Publication of laws

"xxx.

Implementation of E.O. 464 prior to its publication

While E.O. 464 applies only to officials of the executive branch, it does not follow that the same is exempt from the need for publication. On the need for publishing even those statutes that do not directly apply to people in general, Tañada v. Tuvera states:

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 courts of justice.108 (Emphasis and underscoring supplied)

Although the above statement was made in reference to statutes, logic dictates that the challenged order must be covered by the publication requirement. As explained above, E.O. 464 has a direct effect on the right of the people to information on matters of public concern. It is, therefore, a matter of public interest which members of the body politic may question before this Court. Due process thus requires that the people should have been apprised of this issuance before it was implemented.

Xxx."

G.R. No. 169777* April 20, 2006

SENATE OF THE PHILIPPINES, represented by FRANKLIN M. DRILON, in his capacity as Senate President, JUAN M. FLAVIER, in his capacity as Senate President Pro Tempore, FRANCIS N. PANGILINAN, in his capacity as Majority Leader, AQUILINO Q. PIMENTEL, JR., in his capacity as Minority Leader, SENATORS RODOLFO G. BIAZON, "COMPANERA" PIA S. CAYETANO, JINGGOY EJERCITO ESTRADA, LUISA "LOI" EJERCITO ESTRADA, JUAN PONCE ENRILE, RICHARD J. GORDON, PANFILO M. LACSON, ALFREDO S.LIM, M. A. MADRIGAL, SERGIO OSMENA III, RALPH G. RECTO, and MAR ROXAS, Petitioners,
vs.
EDUARDO R. ERMITA, in his capacity as Executive Secretary and alter-ego of President Gloria Macapagal-Arroyo, and anyone acting in his stead and in behalf of the President of the Philippines, Respondents.

https://lawphil.net/judjuris/juri2006/apr2006/gr_169777_2006.html

Right to information on matters of public concern

"xxx.

Right to Information

E.O 464 is concerned only with the demands of Congress for the appearance of executive officials in the hearings conducted by it, and not with the demands of citizens for information pursuant to their right to information on matters of public concern. Petitioners are not amiss in claiming, however, that what is involved in the present controversy is not merely the legislative power of inquiry, but the right of the people to information.

There are, it bears noting, clear distinctions between the right of Congress to information which underlies the power of inquiry and the right of the 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 and 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.

To the extent that investigations in aid of legislation are generally conducted in public, however, any executive issuance tending to unduly limit disclosures of information in such investigations necessarily deprives the people of information which, being presumed to be in aid of legislation, is presumed to be a matter of public concern. The citizens are thereby denied access to information which they can use in formulating their own opinions on the matter before Congress — opinions which they can then communicate to their representatives and other government officials through the various legal means allowed by their freedom of expression. Thus holds Valmonte v. Belmonte:

It is in the interest of the State that the channels for free political discussion be maintained to the end that the government may perceive and be responsive to the people’s will. Yet, this open dialogue can be effective only to the extent that the citizenry is informed and thus able to formulate its will intelligently. Only when the participants in the discussion are aware of the issues and have access to information relating thereto can such bear fruit.107 (Emphasis and underscoring supplied)

The impairment of the right of the people to information as a consequence of E.O. 464 is, therefore, in the sense explained above, just as direct as its violation of the legislature’s power of inquiry.

Xxx."

G.R. No. 169777

April 20, 2006

SENATE OF THE PHILIPPINES, represented by FRANKLIN M. DRILON, in his capacity as Senate President, JUAN M. FLAVIER, in his capacity as Senate President Pro Tempore, FRANCIS N. PANGILINAN, in his capacity as Majority Leader, AQUILINO Q. PIMENTEL, JR., in his capacity as Minority Leader, SENATORS RODOLFO G. BIAZON, "COMPANERA" PIA S. CAYETANO, JINGGOY EJERCITO ESTRADA, LUISA "LOI" EJERCITO ESTRADA, JUAN PONCE ENRILE, RICHARD J. GORDON, PANFILO M. LACSON, ALFREDO S.LIM, M. A. MADRIGAL, SERGIO OSMENA III, RALPH G. RECTO, and MAR ROXAS, Petitioners,
vs.
EDUARDO R. ERMITA, in his capacity as Executive Secretary and alter-ego of President Gloria Macapagal-Arroyo, and anyone acting in his stead and in behalf of the President of the Philippines, Respondents.

https://lawphil.net/judjuris/juri2006/apr2006/gr_169777_2006.html

Executive privilege

"xxx.

Executive privilege

The phrase "executive privilege" is not new in this jurisdiction. It has been used even prior to the promulgation of the 1986 Constitution.63 Being of American origin, it is best understood in light of how it has been defined and used in the legal literature of the United States.

Schwartz defines executive privilege as "the power of the Government to withhold information from the public, the courts, and the Congress."64 Similarly, Rozell defines it as "the right of the President and high-level executive branch officers to withhold information from Congress, the courts, and ultimately the public."65

Executive privilege is, nonetheless, not a clear or unitary concept. 66 It has encompassed claims of varying kinds.67 Tribe, in fact, comments that while it is customary to employ the phrase "executive privilege," it may be more accurate to speak of executive privileges "since presidential refusals to furnish information may be actuated by any of at least three distinct kinds of considerations, and may be asserted, with differing degrees of success, in the context of either judicial or legislative investigations."

One variety of the privilege, Tribe explains, is the state secrets privilege invoked by U.S. Presidents, beginning with Washington, on the ground that the information is of such nature that its disclosure would subvert crucial military or diplomatic objectives. Another variety is the informer’s privilege, or the privilege of the Government not to disclose the identity of persons who furnish information of violations of law to officers charged with the enforcement of that law. Finally, a generic privilege for internal deliberations has been said to attach to intragovernmental documents reflecting advisory opinions, recommendations and deliberations comprising part of a process by which governmental decisions and policies are formulated. 68

Tribe’s comment is supported by the ruling in In re Sealed Case, thus:

Since the beginnings of our nation, executive officials have claimed a variety of privileges to resist disclosure of information the confidentiality of which they felt was crucial to fulfillment of the unique role and responsibilities of the executive branch of our government. Courts ruled early that the executive had a right to withhold documents that might reveal military or state secrets. The courts have also granted the executive a right to withhold the identity of government informers in some circumstances and a qualified right to withhold information related to pending investigations. x x x"69 (Emphasis and underscoring supplied)

The entry in Black’s Law Dictionary on "executive privilege" is similarly instructive regarding the scope of the doctrine.

This privilege, based on the constitutional doctrine of separation of powers, exempts the executive from disclosure requirements applicable to the ordinary citizen or organization where such exemption is necessary to the discharge of highly important executive responsibilities involved in maintaining governmental operations, and extends not only to military and diplomatic secrets but also to documents integral to an appropriate exercise of the executive’ domestic decisional and policy making functions, that is, those documents reflecting the frank expression necessary in intra-governmental advisory and deliberative communications.70 (Emphasis and underscoring supplied)

That a type of information is recognized as privileged does not, however, necessarily mean that it would be considered privileged in all instances. For in determining the validity of a claim of privilege, the question that must be asked is not only whether the requested information falls within one of the traditional privileges, but also whether that privilege should be honored in a given procedural setting.71

The leading case on executive privilege in the United States is U.S. v. Nixon, 72 decided in 1974. In issue in that case was the validity of President Nixon’s claim of executive privilege against a subpoena issued by a district court requiring the production of certain tapes and documents relating to the Watergate investigations. The claim of privilege was based on the President’s general interest in the confidentiality of his conversations and correspondence. The U.S. Court held that while there is no explicit reference to a privilege of confidentiality in the U.S. Constitution, it is constitutionally based to the extent that it relates to the effective discharge of a President’s powers. The Court, nonetheless, rejected the President’s claim of privilege, ruling that the privilege must be balanced against the public interest in the fair administration of criminal justice. Notably, the Court was careful to clarify that it was not there addressing the issue of claims of privilege in a civil litigation or against congressional demands for information.

Cases in the U.S. which involve claims of executive privilege against Congress are rare.73 Despite frequent assertion of the privilege to deny information to Congress, beginning with President Washington’s refusal to turn over treaty negotiation records to the House of Representatives, the U.S. Supreme Court has never adjudicated the issue.74 However, the U.S. Court of Appeals for the District of Columbia Circuit, in a case decided earlier in the same year as Nixon, recognized the President’s privilege over his conversations against a congressional subpoena.75 Anticipating the balancing approach adopted by the U.S. Supreme Court in Nixon, the Court of Appeals weighed the public interest protected by the claim of privilege against the interest that would be served by disclosure to the Committee. Ruling that the balance favored the President, the Court declined to enforce the subpoena. 76

In this jurisdiction, the doctrine of executive privilege was recognized by this Court in Almonte v. Vasquez.77 Almonte used the term in reference to the same privilege subject of Nixon. It quoted the following portion of the Nixon decision which explains the basis for the privilege:

"The expectation of a President to the confidentiality of his conversations and correspondences, like the claim of confidentiality of judicial deliberations, for example, has all the values to which we accord deference for the privacy of all citizens and, added to those values, is the necessity for protection of the public interest in candid, objective, and even blunt or harsh opinions in Presidential decision-making. A President and those who assist him must be free to explore alternatives in the process of shaping policies and making decisions and to do so in a way many would be unwilling to express except privately. These are the considerations justifying a presumptive privilege for Presidential communications. The privilege is fundamental to the operation of government and inextricably rooted in the separation of powers under the Constitution x x x " (Emphasis and underscoring supplied)

Almonte involved a subpoena duces tecum issued by the Ombudsman against the therein petitioners. It did not involve, as expressly stated in the decision, the right of the people to information.78 Nonetheless, the Court recognized that there are certain types of information which the government may withhold from the public, thus acknowledging, in substance if not in name, that executive privilege may be claimed against citizens’ demands for information.

In Chavez v. PCGG,79 the Court held that this jurisdiction recognizes the common law holding that there is a "governmental privilege against public disclosure with respect to state secrets regarding military, diplomatic and other national security matters."80 The same case held that closed-door Cabinet meetings are also a recognized limitation on the right to information.

Similarly, in Chavez v. Public Estates Authority,81 the Court ruled that the right to information does not extend to matters recognized as "privileged information under the separation of powers,"82 by which the Court meant Presidential conversations, correspondences, and discussions in closed-door Cabinet meetings. It also held that information on military and diplomatic secrets and those affecting national security, and information on investigations of crimes by law enforcement agencies before the prosecution of the accused were exempted from the right to information.

From the above discussion on the meaning and scope of executive privilege, both in the United States and in this jurisdiction, a clear principle emerges. Executive privilege, whether asserted against Congress, the courts, or the public, is recognized only in relation to certain types of information of a sensitive character. While executive privilege is a constitutional concept, a claim thereof may be valid or not depending on the ground invoked to justify it and the context in which it is made. Noticeably absent is any recognition that executive officials are exempt from the duty to disclose information by the mere fact of being executive officials. Indeed, the extraordinary character of the exemptions indicates that the presumption inclines heavily against executive secrecy and in favor of disclosure.

Xxx."

G.R. No. 169777* April 20, 2006

SENATE OF THE PHILIPPINES, represented by FRANKLIN M. DRILON, in his capacity as Senate President, JUAN M. FLAVIER, in his capacity as Senate President Pro Tempore, FRANCIS N. PANGILINAN, in his capacity as Majority Leader, AQUILINO Q. PIMENTEL, JR., in his capacity as Minority Leader, SENATORS RODOLFO G. BIAZON, "COMPANERA" PIA S. CAYETANO, JINGGOY EJERCITO ESTRADA, LUISA "LOI" EJERCITO ESTRADA, JUAN PONCE ENRILE, RICHARD J. GORDON, PANFILO M. LACSON, ALFREDO S.LIM, M. A. MADRIGAL, SERGIO OSMENA III, RALPH G. RECTO, and MAR ROXAS, Petitioners,
vs.
EDUARDO R. ERMITA, in his capacity as Executive Secretary and alter-ego of President Gloria Macapagal-Arroyo, and anyone acting in his stead and in behalf of the President of the Philippines, Respondents.

Congress; power of inquiry

"xxx.

The power of inquiry

The Congress power of inquiry is expressly recognized in Section 21 of Article VI of the Constitution which reads:

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. (Underscoring supplied)

This provision is worded exactly as Section 8 of Article VIII of the 1973 Constitution except that, in the latter, it vests the power of inquiry in the unicameral legislature established therein – the Batasang Pambansa – and its committees.

The 1935 Constitution did not contain a similar provision. Nonetheless, in Arnault v. Nazareno,58 a case decided in 1950 under that Constitution, the Court already recognized that the power of inquiry is inherent in the power to legislate.

Arnault involved a Senate investigation of the reportedly anomalous purchase of the Buenavista and Tambobong Estates by the Rural Progress Administration. Arnault, who was considered a leading witness in the controversy, was called to testify thereon by the Senate. On account of his refusal to answer the questions of the senators on an important point, he was, by resolution of the Senate, detained for contempt. Upholding the Senate’s power to punish Arnault for contempt, this Court held:

Although there is no provision in the Constitution expressly investing either House of Congress with power to make investigations and exact testimony to the end that it may exercise its legislative functions advisedly and effectively, such power is so far incidental to the legislative function as to be implied. In other words, the power of inquiry – with process to enforce it – is an essential and appropriate auxiliary to the legislative function. A legislative body cannot legislate wisely or effectively in the absence of information respecting the conditions which the legislation is intended to affect or change; and where the legislative body does not itself possess the requisite information – which is not infrequently true – recourse must be had to others who do possess it. Experience has shown that mere requests for such information are often unavailing, and also that information which is volunteered is not always accurate or complete; so some means of compulsion is essential to obtain what is needed.59 . . . (Emphasis and underscoring supplied)

That this power of inquiry is broad enough to cover officials of the executive branch may be deduced from the same case. The power of inquiry, the Court therein ruled, is co-extensive with the power to legislate.60 The matters which may be a proper subject of legislation and those which may be a proper subject of investigation are one. It follows that the operation of government, being a legitimate subject for legislation, is a proper subject for investigation.

Thus, the Court found that the Senate investigation of the government transaction involved in Arnault was a proper exercise of the power of inquiry. Besides being related to the expenditure of public funds of which Congress is the guardian, the transaction, the Court held, "also involved government agencies created by Congress and officers whose positions it is within the power of Congress to regulate or even abolish."

Since Congress has authority to inquire into the operations of the executive branch, it would be incongruous to hold that the power of inquiry does not extend to executive officials who are the most familiar with and informed on executive operations.

As discussed in Arnault, the power of inquiry, "with process to enforce it," is grounded on the necessity of information in the legislative process. If the information possessed by executive officials on the operation of their offices is necessary for wise legislation on that subject, by parity of reasoning, Congress has the right to that information and the power to compel the disclosure thereof.

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.

For one, as noted in Bengzon v. Senate Blue Ribbon Committee,61 the inquiry itself might not properly be in aid of legislation, and thus beyond the constitutional power of Congress. Such inquiry could not usurp judicial functions. Parenthetically, one possible way for Congress to avoid such a result as occurred in Bengzon is to indicate in its invitations to the public officials concerned, or to any person for that matter, the possible needed statute which prompted the need for the inquiry. Given such statement in its invitations, along with the usual indication of the subject of inquiry and the questions relative to and in furtherance thereof, there would be less room for speculation on the part of the person invited on whether the inquiry is in aid of legislation.

Section 21, Article VI likewise establishes crucial safeguards that proscribe the legislative power of inquiry. The provision requires that the inquiry be done in accordance with the Senate or House’s duly published rules of procedure, necessarily implying the constitutional infirmity of an inquiry conducted without duly published rules of procedure. Section 21 also mandates that the rights of persons appearing in or affected by such inquiries be respected, an imposition that obligates Congress to adhere to the guarantees in the Bill of Rights.

These abuses are, of course, remediable before the courts, upon the proper suit filed by the persons affected, even if they belong to the executive branch. Nonetheless, there may be exceptional circumstances, none appearing to obtain at present, wherein a clear pattern of abuse of the legislative power of inquiry might be established, resulting in palpable violations of the rights guaranteed to members of the executive department under the Bill of Rights. In such instances, depending on the particulars of each case, attempts by the Executive Branch to forestall these abuses may be accorded judicial sanction.

Even where the inquiry is in aid of legislation, there are still recognized exemptions to the power of inquiry, which exemptions fall under the rubric of "executive privilege." Since this term figures prominently in the challenged order, it being mentioned in its provisions, its preambular clauses,62 and in its very title, a discussion of executive privilege is crucial for determining the constitutionality of E.O. 464.

Xxx."

G.R. No. 169777* April 20, 2006

SENATE OF THE PHILIPPINES, represented by FRANKLIN M. DRILON, in his capacity as Senate President, JUAN M. FLAVIER, in his capacity as Senate President Pro Tempore, FRANCIS N. PANGILINAN, in his capacity as Majority Leader, AQUILINO Q. PIMENTEL, JR., in his capacity as Minority Leader, SENATORS RODOLFO G. BIAZON, "COMPANERA" PIA S. CAYETANO, JINGGOY EJERCITO ESTRADA, LUISA "LOI" EJERCITO ESTRADA, JUAN PONCE ENRILE, RICHARD J. GORDON, PANFILO M. LACSON, ALFREDO S.LIM, M. A. MADRIGAL, SERGIO OSMENA III, RALPH G. RECTO, and MAR ROXAS, Petitioners,
vs.
EDUARDO R. ERMITA, in his capacity as Executive Secretary and alter-ego of President Gloria Macapagal-Arroyo, and anyone acting in his stead and in behalf of the President of the Philippines, Respondents.

https://lawphil.net/judjuris/juri2006/apr2006/gr_169777_2006.html

Unpaid Marcos estate taxes

Duterte's greatest gift to the Marcos political dynasty? -

Opinion (Justice Antonio Carpio):

"The Court of Appeals dismissed Bongbong Marcos’s petition on the ground that the estate tax assessment had already become “final and unappealable.” Twenty-four years after the Supreme Court affirmed the Court of Appeals decision, the Marcos heirs still have not paid the estate tax. There are two consequences to this failure to pay the estate tax.

First, any deficiency estate tax earns 20 percent interest per annum until full payment, in addition to a one-time 25 percent penalty for failure to pay within the prescribed period. Thus, the annual interest payable by the Marcos estate is P4,658,721,527, which 30 years after the finality of the assessment on Oct. 12, 1991 adds another P139,761,645,828 to the principal estate tax of P23,293,607,638. There is still the 25 percent penalty amounting to P5,823,401,909, on which the 20 percent interest per annum is also imposed and now amounts to P34,940,411,454. Second, no property of the deceased can be transferred to any of the heirs until the estate tax is paid. Thus, no Marcos heir can transfer any asset of the Marcos estate in his or her name, or sell such asset until all these taxes are paid.

The BIR must renew written demands on the Marcos heirs to pay these tax liabilities once every five years, otherwise they prescribe and become uncollectable. The Ramos, Arroyo, and Aquino administrations have faithfully issued such written demands. Has the Duterte administration done the same? If not, then it is the greatest gift of President Duterte to the Marcos heirs — waiver of a tax debt to the Filipino people now aggregating P203.819 billion."

Read more: 

https://opinion.inquirer.net/144747/tax-debt-of-the-marcos-estate#ixzz77tZ6CgYv

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A transparent government is one of the hallmarks of a truly republican state.

The power of the legislature to inquire into the operations of government;

Our right as a people to take part in government.

JURISPRUDENCE:

SENATE OF THE PHILIPPINES, etc., et. al. vs. EDUARDO R. ERMITA, etc., et. al., G.R. No. 169777, April 20, 2006 (with accompanying cases).

https://lawphil.net/judjuris/juri2006/apr2006/gr_169777_2006.html

"CARPIO MORALES, J.:

A transparent government is one of the hallmarks of a truly republican state. Even in the early history of republican thought, however, it has been recognized that the head of government may keep certain information confidential in pursuit of the public interest. Explaining the reason for vesting executive power in only one magistrate, a distinguished delegate to the U.S. Constitutional Convention said: "Decision, activity, secrecy, and dispatch will generally characterize the proceedings of one man, in a much more eminent degree than the proceedings of any greater number; and in proportion as the number is increased, these qualities will be diminished."1

History has been witness, however, to the fact that the power to withhold information lends itself to abuse, hence, the necessity to guard it zealously.

The present consolidated petitions for certiorari and prohibition proffer that the President has abused such power by issuing Executive Order No. 464 (E.O. 464) last September 28, 2005. They thus pray for its declaration as null and void for being unconstitutional.

In resolving the controversy, this Court shall proceed with the recognition that the issuance under review has come from a co-equal branch of government, which thus entitles it to a strong presumption of constitutionality. Once the challenged order is found to be indeed violative of the Constitution, it is duty-bound to declare it so. For the Constitution, being the highest expression of the sovereign will of the Filipino people, must prevail over any issuance of the government that contravenes its mandates.

In the exercise of its legislative power, the Senate of the Philippines, through its various Senate Committees, conducts inquiries or investigations in aid of legislation which call for, inter alia, the attendance of officials and employees of the executive department, bureaus, and offices including those employed in Government Owned and Controlled Corporations, the Armed Forces of the Philippines (AFP), and the Philippine National Police (PNP).

On September 21 to 23, 2005, the Committee of the Senate as a whole issued invitations to various officials of the Executive Department for them to appear on September 29, 2005 as resource speakers in a public hearing on the railway project of the North Luzon Railways Corporation with the China National Machinery and Equipment Group (hereinafter North Rail Project). The public hearing was sparked by a privilege speech of Senator Juan Ponce Enrile urging the Senate to investigate the alleged overpricing and other unlawful provisions of the contract covering the North Rail Project.

X x x.

On September 28, 2005, the President issued E.O. 464, "Ensuring Observance of the Principle of Separation of Powers, Adherence to the Rule on Executive Privilege and Respect for the Rights of Public Officials Appearing in Legislative Inquiries in Aid of Legislation Under the Constitution, and For Other Purposes,"7 which, pursuant to Section 6 thereof, took effect immediately. The salient provisions of the Order are as follows:

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

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

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

(a) Nature and Scope. - The rule of confidentiality based on executive privilege is fundamental to the operation of government and rooted in the separation of powers under the Constitution (Almonte vs. Vasquez, G.R. No. 95367, 23 May 1995). Further, Republic Act No. 6713 or the Code of Conduct and Ethical Standards for Public Officials and Employees provides that Public Officials and Employees shall not use or divulge confidential or classified information officially known to them by reason of their office and not made available to the public to prejudice the public interest.

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

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

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

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

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

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

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

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

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

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

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

Such other officers as may be determined by the President.

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

X x x.

Conclusion

Congress undoubtedly has a right to information from the executive branch whenever it is sought in aid of legislation. If the executive branch withholds such information on the ground that it is privileged, it must so assert it and state the reason therefor and why it must be respected.

The infirm provisions of E.O. 464, however, allow the executive branch to evade congressional requests for information without need of clearly asserting a right to do so and/or proffering its reasons therefor. By the mere expedient of invoking said provisions, the power of Congress to conduct inquiries in aid of legislation is frustrated. That is impermissible. For [w]hat republican theory did accomplish…was to reverse the old presumption in favor of secrecy, based on the divine right of kings and nobles, and replace it with a presumption in favor of publicity, based on the doctrine of popular sovereignty. (Underscoring supplied)109

Resort to any means then by which officials of the executive branch could refuse to divulge information cannot be presumed valid. Otherwise, we shall not have merely nullified the power of our legislature to inquire into the operations of government, but we shall have given up something of much greater value – our right as a people to take part in government.

WHEREFORE, the petitions are PARTLY GRANTED. Sections 2(b) and 3 of Executive Order No. 464 (series of 2005), "Ensuring Observance of the Principle of Separation of Powers, Adherence to the Rule on Executive
Privilege and Respect for the Rights of Public Officials Appearing in Legislative Inquiries in Aid of Legislation Under the Constitution, and For Other Purposes," are declared VOID. Sections 1 and 2(a) are, however, VALID.

SO ORDERED.


CONCHITA CARPIO MORALES
Associate Justice

WE CONCUR:

ARTEMIO V. PANGANIBAN
Chief Justice
(ON LEAVE)

REYNATO S. PUNO
Associate Justice

CONSUELO YNARES- SANTIAGO
Asscociate Justice

LEONARDO A. QUISUMBING
Associate Justice 

ANGELINA SANDOVAL-GUTIERREZ
Asscociate Justice

ANTONIO T. CARPIO
Associate Justice 

MA. ALICIA AUSTRIA-MARTINEZ
Asscociate Justice

RENATO C. CORONA
Associate Justice 

ADOLFO S. AZCUNA
Asscociate Justice

ROMEO J. CALLEJO, SR.
Associate Justice 

DANTE O. TINGA
Asscociate Justice

MINITA V. CHICO-NAZARIO
Associate Justice 

CANCIO C. GARCIA
Asscociate Justice

PRESBITERO J. VELASCO, JR.
Associate Justice."

Constitutional crisis

THE DICTATOR DUTERTE is ready to (a) create a CONSTITUTIONAL CRISIS, (b) destroy the RULE OF LAW, the CONSTITUTION and the doctrine of SEPARATION OF POWERS or CHECK AND BALANCE, and (c) deepen the destructive POLITICS OF POLARIZATION in the country.

He fears the revelation of the truth about the MASSIVE CORRUPTION in his government.

He must protect the DAVAO MAFIA at all costs, even if it means the TOTAL DESTRUCTION OF OUR DEMOCRATIC SOCIETY.

Otherwise, the evidence of conspiracy, graft, plunder and abuse of power would ULTIMATELY LEAD TO HIS CORRUPT AND AUTHORITARIAN OFFICE.

The psychopathic mastermind is in PANIC MODE.

As his PANIC escalates, he becomes more dangerous, destructive, violent, cruel and oppressive.

He is prepared to bring the country to the status of a FAILED STATE TO SAVE HIS NECK.

The SOVEREIGN FILIPINO PEOPLE, as the CONSTITUTIONAL SOURCE OF ALL GOVERNMENTAL AUTHORITY, are left with no other fair and reasonable options but to exercise their INHERENT RIGHT TO SELF-DETERMINATION and their NATURAL RIGHT TO EXPEL A TYRANT to SAVE THE DYING REPUBLIC.

Their options of last resort are clear:

(a) nonviolent nationwide CIVIL DISOBEDIENCE movement,

(b) peaceful but massive PARLIAMENTS OF THE STREETS, 

(c) total WITHDRAWAL OF SUPPORT by the civil bureaucracy and the military who are lavishly compensated by the hard-earned taxes of the masses, and 

(d) the power of the BALLOT and the RIGHT OF SUFFRAGE. 

We humbly advise Duterte to avoid another EDSA PEOPLE POWER REVOLUTION. 

NEWS:

"President Rodrigo Duterte orders the issuance of a memo blocking the attendance of Cabinet members and orders uniformed personnel to ignore arrest warrants issued by the Senate

President Rodrigo Duterte continued to rage against the Senate on Thursday night, September 30, spewing a series of orders that would limit the appearance of Cabinet officials and witnesses in an ongoing probe into the alleged corruption in his administration’s pandemic response.

In his now bi-weekly public addresses, Duterte was furious over hearings at the Senate blue ribbon committee, after its chairman, Senator Richard Gordon, claimed that the panel would continue its investigation “until kingdom come” as witnesses remained “evasive” in answering lawmaker’s questions. Gordon said the chamber had a lot more to dig on questionable pandemic purchases."

Read:

https://www.rappler.com/nation/duterte-seeks-block-cabinet-witnesses-from-appearing-in-senate-probe-pandemic

Court of Appeals has no jurisdiction over the criminal aspect of an Ombudsman case.

"xxx.

Court of Appeals' Jurisdiction Over the Criminal Aspect of the Case

Duyon was correct in his insistence that the Court of Appeals has no jurisdiction over the criminal aspect of an Ombudsman case. "The Court of Appeals has jurisdiction over orders, directives and decisions of the Office of the Ombudsman in administrative disciplinary cases only. It cannot, therefore, review the orders, directives or decisions of the Office of the Ombudsman in criminal or non-administrative cases."32

In Kuizon v. Hon. Desierto33 this Court clarified:

The appellate court correctly ruled that its jurisdiction extends only to decisions of the Office of the Ombudsman in administrative cases. In the Fabian case, we ruled that appeals from decisions of the Office of the Ombudsman in administrative disciplinary cases should be taken to the Court of Appeals under Rule 43 of the 1997 Rules of Civil Procedure. It bears stressing that when we declared Section 27 of Republic Act No. 6770 as unconstitutional, we categorically stated that said provision is involved only whenever an appeal by certiorari under Rule 45 is taken from a decision in an administrative disciplinary action. It cannot be taken into account where an original action for certiorari under Rule 65 is resorted to as a remedy for judicial review, such as from an incident in a criminal action. (Citations omitted.)

Bunag-Cabacungan's argument that the Court of Appeals now has appellate jurisdiction to review both the administrative and criminal aspects of orders and decisions of the Ombudsman because of the September 15, 2003 amendment to Rule III of Administrative Order No. 07 of the Office of the Ombudsman deserves no merit at all.

Section 7, Rule III of Administrative Order No. 07, as amended by Administrative Order No. 17, reads:

SEC. 7. Finality and execution of decision. - Where the respondent is absolved of the charge, and in case of conviction where the penalty imposed is public censure or reprimand, suspension of not more than one month, or a fine equivalent to one month salary, the decision shall be final, executory and unappealable. In all other cases, the decision may be appealed to the Court of Appeals on a verified petition for review under the requirements and conditions set forth in Rule 43 of the Rules of Court, within fifteen (15) days from receipt of the written Notice of the Decision or Order denying the Motion for Reconsideration. (Emphasis supplied.)

Bunag-Cabacungan's contention that the phrase "in all other cases" has removed the distinction between administrative and criminal cases of the Ombudsman is ludicrous. It must be stressed that the above-quoted Section 7 is provided under Rule III, which deals with the procedure in administrative cases. When Administrative Order No. 07 was amended by Administrative Order No. 17, Section 7 was retained in Rule III. It is another rule, Rule II, which provides for the procedure in criminal cases. Thus, the phrase "in all other cases" still refers to administrative cases, not criminal cases, where the sanctions imposed are different from those enumerated in Section 7.

It is important to note that the petition filed by Bunag-Cabacungan in CA-G.R. SP No. 86630 assailed only the "administrative decision" rendered against her by the OMB for Luzon. Quoted hereunder is the pertinent portion of her petition:

Believing that she is innocent of the administrative charges against her, your petitioner interposes this instant petition for the review of the administrative decision against her by the Office of the Ombudsman and the denial of her motion for reconsideration thereof.34 (Emphases ours.)

Moreover, the lone issue she submitted to the Court of Appeals for its consideration reads:

THE HONORABLE OFFICE OF THE OMBUDSMAN COMMITTED A GRAVE ERROR AND ABUSE OF AUTHORITY IN HOLDING COMPLAINANT GUILTY OF SIMPLE MISCONDUCT FOR THE MISTAKE COMMITTED BY ANOTHER [PERSON] IN THE ISSUANCE UNDER HER NAME OF EMANCIPATION PATENT No. A-347307.35

Furthermore, her arguments all throughout her petition for review before the Court of Appeals centered on how she should not have been found guilty of simple misconduct by the OMB for Luzon. Even the jurisprudence she cited in support of her arguments pertained to "misconduct in office." The same is true with Duyon's Comment,36 which focused on why Bunag-Cabacungan should be judged guilty of misconduct. Duyon actually argued for a more severe administrative punishment and prayed as follows:

WHEREFORE, in view of the foregoing premises, it is most respectfully prayed of the Honorable Court to MODIFY the Decision dated December 11, 2003 and the Joint Order dated August 27, 2004 imposing upon [Bunag-Cabacungan] and her husband the penalty of DISMISSAL from the government service for gross misconduct. Alternatively, should the Honorable Court find the punishment to be too harsh, it is humbly asked that they be punished for conduct grossly prejudicial to the best interest of the service punishable to a maximum period of one (1) year suspension, without pay, in accordance with Executive Order No. 292.37

In light of the foregoing, it is apparent that in the case before us, the Court of Appeals went beyond its jurisdiction by touching on the criminal aspect of the Decision and Joint Order of the OMB for Luzon in OMB-L-A-03-0111-A and OMB-L-C-03-0125-A. As such, the Court of Appeals' ruling on the criminal aspect of the aforementioned cases is void.38

Xxx."


G.R. No. 172218
November 26, 2014

FELICIANO B. DUYON, substituted by his children: MAXIMA R. DUYON-ORSAME, EFREN R. DUYON, NOVILYN R. DUYON, ELIZABETH R. DUYON-SIBUMA, MODESTO R. DUYON, ERROL R. DUYON, and DIVINA R. DUYON-VINLUAN, Petitioners,
vs.
THE FORMER SPECIAL FOURTH DIVISION OF THE COURT OF APPEALS and ELEONOR P. BUNAG-CABACUNGAN, Respondents.

Grave abuse of discretion

"xxx.

A petition for certiorari is governed by Rule 65 of the Rules of Court, which reads:

Section 1. Petition for certiorari.-When any tribunal, board or officer exercising judicial or quasi-judicial functions has acted without or in excess of its or his jurisdiction, or with grave abuse of discretion amounting to lack or excess of jurisdiction, and there is no appeal, nor any plain, speedy, and adequate remedy in the ordinary course of law, a person aggrieved thereby may file a verified petition in the proper court, alleging the facts with certainty and praying that judgment be rendered annulling or modifying the proceedings of such tribunal, board or officer, and granting such incidental reliefs as law and justice may require.

For certiorari to prosper, the following requisites must concur: (1) the writ is directed against a tribunal, a board or any officer exercising judicial or quasi-judicial functions; (2) such tribunal, board or officer has acted without or in excess of jurisdiction, or with grave abuse of discretion amounting to lack or excess of jurisdiction; and (3) there is no appeal nor any plain, speedy and adequate remedy in the ordinary course of law.39

This Court has defined grave abuse of discretion as such "capricious and whimsical exercise of judgment as is equivalent to lack of jurisdiction, or [an] exercise of power in an arbitrary and despotic manner by reason of passion or personal hostility, or an exercise of judgment so patent and gross as to amount to an evasion of a positive duty or to a virtual refusal to perform the duty enjoined, or to act in a manner not at all in contemplation of law."40

Xxx."


G.R. No. 172218
November 26, 2014

FELICIANO B. DUYON, substituted by his children: MAXIMA R. DUYON-ORSAME, EFREN R. DUYON, NOVILYN R. DUYON, ELIZABETH R. DUYON-SIBUMA, MODESTO R. DUYON, ERROL R. DUYON, and DIVINA R. DUYON-VINLUAN, Petitioners,
vs.
THE FORMER SPECIAL FOURTH DIVISION OF THE COURT OF APPEALS and ELEONOR P. BUNAG-CABACUNGAN, Respondents.

A judgment becomes "final and executory" by operation of law. - There is no general legal principle that mandates that all decisions of quasi-judicial agencies are immediately executory.

"xxx.

The sole issue addressed by our 5 April 2000 Resolution is whether or not the decision of the Office of the Ombudsman finding herein petitioner administratively liable for misconduct and imposing upon him a penalty of one (1) year suspension without pay is immediately executory pending appeal.

Petitioner was administratively charged for misconduct under the provisions of R.A. 6770, the Ombudsman Act of 1989. Section 27 of the said Act provides as follows:

Sec. 27. Effectively and Finality of Decisions. — All provisionary orders of the Office of the Ombudsman are immediately effective and executory.

A motion for reconsideration of any order, directive or decision of the Office of the Ombudsman must be filed within five (5) days after receipt of written notice and shall be entertained only on the following grounds:

x x x x x x x x x

Findings of fact of the Office of the Ombudsman when supported by substantial evidence are conclusive. Any order, directive or decision imposing the penalty of public censure or reprimand, suspension of not more than one month's salary shall be final and unappealable.

In all administrative disciplinary cases, orders, directives or decisions of the Office of the Ombudsman may be appealed to the Supreme Court by filing a petition for certiorari within ten (10) days from receipt of the written notice of the order, directive or decision or denial of the motion for reconsideration in accordance with Rule 45 of the Rules of Court.

The Rules of Produce of the Office of the Ombudsman 17 likewise contain a similar provision. Section 7, Rule III of the said Rules provides as follows:

Sec. 7. Finality of Decision. — where the respondent is absolved of the charge and in case of conviction where the penalty imposed is public censure or reprimand, suspension of not more than one month, or a fine not equivalent to one month salary, the decision shall be final and unapllealable. In all other cases, the decision shall become final after the expiration of ten (10) days from receipt thereof by the respondent, unless a motion for reconsideration or petition for certiorari, shall have been filed by him as prescribed in Section 27 of R.A. 6770.

It is clear from the above provisions that the punishment imposed upon petitioner, i.e. suspension without pay for one year, is no among those listed as final and unappealable, hence, immediately executory. Section 27 states that all provisionary orders of the Office of the Ombudsman are immediately effective and executory; and that any order, directive or decision of the said Office imposing the penalty of censure or reprimand or suspension of not more than one month's salary is final and unappealable. As such the legal maxim "inclusion unius est exclusio alterus" finds application. The express mention of the things included excludes those that are not included. The clear import of these statements taken together is that all other decisions of the Office of the Ombudsman which impose penalties that are not enumerated in the said section 27 are not final, unappealable and immediately executory. An appeal timely filed, such as the one filed in the instant case, will stay the immediate implementation of the decision. This finds support in the Rules of Procedure issued by the Ombudsman itself which states that "(I)n all other cases, the decision shall become final after the expiration of ten (10) days from receipt thereof by the respondent, unless a motion for reconsideration or petition for certiorari (should now be petition for review under Rules 43) shall have been filed by him as prescribed in Section 27 of R.A. 6770."

The Office of the Solicitor General insists however that the case of Fabian vs. Desierto 18 has voided Section 27 of R.A. 6770 and Section 7, Rule III of Administrative Order No. 07. As such, the review of decision of the Ombudsman in administrative cases is now governed by Rule 43 of the 1997 Rules of Civil Procedure which mandates, under Section 12 19 thereof, the immediately executory character of the decision or order appealed from.

The contention of the Solicitor General is not well-taken. Our ruling in the case of Fabian vs. Desierto invalidated Section 27 of Republic Act No. 6770 and Section 7, Rule III of Administrative Order No. 07 and any other provision of law implementing the aforesaid Act only insofar as they provide for appeals in administrative disciplinary cases from the Office of the Ombudsman to the Supreme Court. The only provision affected by the Fabian ruling is the designation of the Court of Appeals as the proper forum and of Rule 43 of the Rules of Court as the proper mode of appeal. All other matters included in said section 27, including the finality or non-finality of decisions, are not affected and still stand.

Neither can respondents find support in Section 12, Rule 43 of the 1997 Rules of Civil Procedure which provides as follows:

Sec. 12. Effect of Appeal. The appeal shall not stay the award, judgment, final order or resolution sought to be reviewed unless the Court of Appeals shall direct otherwise upon such terms as it may deem just.

On this point, respondents contend that considering the silence of the Ombudsman Act on the matter of execution pending appeal, the above-quoted provision of the Rules of Court, which allegedly mandates the immediate execution of all decisions rendered by administrative and quasi-judicial agencies, should apply suppletorily to the provisions of the Ombudsman Act. We do not agree.

A judgment becomes "final and executory" by operation of law. 20 Section 27 of the Ombudsman Act provides that any order, directive or decision of the Office of the Ombudsman imposing a penalty of public censure or reprimand, or suspension of not more than one month's salary shall be final and unappealable. In all other cases, the respondent therein has the right to appeal to the Court of Appeals within ten (10) days from receipt of the written notice of the order, directive or decision. In all these other cases therefore, the judgment imposed therein will become final after the lapse of the reglementary period of appeal in of appeal is perfected 21 or, an appeal therefrom having been taken, the judgment in the appellate tribunal become final. It is this final judgment which is then correctly categorized as a "final and executory judgment" in respect to which execution shall issue as a matter of right. 22 In other words, the fact that the Ombudsman Act gives parties the right to appeal from its decisions should generally carry with it the stay of these decisions pending appeal. Otherwise, the essential nature of these judgments as being appealable would be rendered nugatory.

The general rule is that judgments by lower courts or tribunals become executory only after it has become final and executory, 2 execution pending appeal being an exception to this general rule. It is the contention of respondents however that with respect to decisions of quasi-judicial agencies and administrative bodies, the opposite is true. It is argued that the general rule with respect to quasi-judicial and administrative agencies is that the decisions of such bodies are immediately executory even pending appeal.

The contention of respondents is misplaced. There is no general legal principle that mandates that all decisions of quasi-judicial agencies are immediately executory. Decisions rendered by the Securities and Exchange Commission 24 and the Civil Aeronautics Board, 25 for example, are not immediately executory and are stayed when an appeal is filed before the Court of Appeals. On the other hand, the decisions of the Civil Service Commission, under the Administrative Code 26 , and the Office of the President under the Local Government Code 27 , which respondents cite, are immediately executory even pending appeal because the pertinent laws under which the decisions were rendered mandate them to be so. The provisions of the last two cited laws expressly provide for the execution pending appeal of their final orders or decisions. The Local Government Code, under Section 68 thereof provides as follows:

Sec. 68. Execution Pending Appeal. — An appeal shall not prevent a decision from becoming final and executory. The respondent shall be considered as having been placed under preventive suspension during the pendency of an appeal in the event he wins such appeal. In the event the appeal results in an exoneration, he shall be paid his salary and such other emoluments during the pendency of the appeal.

Similarly, Book V, Title I, Subtitle A, Chapter 6, Section 47, par. (4) of the Administrative Code of 1987 provides:

(4) An appeal shall not stop the decision from being from being executory, and in case the penalty is suspension or removal, the respondent shall be considered as having been under preventive suspension during the pendency of the appeal in the event he wins an appeal.

Where the legislature has seen fit to declare that the decision of the quasi-judicial agency is immediately final and executory pending appeal, the law expressly so provides.

Sec. 12 of Rule 43 should therefore be interpreted as mandating that the appeal will not stay the award, judgment, final order or resolution unless the law directs otherwise.

Petitioner was charged administratively before the Ombudsman and accordingly the provisions of the Ombudsman Act should apply in his case. Section 68 of the Local Government Code only applies to administrative decisions rendered by the Office of the President or the appropriate Sanggunian against elective local government officials. Similarly, the provision in the Administrative Code of 1987 mandating execution pending review applies specifically to administrative decisions of the Civil Service Commission involving members of the Civil Service.

There is no basis in law for the proposition that the provisions of the Administrative Code of 1987 and the Local Government Code on execution pending review should be applied suppletorily to the provisions of the Ombudsman Act as there is nothing in the Ombudsman Act which provides for such suppletory application. Courts may not, in the guise of interpretation, enlarge the scope of a statute and include therein situations not provided or intended by the lawmakers. An omission at the time of enactment, whether careless or calculated, cannot be judicially supplied however later wisdom may recommend the inclusion. 28

And while in one respect, the Ombudsman Law, the Administrative Code of 1987 and the Local Government Code are in pari materia insofar as the three laws relate or deal with public officers, the similarity ends there. It is a principle in statutory construction that where there are two statutes that apply to a particular case, that which was specially designed for the said case must prevail over the other. 29 In the instant case, the acts attributed to petitioner could have been the subject of administrative disciplinary proceedings before the Office of the President under the Local Government Code or before the Office of the Ombudsman under the Ombudsman Act. Considering however, that petitioner was charged under the Ombudsman Act, it is this law alone which should govern his case.

Respondents, through the Office of the Solicitor General, argue that the ruling against execution pending review of the Ombudsman's decision grants a one-sided protection to the offender found guilty of misconduct in office and nothing at all to the government as the aggrieved party. The offender, according to respondents, can just let the case drag on until the expiration of his office or his reelection as by then, the case against him shall become academic and his offense, obliterated. As such, respondents conclude, the government is left without further remedy and is left helpless in its own fight against graft and corruption.

We find this argument much too speculative to warrant serious consideration. If it perceived that the fight against graft and corruption is hampered by the inadequacy of the provisions of the Ombudsman Act, the remedy lies not with this Court but by legislative amendment.

As regards the contention of the Office of the Ombudsman that under Sec. 13(8), Article XI of the 1987 Constitution, the Office of the Ombudsman is empowered to "(p)romulgate its rules of procedure and exercise such other powers or perform such functions or duties as may be provided by law," suffice it to note that the Ombudsman rules of procedure, Administrative Order No. 07, mandate that decisions of the Office of the Ombudsman where the penalty imposed is other than public censure or reprimand, suspension of not more than one month salary or fine equivalent to one month salary are still appealable and hence, not final and executory. Under these rules, which were admittedly promulgated by virtue of the rule-making power of the Office of the Ombudsman, the decision imposing a penalty of one year suspension without pay on petitioner Lapid is not immediately executory.

Xxx."


G.R. No. 142261
June 29, 2000

GOVERNOR MANUEL M. LAPID, petitioner,
vs.
HONORABLE COURT OF APPEALS, OFFICE OF THE OMBUDSMAN, NATIONAL BUREAU OF INVESTIGATION, FACT-FINDING INTELLIGENCE BUREAU (FFIB) of the Office of the Ombudsman, DEPARTMENT OF INTERIOR AND LOCAL GOVERNMENT, respondents.

Ombudsman administrative cases; appeal to Court of Appeals, not Supreme Court.

"xxx.

Taking all the foregoing circumstances in their true legal roles and effects, therefore, Section 27 of Republic Act No. 6770 cannot validly authorize an appeal to this Court from decisions of the Office of the Ombudsman in administrative disciplinary cases. It consequently violates the proscription in Section 30, Article VI of the Constitution against a law which increases the appellate jurisdiction of this Court. No countervailing argument has been cogently presented to justify such disregard of the constitutional prohibition which, as correctly explained in First Lepanto Ceramics, Inc. vs. The Court of Appeals, et al. 23 was intended to give this Court a measure of control over cases placed under its appellate jurisdiction. Otherwise, the indiscriminate enactment of legislation enlarging its appellate jurisdiction would unnecessarily burden the Court. 24

We perforce have to likewise reject the supposed inconsistency of the ruling in First Lepanto Ceramics and some statements in Yabut and Alba, not only because of the difference in the factual settings, but also because those isolated cryptic statements in Yabut and Alba should best be clarified in the adjudication on the merits of this case. By way of anticipation, that will have to be undertaken by the proper court of competent jurisdiction.

Furthermore, in addition to our preceding discussion on whether Section 27 of Republic Act No. 6770 expanded the jurisdiction of this Court without its advice and consent, private respondent's position paper correctly yields the legislative background of Republic Act No. 6770. On September 26, 1989, the Conference Committee Report on S.B. No. 453 and H.B. No. 13646, setting forth the new version of what would later be Republic Act No. 6770, was approved on second reading by the House of Representatives. 25 The Senate was informed of the approval of the final version of the Act on October 2, 1989 26 and the same was thereafter enacted into law by President Aquino on November 17, 1989.

Submitted with said position paper is an excerpt showing that the Senate, in the deliberations on the procedure for appeal from the Office of the Ombudsman to this Court, was aware of the provisions of Section 30, Article III of the Constitution. It also reveals that Senator Edgardo Angara, as a co-author and the principal sponsor of S.B. No. 543 admitted that the said provision will expand this Court's jurisdiction, and that the Committee on Justice and Human Rights had not consulted this Court on the matter, thus:

INTERPELLATION OF SENATOR SHAHANI

x x x x x x x x x

Thereafter, with reference to Section 22(4) which provides that the decisions of the Office of the Ombudsman may be appealed to the Supreme Court, in reply to Senator Shahani's query whether the Supreme Court would agree to such provision in the light of Section 30, Article VI of the Constitution which requires its advice and concurrence in laws increasing its appellate jurisdiction, Senator Angara informed that the Committee has not yet consulted the Supreme Court regarding the matter. He agreed that the provision will expand the Supreme Court's jurisdiction by allowing appeals through petitions for review, adding that they should be appeals on certiorari. 27

There is no showing that even up to its enactment, Republic Act No. 6770 was ever referred to this Court for its advice and consent. 28

VI

As a consequence of our ratiocination that Section 27 of Republic Act No. 6770 should be struck down as unconstitutional, and in line with the regulatory philosophy adopted in appeals from quasi-judicial agencies in the 1997 Revised Rules of Civil Procedure, appeals from decisions of the Office of the Ombudsman in administrative disciplinary cases should be taken to the Court of Appeals under the provisions of Rule 43.

There is an intimation in the pleadings, however, that said Section 27 refers to appellate jurisdiction which, being substantive in nature, cannot be disregarded by this Court under its rule-making power, especially if it results in a diminution, increase or modification of substantive rights. Obviously, however, where the law is procedural in essence and purpose, the foregoing consideration would not pose a proscriptive issue against the exercise of the rule-making power of this Court. This brings to fore the question of whether Section 27 of Republic Act No. 6770 is substantive or procedural.

It will be noted that no definitive line can be drawn between those rules or statutes which are procedural, hence within the scope of this Court's rule-making power, and those which are substantive. In fact, a particular rule may be procedural in one context and substantive in another. 29 It is admitted that what is procedural and what is substantive is frequently a question of great
difficulty. 30 It is not, however, an insurmountable problem if a rational and pragmatic approach is taken within the context of our own procedural and jurisdictional system.

In determining whether a rule prescribed by the Supreme Court, for the practice and procedure of the lower courts, abridges, enlarges, or modifies any substantive right, the test is whether the rule really regulates procedure, that is, the judicial process for enforcing rights and duties recognized by substantive law and for justly administering remedy and redress for a disregard or infraction of them. 31 If the rule takes away a vested right, it is no; procedural. If the rule creates a right such as the right to appeal, it may be classified as a substantive matter; but if it operates as a means of implementing an existing right then the rule deals merely with procedure. 32

In the situation under consideration, a transfer by the Supreme Court, in the exercise of its rule-making power, of pending cases involving a review of decisions of the Office of the Ombudsman in administrative disciplinary actions to the Court of Appeals which shall now be vested with exclusive appellate jurisdiction thereover, relates to procedure only. 33 This is so because it is not the right to appeal of an aggrieved party which is affected by the law. That right has been preserved. Only the procedure by which the appeal is to be made or decided has been changed. The rationale for this is that no litigant has a vested right in a particular remedy, which may be changed by substitution without impairing vested rights, hence he can have none in rules of procedure which relate to the remedy. 34

Furthermore, it cannot be said that the transfer of appellate jurisdiction to the Court of Appeals in this case is an act of creating a new right of appeal because such power of the Supreme Court to transfer appeals to subordinate appellate courts is purely a procedural and not a substantive power. Neither can we consider such transfer as impairing a vested right because the parties have still a remedy and still a competent tribunal to administer that remedy. 35

Thus, it has been generally held that rules or statutes involving a transfer of cases from one court to another, are procedural and remedial merely and that, as such, they are applicable to actions pending at the time the statute went into effect 36 or, in the case at bar, when its invalidity was declared. Accordingly, even from the standpoint of jurisdiction ex hypothesi, the validity of the transfer of appeals in said cases to the Court of Appeals can be sustained.

WHEREFORE, Section 27 of Republic Act No. 6770 (Ombudsman Act of 1989), together with Section 7, Rule III of Administrative Order No. 07 (Rules of Procedure of the Office of the Ombudsman), and any other provision of law or issuance implementing the aforesaid Act and insofar as they provide for appeals in administrative disciplinary cases from the Office of the Ombudsman to the Supreme Court, are hereby declared INVALID and of no further force and effect.

The instant petition is hereby referred and transferred to the Court of Appeals for final disposition, with said petition to be considered by the Court of Appeals pro hoc vice as a petition for review under Rule 43, without prejudice to its requiring the parties to submit such amended or supplemental pleadings and additional documents or records as it may deem necessary and proper.

Xxx."


G. R. No. 129742
September 16, 1998

TERESITA G. FABIAN, petitioner,
vs.
HON. ANIANO A. DESIERTO, in his capacity as Ombudsman; HON. JESUS F. GUERRERO, in his capacity as Deputy Ombudsman for Luzon; and NESTOR V. AGUSTIN, respondents.

https://www.lawphil.net/judjuris/juri1998/sep1998/gr_129742_1998.html#fnt12

Perjury: probable cause, elements.

"xxx.

Petitioner contends that public respondent committed grave abuse of discretion in dismissing her complaint for perjury for lack of probable cause. The contention is untenable. Probable cause, as used in preliminary investigations, is defined as the "existence of such facts and circumstances as would excite the belief, in a reasonable mind, acting on the facts within the knowledge of the prosecutor, that the person charged was guilty of the crime for which he was prosecuted."21 The elements of perjury under Article 18322 of the Revised Penal Code are:

(a) that the accused made a statement under oath or executed an affidavit upon a material matter; (b) that the statement or affidavit was made before a competent officer, authorized to receive and administer oath; (c) that in that statement or affidavit, the accused made a willful and deliberate assertion of a falsehood; and, (d) that the sworn statement or affidavit containing the falsity is required by law or made for a legal purpose.23 (Emphasis supplied)

Public respondent correctly ruled that the first and third elements are absent here in that private respondents’ statements in their counter-affidavits in OMB-ADM-1-99-0387 were not material to that case nor do they constitute willful and deliberate assertion of falsehood.

On the Element of Materiality

In prosecutions for perjury, a matter is material if it is the "main fact which was the subject of the inquiry, or any circumstance which tends to prove that fact xxx."24 To hold private respondents liable, there must be evidence that their assailed statements in OMB-ADM-1-99-0387 were the subject of inquiry in that case. Petitioner has presented no such evidence. The records are hardly helpful, as petitioner did not furnish the Court a copy of her complaint in OMB-ADM-1-99-0387.

What is before the Court is a portion of respondent Pascua’s counter-affidavit in that case as quoted by public respondent in his 4 April 2000 Resolution. Admittedly, some inference is possible from this quoted material, namely, that the basis of petitioner’s complaint in OMB-ADM-1-99-0387 is that respondent Pascua prevented her from taking part in the 16 July 1998 meeting. However, it would be improper for the Court to rely on such inference because the element of materiality must be established by evidence and not left to inference.25

At any rate, petitioner’s complaint for perjury will still not prosper because respondent Pascua’s statement — that OMB-ADM-1-99-0387 is significantly the same as petitioner’s and Yabut’s administrative complaint against respondent Pascua before the DECS — is immaterial to the inferred issue.

On the Element of Deliberate Assertion of Falsehood

The third element of perjury requires that the accused willfully and deliberately assert a falsehood. Good faith or lack of malice is a valid defense.26 Here, the Court finds that respondent Pascua’s statement in his counter-affidavit in OMB-ADM-1-99-0387 that he called the 16 July 1998 meeting does not constitute a deliberate assertion of falsehood. While it was Yabut and some unidentified ACNTS personnel who requested a dialogue with respondent Pascua, it was respondent Pascua’s consent to their request which led to the holding of the meeting. Thus, respondent Pascua’s statement in question is not false much less malicious. It is a good faith interpretation of events leading to the holding of the meeting.

Regarding respondent Pascua’s allegation in his counter-affidavit in OMB-ADM-1-99-0387 that petitioner’s complaint was a mere "rehash and duplication with a slight deviation of fact" of the DECS administrative case petitioner and Yabut filed against respondent Pascua, petitioner has not shown why this is false. Petitioner again did not furnish the Court a copy of her and Yabut’s complaint with the DECS.

Respondent Turla’s statement in OMB-ADM-1-99-0387 that respondent Pascua called the 16 July 1998 meeting was a mere reiteration of what respondent Pascua told him. Consequently, it was correct for public respondent to hold that since respondent Turla merely repeated what he heard from respondent Pascua, he could not be held liable for making a false and malicious statement.

Xxx."


G.R. No. 144692
January 31, 2005

CELSA P. ACUÑA, petitioner,
vs.
DEPUTY OMBUDSMAN FOR LUZON, PEDRO PASCUA and RONNIE TURLA, (Angeles City National Trade School), respondents.

Policy of non-interference in Ombudsman cases

"xxx.

We reiterate this Court’s policy of non-interference with the Ombudsman’s exercise of his constitutionally mandated prosecutory powers.19 We explained the reason for such policy in Ocampo, IV v. Ombudsman:20

The rule is based not only upon respect for the investigatory and prosecutory powers granted by the Constitution to the Office of the Ombudsman but upon practicality as well. Otherwise, the functions of the courts will be grievously hampered by innumerable petitions assailing the dismissal of investigatory proceedings conducted by the Office of the Ombudsman with regard to complaints filed before it, in much the same way that the courts would be extremely swamped if they could be compelled to review the exercise of discretion on the part of the fiscals or prosecuting attorneys each time they decide to file an information in court or dismiss a complaint by a private complainant.

The Court, in the present case, finds no reason to deviate from this long-standing policy.

Xxx."


G.R. No. 144692
January 31, 2005

CELSA P. ACUÑA, petitioner,
vs.
DEPUTY OMBUDSMAN FOR LUZON, PEDRO PASCUA and RONNIE TURLA, (Angeles City National Trade School), respondents.

Appeals in Ombudsman cases

"xxx.

Private respondents contend that petitioner filed this petition beyond the ten-day period provided in Section 27 of Republic Act No. 6770.15 Section 27 states in part:

Effectivity and Finality of Decisions. — xxxx

In all administrative disciplinary cases, orders, directives, or decisions of the Office of the Ombudsman may be appealed to the Supreme Court by filing a petition for certiorari within ten (10) days from receipt of the written notice of the order, directive or decision or denial of the motion for reconsideration in accordance with Rule 45 of the Rules of Court. (Emphasis supplied)

The contention has no merit. Section 27 is no longer in force because this Court in Fabian v. Desierto16 declared it unconstitutional for expanding the Court’s jurisdiction without its consent in violation of Article VI, Section 30 of the Constitution. Furthermore, Section 27 relates only to appeals from rulings of the Ombudsman in administrative disciplinary cases. It does not apply to appeals from the Ombudsman’s rulings in criminal cases such as the present case.17

The remedy of an aggrieved party in criminal complaints before the Ombudsman is to file with this Court a petition for certiorari under Rule 65. Thus, we held in Tirol, Jr. v. Del Rosario:18

The Ombudsman Act specifically deals with the remedy of an aggrieved party from orders, directives and decisions of the Ombudsman in administrative disciplinary cases. As we ruled in Fabian, the aggrieved party [in administrative cases] is given the right to appeal to the Court of Appeals. Such right of appeal is not granted to parties aggrieved by orders and decisions of the Ombudsman in criminal cases, like finding probable cause to indict accused persons.

However, an aggrieved party is not without recourse where the finding of the Ombudsman xxx is tainted with grave abuse of discretion, amounting to lack [or] excess of jurisdiction. An aggrieved party may file a petition for certiorari under Rule 65 of the 1997 Rules of Civil Procedure. (Emphasis supplied)

Petitioner precisely availed of such remedy when she filed this petition for certiorari under Rule 65 alleging that public respondent gravely abused his discretion in dismissing her complaint against private respondents. Under Section 4 of Rule 65, as amended, petitioner had 60 days from her receipt of the 19 June 2000 Order within which to file this petition. Petitioner received a copy of the 19 June 2000 Order on 13 July 2000. Thus, petitioner had until 11 September 2000 within which to file this petition. Petitioner did so on 11 August 2000. Hence, petitioner filed this petition on time.

Xxx."


G.R. No. 144692
January 31, 2005

CELSA P. ACUÑA, petitioner,
vs.
DEPUTY OMBUDSMAN FOR LUZON, PEDRO PASCUA and RONNIE TURLA, (Angeles City National Trade School), respondents.

Supervision vs. Control

"xxx.

Last Aug. 27, 2021, resigned DBM Secretary Wendel Avisado told the Senate Blue Ribbon Committee that the Procurement Service of the Department of Budget and Management (PS-DBM) “operates independently.” He explained that “we don’t interfere in their day-to-day operations.” Avisado pointed out that the Procurement Service was created in 1978 under Letter of Instructions No. 755, which placed the Procurement Service under the Office of the President. Subsequent issuances attached the Procurement Service to the DBM. In the website of the DBM, the PS-DBM belongs to “Other Offices/Attached Agencies.” This has ramifications on who has direct responsibility over the allegedly overpriced nine purchase contracts amounting to P8.7 billion entered into by the PS-DBM with Pharmally Pharmaceutical Corporation from April to June 2020.

First, under the Revised Administrative Code, the Department Secretary exercises administrative “supervision and control” over the Department. However, the Secretary only exercises administrative supervision, and not control, over agencies attached to his Department. Administrative supervision is the power to “generally oversee the operations” of the agency “without interference with day to day operations.” Administrative supervision does not include the power to review “contracts entered into by the agency in the pursuit of its objectives.” It does not also include the power to “review, reverse, revise or modify the decisions” of the attached agency.

Second, administrative control over an attached agency like PS-DBM remains with the President as head of the Executive branch of government. It is the President who can interfere in the day to day operations of the PS-DBM, and who can “review, reverse, revise or modify the decisions” of the PS-DBM. In case of conflict between the DBM Secretary and the head of the PS-DBM, the Secretary “shall bring the matter to the President for resolution and direction.” In short, the real boss of Lloyd Christopher Lao when he headed the PS-DBM was President Duterte, who legally exercised direct administrative control over Lao when Lao entered into the questioned purchase contracts with Pharmally.

Third, the Department Secretary has authority to designate an officer-in-charge in case of vacancy in an office arising from absence, resignation, or removal of an employee. However, the Secretary must designate as officer-in-charge “an officer or employee within the organization.” When Avisado designated Lao on Jan. 2, 2020, as Officer-in-Charge of the PS-DBM, Lao was not “within the organization” of PS-DBM since Lao’s last government position was Chief Executive Officer of the Housing and Land Use Regulatory Board. Thus, Lao’s designation was illegal, and Lao at most was merely the de facto and not the de jure head of the PS-DBM. Only the President can designate an officer-in-charge who is not “within the organization” but is “already in the government service.“ The President may also designate as officer-in-charge “any other competent person” even if not from the government service.

Fourth, Lao obviously enjoys the trust and confidence of President Duterte. In his 2019 State of the Nation Address, President Duterte told the nation that when the “Korean went to Malacañang just to complain why is it that there is no request for delivery” of the frigate, he instructed Bong Go, “Bong, ayusin mo yan.” Go’s office then sent a letter to Commodore Robert Empedrad requesting for a meeting in Malacañang. The letter was signed by Lao, a presidential appointee and Undersecretary in the “Office of the Special Assistant to the President,” the office of Bong Go. Clearly, Lao is part of the inner circle entrusted by President Duterte to handle sensitive matters.

Fifth, as a Palace insider Lao knew that the corporate officers of Pharmally, together with Michael Yang, had met President Duterte in Davao City in March 2017. The RTVM, the media arm of the Office of the President, had released photos and a video of that meeting. Undoubtedly, Pharmally officers have direct access to President Duterte through Yang, the Davao businessman and Chinese national whom President Duterte once officially appointed as his economic consultant.

Lastly, while Avisado has credibly washed his hands from responsibility for the P8.7 billion Pharmally contracts of PS-DBM, he has thrown President Duterte under the bus. President Duterte, as the official exercising direct administrative control over Lao, will have a harder time escaping responsibility for any overpriced purchase contract that Lao may have awarded to Pharmally.

acarpio@inquirer.com.ph. "

Source:

https://opinion.inquirer.net/143723/ps-dbm-operates-independently#ixzz75QlSg0Cz


Read more: https://opinion.inquirer.net/143723/ps-dbm-operates-independently#ixzz75Qpky8Cv
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The Philippine National Red Cross Charter is Violative of the Constitutional Proscription against the Creation of Private Corporations by Special Law

"xxx.

The PNRC Charter is Violative of the Constitutional Proscription against the Creation of Private Corporations by Special Law

The 1935 Constitution, as amended, was in force when the PNRC was created by special charter on 22 March 1947. Section 7, Article XIV of the 1935 Constitution, as amended, reads:

SEC. 7. The Congress shall not, except by general law, provide for the formation, organization, or regulation of private corporations, unless such corporations are owned or controlled by the Government or any subdivision or instrumentality thereof.

The subsequent 1973 and 1987 Constitutions contain similar provisions prohibiting Congress from creating private corporations except by general law. Section 1 of the PNRC Charter, as amended, creates the PNRC as a "body corporate and politic," thus:

SECTION 1. There is hereby created in the Republic of the Philippines a body corporate and politic to be the voluntary organization officially designated to assist the Republic of the Philippines in discharging the obligations set forth in the Geneva Conventions and to perform such other duties as are inherent upon a National Red Cross Society. The national headquarters of this Corporation shall be located in Metropolitan Manila. (Emphasis supplied)

In Feliciano v. Commission on Audit,23 the Court explained the constitutional provision prohibiting Congress from creating private corporations in this wise:

We begin by explaining the general framework under the fundamental law. The Constitution recognizes two classes of corporations. The first refers to private corporations created under a general law. The second refers to government-owned or controlled corporations created by special charters. Section 16, Article XII of the Constitution provides:

Sec. 16. The Congress shall not, except by general law, provide for the formation, organization, or regulation of private corporations. Government-owned or controlled corporations may be created or established by special charters in the interest of the common good and subject to the test of economic viability.

The Constitution emphatically prohibits the creation of private corporations except by general law applicable to all citizens. The purpose of this constitutional provision is to ban private corporations created by special charters, which historically gave certain individuals, families or groups special privileges denied to other citizens.

In short, Congress cannot enact a law creating a private corporation with a special charter. Such legislation would be unconstitutional. Private corporations may exist only under a general law. If the corporation is private, it must necessarily exist under a general law. Stated differently, only corporations created under a general law can qualify as private corporations. Under existing laws, the general law is the Corporation Code, except that the Cooperative Code governs the incorporation of cooperatives.

The Constitution authorizes Congress to create government-owned or controlled corporations through special charters. Since private corporations cannot have special charters, it follows that Congress can create corporations with special charters only if such corporations are government-owned or controlled.24 (Emphasis supplied)

In Feliciano, the Court held that the Local Water Districts are government-owned or controlled corporations since they exist by virtue of Presidential Decree No. 198, which constitutes their special charter. The seed capital assets of the Local Water Districts, such as waterworks and sewerage facilities, were public property which were managed, operated by or under the control of the city, municipality or province before the assets were transferred to the Local Water Districts. The Local Water Districts also receive subsidies and loans from the Local Water Utilities Administration (LWUA). In fact, under the 2009 General Appropriations Act,25 the LWUA has a budget amounting to ₱400,000,000 for its subsidy requirements.26 There is no private capital invested in the Local Water Districts. The capital assets and operating funds of the Local Water Districts all come from the government, either through transfer of assets, loans, subsidies or the income from such assets or funds.

The government also controls the Local Water Districts because the municipal or city mayor, or the provincial governor, appoints all the board directors of the Local Water Districts. Furthermore, the board directors and other personnel of the Local Water Districts are government employees subject to civil service laws and anti-graft laws. Clearly, the Local Water Districts are considered government-owned or controlled corporations not only because of their creation by special charter but also because the government in fact owns and controls the Local Water Districts.

Just like the Local Water Districts, the PNRC was created through a special charter. However, unlike the Local Water Districts, the elements of government ownership and control are clearly lacking in the PNRC. Thus, although the PNRC is created by a special charter, it cannot be considered a government-owned or controlled corporation in the absence of the essential elements of ownership and control by the government. In creating the PNRC as a corporate entity, Congress was in fact creating a private corporation. However, the constitutional prohibition against the creation of private corporations by special charters provides no exception even for non-profit or charitable corporations. Consequently, the PNRC Charter, insofar as it creates the PNRC as a private corporation and grants it corporate powers,27 is void for being unconstitutional. Thus, Sections 1,28 2,29 3,30 4(a),31 5,32 6,33 7,34 8,35 9,36 10,37 11,38 12,39 and 1340 of the PNRC Charter, as amended, are void.

The other provisions41 of the PNRC Charter remain valid as they can be considered as a recognition by the State that the unincorporated PNRC is the local National Society of the International Red Cross and Red Crescent Movement, and thus entitled to the benefits, exemptions and privileges set forth in the PNRC Charter. The other provisions of the PNRC Charter implement the Philippine Government’s treaty obligations under Article 4(5) of the Statutes of the International Red Cross and Red Crescent Movement, which provides that to be recognized as a National Society, the Society must be "duly recognized by the legal government of its country on the basis of the Geneva Conventions and of the national legislation as a voluntary aid society, auxiliary to the public authorities in the humanitarian field."

In sum, we hold that the office of the PNRC Chairman is not a government office or an office in a government-owned or controlled corporation for purposes of the prohibition in Section 13, Article VI of the 1987 Constitution. However, since the PNRC Charter is void insofar as it creates the PNRC as a private corporation, the PNRC should incorporate under the Corporation Code and register with the Securities and Exchange Commission if it wants to be a private corporation.

WHEREFORE, we declare that the office of the Chairman of the Philippine National Red Cross is not a government office or an office in a government-owned or controlled corporation for purposes of the prohibition in Section 13, Article VI of the 1987 Constitution. We also declare that Sections 1, 2, 3, 4(a), 5, 6, 7, 8, 9, 10, 11, 12, and 13 of the Charter of the Philippine National Red Cross, or Republic Act No. 95, as amended by Presidential Decree Nos. 1264 and 1643, are VOID because they create the PNRC as a private corporation or grant it corporate powers.

Xxx."


G.R. No. 175352 (2009)

DANTE V. LIBAN, REYNALDO M. BERNARDO, and SALVADOR M. VIARI, Petitioners,
vs.
RICHARD J. GORDON, Respondent.

https://lawphil.net/judjuris/juri2009/jul2009/gr_175352_2009.html#rnt20