OR ABSOLUTE
EXECUTIVE PRIVILEGE WHICH DOES
NOT FIND SUPPORT UNDER THE
CONSTITUTION, IN LAWS, AND IN
JURISPRUDENCE.




        68.       The case of Almonte v. Vasquez, supra, involves a petition for certiorari,

prohibition, and mandamus to annul the subpoena duces tecum and orders issued by


 G.R. No. 95367, G.R. No. 95367, May 23, 1995.
62

 G.R. No. 133250, 9 July 2002.
63




                                              40
respondent Ombudsman, requiring petitioners who are chief accountant and record

custodian 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 from enforcing his orders. The issue involves 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. Specifically, the issue is

whether the petitioners can be ordered to produce documents relating to personal

services and salary vouchers of EIIB employees despite the plea that such documents

are classified.



        69.       The Court in that case stated that:


        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.


        70.       The Court also cited the case of US v. Nixon65 where 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.”   Thus it quoted:


        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. xxx


 G.R. No. 130716, December 9, 1998.
64
65
 418 U.S. 683.


                                              41
       71.     The Honorable Court further added that “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 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 haw to prevail.

       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. (Emphasis supplied)


       72.     Notwithstanding the foregoing, the Court dismissed the petition and held

among others that the executive privilege cannot be claimed in view of: (a) lack of

showing that military or diplomatic secrets will be disclosed by the production of records

pertaining to the personnel of the EIIB; (b) failure to cite any law or regulation which

considers personnel records of the EIIB as classified information; (c) absence of

reasonable records required under a COA circular to substitute for the records claimed

to be confidential; (d) relevance of plantilla and personnel records to the Ombudsman’s

investigation of the complaint on illegal allotment of items to fictitious persons; and (e)

availability of safeguards that will enable an agency of the Government, like the Office of

the Ombudsman, to carry out its constitutional duty to protect public interests while

insuring the confidentiality of classified documents. Such safeguards include ordering




                                            42
their inspection in camera but not their nonproduction or reference to the documents in

any decision or order which the Ombudsman may render or issue only to the extent that

it will not reveal covert activities of the agency.



        73.     In the case at bar, while E.O. 464 defines executive privilege to cover all

confidential or classified information between the President and the public officers

covered by the Order, the enumeration of confidential and classified information, the

persons covered by the Order, and the requirement of prior consent by the President

before their appearance are tantamount to the invocation of absolute               executive

privilege not warranted by the Constitution or by law.



        74.     First, the inclusion of conversations and correspondence between the

President and public officials in executive privilege under Sec. 2(a) (i) of the said EO is

not supported by jurisprudence. This was not the ruling in Almonte v. Vasquez. This was

in fact invoked in the case of US v. Nixon, supra, as cited in that case. Yet, even in the

former case, it was held that “neither the doctrine of separation of powers, nor the need

for the confidentiality of high-level communications, without more, can sustain an

absolute, unqualified Presidential privilege of immunity from judicial process under all

circumstances.”     The Court further added that “absent a claim of need to protect

military, diplomatic, or sensitive national security secrets, we find it difficult to accept

the argument that even the very important interest in the confidentiality of Presidential

communications is significantly diminished by the production of such material for in

camera inspection with all the protection that a district court will be obliged to provide.”



        75.     Noteworthy also is the fact that nowhere in Chavez v. PEA was there any

discussion on conversations and correspondence between the President and               public

officials as an executive privilege. On the contrary, the Court in that case upheld the

constitutional right to information to include official information on on-going negotiations

before a final contract. The information, however, must constitute definite propositions

by the government and should not cover recognized exceptions like privileged


                                              43
information, military and diplomatic secrets and similar matters affecting national

security and public order.



        76.    Second, the enumeration of Sec. 2(a) (ii-v) of E.O. 464 as automatically

constituting executive privilege is sweeping considering that the existing State policies

and jurisprudence on the matter recognize the existence of safeguards, the presence of

which will prevent the absolute invocation of such privilege.



        77.    In the case of Chavez v. PCGG, supra, the Court mentioned the

recognized restrictions or limitations on the right of the people to information on matters

of public concern under Sec. 7, Art. III of the Constitution and the State’s policy of full

public disclosure of all its transactions involving public interest under Sec. 28, Art. II of

the 1987 Constitution.



        78.    On national security matters, while the Court recognized the common law

holding that there is a governmental privilege against public disclosure with respect to

state secrets regarding military, diplomatic and other national security matters, it

likewise stated that where there is no need to protect such state secrets, the privilege

may not be invoked to withhold documents and other information, provided that they

are examined "in strict confidence" and given "scrupulous protection." Likewise,

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.



        79.    The enumerations in Sections 2 (a) (iv-v), although mentioned in the

cited case, were not the issues in the said case. “Discussions in closed-door Cabinet

meetings” and “Matters affecting national security and public order” as apparently

included in executive privilege are not to be contemplated as absolute.       Thus, Chavez

v. PCGG, supra, stated that:




                                             44
        In general, writings coming into the hands of public officers in connection
        with their official functions must be accessible to the public, consistent
        with the policy of transparency of governmental affairs. This principle is
        aimed at affording the people an opportunity to determine whether those
        to whom they have entrusted the affairs of the government are honestly,
        faithfully and competently performing their functions as public servants.
        Undeniably, the essence of democracy lies in the free flow of thought;
        but thoughts and ideas must be well-informed so that the public would
        gain a better perspective of vital issues confronting them and, thus, be
        able to criticize as well as participate in the affairs of the government in a
        responsible, reasonable and effective manner. Certainly, it is by ensuring
        an unfettered and uninhibited exchange of ideas among a well-informed
        public that a government remains responsive to the changes desired by
        the people.


        80.     Third, even the third sentence of Section 22, Art. VI of the 1987

Constitution provides certain safeguards when necessary in the conduct of legislative

inquiry in aid of legislation, to wit:


        Section 22.    The heads of departments may upon their own initiative,
        with the consent of the President, or upon the request of either House, as
        the rules of each House shall provide, appear before and be heard by
        such House on any matter pertaining to their departments. Written
        questions shall be submitted to the President of the Senate or the
        Speaker of the House of Representatives at least three days before their
        scheduled appearance. Interpellations shall not be limited to written
        questions, but may cover matters related thereto. When the security of
        the State or the public interest so requires and the President so
        states in writing, the appearance shall be conducted in executive
        session.



THE ISSUANCE OF THE QUESTIONED
EO CREATES AN UNREASONABLE AND
ARBITRARY EXECUTIVE PRIVILEGE
WHICH IS INCONSISTENT WITH AND
CANNOT PREVAIL OVER THE STATE’S
POLICY OF FULL PUBLIC DISCLOSURE
OF ALL ITS TRANSACTIONS
INVOLVING PUBLIC INTEREST AND
THE RIGHT OF PEOPLE TO PUBLIC
INFORMATION.



        81.     E.O. 464 creates an unreasonable and arbitrary presumptive executive
privilege that tends to override the State’s policy of full public disclosure of all its
transactions involving public interest and the right of people to public information.


        82.     Republic Act 6713 upholds the Constitutional provision on such full public
disclosure.     Its Implementing Rules mandates every department, office or agency to
provide official information, records or documents to any requesting public. However,


                                             45
the same is      subject to exceptions under Sec. 3, Rule IV (TRANSPARENCY OF
TRANSACTION AND ACCESS TO INFORMATION), to wit:


        (a) such information, record or document must be kept secret in the
        interest of national defense or security or the conduct of foreign affairs;

        (b) such disclosure would put the life and safety of an individual in
        imminent danger;

        (c) the information, record or document sought falls within the concepts
        of established privilege or recognized exceptions as may be provided by
        law or settled policy or jurisprudence;

        (d) such information, record or document comprises drafts of decisions,
        orders, rulings, policy decisions, memoranda, etc.;

        (e) it would disclose information of a personal nature where disclosure
        would constitute a clearly unwarranted invasion of personal privacy;

        (f) it would disclose investigatory records complied for law enforcement
        purposes, or information which if written would be contained in such
        records, but only to the extent that the production of such records or
        information would (i) interfere with enforcement proceedings, (ii) deprive
        a person of a right to a fair trial or an impartial adjudication, (iii) disclose
        the identity of a confidential source and, in the case of a record compiled
        by a criminal law enforcement authority in the course of a criminal
        investigation, or by an agency conducting a lawful national security
        intelligence investigation, confidential information furnished only by the
        confidential source, or (iv) unjustifiably disclose investigative techniques
        and procedures; or

        (g) it would disclose information the premature disclosure of which
        would (i) in the case of a department, office or agency which regulates
        currencies, securities, commodities, or financial institutions, be likely to
        lead to significant financial speculation in currencies, securities, or
        commodities, or significantly endanger the stability of any financial
        institution; or (ii) in the case of any department, office or agency, be
        likely or significantly to frustrate implementation of a proposed official
        action, except that subparagraph (f) (ii) shall not apply in any instance
        where the department, office or agency has already disclosed to the
        public the content or nature of its proposed action, or where the
        department, office of agency is required by law to make such disclosure
        on its own initiative prior to taking final official action on such proposal.


        83.    Contrary to the foregoing, E.O. 464 omits the character of presumption of

executive privilege with its outright declaration of what it considers as executive

privilege.



        84.    The issuance of the questioned Executive Order reverses the foregoing

policies. Executive privilege, however absolute it may be, becomes the rule rather than




                                              46
among the exceptions. The effect is negating the full disclosure policy and the right of

people to public information.




THE EFFECTIVE CLAIM OF
GENERALIZED OR ABSOLUTE
EXECUTIVE PRIVILEGE UNDER THE EO
IS VIOLATIVE OF THE PRINCIPLE OF
SEPARATION OF POWERS.




        85.      The issuance of E.O. 464 unduly vests on the Executive the determination

of what subject matters are executive privilege. This is further reinforced by the fact

that prior consent of the President is required before the persons covered may be

permitted to appear before Congress.



        86.      The President cannot invoke absolute executive privilege to prevent

inquiries in aid of legislation on the pretext that the legislative inquiry is being used for

political purposes, disrupting diplomatic relations           with foreign government and

weakening the stability of the government – reasons which thhe Executive has cited as

justification for prohibiting participation in the legislative investigation.



        87.      The President does not have the final say to claim or invoke executive

privilege. Her claim of executive privilege is constitutionally infirm as the assailed

executive order practically and indiscriminately prevents the Congress from conducting

the latter’s constitutionally mandated duty to make legislative inquiries.



        88.      E.O. 464 effectively prevents the other Departments – the Legislative

and the Judiciary from,       respectively, conducting inquiries in aid of legislation and

determining the facts of a particular case, thus promoting absolute separation of powers

without the principle of checks and balances. This is evident from the enumeration on

what it considered as executive privilege without the qualifications provided by laws and

jurisprudence.




                                               47
         89.    The Executive, being a co-equal branch of the government, is also bound

to presume that the action of the Legislative is with a legitimate object and it has no

right to assume that the contrary is intended.



         90.    The Congress has the right to be fully informed on certain matters so that

it may legislate wisely by exercising the power to investigate in aid of legislation with

coercive power to compel disclosure. In the absence of any showing that the inquiry is

for the purpose of harassing individuals and invade fundamental rights, the same cannot

be hampered on the expedient claim of executive privilege.



         91.    Certainly, the Congress can inquire into matters which are not within the

exclusive province of one of the other branches of the government and the same cannot

be defeated by mere executive order requiring the President’s prior consent (and with

the apparent intent of withholding such consent) before executive officials can appear

and be heard before either House of Congress.



         92.    The Honorable Court is the final arbiter of a claim of executive privilege.

The invocation of executive privilege cannot be indiscriminately asserted to bar

investigation in aid of legislation especially when there is demonstration of need

sufficient to warrant legislative inquiry on the matter.



         93.    In the case of Ernesto B. Francisco, Jr. vs. House of Representatives, et

al.66, the Court revisited Angara v. Electoral Commission and stated that:

         [J]udicial review is indeed an integral component of the delicate system
         of checks and balances which, together with the corollary principle of
         separation of powers, forms the bedrock of our republican form of
         government and insures that its vast powers are utilized only for the
         benefit of the people for which it serves.

                The separation of powers is a fundamental principle in
                our system of government. It obtains not through express
                provision but by actual division in our Constitution. Each
                department of the government has exclusive cognizance of
                matters within its jurisdiction, and is supreme within its own

66
     G.R. No. 160261, November 10, 2003.

                                             48
               sphere. But it does not follow from the fact that the three
               powers are to be kept separate and distinct that the
               Constitution intended them to be absolutely unrestrained and
               independent of each other. The Constitution has provided
               for an elaborate system of checks and balances to
               secure coordination in the workings of the various
               departments of the government. x x x And the judiciary
               in turn, with the Supreme Court as the final arbiter,
               effectively checks the other departments in the
               exercise of its power to determine the law, and hence
               to declare executive and legislative acts void if
               violative of the Constitution. (Emphasis and underscoring
               supplied)



THE EXECUTIVE PRIVILEGE INTENDED
TO BE EXERCISED UNDER THE
QUESTIONED EO IS NOT IN
CONSONANCE WITH SEC. 22, ART. VI
OF THE 1987 CONSTITUTION




        94.    The Constitution provides that:


        SECTION 22. The heads of departments may upon their own initiative,
        with the consent of the President, or upon the request of either House, as
        the rules of each House shall provide, appear before and be heard by
        such House on any matter pertaining to their departments. Written
        questions shall be submitted to the President of the Senate or the
        Speaker of the House of Representatives at least three days before their
        scheduled appearance. Interpellations shall not be limited to written
        questions, but may cover matters related thereto. When the security of
        the State or the public interest so requires and the President so states in
        writing, the appearance shall be conducted in executive session.
        (Emphasis supplied)


        95.    On the other hand, the whereas clause in questioned EO, wittingly or

unwittingly, deleted the underlined phrase after the disjunctive word “or”, and stated

that:


        WHEREAS, Article VI, Section 22 of the Constitution provides that heads
        of departments may, with the prior consent of the President, appear
        before and be heard by either House of Congress on any matter
        pertaining to their departments and, when the security of the State or the
        public interest so requires and the President so states in writing, such
        appearance shall be conducted in executive session;


Thus, the E.O. in question, contrary to the Constitution, unduly limits the instances

where the heads of department may appear in            Congress. It only recognizes the

instance where there is prior consent by the President in the said appearance.


                                            49
       96.     On the other hand, it is submitted that the above provision does not

require the consent of the President for the department heads to appear and be heard

before either House on any matter pertaining to their departments.



       97.     The disjunctive word, “or” and the subsequent phrase make it clear that

the consent of the President is not necessary for the heads of department to appear

and be heard before either House in case there is a request of either House.



       98.     The appearance of a department head whether it be on his initiative or

upon request of the House will be done “as the rules of each house will prescribe” and

it is not conditioned on the prior consent of the President.



       99.     When the security of the state or when the public interest so requires,

the President, however, can demand that the appearance            of department heads be

conducted in executive sessions. Yet, s/he cannot not prevent either House from

requiring the appearance of the concerned department heads before them.




       100.    Assuming for the sake of argument that a prior consent of the President

is required, such requirement is only applicable to department heads. It does not apply

to other officials quoted under Sec. 2(b) of E.O. 464, which covers practically all public

officials subject to the President’s whims and caprice.     Using the plain statement rule,

the requisite Presidential consent to appear before congressional hearings is limited to

department heads, pursuant to section 22, art. VI.        Expanding the executive privilege

to include all public officials is contrary to the intent of the Constitutional grant. Nothing

in the aforecited Constitutional provision authorizes the President under the cloak of

executive privilege to require public officials other than heads of departments to secure

the President’s consent as a condition for their appearance before either House.

Doubtless, an executive order cannot add requirements or set conditions which the

Constitution itself does not so provide.


                                             50
THE JUSTIFICATION OF THE
EXECUTIVE PRIVILEGE BASED ON
CONTROL POWER OF THE PRESIDENT
IS MISPLACED.




       101.    The justification of the executive privilege based on control power of the

president is misplaced. While it is admitted that the president has power of control over

an officer to alter or modify or nullify or set aside what a subordinate officer had done in

the performance of his duties and to substitute the judgment of the former for that of

the latter, the same power cannot be invoked when it can prevent either House from

exercising their power to investigate in aid of legislation and when it makes the exercise

of the power of a co-equal branch of the government dependent upon the prior consent

of the President or made a condition for department heads to appear and be heard

before either House. The executive order definitely cannot operate as a bar for the

Congress to conduct investigation or inquiry involving department heads or other public

officials covered by the aforesaid executive order.




                   E.O. 464 ITSELF HAS NOT BEEN ADEQUATELY
                       DISCLOSED THROUGH PUBLICATION



       102.    The Executive Order must likewise fail due to the lack of an essential

requisite. The requirement of publication of laws has been invariably upheld by this

Honorable Court.       Publication and the fifteen-day requirement for effectivity are

intended to apprise the people with the statutes of the land. Failure to comply with said

requisites should be deemed as a direct affront to the basis tenets of procedural due

process.



       103.    Article 2 of the Civil Code pertinently provides that, “Laws shall take

effect fifteen (15) days following the completion of their publication in the Official

Gazette, unless it is otherwise provided.”        Further amplifying the rule on publication,

E.O. 200, promulgated on 18 June 1987, states that:




                                             51
       Laws shall take effect after fifteen days following the completion of their
       publication either in the Official Gazette or in a newspaper of general
       circulation in the Philippines, unless it is otherwise provided.



       104.       Executive Order 464 has miserably failed these tests.    Signed by the

President Gloria Macapagal - Arroyo only on 28 September 2005, the Order could not

have taken effect immediately without the requisite publication.



       105.       As explained above, however, the Executive has started and sustained

the implementation of the questioned Executive Order.          The Armed Forces of the

Philippines (AFP) and no less than the Office of the Government Corporate Counsel have

cited E.O. 464 in their reprimand of the officers who have appeared before the Senate in

alleged defiance of the President’s directive. Reliance on the questioned order is grossly

misplaced considering the want of publication. Hence, there should have been no

censure imposed upon the “erring” officials.



       106.       In the landmark case of Tanada vs. Tuvera, the Supreme Court said that:


              We hold therefore that all statutes, including those of
       local application and private laws, shall be published as a
       condition for their effectivity, which shall begin fifteen days
       after publication unless a different effectivity date is fixed by the
       legislature.

                Covered by this rule are presidential decrees and
       executive orders promulgated by the President in the exercise of
       legislative powers whenever the same are validly delegated by the
       legislature or, at present, directly conferred by the Constitution.
       Administrative rules and regulations must also be published if their
       purpose is to enforce or implement existing law pursuant also to a valid
       delegation.


The court likewise, in explaining the phrase “unless otherwise provided” found in EO

200, said that:


               After a careful study of this provision and of the arguments of the
       parties, both on the original petition and on the instant motion, we have
       come to the conclusion, and so hold, that the clause "unless it is
       otherwise provided" refers to the date of effectivity and not to


                                             52
        the requirement of publication itself, which cannot in any event
        be omitted. This clause does not mean that the legislature may
        make the law effective immediately upon approval, or on any
        other date, without its previous publication.

                Publication is indispensable in every case, but the legislature
        may in its discretion provide that the usual fifteen-day period shall be
        shortened or extended. An example, as pointed out by the present Chief
        Justice in his separate concurrence in the original decision, 6 is the Civil
        Code which did not become effective after fifteen days from its
        publication in the Official Gazette but "one year after such publication."
        The general rule did not apply because it was "otherwise provided."

                It is not correct to say that under the disputed clause
        publication may be dispensed with altogether. The reason is that
        such omission would offend due process insofar as it would deny
        the public knowledge of the laws that are supposed to govern it.
        Surely, if the legislature could validly provide that a law shall become
        effective immediately upon its approval notwithstanding the lack of
        publication (or after an unreasonably short period after publication), it is
        not unlikely that persons not aware of it would be prejudiced as a result;
        and they would be so not because of a failure to comply with it but
        simply because they did not know of its existence. Significantly, this is not
        true only of penal laws as is commonly supposed. One can think of many
        non-penal measures, like a law on prescription, which must also be
        communicated to the persons they may affect before they can begin to
        operate.67


        107.    The law and jurisprudence are clear and succinct - in the light of the

failure to publish E.O. 464 either in the Official Gazette or in a newspaper of general

circulation, it is of no force and effect.




    GROUNDS FOR THE ISSUANCE OF A TEMPORARY RESTRAINING ORDER




        As explained above, the respondent and other persons acting on the basis of the

unconstitutional E.O. No. 464 continuously commit blatant violations of the Constitution

to the extreme prejudice of the petitioner and those that they represent.           Pending

action by this Honorable Court on the Petition, the petitioner is entitled to have the

respondent and all persons acting for or in his behalf enjoined from continuing with the

implementation of the unconstitutional E.O. No. 464.




                                             53
       Unless the implementation of the unconstitutional E.O. No. 464 is enjoined, the

petitioner and the organizations and individuals it represents stand to suffer irreparable

injury that cannot be accurately estimated.         The continuing destruction of the

foundations of our governance system must be immediately stopped.




                                        PRAYER

       WHEREFORE, the petitioner respectfully prays that the Honorable Court issue a

decision:



       1)      declaring null and void, for being unconstitutional, Executive Order No.

464, entitled, “ENSURING OBSERVANCE OF THE PRINCIPLE OF SEPARATION OF

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

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

LEGISLATION UNDER THE CONSTITUTION, AND FOR OTHER PURPOSES.”



       2)      commanding the respondent and all persons acting on the basis of E.O.

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



       3)      pending the resolution of this case, issuing a Temporary Restraining

Order and/or Writ of Preliminary Injunction enjoining the respondent from implementing

E.O. 464, and upon the final resolution of this case, to make the injunction permanent.




67
       Tanada vs. Tuvera, ibid.


                                           54
The petitioner prays for other just and equitable remedies.


Quezon City for Manila, 3 October 2005.




                             MELIZEL F. ASUNCION
                      PTR No. 6002230; 01-19-05; Quezon City
                      IBP No. 638930; 01-19-05; Quezon City
                                Roll No. 47469



                             RAOUL P. BARBARONA
                      PTR No. 5463736; 01-24-05; Tagbilaran City
                      IBP No. 621959; 01-24-05; Bohol
                                Roll No. 39660



                             RAISSA H. JAJURIE
                      PTR No. 2216623; 01-05-05; Davao City
                      IBP No. 636140; 01-10-05; Davao City
                                Roll No. 40219



                              CARLOS P. MEDINA, JR.
                      PTR No. 9443711; 01-10-05; Makati City
                      IBP Lifetime Membership No. 00331; Makati City
                                 Roll No. 33331



                       MA. LOURDES ZERELDA S. PACURIBOT
                      PTR No. 6192786; 01-31-05; Quezon City
                      IBP No. 643730; 01-04-05; Quezon City
                                Roll No. 42803



                             MARLON J. MANUEL
                      PTR No. 6020731; 01-05-05; Quezon City
                      IBP No. 634161; 01-07-05; Bulacan
                                Roll No. 40046


                         Counsel for Petitioner
                 ALTERNATIVE LAW GROUPS, INC. (ALG)
                   Room 215, Institute of Social Order
        Social Development Complex, Ateneo de Manila University
                      Loyola Heights Quezon City




                                    55
                                   MANIFESTATION

        Pursuant to Rule 13, section 11 of the Rules of Court, petitioner respectfully
manifests that the respondent was served his copy of this petition for certiorari by means
of registered mail because of the lack of time and the considerable distance between the
parties’ respective offices.



                                                       MARLON J. MANUEL



COPY FURNISHED:


HON. EDUARDO R. ERMITA
EXECUTIVE SECRETARY
Malacañang, Manila


THE SOLICITOR GENERAL
134 Amorsolo Street
Legaspi Village
Makati City




                                           56
REPUBLIC OF THE PHILIPPINES          )
QUEZON CITY                          )


                       VERIFICATION AND CERTIFICATION
                           OF NON-FORUM SHOPPING



        I, ARLENE J. BAG-AO, of legal age, Filipino, and holding office at Room 215,
Institute of Social Order, Social Development Complex, Ateneo de Manila University,
Loyola Heights, Quezon City, after having been sworn in accordance with law, hereby
state:

       1.     I am the Council Chairperson of petitioner, Alternative Law Groups,
Inc. (ALG), with principal office located at the above-mentioned address.

        2.    As Council Chairperson, I have been authorized by the petitioner's Board
of Trustees to cause, as I have caused, the preparation and filing of the foregoing
Petition.

       3.     I have read the contents of the foregoing Petition and I attest that the
contents of the same are true and correct of my own knowledge and on the basis of
authentic documents in my possession.

       4.     I attest that petitioner has not commenced any other action or
proceeding, involving the same issues subject of this present Petition, in the Supreme
Court, the Court of Appeals, or the different divisions thereof, or any other tribunal or
agency.

       5.      To the best of my knowledge, no such action or proceeding is, or
remains, pending in the Supreme Court, the Court of Appeals, or the different divisions
thereof, or any other tribunal or agency.

        6.     If I should hereafter learn that a similar action or proceeding has been
filed or is pending before the Supreme Court, the Court of Appeals, or the different
divisions thereof, or any other tribunal or agency, I undertake to promptly inform this
Honorable Court of that fact within five (5) days from such notice.



                                                   ARLENE J. BAG-AO
                                                     Affiant


        SUBSCRIBED AND SWORN TO before me this 3rd day of October, 2005 in Quezon
City, affiant exhibiting to me her Community Tax Certificate No. 22434418 issued on 14
April 2005 in Cagayan de Oro City.




Doc. No. ________;
Page No.________;
Book No.________;
Series of 2005.




                                           57
REPUBLIC OF THE PHILIPPINES         )
QUEZON CITY                         )


                            SECRETARY’S CERTIFICATE


       I, GLENDA T. LITONG, Filipino, of legal age, and with office address at Room
215, Institute of Social Order, Social Development Complex, Ateneo de Manila
University, Loyola Heights, Quezon City, after having been duly sworn in accordance
with law, hereby certify:

       1.      I am the duly elected and incumbent Corporate Secretary of Alternative
Law Groups, Inc. (ALG) a corporation duly organized and existing under the laws of
the Philippines, with principal office at Room 215, Institute of Social Order, Social
Development Complex, Ateneo de Manila University, Loyola Heights, Quezon City.

      2.     At the special meeting of the Board of Directors of the Corporation held
on 30 September 2005, in the principal office of the Corporation, at which meeting a
quorum was present and acting throughout, the following resolutions were unanimously
approved and adopted:

          “RESOLVED, that the Corporation appoints its Council Chairperson,
       ARLENE J. BAG-AO, to be its true and lawful attorney-in-fact to cause
       the preparation and filing of a PETITION FOR CERTIORARI AND
       PROHIBITION before the Supreme Court of the Philippines to declare
       unconstitutional Executive Order No. 464, prohibit its enforcement and to
       represent the Corporation in all stages of the proceedings therein.

          “RESOLVED FURTHER, that said ARLENE J. BAG-AO be authorized
       and empowered to sign and deliver any and all verification, certification,
       or agreement, or file any and all pleadings as are relevant to accomplish
       the purpose of her appointment.

          “FINALLY RESOLVED, that this designation shall remain valid and
       binding until modified, altered or revoked by a subsequent Board
       Resolution.”

       3.     The foregoing is in accordance with the records of the Corporation.

       4.        The foregoing resolutions have not been modified, altered or repealed
and are still in full force and effect.

      IN WITNESS WHEREOF, I have hereunto affixed my signature this 3rd day of
October, 2005 in Quezon City.

                                    GLENDA T. LITONG
                                    Corporate Secretary

        SUBSCRIBED AND SWORN to before me on this 3rd day of October in Quezon
City, affiant exhibiting to me her Community Tax Certificate No. 02147941 issued on 22
April 2005 in Manila.

Doc. No. _____;
Page No. _____;
Book No. _____;
Series of 2005.




                                          58
REPUBLIC OF THE PHILIPPINES)
QUEZON CITY                ) S.S.


                    VERIFIED STATEMENT OF MATERIAL DATES

        I, MARLON J. MANUEL, of legal age, married, with business address at Room
215, Institute of Social Order, Ateneo de Manila University, Loyola Heights, Quezon City,
after having been sworn in accordance with law, hereby depose and state that:

1. I am one of the counsel for the petitioner;
2. President Gloria Macapagal Arroyo approved on 28 September 2005, Executive Order
   No. 464, entitled, “ENSURING OBSERVANCE OF THE PRINCIPLE OF SEPARATION OF
   POWERS, ADHERENCE TO THE RULE ON EXECUTIVE PRIVILEGE, AND RESPECT
   FOR THE RIGHTS OF PUBLIC OFFICIALS APPEARING IN LEGISLATIVE INQUIRIES IN
   AID OF LEGISLATION UNDER THE CONSTITUTION, AND FOR OTHER PURPOSES.”
3. As a result of such approval, the respondent has started the implementation of, and
   continue to implement, the said Executive Order with the unconstitutional provisions
   assailed in this Petition.
4. The respondent continuously commits acts constituting grave abuse of discretion
   amounting to lack or excess of jurisdiction in violation of the rights of the petitioner
   and other taxpayers and citizens.
5. This Petition is timely filed to question the validity of the said Executive Order No.
   464 on constitutional grounds.
6. This Petition requires urgent resolution as the issues involved pertain to fundamental
   freedoms guaranteed under the Constitution and the very foundations of our system
   of government.
7. I execute this affidavit to attest to the truth of the foregoing statements


IN WITNESS WHEREOF, I have hereunto affixed my hand, this 3rd day of September
2005 at Quezon City.



                                                     MARLON J. MANUEL


SUBSCRIBED AND SWORN to before me this 3rd day of September 2005, affiant
exhibiting to me his Community Tax Certificate No. 15654172 issued on 6 January 2005
in Quezon City.             .


Book No.____;
Page No._____;
Doc. No.______;
Series of 2005.




                                            59
REPUBLIC OF THE PHILIPPINES)
QUEZON CITY                ) S.S.

                                AFFIDAVIT OF SERVICE

        I, GINA MORALES, Filipino, of legal age, single, with business address at
Sentro ng Alternatibong Lingap Panligal (SALIGAN), G/F Hoffner Building, Ateneo de
Manila University, Loyola Heights, Quezon City, Metro Manila, after being sworn in
accordance with law, hereby depose and state that:

1. I am employed as a messenger at Sentro ng Alternatibong Lingap Panlegal
   (SALIGAN), G/F Hoffner Building, Ateneo de Manila University, Loyola Heights,
   Quezon City, a member of the Alternative Law Groups, Inc., the petitioner herein;
2. I filed a petition for certiorari before the Honorable Supreme Court in the case
   entitled Alternative Law Groups, Inc. (ALG) v. Hon. Eduardo Ermita;
3. I served copies of the Petition to the following by means of registered mail:

HON. EDUARDO ERMITA
EXECUTIVE SECRETARY
Malacañang, Manila


THE SOLICITOR GENERAL
134 Amorsolo Street
Legaspi Village
Makati City

4. I execute this affidavit to attest to the truth of the foregoing.

IN WITNESS WHEREOF, I have hereunto affixed my hand, this 3rd day of October 2005
at Quezon City.



SUBSCRIBED AND SWORN to before me this 3rd day of October 2005, affiant exhibiting
to me his Community Tax Certificate No. 15694383 issued on 10 January 2005
at Quezon City.

Book No._____;
Page No._____;
Doc. No._____;
Series of 2005.




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