G.R. No.

L-63915 December 29, 1986

LORENZO M. TAÑADA, ABRAHAM F. SARMIENTO, and MOVEMENT OF ATTORNEYS

FOR BROTHERHOOD, INTEGRITY AND NATIONALISM, INC. (MABINI), petitioners,
vs.
HON. JUAN C. TUVERA, in his capacity as Executive Assistant to the President, HON.
JOAQUIN VENUS, in his capacity as Deputy Executive Assistant to the President,
MELQUIADES P. DE LA CRUZ, ETC., ET AL., respondents.

RESOLUTION

CRUZ, J.:

Due process was invoked by the petitioners in demanding the disclosure of a number of
presidential decrees which they claimed had not been published as required by law. The
government argued that while publication was necessary as a rule, it was not so when it was
"otherwise provided," as when the decrees themselves declared that they were to become
effective immediately upon their approval. In the decision of this case on April 24, 1985, the
Court affirmed the necessity for the publication of some of these decrees, declaring in the
dispositive portion as follows:

WHEREFORE, the Court hereby orders respondents to publish in the Official Gazette all
unpublished presidential issuances which are of general application, and unless so
published, they shall have no binding force and effect.

The petitioners are now before us again, this time to move for reconsideration/clarification of
that decision. 1 Specifically, they ask the following questions:

1. What is meant by "law of public nature" or "general applicability"?

2. Must a distinction be made between laws of general applicability and laws which are not?

3. What is meant by "publication"?

4. Where is the publication to be made?

5. When is the publication to be made?

Resolving their own doubts, the petitioners suggest that there should be no distinction between
laws of general applicability and those which are not; that publication means complete
publication; and that the publication must be made forthwith in the Official Gazette. 2

In the Comment 3 required of the then Solicitor General, he claimed first that the motion was a
request for an advisory opinion and should therefore be dismissed, and, on the merits, that the
clause "unless it is otherwise provided" in Article 2 of the Civil Code meant that the publication
required therein was not always imperative; that publication, when necessary, did not have to be
made in the Official Gazette; and that in any case the subject decision was concurred in only by
three justices and consequently not binding. This elicited a Reply 4 refuting these arguments.
Came next the February Revolution and the Court required the new Solicitor General to file a
Rejoinder in view of the supervening events, under Rule 3, Section 18, of the Rules of Court.
Responding, he submitted that issuances intended only for the internal administration of a
government agency or for particular persons did not have to be 'Published; that publication
when necessary must be in full and in the Official Gazette; and that, however, the decision
under reconsideration was not binding because it was not supported by eight members of this
Court. 5

The subject of contention is Article 2 of the Civil Code providing as follows:

ART. 2. Laws shall take effect after fifteen days following the completion of their
publication in the Official Gazette, unless it is otherwise provided. This Code shall take
effect one year after such publication.

After a careful study of this provision and of the arguments of the parties, both on the original
petition and on the instant motion, we have come to the conclusion and so hold, that the clause
"unless it is otherwise provided" refers to the date of effectivity and not to the requirement of
publication itself, which cannot in any event be omitted. This clause does not mean that the
legislature may make the law effective immediately upon approval, or on any other date, without
its previous publication.

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

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

We note at this point the conclusive presumption that every person knows the law, which of
course presupposes that the law has been published if the presumption is to have any legal
justification at all. It is no less important to remember that Section 6 of the Bill of Rights
recognizes "the right of the people to information on matters of public concern," and this
certainly applies to, among others, and indeed especially, the legislative enactments of the
government.

The term "laws" should refer to all laws and not only to those of general application, for strictly
speaking all laws relate to the people in general albeit there are some that do not apply to them
directly. An example is a law granting citizenship to a particular individual, like a relative of
President Marcos who was decreed instant naturalization. It surely cannot be said that such a
law does not affect the public although it unquestionably does not apply directly to all the
people. The subject of such law is a matter of public interest which any member of the body
politic may question in the political forums or, if he is a proper party, even in the courts of justice.
In fact, a law without any bearing on the public would be invalid as an intrusion of privacy or as
class legislation or as an ultra vires act of the legislature. To be valid, the law must invariably
affect the public interest even if it might be directly applicable only to one individual, or some of
the people only, and t to the public as a whole.

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

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

Interpretative regulations and those merely internal in nature, that is, regulating only the
personnel of the administrative agency and not the public, need not be published. Neither is
publication required of the so-called letters of instructions issued by administrative superiors
concerning the rules or guidelines to be followed by their subordinates in the performance of
their duties.

Accordingly, even the charter of a city must be published notwithstanding that it applies to only a
portion of the national territory and directly affects only the inhabitants of that place. All
presidential decrees must be published, including even, say, those naming a public place after a
favored individual or exempting him from certain prohibitions or requirements. The circulars
issued by the Monetary Board must be published if they are meant not merely to interpret but to
"fill in the details" of the Central Bank Act which that body is supposed to enforce.

However, no publication is required of the instructions issued by, say, the Minister of Social
Welfare on the case studies to be made in petitions for adoption or the rules laid down by the
head of a government agency on the assignments or workload of his personnel or the wearing
of office uniforms. Parenthetically, municipal ordinances are not covered by this rule but by the
Local Government Code.

We agree that publication must be in full or it is no publication at all since its purpose is to inform
the public of the contents of the laws. As correctly pointed out by the petitioners, the mere
mention of the number of the presidential decree, the title of such decree, its whereabouts (e.g.,
"with Secretary Tuvera"), the supposed date of effectivity, and in a mere supplement of the
Official Gazette cannot satisfy the publication requirement. This is not even substantial
compliance. This was the manner, incidentally, in which the General Appropriations Act for FY
1975, a presidential decree undeniably of general applicability and interest, was "published" by
the Marcos administration. 7 The evident purpose was to withhold rather than disclose
information on this vital law.

Coming now to the original decision, it is true that only four justices were categorically for
publication in the Official Gazette 8 and that six others felt that publication could be made
elsewhere as long as the people were sufficiently informed. 9 One reserved his vote 10 and
another merely acknowledged the need for due publication without indicating where it should be
made. 11 It is therefore necessary for the present membership of this Court to arrive at a clear
consensus on this matter and to lay down a binding decision supported by the necessary vote.

There is much to be said of the view that the publication need not be made in the Official
Gazette, considering its erratic releases and limited readership. Undoubtedly, newspapers of
general circulation could better perform the function of communicating, the laws to the people as
such periodicals are more easily available, have a wider readership, and come out regularly.
The trouble, though, is that this kind of publication is not the one required or authorized by
existing law. As far as we know, no amendment has been made of Article 2 of the Civil Code.
The Solicitor General has not pointed to such a law, and we have no information that it exists. If
it does, it obviously has not yet been published.

At any rate, this Court is not called upon to rule upon the wisdom of a law or to repeal or modify
it if we find it impractical. That is not our function. That function belongs to the legislature. Our
task is merely to interpret and apply the law as conceived and approved by the political
departments of the government in accordance with the prescribed procedure. Consequently, we
have no choice but to pronounce that under Article 2 of the Civil Code, the publication of laws
must be made in the Official Gazett and not elsewhere, as a requirement for their effectivity after
fifteen days from such publication or after a different period provided by the legislature.

We also hold that the publication must be made forthwith or at least as soon as possible, to give
effect to the law pursuant to the said Article 2. There is that possibility, of course, although not
suggested by the parties that a law could be rendered unenforceable by a mere refusal of the
executive, for whatever reason, to cause its publication as required. This is a matter, however,
that we do not need to examine at this time.

Finally, the claim of the former Solicitor General that the instant motion is a request for an
advisory opinion is untenable, to say the least, and deserves no further comment.

The days of the secret laws and the unpublished decrees are over. This is once again an open
society, with all the acts of the government subject to public scrutiny and available always to
public cognizance. This has to be so if our country is to remain democratic, with sovereignty
residing in the people and all government authority emanating from them.

Although they have delegated the power of legislation, they retain the authority to review the
work of their delegates and to ratify or reject it according to their lights, through their freedom of
expression and their right of suffrage. This they cannot do if the acts of the legislature are
concealed.

Laws must come out in the open in the clear light of the sun instead of skulking in the shadows
with their dark, deep secrets. Mysterious pronouncements and rumored rules cannot be
recognized as binding unless their existence and contents are confirmed by a valid publication
intended to make full disclosure and give proper notice to the people. The furtive law is like a
scabbarded saber that cannot feint parry or cut unless the naked blade is drawn.

WHEREFORE, it is hereby declared that all laws as above defined shall immediately upon their
approval, or as soon thereafter as possible, be published in full in the Official Gazette, to
become effective only after fifteen days from their publication, or on another date specified by
the legislature, in accordance with Article 2 of the Civil Code.
SO ORDERED.

Teehankee, C.J., Feria, Yap, Narvasa, Melencio-Herrera, Alampay, Gutierrez, Jr., and Paras,
JJ., concur.

Separate Opinions

FERNAN, J., concurring:

While concurring in the Court's opinion penned by my distinguished colleague, Mr. Justice
Isagani A. Cruz, I would like to add a few observations. Even as a Member of the defunct
Batasang Pambansa, I took a strong stand against the insidious manner by which the previous
dispensation had promulgated and made effective thousands of decrees, executive orders,
letters of instructions, etc. Never has the law-making power which traditionally belongs to the
legislature been used and abused to satisfy the whims and caprices of a one-man legislative
mill as it happened in the past regime. Thus, in those days, it was not surprising to witness the
sad spectacle of two presidential decrees bearing the same number, although covering two
different subject matters. In point is the case of two presidential decrees bearing number 1686
issued on March 19, 1980, one granting Philippine citizenship to Michael M. Keon the then
President's nephew and the other imposing a tax on every motor vehicle equipped with
airconditioner. This was further exacerbated by the issuance of PD No. 1686-A also on March
19, 1980 granting Philippine citizenship to basketball players Jeffrey Moore and Dennis George
Still

The categorical statement by this Court on the need for publication before any law may be
made effective seeks prevent abuses on the part of the lawmakers and, at the same time,
ensures to the people their constitutional right to due process and to information on matters of
public concern.

FELICIANO, J., concurring:

I agree entirely with the opinion of the court so eloquently written by Mr. Justice Isagani A. Cruz.
At the same time, I wish to add a few statements to reflect my understanding of what the Court
is saying.

A statute which by its terms provides for its coming into effect immediately upon approval
thereof, is properly interpreted as coming into effect immediately upon publication thereof in the
Official Gazette as provided in Article 2 of the Civil Code. Such statute, in other words, should
not be regarded as purporting literally to come into effect immediately upon its approval or
enactment and without need of publication. For so to interpret such statute would be to collide
with the constitutional obstacle posed by the due process clause. The enforcement of
prescriptions which are both unknown to and unknowable by those subjected to the statute, has
been throughout history a common tool of tyrannical governments. Such application and
enforcement constitutes at bottom a negation of the fundamental principle of legality in the
relations between a government and its people.

At the same time, it is clear that the requirement of publication of a statute in the Official
Gazette, as distinguished from any other medium such as a newspaper of general circulation, is
embodied in a statutory norm and is not a constitutional command. The statutory norm is set out
in Article 2 of the Civil Code and is supported and reinforced by Section 1 of Commonwealth Act
No. 638 and Section 35 of the Revised Administrative Code. A specification of the Official
Gazette as the prescribed medium of publication may therefore be changed. Article 2 of the Civil
Code could, without creating a constitutional problem, be amended by a subsequent statute
providing, for instance, for publication either in the Official Gazette or in a newspaper of general
circulation in the country. Until such an amendatory statute is in fact enacted, Article 2 of the
Civil Code must be obeyed and publication effected in the Official Gazette and not in any other
medium.

Separate Opinions

FERNAN, J., concurring:

While concurring in the Court's opinion penned by my distinguished colleague, Mr. Justice
Isagani A. Cruz, I would like to add a few observations. Even as a Member of the defunct
Batasang Pambansa, I took a strong stand against the insidious manner by which the previous
dispensation had promulgated and made effective thousands of decrees, executive orders,
letters of instructions, etc. Never has the law-making power which traditionally belongs to the
legislature been used and abused to satisfy the whims and caprices of a one-man legislative
mill as it happened in the past regime. Thus, in those days, it was not surprising to witness the
sad spectacle of two presidential decrees bearing the same number, although covering two
different subject matters. In point is the case of two presidential decrees bearing number 1686
issued on March 19, 1980, one granting Philippine citizenship to Michael M. Keon the then
President's nephew and the other imposing a tax on every motor vehicle equipped with
airconditioner. This was further exacerbated by the issuance of PD No. 1686-A also on March
19, 1980 granting Philippine citizenship to basketball players Jeffrey Moore and Dennis George
Still

The categorical statement by this Court on the need for publication before any law may be
made effective seeks prevent abuses on the part of the lawmakers and, at the same time,
ensures to the people their constitutional right to due process and to information on matters of
public concern.

FELICIANO, J., concurring:

I agree entirely with the opinion of the court so eloquently written by Mr. Justice Isagani A. Cruz.
At the same time, I wish to add a few statements to reflect my understanding of what the Court
is saying.

A statute which by its terms provides for its coming into effect immediately upon approval
thereof, is properly interpreted as coming into effect immediately upon publication thereof in the
Official Gazette as provided in Article 2 of the Civil Code. Such statute, in other words, should
not be regarded as purporting literally to come into effect immediately upon its approval or
enactment and without need of publication. For so to interpret such statute would be to collide
with the constitutional obstacle posed by the due process clause. The enforcement of
prescriptions which are both unknown to and unknowable by those subjected to the statute, has
been throughout history a common tool of tyrannical governments. Such application and
enforcement constitutes at bottom a negation of the fundamental principle of legality in the
relations between a government and its people.

At the same time, it is clear that the requirement of publication of a statute in the Official
Gazette, as distinguished from any other medium such as a newspaper of general circulation, is
embodied in a statutory norm and is not a constitutional command. The statutory norm is set out
in Article 2 of the Civil Code and is supported and reinforced by Section 1 of Commonwealth Act
No. 638 and Section 35 of the Revised Administrative Code. A specification of the Official
Gazette as the prescribed medium of publication may therefore be changed. Article 2 of the Civil
Code could, without creating a constitutional problem, be amended by a subsequent statute
providing, for instance, for publication either in the Official Gazette or in a newspaper of general
circulation in the country. Until such an amendatory statute is in fact enacted, Article 2 of the
Civil Code must be obeyed and publication effected in the Official Gazette and not in any other
medium.
G.R. No. 80718 January 29, 1988

FELIZA P. DE ROY and VIRGILIO RAMOS, petitioners,

vs.
COURT OF APPEALS and LUIS BERNAL, SR., GLENIA BERNAL, LUIS BERNAL, JR.,
HEIRS OF MARISSA BERNAL, namely, GLICERIA DELA CRUZ BERNAL and LUIS
BERNAL, SR., respondents.

RESOLUTION

CORTES, J.:

This special civil action for certiorari seeks to declare null and void two (2) resolutions of the
Special First Division of the Court of Appeals in the case of Luis Bernal, Sr., et al. v. Felisa
Perdosa De Roy, et al., CA-G.R. CV No. 07286. The first resolution promulgated on 30
September 1987 denied petitioners' motion for extension of time to file a motion for
reconsideration and directed entry of judgment since the decision in said case had become
final; and the second Resolution dated 27 October 1987 denied petitioners' motion for
reconsideration for having been filed out of time.

At the outset, this Court could have denied the petition outright for not being verified as required
by Rule 65 section 1 of the Rules of Court. However, even if the instant petition did not suffer
from this defect, this Court, on procedural and substantive grounds, would still resolve to deny it.

The facts of the case are undisputed. The firewall of a burned-out building owned by petitioners
collapsed and destroyed the tailoring shop occupied by the family of private respondents,
resulting in injuries to private respondents and the death of Marissa Bernal, a daughter. Private
respondents had been warned by petitioners to vacate their shop in view of its proximity to the
weakened wall but the former failed to do so. On the basis of the foregoing facts, the Regional
Trial Court. First Judicial Region, Branch XXXVIII, presided by the Hon. Antonio M. Belen,
rendered judgment finding petitioners guilty of gross negligence and awarding damages to
private respondents. On appeal, the decision of the trial court was affirmed in toto by the Court
of Appeals in a decision promulgated on August 17, 1987, a copy of which was received by
petitioners on August 25, 1987. On September 9, 1987, the last day of the fifteen-day period to
file an appeal, petitioners filed a motion for extension of time to file a motion for reconsideration,
which was eventually denied by the appellate court in the Resolution of September 30, 1987.
Petitioners filed their motion for reconsideration on September 24, 1987 but this was denied in
the Resolution of October 27, 1987.

This Court finds that the Court of Appeals did not commit a grave abuse of discretion when it
denied petitioners' motion for extension of time to file a motion for reconsideration, directed
entry of judgment and denied their motion for reconsideration. It correctly applied the rule laid
down in Habaluyas Enterprises, Inc. v. Japzon, [G.R. No. 70895, August 5, 1985,138 SCRA
461, that the fifteen-day period for appealing or for filing a motion for reconsideration cannot be
extended. In its Resolution denying the motion for reconsideration, promulgated on July 30,
1986 (142 SCRA 208), this Court en banc restated and clarified the rule, to wit:

Beginning one month after the promulgation of this Resolution, the rule shall be strictly enforced
that no motion for extension of time to file a motion for reconsideration may be filed with the
Metropolitan or Municipal Trial Courts, the Regional Trial Courts, and the Intermediate Appellate
Court. Such a motion may be filed only in cases pending with the Supreme Court as the court of
last resort, which may in its sound discretion either grant or deny the extension requested. (at p.
212)

Lacsamana v. Second Special Cases Division of the intermediate Appellate Court, [G.R. No.
73146-53, August 26, 1986, 143 SCRA 643], reiterated the rule and went further to restate and
clarify the modes and periods of appeal.

Bacaya v. Intermediate Appellate Court, [G.R. No. 74824, Sept. 15, 1986,144 SCRA
161],stressed the prospective application of said rule, and explained the operation of the grace
period, to wit:

In other words, there is a one-month grace period from the promulgation on May
30, 1986 of the Court's Resolution in the clarificatory Habaluyas case, or up to
June 30, 1986, within which the rule barring extensions of time to file motions for
new trial or reconsideration is, as yet, not strictly enforceable.

Since petitioners herein filed their motion for extension on February 27, 1986, it is
still within the grace period, which expired on June 30, 1986, and may still be
allowed.

This grace period was also applied in Mission v. Intermediate Appellate Court [G.R. No. 73669,
October 28, 1986, 145 SCRA 306].]

In the instant case, however, petitioners' motion for extension of time was filed on September 9,
1987, more than a year after the expiration of the grace period on June 30, 1986. Hence, it is no
longer within the coverage of the grace period. Considering the length of time from the
expiration of the grace period to the promulgation of the decision of the Court of Appeals on
August 25, 1987, petitioners cannot seek refuge in the ignorance of their counsel regarding said
rule for their failure to file a motion for reconsideration within the reglementary period.

Petitioners contend that the rule enunciated in the Habaluyas case should not be made to apply
to the case at bar owing to the non-publication of the Habaluyas decision in the Official Gazette
as of the time the subject decision of the Court of Appeals was promulgated. Contrary to
petitioners' view, there is no law requiring the publication of Supreme Court decisions in the
Official Gazette before they can be binding and as a condition to their becoming effective. It is
the bounden duty of counsel as lawyer in active law practice to keep abreast of decisions of the
Supreme Court particularly where issues have been clarified, consistently reiterated, and
published in the advance reports of Supreme Court decisions (G. R. s) and in such publications
as the Supreme Court Reports Annotated (SCRA) and law journals.

This Court likewise finds that the Court of Appeals committed no grave abuse of discretion in
affirming the trial court's decision holding petitioner liable under Article 2190 of the Civil Code,
which provides that "the proprietor of a building or structure is responsible for the damage
resulting from its total or partial collapse, if it should be due to the lack of necessary repairs.

Nor was there error in rejecting petitioners argument that private respondents had the "last clear
chance" to avoid the accident if only they heeded the. warning to vacate the tailoring shop and ,
therefore, petitioners prior negligence should be disregarded, since the doctrine of "last clear
chance," which has been applied to vehicular accidents, is inapplicable to this case.

WHEREFORE, in view of the foregoing, the Court Resolved to DENY the instant petition for lack
of merit.

Fernan (Chairman), Gutierrez, Jr., Feliciano and Bidin, JJ., concur.

G.R. No. L-6791 March 29, 1954

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
QUE PO LAY, defendant-appellant.

Prudencio de Guzman for appellant.

First Assistant Solicitor General Ruperto Kapunan, Jr., and Solicitor Lauro G. Marquez for
appellee.

MONTEMAYOR, J.:

Que Po Lay is appealing from the decision of the Court of First Instance of Manila, finding him
guilty of violating Central Bank Circular No. 20 in connection with section 34 of Republic Act No.
265, and sentencing him to suffer six months imprisonment, to pay a fine of P1,000 with
subsidiary imprisonment in case of insolvency, and to pay the costs.

The charge was that the appellant who was in possession of foreign exchange consisting of
U.S. dollars, U.S. checks and U.S. money orders amounting to about $7,000 failed to sell the
same to the Central Bank through its agents within one day following the receipt of such foreign
exchange as required by Circular No. 20. the appeal is based on the claim that said circular No.
20 was not published in the Official Gazette prior to the act or omission imputed to the appellant,
and that consequently, said circular had no force and effect. It is contended that Commonwealth
Act. No., 638 and Act 2930 both require said circular to be published in the Official Gazette, it
being an order or notice of general applicability. The Solicitor General answering this contention
says that Commonwealth Act. No. 638 and 2930 do not require the publication in the Official
Gazette of said circular issued for the implementation of a law in order to have force and effect.

We agree with the Solicitor General that the laws in question do not require the publication of
the circulars, regulations and notices therein mentioned in order to become binding and
effective. All that said two laws provide is that laws, resolutions, decisions of the Supreme Court
and Court of Appeals, notices and documents required by law to be of no force and effect. In
other words, said two Acts merely enumerate and make a list of what should be published in the
Official Gazette, presumably, for the guidance of the different branches of the Government
issuing same, and of the Bureau of Printing.

However, section 11 of the Revised Administrative Code provides that statutes passed by
Congress shall, in the absence of special provision, take effect at the beginning of the fifteenth
day after the completion of the publication of the statute in the Official Gazette. Article 2 of the
new Civil Code (Republic Act No. 386) equally provides that laws shall take effect after fifteen
days following the completion of their publication in the Official Gazette, unless it is otherwise
provided. It is true that Circular No. 20 of the Central Bank is not a statute or law but being
issued for the implementation of the law authorizing its issuance, it has the force and effect of
law according to settled jurisprudence. (See U.S. vs. Tupasi Molina, 29 Phil., 119 and
authorities cited therein.) Moreover, as a rule, circulars and regulations especially like the
Circular No. 20 of the Central Bank in question which prescribes a penalty for its violation
should be published before becoming effective, this, on the general principle and theory that
before the public is bound by its contents, especially its penal provisions, a law, regulation or
circular must first be published and the people officially and specifically informed of said
contents and its penalties.

Our Old Civil code, ( Spanish Civil Code of 1889) has a similar provision about the effectivity of
laws, (Article 1 thereof), namely, that laws shall be binding twenty days after their promulgation,
and that their promulgation shall be understood as made on the day of the termination of the
publication of the laws in the Gazette. Manresa, commenting on this article is of the opinion that
the word "laws" include regulations and circulars issued in accordance with the same. He says:

El Tribunal Supremo, ha interpretado el articulo 1. del codigo Civil en Sentencia de 22

de Junio de 1910, en el sentido de que bajo la denominacion generica de leyes, se
comprenden tambien los Reglamentos, Reales decretos, Instrucciones, Circulares y
Reales ordenes dictadas de conformidad con las mismas por el Gobierno en uso de su
potestad. Tambien el poder ejecutivo lo ha venido entendiendo asi, como lo prueba el
hecho de que muchas de sus disposiciones contienen la advertencia de que empiezan a
regir el mismo dia de su publicacion en la Gaceta, advertencia que seria perfectamente
inutil si no fuera de aplicacion al caso el articulo 1.o del Codigo Civil. (Manresa, Codigo
Civil Español, Vol. I. p. 52).

In the present case, although circular No. 20 of the Central Bank was issued in the year 1949, it
was not published until November 1951, that is, about 3 months after appellant's conviction of
its violation. It is clear that said circular, particularly its penal provision, did not have any legal
effect and bound no one until its publication in the Official Gazzette or after November 1951. In
other words, appellant could not be held liable for its violation, for it was not binding at the time
he was found to have failed to sell the foreign exchange in his possession thereof.

But the Solicitor General also contends that this question of non-publication of the Circular is
being raised for the first time on appeal in this Court, which cannot be done by appellant.
Ordinarily, one may raise on appeal any question of law or fact that has been raised in the court
below and which is within the issues made by the parties in their pleadings. (Section 19, Rule 48
of the Rules of Court). But the question of non-publication is fundamental and decisive. If as a
matter of fact Circular No. 20 had not been published as required by law before its violation,
then in the eyes of the law there was no such circular to be violated and consequently appellant
committed no violation of the circular or committed any offense, and the trial court may be said
to have had no jurisdiction. This question may be raised at any stage of the proceeding whether
or not raised in the court below.

In view of the foregoing, we reverse the decision appealed from and acquit the appellant, with
costs de oficio.

Paras, C.J., Bengzon, Padilla, Reyes, Bautista Angelo, Labrador, Concepcion and Diokno,
JJ., concur.
G.R. No. 176006 March 26, 2010

NATIONAL POWER CORPORATION, Petitioner,

vs.
PINATUBO COMMERCIAL, represented by ALFREDO A. DY, Respondent.

DECISION

CORONA, J.:

The National Power Corporation (NPC)1 questions the decision dated June 30, 2006 rendered
by the Regional Trial Court (RTC) of Mandaluyong City, Branch 213 declaring items 3 and 3.1 of
NPC Circular No. 99-75 unconstitutional. The dispositive portion of the decision provides:

WHEREFORE then, in view of the foregoing, judgment is hereby rendered declaring item[s] 3
and 3.1 of NAPOCOR Circular No. 99-75, which [allow] only partnerships or corporations that

directly use aluminum as the raw material in producing finished products either purely or partly
out of aluminum, to participate in the bidding for the disposal of ACSR wires as unconstitutional
for being violative of substantial due process and the equal protection clause of the Constitution
as well as for restraining competitive free trade and commerce.

The claim for attorney’s fees is denied for lack of merit.

No costs.

SO ORDERED.2

NPC also assails the RTC resolution dated November 20, 2006 denying its motion for
reconsideration for lack of merit.3

In this petition, NPC poses the sole issue for our review:

WHETHER OR NOT THE RTC GRAVELY ERRED WHEN IT DECLARED ITEMS 3 AND 3.1
OF NAPOCOR CIRCULAR NO. 99-75 AS UNCONSTITUTIONAL FOR BEING VIOLATIVE OF
SUBSTANTIAL DUE PROCESS AND THE EQUAL PROTECTION CLAUSE OF THE
CONSTITUTION AS WELL AS FOR RESTRAINING COMPETITIVE FREE TRADE AND
COMMERCE.4

NPC Circular No. 99-755 dated October 8, 1999 set the guidelines in the "disposal of scrap
aluminum conductor steel-reinforced or ACSRs in order to decongest and maintain good
housekeeping in NPC installations and to generate additional income for NPC." Items 3 and 3.1
of the circular provide:

3. QUALIFIED BIDDERS

3.1 Qualified bidders envisioned in this circular are partnerships or corporations that directly use
aluminum as the raw material in producing finished products either purely or partly out of
aluminum, or their duly appointed representatives. These bidders may be based locally or
overseas.6

In April 2003, NPC published an invitation for the pre-qualification of bidders for the public sale
of its scrap ACSR7 cables. Respondent Pinatubo Commercial, a trader of scrap materials such
as copper, aluminum, steel and other ferrous and non-ferrous materials, submitted a pre-
qualification form to NPC. Pinatubo, however, was informed in a letter dated April 29, 2003 that
its application for pre-qualification had been denied. 8 Petitioner asked for reconsideration but
NPC denied it.9

Pinatubo then filed a petition in the RTC for the annulment of NPC Circular No. 99-75, with a
prayer for the issuance of a temporary restraining order and/or writ of preliminary
injunction.10 Pinatubo argued that the circular was unconstitutional as it violated the due process
and equal protection clauses of the Constitution, and ran counter to the government policy of
competitive public bidding.11

The RTC upheld Pinatubo’s position and declared items 3 and 3.1 of the circular
unconstitutional. The RTC ruled that it was violative of substantive due process because, while
it created rights in favor of third parties, the circular had not been published. It also pronounced
that the circular violated the equal protection clause since it favored manufacturers and
processors of aluminum scrap vis-à-vis dealers/traders in the purchase of aluminum ACSR
cables from NPC. Lastly, the RTC found that the circular denied traders the right to exercise
their business and restrained free competition inasmuch as it allowed only a certain sector to
participate in the bidding.12

In this petition, NPC insists that there was no need to publish the circular since it was not of
general application. It was addressed only to particular persons or class of persons, namely the
disposal committees, heads of offices, regional and all other officials involved in the disposition
of ACSRs. NPC also contends that there was a substantial distinction between manufacturers
and traders of aluminum scrap materials specially viewed in the light of RA 7832. 13 According to
NPC, by limiting the prospective bidders to manufacturers, it could easily monitor the market of
its scrap ACSRs. There was rampant fencing of stolen NPC wires. NPC likewise maintains that
traders were not prohibited from participating in the pre-qualification as long as they had a tie-up
with a manufacturer.14

The questions that need to be resolved in this case are:

(1) whether NPC Circular No. 99-75 must be published; and

(2) whether items 3 and 3.1 of NPC Circular No. 99-75 -

(a) violated the equal protection clause of the Constitution and

(b) restrained free trade and competition.

Tañada v. Tuvera15 stressed the need for publication in order for statutes and administrative
rules and regulations to have binding force and effect, viz.:
x x x all statutes, including those of local application and private laws, shall be published as a
condition for their effectivity, which shall begin fifteen days after publication unless a different
effectivity is fixed by the legislature.

Covered by this rule are presidential decrees and executive orders promulgated by the
President in the exercise of legislative power or, at present, directly conferred by the
Constitution. Administrative Rules and Regulations must also be published if their purpose is to
enforce or implement existing law pursuant also to a valid delegation.16

Tañada, however, qualified that:

Interpretative regulations and those merely internal in nature, that is, regulating only the
personnel of the administrative agency and not the public, need not be published. Neither is
publication required of the so-called letters of instructions issued by administrative superiors
concerning the rules or guidelines to be followed by their subordinates in the performance of
their duties.17 (emphasis ours)

In this case, NPC Circular No. 99-75 did not have to be published since it was merely an
internal rule or regulation. It did not purport to enforce or implement an existing law but was
merely a directive issued by the NPC President to his subordinates to regulate the proper and
efficient disposal of scrap ACSRs to qualified bidders. Thus, NPC Circular No. 99-75 defined the
responsibilities of the different NPC personnel in the disposal, pre-qualification, bidding and
award of scrap ACSRS.18 It also provided for the deposit of a proposal bond to be submitted by
bidders, the approval of the award, mode of payment and release of awarded scrap
ACSRs.19 All these guidelines were addressed to the NPC personnel involved in the bidding and
award of scrap ACSRs. It did not, in any way, affect the rights of the public in general or of any
other person not involved in the bidding process. Assuming it affected individual rights, it did so
only remotely, indirectly and incidentally.

Pinatubo’s argument that items 3 and 3.1 of NPC Circular No. 99-75 deprived it of its "right to
bid" or that these conferred such right in favor of a third person is erroneous. Bidding, in its
comprehensive sense, means making an offer or an invitation to prospective contractors
whereby the government manifests its intention to invite proposals for the purchase of supplies,
materials and equipment for official business or public use, or for public works or
repair.20 Bidding rules may specify other conditions or require that the bidding process be
subjected to certain reservations or qualifications.21 Since a bid partakes of the nature of an
offer to contract with the government, 22 the government agency involved may or may not accept
it. Moreover, being the owner of the property subject of the bid, the government has the power
to determine who shall be its recipient, as well as under what terms it may be awarded. In this
sense, participation in the bidding process is a privilege inasmuch as it can only be exercised
under existing criteria imposed by the government itself. As such, prospective bidders, including
Pinatubo, cannot claim any demandable right to take part in it if they fail to meet these criteria.
Thus, it has been stated that under the traditional form of property ownership, recipients of
privileges or largesse from the government cannot be said to have property rights because they
possess no traditionally recognized proprietary interest therein.23

Also, as the discretion to accept or reject bids and award contracts is of such wide latitude,
courts will not interfere, unless it is apparent that such discretion is exercised arbitrarily, or used
as a shield to a fraudulent award. The exercise of that discretion is a policy decision that
necessitates prior inquiry, investigation, comparison, evaluation, and deliberation. This task can
best be discharged by the concerned government agencies, not by the courts. Courts will not
interfere with executive or legislative discretion exercised within those boundaries. Otherwise,
they stray into the realm of policy decision-making.24

Limiting qualified bidders in this case to partnerships or corporations that directly use aluminum
as the raw material in producing finished products made purely or partly of aluminum was an
exercise of discretion by the NPC. Unless the discretion was exercised arbitrarily or used as a
subterfuge for fraud, the Court will not interfere with the exercise of such discretion.

This brings to the fore the next question: whether items 3 and 3.1 of NPC Circular No. 99-75
violated the equal protection clause of the Constitution.

The equal protection clause means that "no person or class of persons shall be deprived of the
same protection of laws which is enjoyed by other persons or other classes in the same place
and in like circumstances."25 The guaranty of the equal protection of the laws is not violated by a
legislation based on a reasonable classification.26 The equal protection clause, therefore, does
not preclude classification of individuals who may be accorded different treatment under the law
as long as the classification is reasonable and not arbitrary.271avvphi1

Items 3 and 3.1 met the standards of a valid classification. Indeed, as juxtaposed by the RTC,
the purpose of NPC Circular No. 99-75 was to dispose of the ACSR wires. 28 As stated by
Pinatubo, it was also meant to earn income for the government. 29 Nevertheless, the disposal
and revenue-generating objective of the circular was not an end in itself and could not bar NPC
from imposing conditions for the proper disposition and ultimately, the legitimate use of the
scrap ACSR wires. In giving preference to direct manufacturers and producers, it was the intent
of NPC to support RA 7832, which penalizes the theft of ACSR in excess of 100 MCM. 30 The
difference in treatment between direct manufacturers and producers, on one hand, and traders,
on the other, was rationalized by NPC as follows:

x x x NAPOCOR can now easily monitor the market of its scrap ACSR wires and verify whether
or not a person’s possession of such materials is legal or not; and consequently, prosecute
under R.A. 7832, those whose possession, control or custody of such material is unexplained.
This is based upon the reasonable presumption that if the buyer were a manufacturer or
processor, the scrap ACSRs end with him as the latter uses it to make finished products; but if
the buyer were a trader, there is greater probability that the purchased materials may pass from
one trader to another. Should traders without tie-up to manufacturers or processors of aluminum
be allowed to participate in the bidding, the ACSRs bidded out to them will likely co-mingle with
those already proliferating in the illegal market. Thus, great difficulty shall be encountered by
NAPOCOR and/or those authorities tasked to implement R.A. 7832 in determining whether or
not the ACSRs found in the possession, control and custody of a person suspected of theft [of]
electric power transmission lines and materials are the fruit of the offense defined in Section 3 of
R.A. 7832.31

Items 3 and 3.1 clearly did not infringe on the equal protection clause as these were based on a
reasonable classification intended to protect, not the right of any business or trade but the
integrity of government property, as well as promote the objectives of RA 7832. Traders like
Pinatubo could not claim similar treatment as direct manufacturers/processors especially in the
light of their failure to negate the rationale behind the distinction.

Finally, items 3 and 3.1 of NPC Circular No. 99-75 did not restrain free trade or competition.
Pinatubo contends that the condition imposed by NPC under items 3 and 3.1 violated the
principle of competitiveness advanced by RA 9184 (Government Procurement Reform Act)
which states:

SEC. 3. Governing Principles on Government Procurement. – All procurement of the national

government, its departments, bureaus, offices and agencies, including state universities and
colleges, government-owned and/or controlled corporations, government financial institutions
and local government units, shall, in all cases, be governed by these principles:

xxx

(b) Competitiveness by extending equal opportunity to enable private contracting parties who
are eligible and qualified to participate in public bidding. (emphasis ours)

The foregoing provision imposed the precondition that the contracting parties should
be eligible and qualified. It should be emphasized that the bidding process was not a "free-for-
all" where any and all interested parties, qualified or not, could take part. Section 5(e) of RA
9184 defines competitive bidding as a "method of procurement which is open to participation by
any interested party and which consists of the following processes: advertisement, pre-bid
conference, eligibility screening of prospective bidders, receipt and opening of bids,
evaluation of bids, post-qualification, and award of contract x x x." The law categorically
mandates that prospective bidders are subject to eligibility screening, and as earlier stated,
bidding rules may specify other conditions or order that the bidding process be subjected to
certain reservations or qualifications.32 Thus, in its pre-qualification guidelines issued for the sale
of scrap ACSRs, the NPC reserved the right to pre-disqualify any applicant who did not meet
the requirements for pre-qualification.33 Clearly, the competitiveness policy of a bidding process
presupposes the eligibility and qualification of a contestant; otherwise, it defeats the principle
that only "responsible" and "qualified" bidders can bid and be awarded government
contracts.34 Our free enterprise system is not based on a market of pure and unadulterated
competition where the State pursues a strict hands-off policy and follows the let-the-devil-
devour-the-hindmost rule.35

Moreover, the mere fact that incentives and privileges are granted to certain enterprises to the
exclusion of others does not render the issuance unconstitutional for espousing unfair
competition.36 While the Constitution enshrines free enterprise as a policy, it nonetheless
reserves to the government the power to intervene whenever necessary to promote the general
welfare.37 In the present case, the unregulated disposal and sale of scrap ACSR wires will
hamper the government’s effort of curtailing the pernicious practice of trafficking stolen
government property. This is an evil sought to be prevented by RA 7832 and certainly, it was
well within the authority of the NPC to prescribe conditions in order to prevent it.

WHEREFORE, the petition is hereby GRANTED. The decision of the Regional Trial Court of
Mandaluyong City, Branch 213 dated June 30, 2006 and resolution dated November 20, 2006
are REVERSED and SET ASIDE. Civil Case No. MC-03-2179 for the annulment of NPC
Circular No. 99-75 is hereby DISMISSED.

SO ORDERED.
 [ G.R. No. 180643, March 25, 2008 ]
ROMULO L. NERI, PETITIONER, vs. SENATE COMMITTEE ON
ACCOUNTABILITY OF PUBLIC OFFICERS AND INVESTIGATIONS, SENATE
COMMITTEE ON TRADE AND COMMERCE, AND SENATE COMMITTEE ON
NATIONAL DEFENSE AND SECURITY, RESPONDENTS.

DECISION
LEONARDO-DE CASTRO, J.:
At bar is a petition for certiorari under Rule 65 of the Rules of Court assailing the show
cause Letter[1] dated November 22, 2007 and contempt Order[2] dated January 30, 2008
concurrently issued by respondent Senate Committees on Accountability of Public Officers and
Investigations,[3] Trade and Commerce,[4] and National Defense and Security[5] against petitioner
Romulo L. Neri, former Director General of the National Economic and Development Authority
(NEDA).

The facts, as culled from the pleadings, are as follows:

On April 21, 2007, the Department of Transportation and Communication (DOTC) entered into a
contract with Zhong Xing Telecommunications Equipment (ZTE) for the supply of equipment
and services for the National Broadband Network (NBN) Project in the amount of U.S. $
329,481,290 (approximately P16 Billion Pesos). The Project was to be financed by the People's
Republic of China.

In connection with this NBN Project, various Resolutions were introduced in the Senate, as
follows:
(1) P.S. Res. No. 127, introduced by Senator Aquilino Q. Pimentel, Jr., entitled RESOLUTION
DIRECTING THE BLUE RIBBON COMMITTEE AND THE COMMITTEE ON TRADE AND
INDUSTRY TO INVESTIGATE, IN AID OF LEGISLATION, THE CIRCUMSTANCES LEADING
TO THE APPROVAL OF THE BROADBAND CONTRACT WITH ZTE AND THE ROLE
PLAYED BY THE OFFICIALS CONCERNED IN GETTING IT CONSUMMATED AND TO
MAKE RECOMMENDATIONS TO HALE TO THE COURTS OF LAW THE PERSONS
RESPONSIBLE FOR ANY ANOMALY IN CONNECTION THEREWITH AND TO PLUG THE
LOOPHOLES, IF ANY IN THE BOT LAW AND OTHER PERTINENT LEGISLATIONS.

(2) P.S. Res. No. 144, introduced by Senator Mar Roxas, entitled Á RESOLUTION URGING
PRESIDENT GLORIA MACAPAGAL ARROYO TO DIRECT THE CANCELLATION OF THE
ZTE CONTRACT

(3) P.S. Res. No. 129, introduced by Senator Panfilo M. Lacson, entitled RESOLUTION
DIRECTING THE COMMITTEE ON NATIONAL DEFENSE AND SECURITY TO CONDUCT AN
INQUIRY IN AID OF LEGISLATION INTO THE NATIONAL SECURITY IMPLICATIONS OF
AWARDING THE NATIONAL BROADBAND NETWORK CONTRACT TO THE CHINESE FIRM
ZHONG XING TELECOMMUNICATIONS EQUIPMENT COMPANY LIMITED (ZTE
CORPORATION) WITH THE END IN VIEW OF PROVIDING REMEDIAL LEGISLATION THAT
WILL PROTECT OUR NATIONAL SOVEREIGNTY, SECURITY AND TERRITORIAL
INTEGRITY.

(4) P.S. Res. No. 136, introduced by Senator Miriam Defensor Santiago, entitled RESOLUTION
DIRECTING THE PROPER SENATE COMMITTEE TO CONDUCT AN INQUIRY, IN AID OF
LEGISLATION, ON THE LEGAL AND ECONOMIC JUSTIFICATION OF THE NATIONAL
BROADBAND NETWORK (NBN) PROJECT OF THE NATIONAL GOVERNMENT.
At the same time, the investigation was claimed to be relevant to the consideration of three (3)
pending bills in the Senate, to wit:
1. Senate Bill No. 1793, introduced by Senator Mar Roxas, entitled AN ACT
SUBJECTING TREATIES, INTERNATIONAL OR EXECUTIVE AGREEMENTS
INVOLVING FUNDING IN THE PROCUREMENT OF INFRASTRUCTURE
PROJECTS, GOODS, AND CONSULTING SERVICES TO BE INCLUDED IN THE
SCOPE AND APPLICATION OF PHILIPPINE PROCUREMENT LAWS, AMENDING
FOR THE PURPOSE REPUBLIC ACT NO. 9184, OTHERWISE KNOWN AS THE
GOVERNMENT PROCUREMENT REFORM ACT, AND FOR OTHER PURPOSES;

2. Senate Bill No. 1794, introduced by Senator Mar Roxas, entitled AN ACT
IMPOSING SAFEGUARDS IN CONTRACTING LOANS CLASSIFIED AS OFFICIAL
DEVELOPMENT ASSISTANCE, AMENDING FOR THE PURPOSE REPUBLIC ACT
NO. 8182, AS AMENDED BY REPUBLIC ACT NO. 8555, OTHERWISE KNOWN AS
THE OFFICIAL DEVELOPMENT ASSISTANCE ACT OF 1996, AND FOR OTHER
PURPOSES; and

3. Senate Bill No. 1317, introduced by Senator Miriam Defensor Santiago, entitled AN
ACT MANDATING CONCURRENCE TO INTERNATIONAL AGREEMENTS AND
EXECUTIVE AGREEMENTS.
Respondent Committees initiated the investigation by sending invitations to certain personalities
and cabinet officials involved in the NBN Project. Petitioner was among those invited. He was
summoned to appear and testify on September 18, 20, and 26 and October 25, 2007. However,
he attended only the September 26 hearing, claiming he was "out of town" during the other
dates.

In the September 18, 2007 hearing, businessman Jose de Venecia III testified that several high
executive officials and power brokers were using their influence to push the approval of the NBN
Project by the NEDA. It appeared that the Project was initially approved as a Build-Operate-
Transfer (BOT) project but, on March 29, 2007, the NEDA acquiesced to convert it into a
government-to- government project, to be financed through a loan from the Chinese
Government.

On September 26, 2007, petitioner testified before respondent Committees for eleven (11)
hours. He disclosed that then Commission on Elections (COMELEC) Chairman Benjamin
Abalos offered him P200 Million in exchange for his approval of the NBN Project. He further
narrated that he informed President Arroyo about the bribery attempt and that she instructed
him not to accept the bribe. However, when probed further on what they discussed about the
NBN Project, petitioner refused to answer, invoking "executive privilege". In particular, he
refused to answer the questions on (a) whether or not President Arroyo followed up the NBN
Project,[6] (b) whether or not she directed him to prioritize it,[7] and (c) whether or not she
directed him to approve.[8]

Unrelenting, respondent Committees issued a Subpoena Ad Testificandum to petitioner,

requiring him to appear and testify on November 20, 2007.

However, in the Letter dated November 15, 2007, Executive Secretary Eduardo R. Ermita
requested respondent Committees to dispense with petitioner's testimony on the ground of
executive privilege. The pertinent portion of the letter reads:
With reference to the subpoena ad testificandum issued to Secretary Romulo Neri to appear
and testify again on 20 November 2007 before the Joint Committees you chair, it will be recalled
that Sec. Neri had already testified and exhaustively discussed the ZTE / NBN project, including
his conversation with the President thereon last 26 September 2007.

Asked to elaborate further on his conversation with the President, Sec. Neri asked for time to
consult with his superiors in line with the ruling of the Supreme Court in Senate v. Ermita, 488
SCRA 1 (2006).

Specifically, Sec. Neri sought guidance on the possible invocation of executive privilege on the
following questions, to wit:
a) Whether the President followed up the (NBN) project?

b) Were you dictated to prioritize the ZTE?

c) Whether the President said to go ahead and approve the project after being told
about the alleged bribe?
Following the ruling in Senate v. Ermita, the foregoing questions fall under conversations and
correspondence between the President and public officials which are considered executive
privilege (Almonte v. Vasquez, G.R. 95637, 23 May 1995; Chavez v. PEA, G.R. 133250, July 9,
2002). Maintaining the confidentiality of conversations of the President is necessary in the
exercise of her executive and policy decision making process. The expectation of a President to
the confidentiality of her conversations and correspondences, like the value which we accord
deference for the privacy of all citizens, is the necessity for protection of the public interest in
candid, objective, and even blunt or harsh opinions in Presidential decision-making. Disclosure
of conversations of the President will have a chilling effect on the President, and will hamper her
in the effective discharge of her duties and responsibilities, if she is not protected by the
confidentiality of her conversations.

The context in which executive privilege is being invoked is that the information sought to be
disclosed might impair our diplomatic as well as economic relations with the People's Republic
of China. Given the confidential nature in which these information were conveyed to the
President, he cannot provide the Committee any further details of these conversations, without
disclosing the very thing the privilege is designed to protect.

In light of the above considerations, this Office is constrained to invoke the settled doctrine of
executive privilege as refined in Senate v. Ermita, and has advised Secretary Neri accordingly.

Considering that Sec. Neri has been lengthily interrogated on the subject in an unprecedented
11-hour hearing, wherein he has answered all questions propounded to him except the
foregoing questions involving executive privilege, we therefore request that his testimony on 20
November 2007 on the ZTE / NBN project be dispensed with.
On November 20, 2007, petitioner did not appear before respondent Committees. Thus, on
November 22, 2007, the latter issued the show cause Letter requiring him to explain why he
should not be cited in contempt. The Letter reads:
Since you have failed to appear in the said hearing, the Committees on Accountability of Public
Officers and Investigations (Blue Ribbon), Trade and Commerce and National Defense and
Security require you to show cause why you should not be cited in contempt under Section 6,
Article 6 of the Rules of the Committee on Accountability of Public Officers and Investigations
(Blue Ribbon).
The Senate expects your explanation on or before 2 December 2007.
On November 29, 2007, petitioner replied to respondent Committees, manifesting that it was not
his intention to ignore the Senate hearing and that he thought the only remaining questions
were those he claimed to be covered by executive privilege, thus:
It was not my intention to snub the last Senate hearing. In fact, I have cooperated with the task
of the Senate in its inquiry in aid of legislation as shown by my almost 11 hours stay during the
hearing on 26 September 2007. During said hearing, I answered all the questions that were
asked of me, save for those which I thought was covered by executive privilege, and which was
confirmed by the Executive Secretary in his Letter 15 November 2007. In good faith, after that
exhaustive testimony, I thought that what remained were only the three questions, where the
Executive Secretary claimed executive privilege. Hence, his request that my presence be
dispensed with.

Be that as it may, should there be new matters that were not yet taken up during the 26
September 2007 hearing, may I be furnished in advance as to what else I need to clarify, so that
as a resource person, I may adequately prepare myself.
In addition, petitioner submitted a letter prepared by his counsel, Atty. Antonio R. Bautista,
stating, among others that: (1) his (petitioner) non-appearance was upon the order of the
President; and (2) his conversation with President Arroyo 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. The letter ended with a reiteration of petitioner's request that he "be furnished in
advance" as to what else he needs to clarify so that he may adequately prepare for the hearing.

In the interim, on December 7, 2007, petitioner filed with this Court the present petition
for certiorari assailing the show cause Letter dated November 22, 2007.

Respondent Committees found petitioner's explanations unsatisfactory. Without responding to

his request for advance notice of the matters that he should still clarify, they issued
the Order dated January 30, 2008, citing him in contempt of respondent Committees and
ordering his arrest and detention at the Office of the Senate Sergeant-At-Arms until such time
that he would appear and give his testimony. The said Order states:
ORDER

For failure to appear and testify in the Committee's hearing on Tuesday, September 18, 2007;
Thursday, September 20, 2007; Thursday, October 25, 2007; and Tuesday, November 20,
2007, despite personal notice and Subpoenas Ad Testificandum sent to and received by him,
which thereby delays, impedes and obstructs, as it has in fact delayed, impeded and obstructed
the inquiry into the subject reported irregularities, AND for failure to explain satisfactorily why he
should not be cited for contempt (Neri letter of 29 November 2007), herein attached) ROMULO
L. NERI is hereby cited in contempt of this (sic) Committees and ordered arrested and
detained in the Office of the Senate Sergeant-At-Arms until such time that he will appear
and give his testimony.

The Sergeant-At-Arms is hereby directed to carry out and implement this Order and make a
return hereof within twenty four (24) hours from its enforcement.

SO ORDERED.
On the same date, petitioner moved for the reconsideration of the above Order.[9] He insisted
that he has not shown "any contemptible conduct worthy of contempt and arrest." He
emphasized his willingness to testify on new matters, however, respondent Committees did not
respond to his request for advance notice of questions. He also mentioned the petition
for certiorari he filed on December 7, 2007. According to him, this should restrain respondent
Committees from enforcing the show cause Letter "through the issuance of declaration of
contempt" and arrest.

In view of respondent Committees' issuance of the contempt Order, petitioner filed on February
1, 2008 a Supplemental Petition for Certiorari (With Urgent Application for TRO/Preliminary
Injunction), seeking to restrain the implementation of the said contempt Order.

On February 5, 2008, the Court issued a Status Quo Ante Order (a) enjoining respondent
Committees from implementing their contempt Order, (b) requiring the parties to observe
the status quo prevailing prior to the issuance of the assailed order, and (c) requiring
respondent Committees to file their comment.

Petitioner contends that respondent Committees' show cause Letter and contempt Order were
issued with grave abuse of discretion amounting to lack or excess of jurisdiction. He stresses
that his conversations with President Arroyo are "candid discussions meant to explore
options in making policy decisions." According to him, these discussions "dwelt on the
impact of the bribery scandal involving high government officials on the country's
diplomatic relations and economic and military affairs and the possible loss of
confidence of foreign investors and lenders in the Philippines." He also emphasizes that
his claim of executive privilege is upon the order of the President and within the parameters laid
down in Senate v. Ermita[10] and United States v. Reynolds. [11] Lastly, he argues that he is
precluded from disclosing communications made to him in official confidence under Section
7[12] of Republic Act No. 6713, otherwise known as Code of Conduct and Ethical Standards for
Public Officials and Employees, and Section 24[13] (e) of Rule 130 of the Rules of Court.

Respondent Committees assert the contrary. They argue that (1) petitioner's testimony is
material and pertinent in the investigation conducted in aid of legislation; (2) there is no valid
justification for petitioner to claim executive privilege; (3) there is no abuse of their authority to
order petitioner's arrest; and (4) petitioner has not come to court with clean hands.

In the oral argument held last March 4, 2008, the following issues were ventilated:

1. What communications between the President and petitioner Neri are covered by the
principle of `executive privilege'?

1.a Did Executive Secretary Ermita correctly invoke the principle of executive privilege, by order of the
President, to cover (i) conversations of the President in the exercise of her executive and policy
decision-making and (ii) information, which might impair our diplomatic as well as economic
relations with the People's Republic of China?

1.b. Did petitioner Neri correctly invoke executive privilege to avoid testifying on his conversations with
the President on the NBN contract on his assertions that the said conversations "dealt with delicate
and sensitive national security and diplomatic matters relating to the impact of bribery
scandal involving high government officials and the possible loss of confidence of foreign
investors and lenders in the Philippines" x x x within the principles laid down in Senate v.
Ermita (488 SCRA 1 [2006])?
 1.c Will the claim of executive privilege in this case violate the following provisions of the Constitution:

Sec. 28, Art. II (Full public disclosure of all transactions involving public interest)

Sec. 7, Art. III (The right of the people to information on matters of public concern)

Sec. 1, Art. XI (Public office is a public trust)

Sec. 17, Art. VII (The President shall ensure that the laws be faithfully executed)

and the due process clause and the principle of separation of powers?

2.

3. What is the proper procedure to be followed in invoking executive privilege?

4. Did the Senate Committees gravely abuse their discretion in ordering the arrest of
petitioner for non-compliance with the subpoena?
After the oral argument, the parties were directed to manifest to the Court within twenty-four (24)
hours if they are amenable to the Court's proposal of allowing petitioner to immediately resume
his testimony before the Senate Committees to answer the other questions of the Senators
without prejudice to the decision on the merits of this pending petition. It was understood that
petitioner may invoke executive privilege in the course of the Senate Committees proceedings,
and if the respondent Committees disagree thereto, the unanswered questions will be the
subject of a supplemental pleading to be resolved along with the three (3) questions subject of
the present petition.[14] At the same time, respondent Committees were directed to submit
several pertinent documents.[15]

The Senate did not agree with the proposal for the reasons stated in the Manifestation dated
March 5, 2008. As to the required documents, the Senate and respondent Committees
manifested that they would not be able to submit the latter's "Minutes of all meetings" and the
"Minute Book" because it has never been the "historical and traditional legislative practice to
keep them."[16] They instead submitted the Transcript of Stenographic Notes of respondent
Committees' joint public hearings.

On March 17, 2008, the Office of the Solicitor General (OSG) filed a Motion for Leave to
Intervene and to Admit Attached Memorandum, founded on the following arguments:
(1) The communications between petitioner and the President are covered by the principle of "executive
privilege."

(2) Petitioner was not summoned by respondent Senate Committees in accordance with the law-making
 body's power to conduct inquiries in aid of legislation as laid down in Section 21, Article VI of the
Constitution and Senate v. Ermita.

(3) Respondent Senate Committees gravely abused its discretion for alleged non-compliance with
the Subpoena dated November 13, 2007.
The Court granted the OSG's motion the next day, March 18, 2008.

As the foregoing facts unfold, related events transpired.

On March 6, 2008, President Arroyo issued Memorandum Circular No. 151, revoking Executive
Order No. 464 and Memorandum Circular No. 108. She advised executive officials and
employees to follow and abide by the Constitution, existing laws and jurisprudence, including,
among others, the case of Senate v. Ermita[17] when they are invited to legislative inquiries in aid
of legislation.

At the core of this controversy are the two (2) crucial queries, to wit:

First, are the communications elicited by the subject three (3) questions covered by executive
privilege?

And second, did respondent Committees commit grave abuse of discretion in issuing the
contempt Order?

We grant the petition.

At the outset, a glimpse at the landmark case of Senate v. Ermita[18]becomes

imperative. Senate draws in bold strokes the distinction between
the legislative and oversight powers of the Congress, as embodied under Sections 21 and 22,
respectively, of Article VI of the Constitution, to wit:
SECTION 21. 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.

SECTION 22. The heads of department may upon their own initiative, with the consent of the
President, or upon the request of either House, or 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.
Senate cautions that while the above provisions are closely related and complementary to each
other, they should not be considered as pertaining to the same power of Congress. Section 21
relates to the power to conduct inquiries in aid of legislation, Its aim is to elicit information that
may be used for legislation, while Section 22 pertains to the power to conduct a question hour,
the objective of which is to obtain information in pursuit of Congress' oversight function.
[19]
Simply stated, while both powers allow Congress or any of its committees to conduct inquiry,
their objectives are different.

This distinction gives birth to another distinction with regard to the use of compulsory process.
Unlike in Section 21, Congress cannot compel the appearance of executive officials under
Section 22. The Court's pronouncement in Senate v. Ermita[20]is clear:
When Congress merely seeks to be informed on how department heads are implementing the
statutes which it has issued, its right to such information is not as imperative as that of the
President to whom, as Chief Executive, such department heads must give a report of their
performance as a matter of duty. In such instances, Section 22, in keeping with the separation
of powers, states that Congress may only request their appearance. Nonetheless, when the
inquiry in which Congress requires their appearance is `in aid of legislation' under Section 21,
the appearance is mandatory for the same reasons stated in Arnault.

In fine, the oversight function of Congress may be facilitated by compulsory process

only to the extent that it is performed in pursuit of legislation. This is consistent with the
intent discerned from the deliberations of the Constitutional Commission

Ultimately, the power of Congress to compel the appearance of executive officials under section
21 and the lack of it under Section 22 find their basis in the principle of separation of powers.
While the executive branch is a co-equal branch of the legislature, it cannot frustrate the power
of Congress to legislate by refusing to comply with its demands for information. (Emphasis
supplied.)
The availability of the power of judicial review to resolve the issues raised in this case has also
been settled in Senate v. Ermita, when it held:
As evidenced by the American experience during the so-called "McCarthy era," however, the
right of Congress to conduct inquiries in aid of legislation is, in theory, no less susceptible to
abuse than executive or judicial power. It may thus be subjected to judicial review pursuant to
the Court's certiorari powers under Section 1, Article VIII of the Constitution.
Hence, this decision.
I

The Communications Elicited by the Three (3)

Questions are Covered by Executive Privilege

We start with the basic premises where the parties have conceded.

The power of Congress to conduct inquiries in aid of legislation is broad. This is based on the
proposition that 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.
[21]
Inevitably, adjunct thereto is the compulsory process to enforce it. But, the power, broad as it
is, has limitations. To be valid, it is imperative that it is done in accordance with the Senate or
House duly published rules of procedure and that the rights of the persons appearing in or
affected by such inquiries be respected.

The power extends even to executive officials and the only way for them to be exempted is
through a valid claim of executive privilege.[22] This directs us to the consideration of the
question -- is there a recognized claim of executive privilege despite the revocation of
E.O. 464?

A-There is a Recognized Claim of Executive Privilege Despite the Revocation of E.O. 464

At this juncture, it must be stressed that the revocation of E.O. 464 does not in any way diminish
our concept of executive privilege. This is because this concept has Constitutional
underpinnings. Unlike the United States which has further accorded the concept with statutory
status by enacting the Freedom of Information Act[23] and the Federal Advisory Committee Act,
[24]
the Philippines has retained its constitutional origination, occasionally interpreted only by this
Court in various cases. The most recent of these is the case of Senate v. Ermita where this
Court declared unconstitutional substantial portions of E.O. 464. In this regard, it is worthy to
note that Executive Ermita's Letter dated November 15, 2007 limits its bases for the claim of
executive privilege to Senate v. Ermita, Almonte v. Vasquez,[25] and Chavez v. PEA.[26] There
was never a mention of E.O. 464.

While these cases, especially Senate v. Ermita, [27] have comprehensively discussed the concept
of executive privilege, we deem it imperative to explore it once more in view of the clamor for
this Court to clearly define the communications covered by executive privilege.

The Nixon and post-Watergate cases established the broad contours of the presidential
communications privilege.[28] In United States v. Nixon,[29] the U.S. Court recognized a great
public interest in preserving "the confidentiality of conversations that take place in the
President's performance of his official duties." It thus considered presidential
communications as "presumptively privileged." Apparently, the presumption is founded on
the "President's generalized interest in confidentiality." The privilege is said to be
necessary to guarantee the candor of presidential advisors and to provide "the President and
those who assist him... with freedom to explore alternatives in the process of shaping
policies and making decisions and to do so in a way many would be unwilling to express
except privately."

In In Re: Sealed Case,[30] the U.S. Court of Appeals delved deeper. It ruled that there are two (2)
kinds of executive privilege; one is the presidential communications privilege and, the other
is the deliberative process privilege. The former pertains to "communications, documents
or other materials that reflect presidential decision-making and deliberations and that the
President believes should remain confidential." The latter includes `advisory opinions,
recommendations and deliberations comprising part of a process by which
governmental decisions and policies are formulated."

Accordingly, they are characterized by marked distinctions. Presidential communications

privilege applies to decision-making of the President while, the deliberative process
privilege, to decision-making of executive officials. The first is rooted in the constitutional
principle of separation of power and the President's unique constitutional role; the second on
common law privilege. Unlike the deliberative process privilege, the presidential
communications privilege applies to documents in their entirety, and covers final and
post-decisional materials as well as pre-deliberative ones [31] As a consequence,
congressional or judicial negation of the presidential communications privilege is always
subject to greater scrutiny than denial of the deliberative process privilege.

Turning on who are the officials covered by the presidential communications privilege, In
Re: Sealed Case confines the privilege only to White House Staff that has "operational
proximity" to direct presidential decision-making. Thus, the privilege is meant to encompass only
those functions that form the core of presidential authority, involving what the court
characterized as "quintessential and non-delegable Presidential power," such as commander-in-
chief power, appointment and removal power, the power to grant pardons and reprieves, the
sole-authority to receive ambassadors and other public officers, the power to negotiate treaties,
etc.[32]

The situation in Judicial Watch, Inc. v. Department of Justice[33] tested the In Re: Sealed
Case principles. There, while the presidential decision involved is the exercise of the President's
pardon power, a non-delegable, core-presidential function, the Deputy Attorney General and the
Pardon Attorney were deemed to be too remote from the President and his senior White House
advisors to be protected. The Court conceded that functionally those officials were performing a
task directly related to the President's pardon power, but concluded that an organizational test
was more appropriate for confining the potentially broad sweep that would result from the In Re:
Sealed Case's functional test. The majority concluded that, the lesser protections of the
deliberative process privilege would suffice. That privilege was, however, found insufficient to
justify the confidentiality of the 4,341 withheld documents.

But more specific classifications of communications covered by executive privilege are made in
older cases. Courts ruled early that the Executive has a right to withhold documents that might
reveal military or state secrets[34] identity of government informers in some
circumstances[35] and information related to pending investigations.[36] An area where the
privilege is highly revered is in foreign relations. In United States v. Curtiss-Wright Export
Corp.[37] the U.S. Court, citing President George Washington, pronounced:
The nature of foreign negotiations requires caution, and their success must often depend on
secrecy, and even when brought to a conclusion, a full disclosure of all the measures, demands,
or eventual concessions which may have been proposed or contemplated would be extremely
impolitic, for this might have a pernicious influence on future negotiations or produce immediate
inconveniences, perhaps danger and mischief, in relation to other powers. The necessity of
such caution and secrecy was one cogent reason for vesting the power of making treaties in the
President, with the advice and consent of the Senate, the principle on which the body was
formed confining it to a small number of members. To admit, then, a right in the House of
Representatives to demand and to have as a matter of course all the papers respecting a
negotiation with a foreign power would be to establish a dangerous precedent.
Majority of the above jurisprudence have found their way in our jurisdiction. In Chavez v. PCGG
, [38]this Court held that there is a "governmental privilege against public disclosure with respect
to state secrets regarding military, diplomatic and other security matters." In Chavez v. PEA,
[39]
there is also a recognition of the confidentiality of Presidential conversations,
correspondences, and discussions in closed-door Cabinet meetings. In Senate v. Ermita, the
concept of presidential communications privilege is fully discussed.

As may be gleaned from the above discussion, the claim of executive privilege is highly
recognized in cases where the subject of inquiry relates to a power textually committed by the
Constitution to the President, such as the area of military and foreign relations. Under our
Constitution, the President is the repository of the commander-in-chief,[40] appointing,
[41]
pardoning,[42] and diplomatic [43] powers. Consistent with the doctrine of separation of powers,
the information relating to these powers may enjoy greater confidentiality than others.

The above cases, especially, Nixon, In Re Sealed Case and Judicial Watch, somehow provide
the elements of presidential communications privilege, to wit:
1) The protected communication must relate to a "quintessential and non-delegable presidential
power."

2) The communication must be authored or "solicited and received" by a close advisor of the
President or the President himself. The judicial test is that an advisor must be in "operational
proximity" with the President.
3) The presidential communications privilege remains a qualified privilege that may be overcome
by a showing of adequate need, such that the information sought "likely contains important
evidence" and by the unavailability of the information elsewhere by an appropriate
investigating authority.[44]

In the case at bar, Executive Secretary Ermita premised his claim of executive privilege on the
ground that the communications elicited by the three (3) questions "fall under conversation and
correspondence between the President and public officials" necessary in "her executive and
policy decision-making process" and, that "the information sought to be disclosed might impair
our diplomatic as well as economic relations with the People's Republic of China." Simply put,
the bases are presidential communications privilege and executive privilege on matters
relating to diplomacy or foreign relations.

Using the above elements, we are convinced that, indeed, the communications elicited by the
three (3) questions are covered by the presidential communications privilege. First, the
communications relate to a "quintessential and non-delegable power" of the President, i.e. the
power to enter into an executive agreement with other countries. This authority of the President
to enter into executive agreements without the concurrence of the Legislature has traditionally
been recognized in Philippine jurisprudence.[45] Second, the communications are "received" by
a close advisor of the President. Under the "operational proximity" test, petitioner can be
considered a close advisor, being a member of President Arroyo's cabinet. And third, there is
no adequate showing of a compelling need that would justify the limitation of the privilege and of
the unavailability of the information elsewhere by an appropriate investigating authority.

The third element deserves a lengthy discussion.

United States v. Nixon held that a claim of executive privilege is subject to balancing against
other interest. In other words, confidentiality in executive privilege is not absolutely protected
by the Constitution. The U.S. Court held:
[N]either the doctrine of separation of powers, nor the need for confidentiality of high-level
communications, without more, can sustain an absolute, unqualified Presidential privilege of
immunity from judicial process under all circumstances.
The foregoing is consistent with the earlier case of Nixon v. Sirica, [46]where it was held
that presidential communications privilege are presumptively privileged and that the
presumption can be overcome only by mere showing of public need by the branch seeking
access to conversations. The courts are enjoined to resolve the competing interests of the
political branches of the government "in the manner that preserves the essential functions of
each Branch."[47] Here, the record is bereft of any categorical explanation from respondent
Committees to show a compelling or citical need for the answers to the three (3) questions in
the enactment of a law. Instead, the questions veer more towards the exercise of the legislative
oversight function under Section 22 of Article VI rather than Section 21 of the same
Article. Senate v. Ermita ruled that the "the oversight function of Congress may be
facilitated by compulsory process only to the extent that it is performed in pursuit of
legislation." It is conceded that it is difficult to draw the line between an inquiry in aid of
legislation and an inquiry in the exercise of oversight function of Congress. In this regard, much
will depend on the content of the questions and the manner the inquiry is conducted.

Respondent Committees argue that a claim of executive privilege does not guard against a
possible disclosure of a crime or wrongdoing. We see no dispute on this. It is settled in United
States v. Nixon[48] that "demonstrated, specific need for evidence in pending criminal
trial" outweighs the President's "generalized interest in confidentiality." However, the present
case's distinction with the Nixon case is very evident. In Nixon, there is a pending criminal
proceeding where the information is requested and it is the demands of due process of law and
the fair administration of criminal justice that the information be disclosed. This is the reason
why the U.S. Court was quick to "limit the scope of its decision." It stressed that it is "not
concerned here with the balance between the President's generalized interest in
confidentiality x x x and congressional demands for information." Unlike in Nixon, the
information here is elicited, not in a criminal proceeding, but in a legislative inquiry. In this
regard, Senate v. Ermita stressed that the validity of the claim of executive privilege depends
not only on the ground invoked but, also, on the procedural setting or the context in which the
claim is made. Furthermore, in Nixon, the President did not interpose any claim of need to
protect military, diplomatic or sensitive national security secrets. In the present case, Executive
Secretary Ermita categorically claims executive privilege on the grounds of presidential
communications privilege in relation to her executive and policy decision-making process and
diplomatic secrets.

The respondent Committees should cautiously tread into the investigation of matters which may
present a conflict of interest that may provide a ground to inhibit the Senators participating in the
inquiry if later on an impeachment proceeding is initiated on the same subject matter of the
present Senate inquiry. Pertinently, in Senate Select Committee on Presidential Campaign
Activities v. Nixon,[49] it was held that since an impeachment proceeding had been initiated by a
House Committee, the Senate Select Committee's immediate oversight need for five
presidential tapes should give way to the House Judiciary Committee which has the
constitutional authority to inquire into presidential impeachment. The Court expounded on this
issue in this wise:
It is true, of course, that the Executive cannot, any more than the other branches of government,
invoke a general confidentiality privilege to shield its officials and employees from investigations
by the proper governmental institutions into possible criminal wrongdoing. The Congress
learned this as to its own privileges in Gravel v. United States, as did the judicial branch, in a
sense, in Clark v. United States, and the executive branch itself in Nixon v. Sirica. But
under Nixon v. Sirica, the showing required to overcome the presumption favoring
confidentiality turned, not on the nature of the presidential conduct that the subpoenaed
material might reveal, but, instead, on the nature and appropriateness of the function in the
performance of which the material was sought, and the degree to which the material was
necessary to its fulfillment. Here also our task requires and our decision implies no
judgment whatever concerning possible presidential involvement in culpable activity. On
the contrary, we think the sufficiency of the Committee's showing must depend solely on
whether the subpoenaed evidence is demonstrably critical to the responsible fulfillment
of the Committee's functions.

In its initial briefs here, the Committee argued that it has shown exactly this. It contended that
resolution, on the basis of the subpoenaed tapes, of the conflicts in the testimony before it
`would aid in a determination whether legislative involvement in political campaigns is
necessary' and `could help engender the public support needed for basic reforms in our
electoral system.' Moreover, Congress has, according to the Committee, power to oversee the
operations of the executive branch, to investigate instances of possible corruption and
malfeasance in office, and to expose the results of its investigations to public view. The
Committee says that with respect to Watergate-related matters, this power has been delegated
to it by the Senate, and that to exercise its power responsibly, it must have access to the
subpoenaed tapes.
We turn first to the latter contention. In the circumstances of this case, we need neither deny
that the Congress may have, quite apart from its legislative responsibilities, a general oversight
power, nor explore what the lawful reach of that power might be under the Committee's
constituent resolution. Since passage of that resolution, the House Committee on the Judiciary
has begun an inquiry into presidential impeachment. The investigative authority of the Judiciary
Committee with respect to presidential conduct has an express constitutional source. x x x We
have been shown no evidence indicating that Congress itself attaches any particular
value to this interest. In these circumstances, we think the need for the tapes premised
solely on an asserted power to investigate and inform cannot justify enforcement of the
Committee's subpoena.

The sufficiency of the Committee's showing of need has come to depend, therefore, entirely on
whether the subpoenaed materials are critical to the performance of its legislative functions.
There is a clear difference between Congress' legislative tasks and the responsibility of a grand
jury, or any institution engaged in like functions. While fact-finding by a legislative committee
is undeniably a part of its task, legislative judgments normally depend more on the
predicted consequences of proposed legislative actions and their political acceptability,
than on precise reconstruction of past events; Congress frequently legislates on the basis of
conflicting information provided in its hearings. In contrast, the responsibility of the grand jury
turns entirely on its ability to determine whether there is probable cause to believe that certain
named individuals did or did not commit specific crimes. If, for example, as in Nixon v. Sirica,
one of those crimes is perjury concerning the content of certain conversations, the grand jury's
need for the most precise evidence, the exact text of oral statements recorded in their original
form, is undeniable. We see no comparable need in the legislative process, at least not in
the circumstances of this case. Indeed, whatever force there might once have been in the
Committee's argument that the subpoenaed materials are necessary to its legislative judgments
has been substantially undermined by subsequent events. (Emphasis supplied)
Respondent Committees further contend that the grant of petitioner's claim of executive
privilege violates the constitutional provisions on the right of the people to information on
matters of public concern.[50] We might have agreed with such contention if petitioner did not
appear before them at all. But petitioner made himself available to them during the September
26 hearing, where he was questioned for eleven (11) hours. Not only that, he expressly
manifested his willingness to answer more questions from the Senators, with the exception only
of those covered by his claim of executive privilege.

The right to public information, like any other right, is subject to limitation. Section 7 of Article III
provides:
The right of the people to information on matters of public concern shall be recognized. Access
to official records, and to documents, and papers pertaining to official acts, transactions, or
decisions, as well as to government research data used as basis for policy development, shall
be afforded the citizen, subject to such limitations as may be provided by law.
The provision itself expressly provides the limitation, i.e. as may be provided by law. Some of
these laws are Section 7 of Republic Act (R.A.) No. 6713,[51] Article 229[52] of the Revised Penal
Code, Section 3 (k)[53] of R.A. No. 3019, and Section 24(e)[54] of Rule 130 of the Rules of Court.
These are in addition to what our body of jurisprudence classifies as confidential[55] and what our
Constitution considers as belonging to the larger concept of executive privilege. Clearly, there is
a recognized public interest in the confidentiality of certain information. We find the information
subject of this case belonging to such kind.

More than anything else, though, the right of Congress or any of its Committees to obtain
information in aid of legislation cannot be equated with the people's right to public information.
The former cannot claim that every legislative inquiry is an exercise of the people's right to
information. The distinction between such rights is laid down in Senate v. Ermita:
There are, it bears noting, clear distinctions between the right of Congress to information which
underlies the power of inquiry and the right of people to information on matters of public
concern. For one, the demand of a citizen for the production of documents pursuant to his right
to information does not have the same obligatory force as a subpoena duces tecum issued by
Congress. Neither does the right to information grant a citizen the power to exact testimony from
government officials. These powers belong only to Congress, not to an individual citizen.

Thus, while Congress is composed of representatives elected by the people, it does not
follow, except in a highly qualified sense, that in every exercise of its power of inquiry,
the people are exercising their right to information.
The members of respondent Committees should not invoke as justification in their exercise of
power a right properly belonging to the people in general. This is because when they discharge
their power, they do so as public officials and members of Congress. Be that as it may, the right
to information must be balanced with and should give way, in appropriate cases, to
constitutional precepts particularly those pertaining to delicate interplay of executive-legislative
powers and privileges which is the subject of careful review by numerous decided cases.

B- The Claim of Executive Privilege is Properly Invoked

We now proceed to the issue -- whether the claim is properly invoked by the
President. Jurisprudence teaches that for the claim to be properly invoked, there must be a
formal claim of privilege, lodged by the head of the department which has control over the
matter."[56] A formal and proper claim of executive privilege requires a "precise and certain
reason" for preserving their confidentiality.[57]

The Letter dated November 17, 2007 of Executive Secretary Ermita satisfies the requirement. It
serves as the formal claim of privilege. There, he expressly states that "this Office is
constrained to invoke the settled doctrine of executive privilege as refined in Senate v.
Ermita, and has advised Secretary Neri accordingly." Obviously, he is referring to the Office
of the President. That is more than enough compliance. In Senate v. Ermita, a less categorical
letter was even adjudged to be sufficient.

With regard to the existence of "precise and certain reason," we find the grounds relied upon by
Executive Secretary Ermita specific enough so as not "to leave respondent Committees in the
dark on how the requested information could be classified as privileged." The case of Senate v.
Ermita only requires that an allegation be made "whether the information demanded involves
military or diplomatic secrets, closed-door Cabinet meetings, etc." The particular ground must
only be specified. The enumeration is not even intended to be comprehensive."[58] The following
statement of grounds satisfies the requirement:
The context in which executive privilege is being invoked is that the information sought to be
disclosed might impair our diplomatic as well as economic relations with the People's Republic
of China. Given the confidential nature in which these information were conveyed to the
President, he cannot provide the Committee any further details of these conversations, without
disclosing the very thing the privilege is designed to protect.
At any rate, as held further in Senate v. Ermita, [59] the Congress must not require the executive
to state the reasons for the claim with such particularity as to compel disclosure of the
information which the privilege is meant to protect. This is a matter of respect to a coordinate
and co-equal department.
 II

Respondent Committees Committed Grave Abuse

of Discretion in Issuing the Contempt Order

Grave abuse of discretion means "such capricious and whimsical exercise of judgment as is
equivalent to lack of jurisdiction, or, in other words where the power is exercised in an arbitrary
or despotic manner by reason of passion or personal hostility and it must be so patent and
gross as to amount to an evasion of positive duty or to a virtual refusal to perform the duty
enjoined or to act at all in contemplation of law."[60]

It must be reiterated that when respondent Committees issued the show cause Letter dated
November 22, 2007, petitioner replied immediately, manifesting that it was not his intention to
ignore the Senate hearing and that he thought the only remaining questions were the three (3)
questions he claimed to be covered by executive privilege. In addition thereto, he submitted
Atty. Bautista's letter, stating that his non-appearance was upon the order of the President and
specifying the reasons why his conversations with President Arroyo are covered by executive
privilege. Both correspondences include an expression of his willingness to testify again,
provided he "be furnished in advance" copies of the questions. Without responding to his
request for advance list of questions, respondent Committees issued the Order dated January
30, 2008, citing him in contempt of respondent Committees and ordering his arrest and
detention at the Office of the Senate Sergeant-At- Arms until such time that he would appear
and give his testimony. Thereupon, petitioner filed a motion for reconsideration, informing
respondent Committees that he had filed the present petition for certiorari.

Respondent Committees committed grave abuse of discretion in issuing the contempt Order in
view of five (5) reasons.

First, there being a legitimate claim of executive privilege, the issuance of the contempt Order
suffers from constitutional infirmity.

Second, respondent Committees did not comply with the requirement laid down in Senate v.
Ermita that the invitations should contain the "possible needed statute which prompted the need
for the inquiry," along with "the usual indication of the subject of inquiry and
the questions relative to and in furtherance thereof." Compliance with this requirement is
imperative, both under Sections 21 and 22 of Article VI of the Constitution. This must be so to
ensure that the rights of both persons appearing in or affected by such inquiry are respected
as mandated by said Section 21 and by virtue of the express language of Section 22.
Unfortunately, despite petitioner's repeated demands, respondent Committees did not send him
an advance list of questions.

Third, a reading of the transcript of respondent Committees' January 30, 2008 proceeding
reveals that only a minority of the members of the Senate Blue Ribbon Committee was present
during the deliberation. [61] Section 18 of the Rules of Procedure Governing Inquiries in Aid of
Legislation provides that:
"The Committee, by a vote of majority of all its members, may punish for contempt any
witness before it who disobeys any order of the Committee or refuses to be sworn or to testify or
to answer proper questions by the Committee or any of its members."
Clearly, the needed vote is a majority of all the members of the Committee. Apparently,
members who did not actually participate in the deliberation were made to sign the contempt
Order. Thus, there is a cloud of doubt as to the validity of the contempt Order dated January 30,
2008. We quote the pertinent portion of the transcript, thus:
THE CHAIRMAN (SEN. CAYETANO, A). For clarification. x x x The Chair will call either a
caucus or will ask the Committee on Rules if there is a problem. Meaning, if we do not
have the sufficient numbers. But if we have a sufficient number, we will just hold a
caucus to be able to implement that right away because...Again, our Rules provide that
any one held in contempt and ordered arrested, need the concurrence of a majority of all
members of the said committee and we have three committees conducting this.

So thank you very much to the members...

SEN. PIMENTEL. Mr. Chairman.

THE CHAIRMAN (SEN. CAYETANO,A). May I recognize the Minority Leader and give him
the floor, Senator Pimentel.

SEN. PIMENTEL. Mr. Chairman, there is no problem, I think, with consulting the other
committees. But I am of the opinion that the Blue Ribbon Committee is the lead
committee, and therefore, it should have preference in enforcing its own decisions.
Meaning to say, it is not something that is subject to consultation with other committees.
I am not sure that is the right interpretation. I think that once we decide here, we enforce
what we decide, because otherwise, before we know it, our determination is watered
down by delay and, you know, the so-called "consultation" that inevitably will have to
take place if we follow the premise that has been explained.

So my suggestion, Mr. Chairman, is the Blue Ribbon Committee should not forget it's the lead
committee here, and therefore, the will of the lead committee prevails over all the other, you,
know reservations that other committees might have who are only secondary or even tertiary
committees, Mr. Chairman.

THE CHAIRMAN (SEN. CAYETANO, A.) Thank you very much to the Minority Leader. And I
agree with the wisdom of his statements. I was merely mentioning that under Section 6 of the
Rules of the Committee and under Section 6, "The Committee by a vote of a majority of all its
members may punish for contempt any witness before it who disobeys any order of the
Committee."

So the Blue Ribbon Committee is more than willing to take that responsibility. But we only have
six members here today, I am the seventh as chair and so we have not met that
number. So I am merely stating that, sir, that when we will prepare the documentation, if a
majority of all members sign and I am following the Sabio v. Gordon rule wherein I do believe, if
I am not mistaken, Chairman Gordon prepared the documentation and then either in caucus or
in session asked the other members to sign. And once the signatures are obtained, solely for
the purpose that Secretary Neri or Mr. Lozada will not be able to legally question our subpoena
as being insufficient in accordance with law.

SEN. PIMENTEL. Mr. Chairman, the caution that the chair is suggesting is very well-taken. But
I'd like to advert to the fact that the quorum of the committee is only two as far as I remember.
Any two-member senators attending a Senate committee hearing provide that quorum, and
therefore there is more than a quorum demanded by our Rules as far as we are concerned now,
and acting as Blue Ribbon Committee, as Senator Enrile pointed out. In any event, the
signatures that will follow by the additional members will only tend to strengthen the
determination of this Committee to put its foot forward - put down on what is happening in this
country, Mr. Chairman, because it really looks terrible if the primary Committee of the Senate,
which is the Blue Ribbon Committee, cannot even sanction people who openly defy, you know,
the summons of this Committee. I know that the Chair is going through an agonizing moment
here. I know that. But nonetheless, I think we have to uphold, you know, the institution that we
are representing because the alternative will be a disaster for all of us, Mr. Chairman. So having
said that, I'd like to reiterate my point.

THE CHAIRMAN (SEN. CAYETANO, A.) First of all, I agree 100 percent with the intentions of
the Minority Leader. But let me very respectfully disagree with the legal requirements.
Because, yes, we can have a hearing if we are only two but both under Section 18 of the
Rules of the Senate and under Section 6 of the Rules of the Blue Ribbon Committee,
there is a need for a majority of all members if it is a case of contempt and arrest. So, I
am simply trying to avoid the court rebuking the Committee, which will instead of strengthening
will weaken us. But I do agree, Mr. Minority Leader, that we should push for this and show the
executive branch that the well- decided - the issue has been decided upon the Sabio versus
Gordon case. And it's very clear that we are all allowed to call witnesses. And if they refure or
they disobey not only can we cite them in contempt and have them arrested. x x x [62]
Fourth, we find merit in the argument of the OSG that respondent Committees likewise violated
Section 21 of Article VI of the Constitution, requiring that the inquiry be in accordance with
the "duly published rules of procedure." We quote the OSG's explanation:
The phrase `duly published rules of procedure' requires the Senate of every Congress to
publish its rules of procedure governing inquiries in aid of legislation because every Senate is
distinct from the one before it or after it. Since Senatorial elections are held every three (3)
years for one-half of the Senate's membership, the composition of the Senate also changes by
the end of each term. Each Senate may thus enact a different set of rules as it may deem
fit. Not having published its Rules of Procedure, the subject hearings in aid of legislation
conducted by the 14th Senate, are therefore, procedurally infirm.
And fifth, respondent Committees' issuance of the contempt Order is arbitrary and precipitate.
It must be pointed out that respondent Committees did not first pass upon the claim of
executive privilege and inform petitioner of their ruling. Instead, they curtly dismissed his
explanation as "unsatisfactory" and simultaneously issued the Order citing him in contempt and
ordering his immediate arrest and detention.

A fact worth highlighting is that petitioner is not an unwilling witness. He manifested several
times his readiness to testify before respondent Committees. He refused to answer the three (3)
questions because he was ordered by the President to claim executive privilege. It behooves
respondent Committees to first rule on the claim of executive privilege and inform petitioner of
their finding thereon, instead of peremptorily dismissing his explanation as "unsatisfactory."
Undoubtedly, respondent Committees' actions constitute grave abuse of discretion for being
arbitrary and for denying petitioner due process of law. The same quality afflicted their conduct
when they (a) disregarded petitioner's motion for reconsideration alleging that he had filed the
present petition before this Court and (b) ignored petitioner's repeated request for an advance
list of questions, if there be any aside from the three (3) questions as to which he claimed to be
covered by executive privilege.

Even the courts are repeatedly advised to exercise the power of contempt judiciously and
sparingly with utmost self-restraint with the end in view of utilizing the same for correction and
preservation of the dignity of the court, not for retaliation or vindication.[63] Respondent
Committees should have exercised the same restraint, after all petitioner is not even an ordinary
witness. He holds a high position in a co-equal branch of government.
In this regard, it is important to mention that many incidents of judicial review could have been
avoided if powers are discharged with circumspection and deference. Concomitant with the
doctrine of separation of powers is the mandate to observe respect to a co-equal branch of the
government.

One last word.

The Court was accused of attempting to abandon its constitutional duty when it required the
parties to consider a proposal that would lead to a possible compromise. The accusation is far
from the truth. The Court did so, only to test a tool that other jurisdictions find to be effective in
settling similar cases, to avoid a piecemeal consideration of the questions for review and to
avert a constitutional crisis between the executive and legislative branches of government.

In United States v. American Tel. & Tel Co., [64]the court refrained from deciding the case
because of its desire to avoid a resolution that might disturb the balance of power between the
two branches and inaccurately reflect their true needs. Instead, it remanded the record to the
District Court for further proceedings during which the parties are required to negotiate a
settlement. In the subsequent case of United States v. American Tel. &Tel Co.,[65] it was held
that "much of this spirit of compromise is reflected in the generality of language found in the
Constitution." It proceeded to state:
Under this view, the coordinate branches do not exist in an exclusively adversary relationship to
one another when a conflict in authority arises. Rather each branch should take cognizance of
an implicit constitutional mandate to seek optimal accommodation through a realistic evaluation
of the needs of the conflicting branches in the particular fact situation.
It thereafter concluded that: "The Separation of Powers often impairs efficiency, in terms of
dispatch and the immediate functioning of government. It is the long-term staying power
of government that is enhanced by the mutual accommodation required by the
separation of powers."

In rendering this decision, the Court emphasizes once more that the basic principles of
constitutional law cannot be subordinated to the needs of a particular situation. As magistrates,
our mandate is to rule objectively and dispassionately, always mindful of Mr. Justice Holmes'
warning on the dangers inherent in cases of this nature, thus:
"some accident of immediate and overwhelming interest...appeals to the feelings and distorts
the judgment. These immediate interests exercise a kind of hydraulic pressure which makes
what previously was clear seem doubtful, and before which even well settled principles of law
will bend."[66]
In this present crusade to "search for truth," we should turn to the fundamental constitutional
principles which underlie our tripartite system of government, where the Legislature enacts the
law, the Judiciary interprets it and the Executive implements it. They are considered separate,
co-equal, coordinate and supreme within their respective spheres but, imbued with a system of
checks and balances to prevent unwarranted exercise of power. The Court's mandate is to
preserve these constitutional principles at all times to keep the political branches of government
within constitutional bounds in the exercise of their respective powers and prerogatives, even if
it be in the search for truth. This is the only way we can preserve the stability of our democratic
institutions and uphold the Rule of Law.

WHEREFORE, the petition is hereby GRANTED. The subject Order dated January 30, 2008,
citing petitioner Romulo L. Neri in contempt of the Senate Committees and directing his arrest
and detention, is hereby nullified.
SO ORDERED.