OPOSA VS FACTORAN, JR.

224 SCRA 792

Date of Promulgation: July 30, 1993
Ponente: Davide, Jr., J.

Keywords: taxpayers’ class suit; intergenerational responsibility; right to a balanced and healthful ecology; timber
license agreements

QuickGuide: Petitioner’s personality to sue in behalf of the succeeding generations is based on the concept of
intergenerational responsibility insofar as the right to a balanced and healthful environment is concerned.

Facts:
The controversy begun as Civil Case No. 90-77 which was filed before the RTC of Makati City Branch 66.

The principal petitioners, are all minors duly represented and joined by their respective parents. Impleaded as an
additional plaintiff is the Philippine Ecological Network, Inc. (PENI), a domestic, non-stock and non-profit corporation
organized for the purpose of, inter alia, engaging in concerted action geared for the protection of our environment and
natural resources.

The original defendant was the Honorable Fulgencio S. Factoran, Jr., then Secretary of the Department of
Environment and Natural Resources (DENR). His substitution in this petition by the new Secretary, the Honorable
Angel C. Alcala, was subsequently ordered upon proper motion by the petitioners.

The complaint was instituted as a taxpayers' class suit and alleges that the plaintiffs "are all citizens of the Republic of
the Philippines, taxpayers, and entitled to the full benefit, use and enjoyment of the natural resource treasure that is
the country's virgin tropical forests."
The same was filed for themselves and others who are equally concerned about the preservation of said resource but
are "so numerous that it is impracticable to bring them all before the Court."

The minors further asseverate that they "represent their generation as well as generations yet unborn."

It is prayed for that judgment be rendered

ordering defendant, his agents, representatives and other persons acting in his behalf to:
(1) Cancel all existing timber license agreements (TLAs) in the country;
(2) Cease and desist from receiving, accepting, processing, renewing or approving new TLAs.
and
(3) granting the plaintiffs such other reliefs just and equitable under the premises.

The complaint starts off with the general averments that the Philippine archipelago of 7,100 islands has a land area of
thirty million (30,000,000) hectares and is endowed with rich, lush and verdant rainforests in which varied, rare and
unique species of flora and fauna may be found.

These rainforests contain a genetic, biological and chemical pool which is irreplaceable; they are also the habitat of
indigenous Philippine cultures which have existed, endured and flourished since time immemorial.

Scientific evidence reveals that in order to maintain a balanced and healthful ecology, the country's land area should
be utilized on the basis of a ratio of fifty-four per cent (54%) for forest cover and forty-six per cent (46%) for
agricultural, residential, industrial, commercial and other uses.

The distortion and disturbance of this balance as a consequence of deforestation have resulted in a host of
environmental tragedies.

Plaintiffs further assert that the adverse and detrimental consequences of continued and deforestation are so capable
of unquestionable demonstration that the same may be submitted as a matter of judicial notice.

On 22 June 1990, the original defendant, Secretary Factoran, Jr., filed a Motion to Dismiss the complaint based on
two (2) grounds, namely: (1) the plaintiffs have no cause of action against him and (2) the issue raised by the plaintiffs
is a political question which properly pertains to the legislative or executive branches of Government.

In their 12 July 1990 Opposition to the Motion, the petitioners maintain that (1) the complaint shows a clear and
unmistakable cause of action, (2) the motion is dilatory and (3) the action presents a justiciable question as it involves
the defendant's abuse of discretion.

On 18 July 1991, respondent Judge issued an order granting the aforementioned motion to dismiss. In the said order,
not only was the defendant's claim — that the complaint states no cause of action against him and that it raises a
political question — sustained, the respondent Judge further ruled that the granting of the relief prayed for would result
in the impairment of contracts which is prohibited by the fundamental law of the land.

Plaintiffs thus filed the instant special civil action for certiorari under Rule 65 of the Revised Rules of Court and asked
the Court to rescind and set aside the dismissal order on the ground that the respondent Judge gravely abused his
discretion in dismissing the action.

Petitioners:
Contend that the complaint clearly and unmistakably states a cause of action as it contains sufficient allegations
concerning their right to a sound environment, the right of the people to a balanced and healthful ecology, the concept
of generational genocide and the concept of man's inalienable right to self-preservation and self-perpetuation.
Rely on the respondent's correlative obligation per Section 4 of E.O. No. 192, to safeguard the people's right to a
healthful environment.
It is further claimed that the issue of the respondent Secretary's alleged grave abuse of discretion in granting Timber
License Agreements (TLAs) to cover more areas for logging than what is available involves a judicial question.
Non-impairment clause does not apply in this case because TLAs are not contracts.
Even if TLAs may be considered protected by the said clause, it is well settled that they may still be revoked by the
State when the public interest so requires.

Respondents:
Aver that the petitioners failed to allege in their complaint a specific legal right violated by the respondent Secretary for
which any relief is provided by law. They see nothing in the complaint but vague and nebulous allegations concerning
an "environmental right" which supposedly entitles the petitioners to the "protection by the state in its capacity as
parens patriae." Such allegations, according to them, do not reveal a valid cause of action.
They then reiterate the theory that the question of whether logging should be permitted in the country is a political
question which should be properly addressed to the executive or legislative branches of Government. They therefore
assert that the petitioners' resources is not to file an action to court, but to lobby before Congress for the passage of a
bill that would ban logging totally.
As to the matter of the cancellation of the TLAs, respondents submit that the same cannot be done by the State
without due process of law. Once issued, a TLA remains effective for a certain period of time — usually for twenty-five
(25) years. During its effectivity, the same can neither be revised nor cancelled unless the holder has been found,
after due notice and hearing, to have violated the terms of the agreement or other forestry laws and regulations.
Petitioners' proposition to have all the TLAs indiscriminately cancelled without the requisite hearing would be violative
of the requirements of due process.
Issue/s:
Whether or not the petitioners have a cause of action to prevent the misappropriation or impairment of Philippine
rainforests and arrest the unabated hemorrhage of the country's vital life support systems and continued rape of
Mother Earth.
(YES.)

Ruling:
The instant Petition is granted, and the challenged Order of respondent Judge is set aside. The petitioners may
therefore amend their complaint to implead as defendants the holders or grantees of the questioned timber license
agreements.

Ratio:
LOCUS STANDI:
The said civil case is indeed a class suit. The subject matter of the complaint is of common and general interest not
just to several, but to all citizens of the Philippines.

Consequently, since the parties are so numerous, it, becomes impracticable, if not totally impossible, to bring all of
them before the court. The SC likewise declares that the plaintiffs therein are numerous and representative enough to
ensure the full protection of all concerned interests. Hence, all the requisites for the filing of a valid class suit under
Section 12, Rule 3 of the Revised Rules of Court are present both in the said civil case and in the instant petition, the
latter being but an incident to the former.

This case, however, has a special and novel element. Petitioners minors assert that they represent their generation as
well as generations yet unborn. The SC finds no difficulty in ruling that they can, for themselves, for others of their
generation and for the succeeding generations, file a class suit. Their personality to sue in behalf of the succeeding
generations can only be based on the concept of intergenerational responsibility insofar as the right to a balanced and
healthful ecology is concerned. Such a right considers the "rhythm and harmony of nature."

Nature means the created world in its entirety. Such rhythm and harmony indispensably include, inter alia, the
judicious disposition, utilization, management, renewal and conservation of the country's forest, mineral, land, waters,
fisheries, wildlife, off-shore areas and other natural resources to the end that their exploration, development and
utilization be equitably accessible to the present as well as future generations. Needless to say, every generation has
a responsibility to the next to preserve that rhythm and harmony for the full enjoyment of a balanced and healthful
ecology.

The minors' assertion of their right to a sound environment constitutes, at the same time, the performance of their
obligation to ensure the protection of that right for the generations to come.

RIGHT TO A BALANCED AND HEALTHFUL ECOLOGY:

The complaint focuses on the right to a balanced and healthful ecology which, for the first time in our nation's
constitutional history, is solemnly incorporated in the fundamental law (Section 16, Article II of the 1987 Constitution).

This right unites with the right to health which is provided for in the Section 15 of the same article.

While the right to a balanced and healthful ecology is to be found under the Declaration of Principles and State
Policies and not under the Bill of Rights, it does not follow that it is less important than any of the civil and political
rights enumerated in the latter.

Such a right belongs to a different category of rights altogether for it concerns nothing less than self-preservation and
self-perpetuation the advancement of which may even be said to predate all governments and constitutions.

As a matter of fact, these basic rights need not even be written in the Constitution for they are assumed to exist from
the inception of humankind.

If they are now explicitly mentioned in the fundamental charter, it is because of the well-founded fear of its framers that
unless the rights to a balanced and healthful ecology and to health are mandated as state policies by the Constitution
itself, thereby highlighting their continuing importance and imposing upon the state a solemn obligation to preserve the
first and protect and advance the second, the day would not be too far when all else would be lost not only for the
present generation, but also for those to come — generations which stand to inherit nothing but parched earth
incapable of sustaining life.

The right to a balanced and healthful ecology carries with it the correlative duty to refrain from impairing the
environment.

The said right implies, among many other things, the judicious management and conservation of the country's forests.

Without such forests, the ecological or environmental balance would be irreversiby disrupted.

Conformably with the enunciated right to a balanced and healthful ecology and the right to health, then President
Corazon C. Aquino promulgated on 10 June 1987 E.O. No. 192, Section 4 of which expressly mandates that the
Department of Environment and Natural Resources "shall be the primary government agency responsible for the
conservation, management, development and proper use of the country's environment and natural resources,
specifically forest and grazing lands, mineral, resources, including those in reservation and watershed areas, and
lands of the public domain, as well as the licensing and regulation of all natural resources as may be provided for by
law in order to ensure equitable sharing of the benefits derived therefrom for the welfare of the present and future
generations of Filipinos."

This policy declaration is substantially re-stated it Title XIV, Book IV of the Administrative Code of 1987. It stresses
"the necessity of maintaining a sound ecological balance and protecting and enhancing the quality of the
environment." Section 2 of the same Title, on the other hand, specifically speaks of the mandate of the DENR;
however, it makes particular reference to the fact of the agency's being subject to law and higher authority.

Both E.O. NO. 192 and the Administrative Code of 1987 have set the objectives which will serve as the bases for
policy formulation, and have defined the powers and functions of the DENR.

On 6 June 1977, P.D. No. 1151 (Philippine Environmental Policy) and P.D. No. 1152 (Philippine Environment Code)
were issued. As its goal, it speaks of the "responsibilities of each generation as trustee and guardian of the
environment for succeeding generations." The latter statute, on the other hand, gave flesh to the said policy.

Thus, the right of the petitioners (and all those they represent) to a balanced and healthful ecology is as clear as the
DENR's duty — under its mandate and by virtue of its powers and functions under E.O. No. 192 and the
Administrative Code of 1987 — to protect and advance the said right.

A denial or violation of that right by the other who has the correlative duty or obligation to respect or protect the same
gives rise to a cause of action.
CAUSE OF ACTION:
A cause of action is defined as:
. . . an act or omission of one party in violation of the legal right or rights of the other; and its essential elements are
legal right of the plaintiff, correlative obligation of the defendant, and act or omission of the defendant in violation of
said legal right.

The question submitted to the court for resolution involves the sufficiency of the facts alleged in the complaint itself.

Falsity of the said allegations is beside the point for the truth thereof is deemed hypothetically admitted.

It bears stressing, however, that insofar as the cancellation of the TLAs is concerned, there is the need to implead, as
party defendants, the grantees thereof for they are indispensable parties.
POLITICAL QUESTION:
The foregoing considered, Civil Case No. 90-777 be said to raise a political question. Policy formulation or
determination by the executive or legislative branches of Government is not squarely put in issue. What is principally
involved is the enforcement of a right vis-a-vis policies already formulated and expressed in legislation.

It must, nonetheless, be emphasized that the political question doctrine is no longer, the insurmountable obstacle to
the exercise of judicial power or the impenetrable shield that protects executive and legislative actions from judicial
inquiry or review.
NON-IMPAIRMENT OF CONTRACTS:
The last ground invoked by the trial court in dismissing the complaint is the non-impairment of contracts clause found
in the Constitution.

The court declared that to cancel all existing timber license agreements in the country and to cease and desist from
receiving, accepting, processing, renewing or approving new timber license agreements amount to impairment of
contracts abhorred by the fundamental law.

The respondent Secretary did not even invoke in his motion to dismiss the non-impairment clause. If he had done so,
he would have acted with utmost infidelity to the Government by providing undue and unwarranted benefits and
advantages to the timber license holders because he would have forever bound the Government to strictly respect the
said licenses according to their terms and conditions regardless of changes in policy and the demands of public
interest and welfare.

Section 20 of the Forestry Reform Code (P.D. No. 705) which provides:
. . . Provided, That when the national interest so requires, the President may amend, modify, replace or rescind any
contract, concession, permit, licenses or any other form of privilege granted herein . . .

Tan vs. Director of Forestry: . . . A timber license is an instrument by which the State regulates the utilization and
disposition of forest resources to the end that public welfare is promoted. A timber license is not a contract within the
purview of the due process clause; it is only a license or privilege, which can be validly withdrawn whenever dictated
by public interest or public welfare as in this case.

Since timber licenses are not contracts, the non-impairment clause cannot be invoked.

Even if it is to be assumed that the same are contracts, the instant case does not involve a law or even an executive
issuance declaring the cancellation or modification of existing timber licenses. Hence, the non-impairment clause
cannot as yet be invoked.

Abe vs. Foster Wheeler Corp.: The freedom of contract, under our system of government, is not meant to be absolute.
The same is understood to be subject to reasonable legislative regulation aimed at the promotion of public health,
moral, safety and welfare. In other words, the constitutional guaranty of non-impairment of obligations of contract is
limited by the exercise of the police power of the State, in the interest of public health, safety, moral and general
welfare.

In short, the non-impairment clause must yield to the police power of the state.
 PELAEZ vs. AUDITOR GENERAL
December 24, 1965
Concepcion, J.
Mica Maurinne M. Adao
SUMMARY: The President issued Executive Orders creating 33 municipalities claiming Sec 68 of the Revised
Administrative Code of 1917 as basis. Petitioners question the validity of such EOs alleging that Sec 68 was
repealed by the Barrio Charter and the 1935 Constitution. Under the Barrio Charter, the president has no power to
create barrios so the petitioners argued that it implies a negation of the bigger power to create municipalities, each
of which consists of several barrios. The Auditor General insisted that municipalities can be created without
creation of barrios. SC ruled that the EOs are not valid. Section 68 of the Revised Administrative Code of 1917
constitutes undue delegation of legislative power to the President. Also, it was been repealed by the 1935
Constitution which only gives the president the power of general supervision over local government units.

DOCTRINE: Whereas the power to fix such common boundary, in order to avoid or settle conflicts of jurisdiction
between adjoining municipalities, may partake of an administrative nature — involving, as it does, the adoption of
means and ways to carry into effect the law creating said municipalities — the authority to create municipal
corporations is essentially legislative in nature

The power of control is denied by the Constitution to the Executive, insofar as local governments are concerned.
FACTS:
During the period from September 4 to October 29, 1964 the President of the Philippines, purporting to act pursuant to Section
68 of the Revised Administrative Code, issued Executive Orders Nos. 93 to 121, 124 and 126 to 129; creating thirty-three (33)
municipalities. On November 10, 1964 petitioner Emmanuel Pelaez, as Vice President of the Philippines and as taxpayer,
instituted the present special civil action, for a writ of prohibition with preliminary injunction, against the Auditor General, to
restrain him, as well as his representatives and agents, from passing in audit any expenditure of public funds in implementation
of said executive orders and/or any disbursement by said municipalities.

Pelaez alleges that said executive orders are null and void, upon the ground that said Section 68 has been impliedly repealed by
Section 3, RA 2370(The Barrio Charter) and constitutes an undue delegation of legislative power.The Auditor General
maintains the contrary view and avers that the present action is premature and that not all proper parties — referring to the
officials of the new political subdivisions in question — have been impleaded. Subsequently, the mayors of several municipalities
adversely affected by the aforementioned executive orders — because the latter have taken away from the former the barrios
composing the new political subdivisions — intervened in the case.

Hence, since January 1, 1960, when Republic Act No. 2370 became effective, barrios may "not be created or their boundaries
altered nor their names changed" except by Act of Congress or of the corresponding provincial board "upon petition of a majority
of the voters in the areas affected" and the "recommendation of the council of the municipality or municipalities in which the
proposed barrio is situated."

The main import of the petitioner's argument is that the statutory denial of the presidential authority to create a new barrio
implies a negation of the bigger power to create municipalities, each of which consists of several barrios

The Auditor General argues that a new municipality can be created without creating new barrios, such as, by placing old barrios
under the jurisdiction of the new municipality.

ISSUE: Are Executive Orders Nos. 93 to 121, 124 and 126 to 129 issued by the President creating thirty-three (33) municipalities
valid?

RULING: No. Section 68 of the Revised Administrative Code of 1917 constitutes undue delegation of legislative power to the
President. Also, it was been repealed by the 1935 Constitution which only gives the president the power of general supervision
over local government units.

RATIO:

Respondent alleges that the power of the President to create municipalities under this section does not amount to an undue
delegation of legislative power, relying upon Municipality of Cardona vs. Municipality of Binañgonan , which, he claims, has settled
it. Such claim is untenable, for said case involved, not the creation of a new municipality, but a mere transfer of territory — from
an already existing municipality (Cardona) to another municipality (Binañgonan), likewise, existing at the time of and prior to said
transfer — in consequence of the fixing and definition, pursuant to Act No. 1748, of the common boundaries of two
municipalities.

It is obvious, however, that, whereas the power to fix such common boundary, in order to avoid or settle conflicts of
jurisdiction between adjoining municipalities, may partake of an administrative nature — involving, as it does, the
adoption of means and ways to carry into effect the law creating said municipalities — the authority to create municipal
corporations is essentially legislative in nature. In the language of other courts, it is "strictly a legislative function" or "solely
and exclusively the exercise of legislative power”. As the Supreme Court of Washington has put it "municipal corporations
are purely the creatures of statutes."

Although Congress may delegate to another branch of the Government the power to fill in the details in the execution,
enforcement or administration of a law, it is essential, to forestall a violation of the principle of separation of powers, that said
law: (a) be complete in itself — it must set forth therein the policy to be executed, carried out or implemented by the delegate —
and (b) fix a standard — the limits of which are sufficiently determinate or determinable — to which the delegate must conform
in the performance of his functions. Indeed, without a statutory declaration of policy, the delegate would in effect, make or
formulate such policy, which is the essence of every law; and, without the aforementioned standard, there would be no means to
determine, with reasonable certainty, whether the delegate has acted within or beyond the scope of his authority. Hence, he
could thereby arrogate upon himself the power, not only to make the law, but, also — and this is worse — to unmake it, by
adopting measures inconsistent with the end sought to be attained by the Act of Congress, thus nullifying the principle of
separation of powers and the system of checks and balances, and, consequently, undermining the very foundation of our
Republican system.

Section 68 of the Revised Administrative Code does not meet these well settled requirements for a valid delegation of the power
to fix the details in the enforcement of a law. It does not enunciate any policy to be carried out or implemented by the President.
Neither does it give a standard sufficiently precise to avoid the evil effects above referred to. the last clause of the first sentence
of Section 68, the President:... may change the seat of the government within any subdivision to such place therein as the public
welfare may require. It is apparent, however, from the language of this clause, that the phrase "as the public welfare may require"
qualified, not the clauses preceding the one just quoted, but only the place to which the seat of the government may be
transferred.

Even if it is assumed that the phrase "as the public welfare may require," in said Section 68, qualifies all other clauses thereof. It is
true that in Calalang vs. Williams and People vs. Rosenthal, this Court had upheld "public welfare" and "public interest,"
respectively, as sufficient standards for a valid delegation of the authority to execute the law. But, the doctrine laid down in these
cases — as all judicial pronouncements — must be construed in relation to the specific facts and issues involved therein, outside
of which they do not constitute precedents and have no binding effect. The law construed in the Calalang case conferred upon the
Director of Public Works, with the approval of the Secretary of Public Works and Communications, the power to issue rules and
regulations to promote safe transit upon national roads and streets. Upon the other hand, the Rosenthal case referred to the
authority of the Insular Treasurer, under Act No. 2581, to issue and cancel certificates or permits for the sale of speculative
securities. Both cases involved grants to administrative officers of powers related to the exercise of their administrative functions,
calling for the determination of questions of fact.

Such is not the nature of the powers dealt with in section 68. As above indicated, the creation of municipalities, is not
an administrative function, but one which is essentially and eminently legislative in character. The question of whether or not
"public interest" demands the exercise of such power is not one of fact. it is "purely a legislative question”

In the case of Schechter Poultry Corporation vs. U.S., it was held that the term "unfair competition" is so broad as to vest in the
President a discretion that is "virtually unfettered." and, consequently, tantamount to a delegation of legislative power, it is
obvious that "public welfare," which has even a broader connotation, leads to the same result. In fact, if the validity of the
delegation of powers made in Section 68 were upheld, there would no longer be any legal impediment to a statutory grant of
authority to the President to do anything which, in his opinion, may be required by public welfare or public interest. Such grant
of authority would be a virtual abdication of the powers of Congress in favor of the Executive, and would bring about a total
collapse of the democratic system established by our Constitution, which it is the special duty and privilege of this Court to
uphold.

It may not be amiss to note that the executive orders in question were issued after the legislative bills for the creation of the
municipalities involved in this case had failed to pass Congress. A better proof of the fact that the issuance of said executive orders
entails the exercise of purely legislative functions can hardly be given.

Again, Section 10 (1) of Article VII of our fundamental law ordains: The President shall have control of all the executive
departments, bureaus, or offices, exercise general supervision over all local governments as may be provided by law, and take
care that the laws be faithfully executed.

The power of control under this provision implies the right of the President to interfere in the exercise of such discretion as may
be vested by law in the officers of the executive departments, bureaus, or offices of the national government, as well as to act in
lieu of such officers. This power is denied by the Constitution to the Executive, insofar as local governments are concerned.
With respect to the latter, the fundamental law permits him to wield no more authority than that of checking whether said local
governments or the officers thereof perform their duties as provided by statutory enactments. Hence, the President cannot
interfere with local governments, so long as the same or its officers act within the scope of their authority. He may not enact an
ordinance which the municipal council has failed or refused to pass, even if it had thereby violated a duty imposed thereto by
law, although he may see to it that the corresponding provincial officials take appropriate disciplinary action therefor. Neither
may he vote, set aside or annul an ordinance passed by said council within the scope of its jurisdiction, no matter how patently
unwise it may be. He may not even suspend an elective official of a regular municipality or take any disciplinary action against
him, except on appeal from a decision of the corresponding provincial board.
Upon the other hand if the President could create a municipality, he could, in effect, remove any of its officials, by creating a new
municipality and including therein the barrio in which the official concerned resides, for his office would thereby become
vacant. Thus, by merely brandishing the power to create a new municipality (if he had it), without actually creating it, he could
compel local officials to submit to his dictation, thereby, in effect, exercising over them the power of control denied to him by the
Constitution.

Then, also, the power of control of the President over executive departments, bureaus or offices implies no more than the
authority to assume directly the functions thereof or to interfere in the exercise of discretion by its officials. Manifestly, such
control does not include the authority either to abolish an executive department or bureau, or to create a new one. As a
consequence, the alleged power of the President to create municipal corporations would necessarily connote the exercise by him
of an authority even greater than that of control which he has over the executive departments, bureaus or offices. In other words,
Section 68 of the Revised Administrative Code does not merely fail to comply with the constitutional mandate above quoted.
Instead of giving the President less power over local governments than that vested in him over the executive departments,
bureaus or offices, it reverses the process and does the exact opposite, by conferring upon him more power over municipal
corporations than that which he has over said executive departments, bureaus or offices.

In short, even if it did entail an undue delegation of legislative powers, as it certainly does, said Section 68, as part of the Revised
Administrative Code, approved on March 10, 1917, must be deemed repealed by the subsequent adoption of the Constitution, in
1935, which is utterly incompatible and inconsistent with said statutory enactment. (De los Santos vs. Mallare)

PROCEDURAL ISSUES

Auditor General claimed that not all the proper parties— referring to the officers of the newly created municipalities — "have
been impleaded in this case," and that the present petition is premature."

As regards the first point, suffice it to say that the records do not show, and the parties do not claim, that the officers of any of
said municipalities have been appointed or elected and assumed office. At any rate, the Solicitor General, who has appeared on
behalf of respondent Auditor General, is the officer authorized by law "to act and represent the Government of the Philippines, its
offices and agents, in any official investigation, proceeding or matter requiring the services of a lawyer" (Section 1661, Revised
Administrative Code), and, in connection with the creation of the aforementioned municipalities, which involves a political, not
proprietary, function, said local officials, if any, are mere agents or representatives of the national government. Their interest in
the case at bar has, accordingly, been, in effect, duly represented.

With respect to the second point, respondent alleges that he has not as yet acted on any of the executive order & in question and
has not intimated how he would act in connection therewith. It is, however, a matter of common, public knowledge, subject to
judicial cognizance, that the President has, for many years, issued executive orders creating municipal corporations and that the
same have been organized and in actual operation, thus indicating, without peradventure of doubt, that the expenditures
incidental thereto have been sanctioned, approved or passed in audit by the General Auditing Office and its officials. There is no
reason to believe, therefore, that respondent would adopt a different policy as regards the new municipalities involved in this
case, in the absence of an allegation to such effect, and none has been made by him.

WHEREFORE, the Executive Orders in question are hereby declared null and void ab initio and the respondent permanently
restrained from passing in audit any expenditure of public funds in implementation of said Executive Orders or any
disbursement by the municipalities above referred to. It is so ordered.

BENGZON, J.P., J., concurring and dissenting:

The power to create a municipality is legislative in character. American authorities have therefore favored the view that it cannot
be delegated; that what is delegable is not the power to create municipalities but only the power to determine the existence of
facts under which creation of a municipality will result. The test is said to lie in whether the statute allows any discretion on the
delegate as to whether the municipal corporation should be created. If so, there is an attempted delegation of legislative power
and the statute is invalid. Now Section 68 no doubt gives the President such discretion, since it says that the President "may by
executive order" exercise the powers therein granted. Under the prevailing rule in the United States — and Section 68 is of
American origin — the provision in question would be an invalid attempt to delegate purely legislative powers, contrary to the
principle of separation of powers.

The power of control over local governments had now been taken away from the Chief Executive by the Constitution.
Accordingly, Congress cannot by law grant him such power (Hebron v. Reyes). And any such power formerly granted under the
Jones Law thereby became unavoidably inconsistent with the Philippine Constitution. The power to control is an incident of the
power to create or abolish municipalities. Since as stated, the power to control local governments can no longer be conferred on
or exercised by the President, it follows a fortiori that the power to create them, all the more cannot be so conferred or exercised.

Since the Constitution repealed Section 68 as far back as 1935, it is academic to ask whether Republic Act 2370 likewise has
provisions in conflict with Section 68 so as to repeal it. Suffice it to state, at any rate, that statutory prohibition on the President
from creating a barrio does not warrant the inference of statutory prohibition for creating a municipality. For although
municipalities consist of barrios, there is nothing in the statute that would preclude creation of new municipalities out of
pre-existing barrios.

It is not contrary to the logic of local autonomy to be able to create larger political units and unable to create smaller ones. For as
long ago observed in President McKinley's Instructions to the Second Philippine Commission, greater autonomy is to be imparted
to the smaller of the two political units. The smaller the unit of local government, the lesser is the need for the national
government's intervention in its political affairs. Furthermore, for practical reasons, local autonomy cannot be given from the top
downwards. The national government, in such a case, could still exercise power over the supposedly autonomous unit, e.g.,
municipalities, by exercising it over the smaller units that comprise them, e.g., the barrios. A realistic program of decentralization
therefore calls for autonomy from the bottom upwards, so that it is not surprising for Congress to deny the national government
some power over barrios without denying it over municipalities. For this reason, I disagree with the majority view that because
the President could not create a barrio under Republic Act 2370, a fortiori he cannot create a municipality.

ATONG PAGLAUM v COMELEC

April 2, 2013 | Davide, Jr., J.
Petitioner: (See Original. ANG DAMI)
Respondents: Commission on Elections
NATURE
54 Petitions for Certiorari and Petitions for Certiorari and Prohibition filed by 52 party-list groups and organizations
assailing the Resolutions issued by the Commission on Elections (COMELEC) disqualifying them from participating in the
13 May 2013 party-list elections, either by denial of their petitions for registration under the party-list system, or
cancellation of their registration and accreditation as party-list organizations.

DOCTRINE
Party-list Representatives

BRIEF
The COMELEC disqualified groups and organizations from participating in the 13 May 2013 party-list elections based on
jurisprudence. However, since the Court adopts in this Decision new parameters in the qualification of national,
regional, and sectoral parties under the party-list system, thereby abandoning the rulings in the decisions applied by
the COMELEC in disqualifying petitioners, the case is remanded to the COMELEC to determine who are qualified to
register under the party-list system, and to participate in the coming 13 May 2013 party-list elections, under the new
parameters prescribed in the Decision. (Bulk of the case explains the Party-list system)

FACTS
1. Pursuant to the provisions of Republic Act No. 7941 (R.A. No. 7941) and COMELEC Resolution Nos. 9366 and 9531,
approximately 280 groups and organizations registered and manifested their desire to participate in the 13 May 2013
party-list elections.
2. The COMELEC disqualified groups and organizations from participating in the 13 May 2013 party-list elections
3. PBB (Partido ng Bayan ng Bida) was denied participation in the 13 May 2013 party-list elections because
a. PBB does not represent any "marginalized and underrepresented" sector;
b. PBB failed to apply for registration as a party-list group;
c. PBB failed to establish its track record as an organization that seeks to uplift the lives of the "marginalized and
underrepresented.
4. The COMELEC excluded from participating in the 13 May 2013 party-list elections those that did not satisfy these two
criteria:
a. all national, regional, and sectoral groups or organizations must represent the "marginalized and
underrepresented" sectors
b. all nominees must belong to the "marginalized and underrepresented" sector they represent.
c. as political or regional parties they are not organized along sectoral lines and do not represent the
"marginalized and underrepresented."
d. petitioners' nominees who do not belong to the sectors they represent may have been disqualified, although
they may have a track record of advocacy for their sectors.
e. nominees of non-sectoral parties may have been disqualified because they do not belong to any sector.
f. a party may have been disqualified because one or more of its nominees failed to qualify, even if the party has
at least one remaining qualified nominee.
Supreme Court: ISSUES of the CASE

ISSUE: WON the COMELEC committed grave abuse of discretion amounting to lack or excess of jurisdiction in disqualifying
petitioners from participating in the 13 May 2013 party-list elections, either by denial of their new petitions for registration under
the party-list system, or by cancellation of their existing registration and accreditation as party-list organizations (NO)
RATIO
1. COMELEC did not commit grave abuse of discretion in following prevailing decisions of this Court in disqualifying
petitioners from participating in the coming 13 May 2013 party-list elections
2. However, since the Court adopts in this Decision new parameters in the qualification of national, regional, and sectoral
parties under the party-list system, thereby abandoning the rulings in the decisions applied by the COMELEC in
disqualifying petitioners, the court decided to remand to the COMELEC all the present petitions for the COMELEC to
determine who are qualified to register under the party-list system, and to participate in the coming 13 May 2013
party-list elections, under the new parameters prescribed in the Decision

The Party-List System

1. The voter elects two representatives in the House of Representatives
a. one for his or her legislative district
b. another for his or her party-list group or organization of choice
2. Section 5 Article VI of the Constitution

(1) The House of Representatives shall be composed of not more than two hundred and fifty members, unless
otherwise fixed by law, who shall be elected from legislative districts apportioned among the provinces, cities, and the
Metropolitan Manila area in accordance with the number of their respective inhabitants, and on the basis of a uniform
and progressive ratio, and those who, as provided by law, shall be elected through a party-list system of registered
national, regional, and sectoral parties or organizations.
(2) The party-list representatives shall constitute twenty per centum of the total number of representatives including
those under the party list. For three consecutive terms after the ratification of this Constitution, one-half of the seats
allocated to party-list representatives shall be filled, as provided by law, by selection or election from the labor,
peasant, urban poor, indigenous cultural communities, women, youth, and such other sectors as may be provided by
law, except the religious sector.
3. Sections 7 and 8, Article IX-C
Sec. 7. No votes cast in favor of a political party, organization, or coalition shall be valid, except for those registered
under the party-list system as provided in this Constitution.
Sec. 8. Political parties, or organizations or coalitions registered under the party-list system, shall not be represented in
the voters’ registration boards, boards of election inspectors, boards of canvassers, or other similar bodies. However,
they shall be entitled to appoint poll watchers in accordance with law
4. Christian S. Monsod: "the party-list system is not synonymous with that of the sectoral representation."
5. sectoral representation in the Assembly: certain sectors would have reserved seats; that they will choose among
themselves who would sit in those reserved seats
a. problem #1: which sector? Nine sectors cited in Proclamation No. 9
b. the longer the enumeration, the more limiting the law becomes because enumeration results in the exclusion
of those not in the enumeration.
c. Problem #2: Hyphenated citizens: who is a farmer? Doctor-farmer? Lawyer-farmer?
d. Problem #3: giving some people two votes and other people one vote
6. Political parties, particularly minority political parties, are not prohibited to participate in the party list election if they
can prove that they are also organized along sectoral lines.
7. The COMELEC may look into the truth of whether or not a political party is really organized along a specific sectoral line.
a. If such is verified or confirmed, the political party may submit a list of individuals who are actually members of
such sectors.
b. The lists are to be published to give individuals or organizations belonging to such sector the chance to present
evidence contradicting claims of membership in the said sector or to question the claims of the existence of
such sectoral organizations or parties.
c. This proceeding shall be conducted by the COMELEC and shall be summary in character. In other words,
COMELEC decisions on this matter are final and unappealable
8. Commissioner Wilfredo Villacorta: political parties can participate in the party-list system "For as long as they field
candidates who come from the different marginalized sectors that we shall designate in this Constitution."
9. The common denominator between sectoral and non-sectoral parties is that they cannot expect to win in legislative
district elections but they can garner, in nationwide elections, at least the same number of votes that winning
candidates can garner in legislative district elections. The party-list system will be the entry point to membership in the
House of Representatives for both these non-traditional parties that could not compete in legislative district elections.
10. The party-list system is composed of three different groups:
 a. (1) national parties or organizations;
b. (2) regional parties or organizations; and
c. (3) sectoral parties or organizations.
11. National and regional parties or organizations are different from sectoral parties or organizations. National and regional
parties or organizations need not be organized along sectoral lines and need not represent any particular sector.
12. the party-list system is not exclusively for sectoral parties for 2 reasons:
a. one-half of the seats allocated to party-list representatives would naturally be open to non-sectoral party-list
representatives, clearly negating the idea that the party-list system is exclusively for sectoral parties
representing the "marginalized and underrepresented."
b. the reservation of one-half of the party-list seats to sectoral parties applies only for the first "three consecutive
terms after the ratification of this Constitution," making the party-list system fully open after the end of the
first three congressional terms. After this period, there will be no seats reserved for any class or type of party
that qualifies under the three groups constituting the party-list system.
13. Republic Act No. 7941 or the Party-List System Act
a. Party: either a political party or a sectoral party or a coalition of parties
b. political party: organized group of citizens advocating an ideology or platform, principles and policies for the
general conduct of government and which, as the most immediate means of securing their adoption, regularly
nominates and supports certain of its leaders and members as candidates for public office.
c. sectoral party: organized group of citizens belonging to any of the sectors enumerated in Section 5 hereof
whose principal advocacy pertains to the special interest and concerns of their sector
14. In the case of sectoral parties, to be a bona fide party-list nominee one must either belong to the sector represented,
or have a track record of advocacy for such sector

ISSUE: WON the criteria for participating in the party-list system laid down in Ang Bagong Bayani and Barangay Association for
National Advancement and Transparency v. Commission on Elections 49 (BANAT) should be applied by the COMELEC in the coming
13 May 2013 party-list elections (NO)

RATIO
1. Ang Bagong Bayani: “while even major political parties are expressly allowed by RA 7941 and the Constitution to
participate in the party-list system, they must comply with the declared statutory policy of enabling ‘Filipino citizens
belonging to marginalized and underrepresented sectors xxx to be elected to the House of Representatives.’
2. Bagong Bayani guidelines for qualifying those who desire or participate in party-list systems:
a. The political party, sector, organization or coalition must represent the marginalized and underrepresented
groups identified in Section 5 of RA 7941
b. while even major political parties are expressly allowed by RA 7941 and the Constitution to participate in the
party-list system, they must comply with the declared statutory policy of enabling "Filipino citizens belonging
to marginalized and underrepresented sectors x x x to be elected to the House of Representatives”
c. the religious sector may not be represented in the party-list system
d. a party or an organization must not be disqualified under Section 6 of RA 7941, which enumerates the grounds
for disqualification as follows:
i. It is a religious sect or denomination, organization or association, organized for religious purposes
ii. It advocates violence or unlawful means to seek its goal
iii. It is receiving support from any foreign government, foreign political party, foundation, organization,
whether directly or through any of its officers or members or indirectly through third parties for
partisan election purposes
iv. It violates or fails to comply with laws, rules or regulations relating to elections
v. It declares untruthful statements in its petition
vi. It has ceased to exist for at least one (1) year
vii. It fails to participate in the last two (2) preceding elections or fails to obtain at least two per centum
(2%) of the votes cast under the party-list system in the two (2) preceding elections for the
constituency in which it has registered
e. the party or organization must not be an adjunct of, or a project organized or an entity funded or assisted by,
the government
f. the party must not only comply with the requirements of the law; its nominees must likewise do so. Section 9
of RA 7941 reads as follows:
No person shall be nominated as party-list representative unless
1. he is a natural-born citizen of the Philippines,
2. a registered voter a resident of the Philippines for a period of not less than one (1)year immediately
preceding the day of the election,
3. able to read and write,
4. a bona fide member of the party or organization which he seeks to represent for at least ninety (90)
days preceding the day of the election,
 5. is at least twenty-five (25) years of age on the day of the election
In case of a nominee of the youth sector, he must
1. at least be twenty-five (25) but not more than thirty (30) years of age on the day of the election.
2. Any youth sectoral representative who attains the age of thirty (30) during his term shall be allowed
to continue in office until the expiration of his term.
g. not only the candidate party or organization must represent marginalized and underrepresented sectors; so
also must its nominees
h. the nominee must likewise be able to contribute to the formulation and enactment of appropriate legislation
that will benefit the nation as a whole.
3. COMELEC did not commit grave abuse of discretion, In following prevailing jurisprudence, the COMELEC could not
have committed grave abuse of discretion.
4. it would not be in accord with the 1987 Constitution and R.A. No. 7941 to apply the criteria in Ang Bagong Bayani and
BANAT in determining who are qualified to participate in the coming 13 May 2013 party-list elections. For this purpose,
we suspend our rule that a party may appeal to this Court from decisions or orders of the COMELEC only if the
COMELEC committed grave abuse of discretion
5. exemptions or incentives granted to natural or juridical persons are withdrawn except those granted to local water
districts, cooperatives duly registered under RA 6938, non-stock and non-profit hospitals and educational institutions,
and otherwise provided by RA 7160.
6. the present petitions should be remanded to the COMELEC not because the COMELEC committed grave abuse of
discretion in disqualifying petitioners, but because petitioners may now possibly qualify to participate in the coming 13
May 2013 party-list elections under the new parameters prescribed by this Court

RULING: all the present 54 petitions are GRANTED. The 13 petitions, which have been granted Status Quo Ante Orders but
without mandatory injunction to include the names of petitioners in the printing of ballots, are remanded to the Commission on
Elections only for determination whether petitioners are qualified to register under the party-list system under the
parameters prescribed in this Decision but they shall not participate in the 13 May 2013 part-list elections. The 41 petitions,
which have been granted mandatory injunctions to include the names of petitioners in the printing of ballots, are remanded to
the Commission on Elections for determination whether petitioners are qualified to register under the party-list system and
to participate in the 13 May 2013 party-list elections under the parameters prescribed in this Decision. The Commission on
Elections may conduct summary evidentiary hearings for this purpose. This Decision is immediately executory.
G.R. No. 195649 : July 2, 2013

CASAN MACODE MACQUILING, Petitioner, v. COMMISSION ON ELECTIONS, ROMMEL ARNADO Y CAGOCO,

AND LINOG G. BALUA. Respondents.

SERENO, J.:

FACTS:

This Resolution resolves the Motion for Reconsideration filed by respondent on May 10, 2013 and the Supplemental
Motion for Reconsideration filed on May 20, 2013.

We are not unaware that the term of office of the local officials elected in the May 2010 elections has already ended
on June 30, 2010. Arnado, therefore, has successfully finished his term of office. While the relief sought can no longer
be granted, ruling on the motion for reconsideration is important as it will either affirm the validity of Arnados election
or affirm that Arnado never qualified to run for public office.

Respondent failed to advance any argument to support his plea for the reversal of this Courts Decision dated April 16,
2013. Instead, he presented his accomplishments as the Mayor of Kauswagan, Lanao del Norte and reiterated that he
has taken the Oath of Allegiance not only twice but six times. It must be stressed, however, that the relevant question
is the efficacy of his renunciation of his foreign citizenship and not the taking of the Oath of Allegiance to the Republic
of the Philippines. Neither do his accomplishments as mayor affect the question before this Court.

ISSUE: Whether or not a dual citizen can run for a local elective position?

HELD: Motion for Reconsideration denied.

REMEDIAL LAW: judicial notice of foreign laws

Respondent cites Section 349 of the Immigration and Naturalization Act of the United States as having the effect of
expatriation when he executed his Affidavit of Renunciation of American Citizenship on April 3, 2009 and thus claims
that he was divested of his American citizenship. If indeed, respondent was divested of all the rights of an American
citizen, the fact that he was still able to use his US passport after executing his Affidavit of Renunciation repudiates
this claim.

The Court cannot take judicial notice of foreign laws,which must be presented as public documentsof a foreign country
and must be "evidenced by an official publication thereof."Mere reference to a foreign law in a pleading does not
suffice for it to be considered in deciding a case.

Respondent likewise contends that this Court failed to cite any law of the United States "providing that a person who is
divested of American citizenship thru an Affidavit of Renunciation will re-acquire such American citizenship by using a
US Passport issued prior to expatriation."

American law does not govern in this jurisdiction. Instead, Section 40(d) of the Local Government Code calls for
application in the case before us, given the fact that at the time Arnado filed his certificate of candidacy, he was not
only a Filipino citizen but, by his own declaration, also an American citizen. It is the application of this law and not of
any foreign law that serves as the basis for Arnados disqualification to run for any local elective position.

With all due respect to the dissent, the declared policy of Republic Act No. (RA) 9225 is that "all Philippine citizens
who become citizens of another country shall be deemed not to have lost their Philippine citizenship under the
conditions of this Act."This policy pertains to the reacquisition of Philippine citizenship. Section 5(2)requires those who
have re-acquired Philippine citizenship and who seek elective public office, to renounce any and all foreign citizenship.

This requirement of renunciation of any and all foreign citizenship, when read together with Section 40(d) of the Local
Government Codewhich disqualifies those with dual citizenship from running for any elective local position, indicates a
policy that anyone who seeks to run for public office must be solely and exclusively a Filipino citizen. To allow a former
Filipino who reacquires Philippine citizenship to continue using a foreign passport which indicates the recognition of a
foreign state of the individual as its national even after the Filipino has renounced his foreign citizenship, is to allow a
complete disregard of this policy.

Further, we respectfully disagree that the majority decision rules on a situation of doubt.

POLITICAL LAW: dual citizens ineligible for local public office

Indeed, there is no doubt that Section 40(d) of the Local Government Code disqualifies those with dual citizenship
from running for local elective positions.
There is likewise no doubt that the use of a passport is a positive declaration that one is a citizen of the country which
issued the passport, or that a passport proves that the country which issued it recognizes the person named therein
as its national.

It is unquestioned that Arnado is a natural born Filipino citizen, or that he acquired American citizenship by
naturalization. There is no doubt that he reacquired his Filipino citizenship by taking his Oath of Allegiance to the
Philippines and that he renounced his American citizenship. It is also indubitable that after renouncing his American
citizenship, Arnado used his U.S. passport at least six times.

If there is any remaining doubt, it is regarding the efficacy of Arnados renunciation of his American citizenship when
he subsequently used his U.S. passport. The renunciation of foreign citizenship must be complete and unequivocal.
The requirement that the renunciation must be made through an oath emphasizes the solemn duty of the one making
the oath of renunciation to remain true to what he has sworn to. Allowing the subsequent use of a foreign passport
because it is convenient for the person to do so is rendering the oath a hollow act. It devalues the act of taking of an
oath, reducing it to a mere ceremonial formality.

The dissent states that the Court has effectively left Arnado "a man without a country".On the contrary, this Court has,
in fact, found Arnado to have more than one. Nowhere in the decision does it say that Arnado is not a Filipino citizen.
What the decision merely points out is that he also possessed another citizenship at the time he filed his certificate of
candidacy.

Well-settled is the rule that findings of fact of administrative bodies will not be interfered with by the courts in the
absence of grave abuse of discretion on the part of said agencies, or unless the aforementioned findings are not
supported by substantial evidence.They are accorded not only great respect but even finality, and are binding upon
this Court, unless it is shown that the administrative body had arbitrarily disregarded or misapprehended evidence
before it to such an extent as to compel a contrary conclusion had such evidence been properly appreciated.

Nevertheless, it must be emphasized that COMELEC First Division found that Arnado used his U.S. Passport at least
six times after he renounced his American citizenship. This was debunked by the COMELEC En Banc, which found
that Arnado only used his U.S. passport four times, and which agreed with Arnados claim that he only used his U.S.
passport on those occasions because his Philippine passport was not yet issued. The COMELEC En Banc argued
that Arnado was able to prove that he used his Philippine passport for his travels on the following dates: 12 January
2010, 31 January 2010, 31 March 2010, 16 April 2010, 20 May 2010, and 4 June 2010.

None of these dates coincide with the two other dates indicated in the certification issued by the Bureau of
Immigration showing that on 21 January 2010 and on 23 March 2010, Arnado arrived in the Philippines using his U.S.
Passport No. 057782700 which also indicated therein that his nationality is USA-American. Adding these two travel
dates to the travel record provided by the Bureau of Immigration showing that Arnado also presented his U.S.
passport four times (upon departure on 14 April 2009, upon arrival on 25 June 2009, upon departure on 29 July 2009
and upon arrival on 24 November 2009), these incidents sum up to six.

The COMELEC En Banc concluded that "the use of the US passport was because to his knowledge, his Philippine
passport was not yet issued to him for his use."This conclusion, however, is not supported by the facts. Arnado claims
that his Philippine passport was issued on 18 June 2009. The records show that he continued to use his U.S. passport
even after he already received his Philippine passport. Arnados travel records show that he presented his U.S.
passport on 24 November 2009, on 21 January 2010, and on 23 March 2010. These facts were never refuted by
Arnado.

Thus, the ruling of the COMELEC En Banc is based on a misapprehension of the facts that the use of the U.S.
passport was discontinued when Arnado obtained his Philippine passport. Arnados continued use of his U.S. passport
cannot be considered as isolated acts contrary to what the dissent wants us to believe.

It must be stressed that what is at stake here is the principle that only those who are exclusively Filipinos are
qualified to run for public office. If we allow dual citizens who wish to run for public office to renounce their
foreign citizenship and afterwards continue using their foreign passports, we are creating a special privilege
for these dual citizens, thereby effectively junking the prohibition in Section 40(d) of the Local Government
Code.
Senate vs. Ermita (G.R. No. 169777) - Digest
Facts:
This case is regarding the railway project of the North Luzon Railways Corporation with the China National Machinery
and Equipment Group as well as the Wiretapping activity of the ISAFP, and the Fertilizer scam.

The Senate Committees sent invitations to various officials of the Executive Department and AFP officials for them to
appear before Senate on Sept. 29, 2005. Before said date arrived, Executive Sec. Ermita sent a letter to Senate
President Drilon, requesting for a postponement of the hearing on Sept. 29 in order to “afford said officials ample time
and opportunity to study and prepare for the various issues so that they may better enlighten the Senate Committee
on its investigation.” Senate refused the request.

On Sept. 28, 2005, the President issued EO 464, effective immediately, which, among others, mandated that “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.” Pursuant to this Order, Executive Sec. Ermita communicated to the
Senate that the executive and AFP officials would not be able to attend the meeting since the President has not yet
given her consent. Despite the lack of consent, Col. Balutan and Brig. Gen. Gudani, among all the AFP officials
invited, attended the investigation. Both faced court marshal for such attendance.

Issue:
Whether E.O. 464 contravenes the power of inquiry vested in Congress.

Ruling:
To determine the constitutionality of E.O. 464, the Supreme Court discussed the two different functions of the
Legislature: The power to conduct inquiries in aid of legislation and the power to conduct inquiry during question hour.

Question Hour:

The power to conduct inquiry during question hours is recognized in Article 6, Section 22 of the 1987 Constitution,
which reads:

“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 objective of conducting a question hour is to obtain information in pursuit of Congress’ oversight function. When
Congress merely seeks to be informed on how department heads are implementing the statutes which it had issued,
the department heads’ appearance is merely requested.

The Supreme Court construed Section 1 of E.O. 464 as those in relation to the appearance of department heads
during question hour as it explicitly referred to Section 22, Article 6 of the 1987 Constitution.

In aid of Legislation:

The Legislature’s power to conduct inquiry in aid of legislation is expressly recognized in Article 6, section21 of the
1987 Constitution, which reads:

“The Senate or the House of Representatives or any of its respective committees may conduct inquiries in aid of
legislation in accordance with its duly published rules of procedure. The rights of persons appearing in, or affected by,
such inquiries shall be respected.”

The power of inquiry in aid of legislation is inherent in the power to legislate. A legislative body cannot legislate wisely
or effectively in the absence of information respecting the conditions which the legislation is intended to affect or
change. And where the legislative body does not itself possess the requisite information, recourse must be had to
others who do possess it.

But even where the inquiry is in aid of legislation, there are still recognized exemptions to the power of inquiry, which
exemptions fall under the rubric of “executive privilege”. This is the power of the government to withhold information
from the public, the courts, and the Congress. This is recognized only to certain types of information of a sensitive
character. When Congress exercise its power of inquiry, the only way for department heads to exempt themselves
therefrom is by a valid claim of privilege. They are not exempt by the mere fact that they are department heads. Only
one official may be exempted from this power -- the President.
Section 2 & 3 of E.O. 464 requires that all the public officials enumerated in Section 2(b) should secure the consent of
the President prior to appearing before either house of Congress. The enumeration is broad. In view thereof,
whenever an official invokes E.O.464 to justify the failure to be present, such invocation must be construed as a
declaration to Congress that the President, or a head of office authorized by the President, has determined that the
requested information is privileged.

The letter sent by the Executive Secretary to Senator Drilon does not explicitly invoke executive privilege or that the
matter on which these officials are being requested to be resource persons falls under the recognized grounds of the
privilege to justify their absence. Nor does it expressly state that in view of the lack of consent from the President
under E.O. 464, they cannot attend the hearing. The letter assumes that the invited official possesses information that
is covered by the executive privilege. Certainly, Congress has the right to know why the executive considers the
requested information privileged. It does not suffice to merely declare that the President, or an authorized head of
office, has determined that it is so.

The claim of privilege under Section 3 of E.O. 464 in relation to Section 2(b) is thus invalid per se. It is not asserted. It
is merely implied. Instead of providing precise and certain reasons for the claim, it merely invokes E.O. 464, coupled
with an announcement that the President has not given her consent.

When an official is being summoned by Congress on a matter which, in his own judgment, might be covered by
executive privilege, he must be afforded reasonable time to inform the President or the Executive Secretary of the
possible need for invoking the privilege. This is necessary to provide the President or the Executive Secretary with fair
opportunity to consider whether the matter indeed calls for a claim of executive privilege. If, after the lapse of that
reasonable time, neither the President nor the Executive Secretary invokes the privilege, Congress is no longer bound
to respect the failure of the official to appear before Congress and may then opt to avail of the necessary legal means
to compel his appearance.

Wherefore, the petitions are partly granted. Sections 2(b) and 3 of E.O. 464 are declared void. Section 1(a) are
however valid.
G.R. No. 208566 November 19, 2013 BELGICA vs. HONORABLE EXECUTIVE SECRETARY PAQUITO N.
OCHOA JR, et al, Respondents
G.R. No. 208566 November 19, 2013
GRECO ANTONIOUS BEDA B. BELGICA JOSE M. VILLEGAS JR. JOSE L. GONZALEZ REUBEN M. ABANTE
and QUINTIN PAREDES SAN DIEGO, Petitioners,
vs.
HONORABLE EXECUTIVE SECRETARY PAQUITO N. OCHOA JR, et al, Respondents
PERLAS-BERNABE, J.:

NATURE:
These are consolidated petitions taken under Rule 65 of the Rules of Court, all of which assail the constitutionality of
the Pork Barrel System.

FACTS:
The NBI Investigation was spawned by sworn affidavits of six (6) whistle-blowers who declared that JLN Corporation
(Janet Lim Napoles) had swindled billions of pesos from the public coffers for "ghost projects" using dummy NGOs.
Thus, Criminal complaints were filed before the Office of the Ombudsman, charging five (5) lawmakers for Plunder,
and three (3) other lawmakers for Malversation, Direct Bribery, and Violation of the Anti-Graft and Corrupt Practices
Act. Also recommended to be charged in the complaints are some of the lawmakers’ chiefs -of-staff or
representatives, the heads and other officials of three (3) implementing agencies, and the several presidents of the
NGOs set up by Napoles.
Whistle-blowers alleged that" at least P900 Million from royalties in the operation of the Malampaya gas project off
Palawan province intended for agrarian reform beneficiaries has gone into a dummy NGO. Several petitions were
lodged before the Court similarly seeking that the "Pork Barrel System" be declared unconstitutional

G.R. No. 208493 – SJS filed a Petition for Prohibition seeking that the "Pork Barrel System" be declared
unconstitutional, and a writ of prohibition be issued permanently
G.R. No. 208566 - Belgica, et al filed an Urgent Petition For Certiorari and Prohibition With Prayer For The Immediate
Issuance of Temporary Restraining Order and/or Writ of Preliminary Injunction seeking that the annual "Pork Barrel
System," presently embodied in the provisions of the GAA of 2013 which provided for the 2013 PDAF, and the
Executive‘s lump-sum, discretionary funds, such as the Malampaya Funds and the Presidential Social Fund, be
declared unconstitutional and null and void for being acts constituting grave abuse of discretion. Also, they pray that
the Court issue a TRO against respondents

UDK-14951 – A Petition filed seeking that the PDAF be declared unconstitutional, and a cease and desist order be
issued restraining President Benigno Simeon S. Aquino III (President Aquino) and Secretary Abad from releasing
such funds to Members of Congress

ISSUES:
1. Whether or not the 2013 PDAF Article and all other Congressional Pork Barrel Laws similar thereto are
unconstitutional considering that they violate the principles of/constitutional provisions on (a) separation of powers; (b)
non-delegability of legislative power; (c) checks and balances; (d) accountability; (e) political dynasties; and (f) local
autonomy.
2. Whether or not the phrases (under Section 8 of PD 910,116 relating to the Malampaya Funds, and under Section
12 of PD 1869, as amended by PD 1993, relating to the Presidential Social Fund, are unconstitutional insofar as they
constitute undue delegations of legislative power.

HELD:
1. Yes, the PDAF article is unconstitutional. The post-enactment measures which govern the areas of project
identification, fund release and fund realignment are not related to functions of congressional oversight and, hence,
allow legislators to intervene and/or assume duties that properly belong to the sphere of budget execution. This
violates the principle of separation of powers. Congress‘role must be confined to mere oversight that must be confined
to: (1) scrutiny and (2) investigation and monitoring of the implementation of laws. Any action or step beyond that will
undermine the separation of powers guaranteed by the constitution.

Thus, the court declares the 2013 pdaf article as well as all other provisions of law which similarly allow legislators to
wield any form of post-enactment authority in the implementation or enforcement of the budget, unrelated to
congressional oversight, as violative of the separation of powers principle and thus unconstitutional.

2. Yes. Sec 8 of PD 910- the phrase “and for such other purposes as may be hereafter directed by the President”‖
constitutes an undue delegation of legislative power insofar as it does not lay down a sufficient standard to adequately
determine the limits of the President‘s authority with respect to the purpose for which the Malampaya Funds may be
used. It gives the President wide latitude to use the Malampaya Funds for any other purpose he may direct and, in
effect, allows him to unilaterally appropriate public funds beyond the purview of the law.”
Section 12 of PD 1869, as amended by PD 1993- the phrases:

(b) "to finance the priority infrastructure development projects” was declared constitutional. IT INDICATED PURPOSE
ADEQUATELY CURTAILS THE AUTHORITY OF THE PRESIDENT TO SPEND THE PRESIDENTIAL SOCIAL
FUND ONLY FOR RESTORATION PURPOSES WHICH ARISE FROM CALAMITIES.

(b)” and to finance the restoration of damaged or destroyed facilities due to calamities, as may be directed and
authorized by the Office of the President of the Philippines” was declared unconstitutional.IT GIVES THE PRESIDENT
CARTE BLANCHE AUTHORITY TO USE THE SAME FUND FOR ANY INFRASTRUCTURE PROJECT HE MAY SO
DETERMINE AS A ―PRIORITY‖. VERILY, THE LAW DOES NOT SUPPLY A DEFINITION OF ―PRIORITY
INFRASTRUCTURE DEVELOPMENT PROJECTS‖ AND HENCE, LEAVES THE PRESIDENT WITHOUT ANY
GUIDELINE TO CONSTRUE THE SAME.

Belgica et. Al., vs Ochoa et. Al., GR 208566 November 19, 2013

710 SCRA 1 – Political Law – Constitutional Law – Local Government – Invalid Delegation
Legislative Department – Invalid Delegation of Legislative Power

This case is consolidated with G.R. No. 208493 and G.R. No. 209251.

The so-called pork barrel system has been around in the Philippines since about 1922. Pork Barrel is commonly
known as the lump-sum, discretionary funds of the members of the Congress. It underwent several legal designations
from “Congressional Pork Barrel” to the latest “Priority Development Assistance Fund” or PDAF. The allocation for the
pork barrel is integrated in the annual General Appropriations Act(GAA).

Since 2011, the allocation of the PDAF has been done in the following manner:
a. P70 million: for each member of the lower house; broken down to – P40 million for “hard projects” (infrastructure
projects like roads, buildings, schools, etc.), and P30 million for “soft projects” (scholarship grants, medical assistance,
livelihood programs, IT development, etc.);
b. P200 million: for each senator; broken down to – P100 million for hard projects, P100 million for soft projects;
c. P200 million: for the Vice-President; broken down to – P100 million for hard projects, P100 million for soft projects.
The PDAF articles in the GAA do provide for realignment of funds whereby certain cabinet members may request for
the realignment of funds into their department provided that the request for realignment is approved or concurred by
the legislator concerned.

Presidential Pork Barrel

The president does have his own source of fund albeit not included in the GAA. The so-called presidential pork barrel
comes from two sources: (a) the Malampaya Funds, from the Malampaya Gas Project – this has been around since
1976, and (b) the Presidential Social Fund which is derived from the earnings of PAGCOR – this has been around
since about 1983.

Pork Barrel Scam Controversy

Ever since, the pork barrel system has been besieged by allegations of corruption. In July 2013, six whistle blowers,
headed by Benhur Luy, exposed that for the last decade, the corruption in the pork barrel system had been facilitated
by Janet Lim Napoles. Napoles had been helping lawmakers in funneling their pork barrel funds into about 20 bogus
NGO’s (non-government organizations) which would make it appear that government funds are being used in legit
existing projects but are in fact going to “ghost” projects. An audit was then conducted by the Commission on Audit
and the results thereof concurred with the exposes of Luy et al.

Motivated by the foregoing, Greco Belgica and several others, filed various petitions before the Supreme Court
questioning the constitutionality of the pork barrel system.

ISSUES:
I. Whether or not the congressional pork barrel system is constitutional.
II. Whether or not presidential pork barrel system is constitutional.

HELD:
I. No, the congressional pork barrel system is unconstitutional. It is unconstitutional because it violates the following
principles:

a. Separation of Powers
As a rule, the budgeting power lies in Congress. It regulates the release of funds (power of the purse). The executive,
on the other hand, implements the laws – this includes the GAA to which the PDAF is a part of. Only the executive
may implement the law but under the pork barrel system, what’s happening was that, after the GAA, itself a law, was
enacted, the legislators themselves dictate as to which projects their PDAF funds should be allocated to – a clear act
of implementing the law they enacted – a violation of the principle of separation of powers. (Note in the older case
of PHILCONSA vs Enriquez, it was ruled that pork barrel, then called as CDF or the Countrywide Development Fund,
was constitutional insofar as the legislators only recommend where their pork barrel funds go).
This is also highlighted by the fact that in realigning the PDAF, the executive will still have to get the concurrence of
the legislator concerned.

b. Non-delegability of Legislative Power

As a rule, the Constitution vests legislative power in Congress alone. (The Constitution does grant the people
legislative power but only insofar as the processes of referendum and initiative are concerned). That being, legislative
power cannot be delegated by Congress for it cannot delegate further that which was delegated to it by the
Constitution.

Exceptions to the rule are:

(i) delegated legislative power to local government units but this shall involve purely local matters;
(ii) authority of the President to, by law, exercise powers necessary and proper to carry out a declared national policy
in times of war or other national emergency, or fix within specified limits, and subject to such limitations and
restrictions as Congress may impose, tariff rates, import and export quotas, tonnage and wharfage dues, and other
duties or imposts within the framework of the national development program of the Government.
In this case, the PDAF articles which allow the individual legislator to identify the projects to which his PDAF money
should go to is a violation of the rule on non-delegability of legislative power. The power to appropriate funds is solely
lodged in Congress (in the two houses comprising it) collectively and not lodged in the individual members. Further,
nowhere in the exceptions does it state that the Congress can delegate the power to the individual member of
Congress.

c. Principle of Checks and Balances

One feature in the principle of checks and balances is the power of the president to veto items in the GAA which he
may deem to be inappropriate. But this power is already being undermined because of the fact that once the GAA is
approved, the legislator can now identify the project to which he will appropriate his PDAF. Under such system, how
can the president veto the appropriation made by the legislator if the appropriation is made after the approval of the
GAA – again, “Congress cannot choose a mode of budgeting which effectively renders the constitutionally-given
power of the President useless.”

d. Local Autonomy
As a rule, the local governments have the power to manage their local affairs. Through their Local Development
Councils (LDCs), the LGUs can develop their own programs and policies concerning their localities. But with the
PDAF, particularly on the part of the members of the house of representatives, what’s happening is that a
congressman can either bypass or duplicate a project by the LDC and later on claim it as his own. This is an instance
where the national government (note, a congressman is a national officer) meddles with the affairs of the local
government – and this is contrary to the State policy embodied in the Constitution on local autonomy. It’s good if that’s
all that is happening under the pork barrel system but worse, the PDAF becomes more of a personal fund on the part
of legislators.

II. Yes, the presidential pork barrel is valid.

The main issue raised by Belgica et al against the presidential pork barrel is that it is unconstitutional because it
violates Section 29 (1), Article VI of the Constitution which provides:
No money shall be paid out of the Treasury except in pursuance of an appropriation made by law.
Belgica et al emphasized that the presidential pork comes from the earnings of the Malampaya and PAGCOR and not
from any appropriation from a particular legislation.

The Supreme Court disagrees as it ruled that PD 910, which created the Malampaya Fund, as well as PD 1869 (as
amended by PD 1993), which amended PAGCOR’s charter, provided for the appropriation, to wit:
(i) PD 910: Section 8 thereof provides that all fees, among others, collected from certain energy-related ventures shall
form part of a special fund (the Malampaya Fund) which shall be used to further finance energy resource development
and for other purposes which the President may direct;
(ii) PD 1869, as amended: Section 12 thereof provides that a part of PAGCOR’s earnings shall be allocated to a
General Fund (the Presidential Social Fund) which shall be used in government infrastructure projects.
These are sufficient laws which met the requirement of Section 29, Article VI of the Constitution. The appropriation
contemplated therein does not have to be a particular appropriation as it can be a general appropriation as in the case
of PD 910 and PD 1869.
Araullo vs Aquino GR 209287 July 1, 2014
Political Law – Constitutional Law – Separation of Powers – Fund Realignment – Constitutionality of the
Disbursement Acceleration Program
Power of the Purse – Executive Impoundment

When President Benigno Aquino III took office, his administration noticed the sluggish growth of the economy. The
World Bank advised that the economy needed a stimulus plan. Budget Secretary Florencio “Butch” Abad then came
up with a program called the Disbursement Acceleration Program (DAP).

The DAP was seen as a remedy to speed up the funding of government projects. DAP enables the Executive to
realign funds from slow moving projects to priority projects instead of waiting for next year’s appropriation. So what
happens under the DAP was that if a certain government project is being undertaken slowly by a certain executive
agency, the funds allotted therefor will be withdrawn by the Executive. Once withdrawn, these funds are declared as
“savings” by the Executive and said funds will then be reallotted to other priority projects. The DAP program did work
to stimulate the economy as economic growth was in fact reported and portion of such growth was attributed to the
DAP (as noted by the Supreme Court).

Other sources of the DAP include the unprogrammed funds from the General Appropriations Act (GAA).
Unprogrammed funds are standby appropriations made by Congress in the GAA.

Meanwhile, in September 2013, Senator Jinggoy Estrada made an exposé claiming that he, and other Senators,
received Php50M from the President as an incentive for voting in favor of the impeachment of then Chief Justice
Renato Corona. Secretary Abad claimed that the money was taken from the DAP but was disbursed upon the request
of the Senators.

This apparently opened a can of worms as it turns out that the DAP does not only realign funds within the Executive. It
turns out that some non-Executive projects were also funded; to name a few: Php1.5B for the CPLA (Cordillera
People’s Liberation Army), Php1.8B for the MNLF (Moro National Liberation Front), P700M for the Quezon Province,
P50-P100M for certain Senators each, P10B for Relocation Projects, etc.

This prompted Maria Carolina Araullo, Chairperson of the Bagong Alyansang Makabayan, and several other
concerned citizens to file various petitions with the Supreme Court questioning the validity of the DAP. Among their
contentions was:

DAP is unconstitutional because it violates the constitutional rule which provides that “no money shall be paid out of
the Treasury except in pursuance of an appropriation made by law.”

Secretary Abad argued that the DAP is based on certain laws particularly the GAA (savings and augmentation
provisions thereof), Sec. 25(5), Art. VI of the Constitution (power of the President to augment), Secs. 38 and 49 of
Executive Order 292 (power of the President to suspend expenditures and authority to use savings, respectively).

Issues:
I. Whether or not the DAP violates the principle “no money shall be paid out of the Treasury except in pursuance of an
appropriation made by law” (Sec. 29(1), Art. VI, Constitution).
II. Whether or not the DAP realignments can be considered as impoundments by the executive.
III. Whether or not the DAP realignments/transfers are constitutional.
IV. Whether or not the sourcing of unprogrammed funds to the DAP is constitutional.
V. Whether or not the Doctrine of Operative Fact is applicable.

HELD:
I. No, the DAP did not violate Section 29(1), Art. VI of the Constitution. DAP was merely a program by the Executive
and is not a fund nor is it an appropriation. It is a program for prioritizing government spending. As such, it did not
violate the Constitutional provision cited in Section 29(1), Art. VI of the Constitution. In DAP no additional funds were
withdrawn from the Treasury otherwise, an appropriation made by law would have been required. Funds, which were
already appropriated for by the GAA, were merely being realigned via the DAP.

II. No, there is no executive impoundment in the DAP. Impoundment of funds refers to the President’s power to refuse
to spend appropriations or to retain or deduct appropriations for whatever reason. Impoundment is actually prohibited
by the GAA unless there will be an unmanageable national government budget deficit (which did not
happen). Nevertheless, there’s no impoundment in the case at bar because what’s involved in the DAP was the
transfer of funds.

III. No, the transfers made through the DAP were unconstitutional. It is true that the President (and even the heads of
the other branches of the government) are allowed by the Constitution to make realignment of funds, however, such
transfer or realignment should only be made “within their respective offices”. Thus, no cross-border
transfers/augmentations may be allowed. But under the DAP, this was violated because funds appropriated by the
GAA for the Executive were being transferred to the Legislative and other non-Executive agencies.

Further, transfers “within their respective offices” also contemplate realignment of funds to an existing project in the
GAA. Under the DAP, even though some projects were within the Executive, these projects are non-existent insofar
as the GAA is concerned because no funds were appropriated to them in the GAA. Although some of these projects
may be legitimate, they are still non-existent under the GAA because they were not provided for by the GAA. As such,
transfer to such projects is unconstitutional and is without legal basis.

On the issue of what are “savings”

These DAP transfers are not “savings” contrary to what was being declared by the Executive. Under the definition of
“savings” in the GAA, savings only occur, among other instances, when there is an excess in the funding of a certain
project once it is completed, finally discontinued, or finally abandoned. The GAA does not refer to “savings” as funds
withdrawn from a slow moving project. Thus, since the statutory definition of savings was not complied with under the
DAP, there is no basis at all for the transfers. Further, savings should only be declared at the end of the fiscal year.
But under the DAP, funds are already being withdrawn from certain projects in the middle of the year and then being
declared as “savings” by the Executive particularly by the DBM.

IV. No. Unprogrammed funds from the GAA cannot be used as money source for the DAP because under the law,
such funds may only be used if there is a certification from the National Treasurer to the effect that the revenue
collections have exceeded the revenue targets. In this case, no such certification was secured before unprogrammed
funds were used.

V. Yes. The Doctrine of Operative Fact, which recognizes the legal effects of an act prior to it being declared as
unconstitutional by the Supreme Court, is applicable. The DAP has definitely helped stimulate the economy. It has
funded numerous projects. If the Executive is ordered to reverse all actions under the DAP, then it may cause more
harm than good. The DAP effects can no longer be undone. The beneficiaries of the DAP cannot be asked to return
what they received especially so that they relied on the validity of the DAP. However, the Doctrine of Operative Fact
may not be applicable to the authors, implementers, and proponents of the DAP if it is so found in the appropriate
tribunals (civil, criminal, or administrative) that they have not acted in good faith.
Petitioner: Romulo L. Neri

Respondents: Senate Committee on Accountability of Public Officers and Investigations, Senate Committee
on Trade and Commerce, and Senate Committee on National Defense and Security

Facts:

Petitioner Romulo Neri, then Director General of the National Economic and Development Authority (NEDA), was
invited by the respondent Senate Committees to attend their joint investigation on the alleged anomalies in the
National Broadband Network (NBN) Project. This project was contracted by the Philippine Government with the
Chinese firm Zhong Xing Telecommunications Equipment (ZTE), which involved the amount of US$329,481,290.
When he testified before the Senate Committees, he disclosed that then Commission on Elections Chairman
Benjamin Abalos, brokering for ZTE, offered him P200 million in exchange for his approval of the NBN Project. He
further narrated that he informed President Gloria Macapagal-Arroyo about the bribery attempt and that she instructed
him not to accept the bribe. However, when probed further on what they discussed about the NBN Project, petitioner
refused to answer, invoking “executive privilege.” In particular, he refused to answer the questions on 1.) whether or
not the President followed up the NBN Project, 2.) whether or not she directed him to prioritize it, and 3.) whether or
not she directed him to approve it.

Later on, respondent Committees issued a Subpoena Ad Testificandum to petitioner, requiring him to appear and
testify on 20 November 2007. However, Executive Secretary Eduardo Ermita sent a letter dated 15 November to the
Committees requesting them to dispense with Neri’s testimony on the ground of executive privilege. Ermita invoked
the privilege on the ground that “the information sought to be disclosed might impair our diplomatic as well as
economic relations with the People’s Republic of China,” and given the confidential nature in which these information
were conveyed to the President, Neri “cannot provide the Committee any further details of these conversations,
without disclosing the very thing the privilege is designed to protect.” Thus, on 20 November, Neri did not appear
before the respondent Committees.

On 22 November, respondents issued a Show Cause Letter to Neri requiring him to show cause why he should not be
cited for contempt for his failure to attend the scheduled hearing on 20 November. On 29 November, Neri replied to
the Show Cause Letter and explained that he did not intend to snub the Senate hearing, and requested that if there be
new matters that were not yet taken up during his first appearance, he be informed in advance so he can prepare
himself. He added that his non-appearance was upon the order of the President, and that his conversation with her
dealt with delicate and sensitive national security and diplomatic matters relating to the impact of the bribery scandal
involving high government officials and the possible loss of confidence of foreign investors and lenders in the
Philippines. Respondents found the explanation unsatisfactory, and later on issued an Order citing Neri in contempt
and consequently ordering his arrest and detention at the Office of the Senate Sergeant-At-Arms until he appears and
gives his testimony.

Neri filed the petition asking the Court to nullify both the Show Cause Letter and the Contempt Order for having been
issued with grave abuse of discretion amounting to lack or excess of jurisdiction, and stressed that his refusal to
answer the three questions was anchored on a valid claim to executive privilege in accordance with the ruling in the
landmark case of Senate vs. Ermita (G.R. No. 169777, 20 April 2006). For its part, the Senate Committees argued
that they did not exceed their authority in issuing the assailed orders because there is no valid justification for Neri’s
claim to executive privilege. In addition, they claimed that the refusal of petitioner to answer the three questions
violates the people’s right to public information, and that the executive is using the concept of executive privilege as a
means to conceal the criminal act of bribery in the highest levels of government.

Issue:

Whether or not the three questions that petitioner Neri refused to answer were covered by executive privilege, making
the arrest order issued by the respondent Senate Committees void.

Discussion:

Citing the case of United States vs. Nixon (418 U.S. 683), the Court laid out the three elements needed to be complied
with in order for the claim to executive privilege to be valid. These are: 1.) the protected communication must relate to
a quintessential and non-delegable presidential power; 2.) it must be authored, solicited, and received by a close
advisor of the President or the President himself. The judicial test is that an advisor must be in “operational proximity”
with the President; and, 3.) it may be overcome by a showing of adequate need, such that the information sought
“likely contains important evidence,” and by the unavailability of the information elsewhere by an appropriate
investigating authority.

In the present case, Executive Secretary Ermita claimed executive privilege on the argument that the communications
elicited by the three questions “fall under conversation and correspondence between the President and public officials”
necessary in “her executive and policy decision-making process,” and that “the information sought to be disclosed
might impair our diplomatic as well as economic relations with the People’s Republic of China.” It is clear then that the
basis of the claim is a matter related to the quintessential and non-delegable presidential power of diplomacy or
foreign relations.

As to the second element, the communications were received by a close advisor of the President. Under the
“operational proximity” test, petitioner Neri can be considered a close advisor, being a member of the President’s
Cabinet.

And as to the third element, there is no adequate showing of a compelling need that would justify the limitation of the
privilege and of the unavailability of the information elsewhere by an appropriate investigating authority. Presidential
communications are presumptive privilege and that the presumption can be overcome only by mere showing of public
need by the branch seeking access to such conversations. In the present case, respondent Committees failed to show
a compelling or critical need for the answers to the three questions in the enactment of any law under Sec. 21, Art. VI.
Instead, the questions veer more towards the exercise of the legislative oversight function under Sec. 22, Art. VI. As
ruled in Senate vs. Ermita, “the oversight function of Congress may be facilitated by compulsory process only to the
extent that it is performed in pursuit of legislation.”

Neri’s refusal to answer based on the claim of executive privilege does not violate the people’s right to information on
matters of public concern simply because Sec. 7, Art. III of the Constitution itself provides that this right is “subject to
such limitations as may be provided by law.”

Held:

The divided Supreme Court (voting 9-6) was convinced that the three questions are covered by presidential
communications privilege, and that this privilege has been validly claimed by the executive department, enough to
shield petitioner Neri from any arrest order the Senate may issue against him for not answering such questions.

The petition was granted. The subject Order dated January 30, 2008, citing petitioner in contempt of the Senate
Committee and directing his arrest and detention was nullified.