RIGHT TO INFORMATION

1.

government research data used as basis for policy development." The new provision
reads:

LEGASPI v. CSC

G.R. No. L-72119 May 29, 1987

VALENTIN L. LEGASPI, petitioner,
vs.
CIVIL SERVICE COMMISSION, respondent.

CORTES, J.:
The fundamental right of the people to information on matters of public concern is
invoked in this special civil action for mandamus instituted by petitioner Valentin L.
Legaspi against the Civil Service Commission. The respondent had earlier denied
Legaspi's request for information on the civil service eligibilities of certain persons
employed as sanitarians in the Health Department of Cebu City. These government
employees, Julian Sibonghanoy and Mariano Agas, had allegedly represented
themselves as civil service eligibles who passed the civil service examinations for
sanitarians.
Claiming that his right to be informed of the eligibilities of Julian Sibonghanoy and
Mariano Agas, is guaranteed by the Constitution, and that he has no other plain, speedy
and adequate remedy to acquire the information, petitioner prays for the issuance of
the extraordinary writ of mandamus to compel the respondent Commission to disclose
said information.
This is not the first tune that the writ of mandamus is sought to enforce the fundamental
right to information. The same remedy was resorted to in the case of Tanada et. al. vs.
Tuvera et. al., (G.R. No. L-63915, April 24,1985,136 SCRA 27) wherein the people's
right to be informed under the 1973 Constitution (Article IV, Section 6) was invoked in
order to compel the publication in the Official Gazette of various presidential decrees,
letters of instructions and other presidential issuances. Prior to the recognition of the
right in said Constitution the statutory right to information provided for in the Land
Registration Act (Section 56, Act 496, as amended) was claimed by a newspaper editor
in another mandamus proceeding, this time to demand access to the records of the
Register of Deeds for the purpose of gathering data on real estate transactions
involving aliens (Subido vs. Ozaeta, 80 Phil. 383 [1948]).
The constitutional right to information on matters of public concern first gained
recognition in the Bill of Rights, Article IV, of the 1973 Constitution, which states:
Sec. 6. 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, shall be afforded the citizen subject to such
limitations as may be provided by law.
The foregoing provision has been retained and the right therein provided amplified in
Article III, Sec. 7 of the 1987 Constitution with the addition of the phrase, "as well as to

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 stations as may be
provided by law.
These constitutional provisions are self-executing. They supply the rules by means of
which the right to information may be enjoyed (Cooley, A Treatise on the Constitutional
Limitations 167 [1927]) by guaranteeing the right and mandating the duty to afford
access to sources of information. Hence, the fundamental right therein recognized may
be asserted by the people upon the ratification of the constitution without need for any
ancillary act of the Legislature. (Id. at, p. 165) What may be provided for by the
Legislature are reasonable conditions and limitations upon the access to be afforded
which must, of necessity, be consistent with the declared State policy of full public
disclosure of all transactions involving public interest (Constitution, Art. 11, Sec. 28).
However, it cannot be overemphasized that whatever limitation may be prescribed by
the Legislature, the right and the duty under Art. III Sec. 7 have become operative and
enforceable by virtue of the adoption of the New Charter. Therefore, the right may be
properly invoked in a mandamus proceeding such as this one.
The Solicitor General interposes procedural objections to Our giving due course to this
Petition. He challenges the petitioner's standing to sue upon the ground that the latter
does not possess any clear legal right to be informed of the civil service eligibilities of
the government employees concerned. He calls attention to the alleged failure of the
petitioner to show his actual interest in securing this particular information. He further
argues that there is no ministerial duty on the part of the Commission to furnish the
petitioner with the information he seeks.
1.
To be given due course, a Petition for mandamus must have been instituted
by a party aggrieved by the alleged inaction of any tribunal, corporation, board or
person which unlawfully excludes said party from the enjoyment of a legal right. (Ant;Chinese League of the Philippines vs. Felix, 77 Phil. 1012 [1947]). The petitioner in
every case must therefore be an "aggrieved party" in the sense that he possesses a
clear legal right to be enforced and a direct interest in the duty or act to be performed.
In the case before Us, the respondent takes issue on the personality of the petitioner
to bring this suit. It is asserted that, the instant Petition is bereft of any allegation of
Legaspi's actual interest in the civil service eligibilities of Julian Sibonghanoy and
Mariano Agas, At most there is a vague reference to an unnamed client in whose behalf
he had allegedly acted when he made inquiries on the subject (Petition, Rollo, p. 3).
But what is clear upon the face of the Petition is that the petitioner has firmly anchored
his case upon the right of the people to information on matters of public concern, which,
by its very nature, is a public right. It has been held that:
* * * when the question is one of public right and the object of the mandamus is to
procure the enforcement of a public duty, the people are regarded as the real party in
interest and the relator at whose instigation the proceedings are instituted need not
show that he has any legal or special interest in the result, it being sufficient to show

that he is a citizen and as such interested in the execution of the laws * * * (Tanada et.
al. vs. Tuvera, et. al., G.R. No. L- 63915, April 24, 1985, 136 SCRA 27, 36).
From the foregoing, it becomes apparent that when a mandamus proceeding involves
the assertion of a public right, the requirement of personal interest is satisfied by the
mere fact that the petitioner is a citizen, and therefore, part of the general "public" which
possesses the right.
The Court had opportunity to define the word "public" in the Subido case, supra, when
it held that even those who have no direct or tangible interest in any real estate
transaction are part of the "public" to whom "(a)ll records relating to registered lands in
the Office of the Register of Deeds shall be open * * *" (Sec. 56, Act No. 496, as
amended). In the words of the Court:
* * * "Public" is a comprehensive, all-inclusive term. Properly construed, it embraces
every person. To say that only those who have a present and existing interest of a
pecuniary character in the particular information sought are given the right of inspection
is to make an unwarranted distinction. *** (Subido vs. Ozaeta, supra at p. 387).
The petitioner, being a citizen who, as such is clothed with personality to seek redress
for the alleged obstruction of the exercise of the public right. We find no cogent reason
to deny his standing to bring the present suit.
2.
For every right of the people recognized as fundamental, there lies a
corresponding duty on the part of those who govern, to respect and protect that right.
That is the very essence of the Bill of Rights in a constitutional regime. Only
governments operating under fundamental rules defining the limits of their power so as
to shield individual rights against its arbitrary exercise can properly claim to be
constitutional (Cooley, supra, at p. 5). Without a government's acceptance of the
limitations imposed upon it by the Constitution in order to uphold individual liberties,
without an acknowledgment on its part of those duties exacted by the rights pertaining
to the citizens, the Bill of Rights becomes a sophistry, and liberty, the ultimate illusion.
In recognizing the people's right to be informed, both the 1973 Constitution and the
New Charter expressly mandate the duty of the State and its agents to afford access
to official records, documents, papers and in addition, government research data used
as basis for policy development, subject to such limitations as may be provided by law.
The guarantee has been further enhanced in the New Constitution with the adoption of
a policy of full public disclosure, this time "subject to reasonable conditions prescribed
by law," in Article 11, Section 28 thereof, to wit:
Subject to reasonable conditions prescribed by law, the State adopts and implements
a policy of full public disclosure of all its transactions involving public interest. (Art. 11,
Sec. 28).
In the Tanada case, supra, the constitutional guarantee was bolstered by what this
Court declared as an imperative duty of the government officials concerned to publish
all important legislative acts and resolutions of a public nature as well as all executive
orders and proclamations of general applicability. We granted mandamus in said case,
and in the process, We found occasion to expound briefly on the nature of said duty:

* * * That duty must be enforced if the Constitutional right of the people to be informed
on matters of public concern is to be given substance and reality. The law itself makes
a list of what should be published in the Official Gazette. Such listing, to our mind,
leaves respondents with no discretion whatsoever as to what must be in included or
excluded from such publication. (Tanada v. Tuvera, supra, at 39). (Emphasis supplied).
The absence of discretion on the part of government agencia es in allowing the
examination of public records, specifically, the records in the Office of the Register of
Deeds, is emphasized in Subido vs. Ozaeta, supra:
Except, perhaps when it is clear that the purpose of the examination is unlawful, or
sheer, idle curiosity, we do not believe it is the duty under the law of registration officers
to concern themselves with the motives, reasons, and objects of the person seeking
access to the records. It is not their prerogative to see that the information which the
records contain is not flaunted before public gaze, or that scandal is not made of it. If it
be wrong to publish the contents of the records, it is the legislature and not the officials
having custody thereof which is called upon to devise a remedy. *** (Subido v. Ozaeta,
supra at 388). (Emphasis supplied).
It is clear from the foregoing pronouncements of this Court that government agencies
are without discretion in refusing disclosure of, or access to, information of public
concern. This is not to lose sight of the reasonable regulations which may be imposed
by said agencies in custody of public records on the manner in which the right to
information may be exercised by the public. In the Subido case, We recognized the
authority of the Register of Deeds to regulate the manner in which persons desiring to
do so, may inspect, examine or copy records relating to registered lands. However, the
regulations which the Register of Deeds may promulgate are confined to:
* * * prescribing the manner and hours of examination to the end that damage to or loss
of, the records may be avoided, that undue interference with the duties of the custodian
of the books and documents and other employees may be prevented, that the right of
other persons entitled to make inspection may be insured * * * (Subido vs. Ozaeta, 80
Phil. 383, 387)
Applying the Subido ruling by analogy, We recognized a similar authority in a municipal
judge, to regulate the manner of inspection by the public of criminal docket records in
the case of Baldoza vs. Dimaano (Adm. Matter No. 1120-MJ, May 5, 1976, 71 SCRA
14). Said administrative case was filed against the respondent judge for his alleged
refusal to allow examination of the criminal docket records in his sala. Upon a finding
by the Investigating Judge that the respondent had allowed the complainant to open
and view the subject records, We absolved the respondent. In effect, We have also
held that the rules and conditions imposed by him upon the manner of examining the
public records were reasonable.
In both the Subido and the Baldoza cases, We were emphatic in Our statement that
the authority to regulate the manner of examining public records does not carry with it
the power to prohibit. A distinction has to be made between the discretion to refuse
outright the disclosure of or access to a particular information and the authority to
regulate the manner in which the access is to be afforded. The first is a limitation upon
the availability of access to the information sought, which only the Legislature may
impose (Art. III, Sec. 6, 1987 Constitution). The second pertains to the government
agency charged with the custody of public records. Its authority to regulate access is to

be exercised solely to the end that damage to, or loss of, public records may be
avoided, undue interference with the duties of said agencies may be prevented, and
more importantly, that the exercise of the same constitutional right by other persons
shall be assured (Subido vs. Ozaetal supra).
Thus, while the manner of examining public records may be subject to reasonable
regulation by the government agency in custody thereof, the duty to disclose the
information of public concern, and to afford access to public records cannot be
discretionary on the part of said agencies. Certainly, its performance cannot be made
contingent upon the discretion of such agencies. Otherwise, the enjoyment of the
constitutional right may be rendered nugatory by any whimsical exercise of agency
discretion. The constitutional duty, not being discretionary, its performance may be
compelled by a writ of mandamus in a proper case.
But what is a proper case for Mandamus to issue? In the case before Us, the public
right to be enforced and the concomitant duty of the State are unequivocably set forth
in the Constitution. The decisive question on the propriety of the issuance of the writ of
mandamus in this case is, whether the information sought by the petitioner is within the
ambit of the constitutional guarantee.
3.
The incorporation in the Constitution of a guarantee of access to information
of public concern is a recognition of the essentiality of the free flow of ideas and
information in a democracy (Baldoza v. Dimaano, Adm. Matter No. 1120-MJ, May 5,
1976, 17 SCRA 14). In the same way that free discussion enables members of society
to cope with the exigencies of their time (Thornhill vs. Alabama, 310 U.S. 88,102
[1939]), access to information of general interest aids the people in democratic
decision-making (87 Harvard Law Review 1505 [1974]) by giving them a better
perspective of the vital issues confronting the nation.
But the constitutional guarantee to information on matters of public concern is not
absolute. It does not open every door to any and all information. Under the Constitution,
access to official records, papers, etc., are "subject to limitations as may be provided
by law" (Art. III, Sec. 7, second sentence). The law may therefore exempt certain types
of information from public scrutiny, such as those affecting national security (Journal
No. 90, September 23, 1986, p. 10; and Journal No. 91, September 24, 1986, p. 32,
1986 Constitutional Commission). It follows that, in every case, the availability of access
to a particular public record must be circumscribed by the nature of the information
sought, i.e., (a) being of public concern or one that involves public interest, and, (b) not
being exempted by law from the operation of the constitutional guarantee. The
threshold question is, therefore, whether or not the information sought is of public
interest or public concern.
a.
This question is first addressed to the government agency having custody of
the desired information. However, as already discussed, this does not give the agency
concerned any discretion to grant or deny access. In case of denial of access, the
government agency has the burden of showing that the information requested is not of
public concern, or, if it is of public concern, that the same has been exempted by law
from the operation of the guarantee. To hold otherwise will serve to dilute the
constitutional right. As aptly observed, ". . . the government is in an advantageous
position to marshall and interpret arguments against release . . ." (87 Harvard Law
Review 1511 [1974]). To safeguard the constitutional right, every denial of access by

the government agency concerned is subject to review by the courts, and in the proper
case, access may be compelled by a writ of Mandamus.
In determining whether or not a particular information is of public concern there is no
rigid test which can be applied. "Public concern" like "public interest" is a term that
eludes exact definition. Both terms embrace a broad spectrum of subjects which the
public may want to know, either because these directly affect their lives, or simply
because such matters naturally arouse the interest of an ordinary citizen. In the final
analysis, it is for the courts to determine in a case by case basis whether the matter at
issue is of interest or importance, as it relates to or affects the public.
The public concern invoked in the case of Tanada v. Tuvera, supra, was the need for
adequate notice to the public of the various laws which are to regulate the actions and
conduct of citizens. In Subido vs. Ozaeta, supra, the public concern deemed covered
by the statutory right was the knowledge of those real estate transactions which some
believed to have been registered in violation of the Constitution.
The information sought by the petitioner in this case is the truth of the claim of certain
government employees that they are civil service eligibles for the positions to which
they were appointed. The Constitution expressly declares as a State policy that:
Appointments in the civil service shall be made only according to merit and fitness to
be determined, as far as practicable, and except as to positions which are policy
determining, primarily confidential or highly technical, by competitive examination. (Art.
IX, B, Sec. 2.[2]).
Public office being a public trust, [Const. Art. XI, Sec. 1] it is the legitimate concern of
citizens to ensure that government positions requiring civil service eligibility are
occupied only by persons who are eligibles. Public officers are at all times accountable
to the people even as to their eligibilities for their respective positions.
b.
But then, it is not enough that the information sought is of public interest. For
mandamus to lie in a given case, the information must not be among the species
exempted by law from the operation of the constitutional guarantee.
In the instant, case while refusing to confirm or deny the claims of eligibility, the
respondent has failed to cite any provision in the Civil Service Law which would limit
the petitioner's right to know who are, and who are not, civil service eligibles. We take
judicial notice of the fact that the names of those who pass the civil service
examinations, as in bar examinations and licensure examinations for various
professions, are released to the public. Hence, there is nothing secret about one's civil
service eligibility, if actually possessed. Petitioner's request is, therefore, neither
unusual nor unreasonable. And when, as in this case, the government employees
concerned claim to be civil service eligibles, the public, through any citizen, has a right
to verify their professed eligibilities from the Civil Service Commission.
The civil service eligibility of a sanitarian being of public concern, and in the absence of
express limitations under the law upon access to the register of civil service eligibles
for said position, the duty of the respondent Commission to confirm or deny the civil
service eligibility of any person occupying the position becomes imperative.
Mandamus, therefore lies.

WHEREFORE, the Civil Service Commission is ordered to open its register of eligibles
for the position of sanitarian, and to confirm or deny, the civil service eligibility of Julian
Sibonghanoy and Mariano Agas, for said position in the Health Department of Cebu
City, as requested by the petitioner Valentin L. Legaspi.
Teehankee, C.J., Yap, Fernan, Narvasa, Melencio-Herrera, Gutierrez, Jr., Cruz, Paras,
Gancayco, Padilla, Bidin and Sarmiento, JJ., concur.
Feliciano, J., is on leave.

2.

VALMONTE v. BELMONTE, JR.

G.R. No. 74930

documents evidencing their loan. Expenses in connection herewith shall be borne by

us.

February 13, 1989

If we could not secure the above documents could we have access to them?

RICARDO VALMONTE, OSWALDO CARBONELL, DOY DEL CASTILLO, ROLANDO

BARTOLOME, LEO OBLIGAR, JUN GUTIERREZ, REYNALDO BAGATSING, JUN
"NINOY" ALBA, PERCY LAPID, ROMMEL CORRO and ROLANDO FADUL,
petitioners,
vs.
FELICIANO BELMONTE, JR., respondent.
Ricardo C. Valmonte for and in his own behalf and his co-petitioners.
The Solicitor General for respondent.

We are premising the above request on the following provision of the Freedom
Constitution of the present regime.
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, shall be afforded the citizen subject to such limitation as may
be provided by law. (Art. IV, Sec. 6).
We trust that within five (5) days from receipt hereof we will receive your favorable
response on the matter.
Very truly yours,

CORTES, J.:
(Sgd.) RICARDO C. VALMONTE
Petitioners in this special civil action for mandamus with preliminary injunction invoke
their right to information and pray that respondent be directed:

[Rollo, p. 7.]
To the aforesaid letter, the Deputy General Counsel of the GSIS replied:

(a)
to furnish petitioners the list of the names of the Batasang Pambansa
members belonging to the UNIDO and PDP-Laban who were able to secure clean loans
immediately before the February 7 election thru the intercession/marginal note of the
then First Lady Imelda Marcos; and/or
(b)
to furnish petitioners with certified true copies of the documents evidencing
their respective loans; and/or
(c)
to allow petitioners access to the public records for the subject information.
(Petition, pp. 4-5; paragraphing supplied.]
The controversy arose when petitioner Valmonte wrote respondent Belmonte the
following letter:
June 4, 1986
Hon. Feliciano Belmonte
GSIS General Manager
Arroceros, Manila
Sir:
As a lawyer, member of the media and plain citizen of our Republic, I am requesting
that I be furnished with the list of names of the opposition members of (the) Batasang
Pambansa who were able to secure a clean loan of P2 million each on guarranty (sic)
of Mrs. Imelda Marcos. We understand that OIC Mel Lopez of Manila was one of those
aforesaid MPs. Likewise, may we be furnished with the certified true copies of the

June 17, 1986

Atty. Ricardo C. Valmonte
108 E. Benin Street
Caloocan City
Dear Compaero:
Possibly because he must have thought that it contained serious legal implications,
President & General Manager Feliciano Belmonte, Jr. referred to me for study and reply
your letter to him of June 4, 1986 requesting a list of the opposition members of
Batasang Pambansa who were able to secure a clean loan of P2 million each on
guaranty of Mrs. Imelda Marcos.
My opinion in this regard is that a confidential relationship exists between the GSIS and
all those who borrow from it, whoever they may be; that the GSIS has a duty to its
customers to preserve this confidentiality; and that it would not be proper for the GSIS
to breach this confidentiality unless so ordered by the courts.
As a violation of this confidentiality may mar the image of the GSIS as a reputable
financial institution, I regret very much that at this time we cannot respond positively to
your request.
Very truly yours,
(Sgd.) MEYNARDO A. TIRO
Deputy General Counsel
[Rollo, p. 40.]

On June 20, 1986, apparently not having yet received the reply of the Government
Service and Insurance System (GSIS) Deputy General Counsel, petitioner Valmonte
wrote respondent another letter, saying that for failure to receive a reply, "(W)e are now
considering ourselves free to do whatever action necessary within the premises to
pursue our desired objective in pursuance of public interest." [Rollo, p. 8.]
On June 26, 1986, Valmonte, joined by the other petitioners, filed the instant suit.
On July 19, 1986, the Daily Express carried a news item reporting that 137 former
members of the defunct interim and regular Batasang Pambansa, including ten (10)
opposition members, were granted housing loans by the GSIS [Rollo, p. 41.]
Separate comments were filed by respondent Belmonte and the Solicitor General. After
petitioners filed a consolidated reply, the petition was given due course and the parties
were required to file their memoranda. The parties having complied, the case was
deemed submitted for decision.

We shall deal first with the second and third alternative acts sought to be done, both of
which involve the issue of whether or not petitioners are entitled to access to the
documents evidencing loans granted by the GSIS.
This is not the first time that the Court is confronted with a controversy directly involving
the constitutional right to information. In Taada v. Tuvera, G.R. No. 63915, April
24,1985, 136 SCRA 27 and in the recent case of Legaspi v. Civil Service Commission,
G.R. No. 72119, May 29, 1987,150 SCRA 530, the Court upheld the people's
constitutional right to be informed of matters of public interest and ordered the
government agencies concerned to act as prayed for by the petitioners.
The pertinent provision under the 1987 Constitution is Art. 111, Sec. 7 which states:
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.

In his comment respondent raises procedural objections to the issuance of a writ of

mandamus, among which is that petitioners have failed to exhaust administrative
remedies.

The right of access to information was also recognized in the 1973 Constitution, Art. IV
Sec. 6 of which provided:

Respondent claims that actions of the GSIS General Manager are reviewable by the
Board of Trustees of the GSIS. Petitioners, however, did not seek relief from the GSIS
Board of Trustees. It is therefore asserted that since administrative remedies were not
exhausted, then petitioners have no cause of action.

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, shall be afforded the citizen subject to such limitations as
may be provided by law.

To this objection, petitioners claim that they have raised a purely legal issue, viz.,
whether or not they are entitled to the documents sought, by virtue of their constitutional
right to information. Hence, it is argued that this case falls under one of the exceptions
to the principle of exhaustion of administrative remedies.

An informed citizenry with access to the diverse currents in political, moral and artistic
thought and data relative to them, and the free exchange of ideas and discussion of
issues thereon, is vital to the democratic government envisioned under our
Constitution. The cornerstone of this republican system of government is delegation of
power by the people to the State. In this system, governmental agencies and institutions
operate within the limits of the authority conferred by the people. Denied access to
information on the inner workings of government, the citizenry can become prey to the
whims and caprices of those to whom the power had been delegated. The postulate of
public office as a public trust, institutionalized in the Constitution (in Art. XI, Sec. 1) to
protect the people from abuse of governmental power, would certainly be were empty
words if access to such information of public concern is denied, except under limitations
prescribed by implementing legislation adopted pursuant to the Constitution.

Among the settled principles in administrative law is that before a party can be allowed
to resort to the courts, he is expected to have exhausted all means of administrative
redress available under the law. The courts for reasons of law, comity and convenience
will not entertain a case unless the available administrative remedies have been
resorted to and the appropriate authorities have been given opportunity to act and
correct the errors committed in the administrative forum. However, the principle of
exhaustion of administrative remedies is subject to settled exceptions, among which is
when only a question of law is involved [Pascual v. Provincial Board, 106 Phil. 466
(1959); Aguilar v. Valencia, et al., G.R. No. L-30396, July 30, 1971, 40 SCRA 210;
Malabanan v. Ramento, G.R. No. L-2270, May 21, 1984, 129 SCRA 359.] The issue
raised by petitioners, which requires the interpretation of the scope of the constitutional
right to information, is one which can be passed upon by the regular courts more
competently than the GSIS or its Board of Trustees, involving as it does a purely legal
question. Thus, the exception of this case from the application of the general rule on
exhaustion of administrative remedies is warranted. Having disposed of this procedural
issue, We now address ourselves to the issue of whether or not mandamus hes to
compel respondent to perform the acts sought by petitioners to be done, in pursuance
of their right to information.

Petitioners are practitioners in media. As such, they have both the right to gather and
the obligation to check the accuracy of information the disseminate. For them, the
freedom of the press and of speech is not only critical, but vital to the exercise of their
professions. The right of access to information ensures that these freedoms are not
rendered nugatory by the government's monopolizing pertinent information. For an
essential element of these freedoms is to keep open a continuing dialogue or process
of communication between the government and the people. It is in the interest of the
State that the channels for free political discussion be maintained to the end that the
government may perceive and be responsive to the people's will. Yet, this open
dialogue can be effective only to the extent that the citizenry is informed and thus able
to formulate its will intelligently. Only when the participants in the discussion are aware
of the issues and have access to information relating thereto can such bear fruit.

The right to information is an essential premise of a meaningful right to speech and

expression. But this is not to say that the right to information is merely an adjunct of
and therefore restricted in application by the exercise of the freedoms of speech and of
the press. Far from it. The right to information goes hand-in-hand with the constitutional
policies of full public disclosure * and honesty in the public service. ** It is meant to
enhance the widening role of the citizenry in governmental decision-making as well as
in checking abuse in government.
Yet, like all the constitutional guarantees, the right to information is not absolute. As
stated in Legaspi, the people's right to information is limited to "matters of public
concern," and is further "subject to such limitations as may be provided by law."
Similarly, the State's policy of full disclosure is limited to "transactions involving public
interest," and is "subject to reasonable conditions prescribed by law."
Hence, before mandamus may issue, it must be clear that the information sought is of
"public interest" or "public concern," and is not exempted by law from the operation of
the constitutional guarantee [Legazpi v. Civil Service Commission, supra, at p. 542.]
The Court has always grappled with the meanings of the terms "public interest" and
"public concern". As observed in Legazpi:
In determining whether or not a particular information is of public concern there is no
rigid test which can be applied. "Public concern" like "public interest" is a term that
eludes exact definition. Both terms embrace a broad spectrum of subjects which the
public may want to know, either because these directly affect their lives, or simply
because such matters naturally arouse the interest of an ordinary citezen. In the final
analysis, it is for the courts to determine on a case by case basis whether the matter at
issue is of interest or importance, as it relates to or affects the public. [Ibid. at p. 541]
In the Taada case the public concern deemed covered by the constitutional right to
information was the need for adequate notice to the public of the various laws which
are to regulate the actions and conduct of citezens. In Legaspi, it was the "legitimate
concern of citezensof ensure that government positions requiring civil service eligibility
are occupied only by persons who are eligibles" [Supra at p. 539.]
The information sought by petitioners in this case is the truth of reports that certain
Members of the Batasang Pambansa belonging to the opposition were able to secure
"clean" loans from the GSIS immediately before the February 7, 1986 election through
the intercession of th eformer First Lady, Mrs. Imelda Marcos.
The GSIS is a trustee of contributions from the government and its employees and the
administrator of various insurance programs for the benefit of the latter. Undeniably, its
funds assume a public character. More particularly, Secs. 5(b) and 46 of P.D. 1146, as
amended (the Revised Government Service Insurance Act of 1977), provide for annual
appropriations to pay the contributions, premiums, interest and other amounts payable
to GSIS by the government, as employer, as well as the obligations which the Republic
of the Philippines assumes or guarantees to pay. Considering the nature of its funds,
the GSIS is expected to manage its resources with utmost prudence and in strict
compliance with the pertinent laws or rules and regulations. Thus, one of the reasons
that prompted the revision of the old GSIS law (C.A. No. 186, as amended) was the
necessity "to preserve at all times the actuarial solvency of the funds administered by

the System" [Second Whereas Clause, P.D. No. 1146.] Consequently, as respondent
himself admits, the GSIS "is not supposed to grant 'clean loans.'" [Comment, p. 8.] It is
therefore the legitimate concern of the public to ensure that these funds are managed
properly with the end in view of maximizing the benefits that accrue to the insured
government employees. Moreover, the supposed borrowers were Members of the
defunct Batasang Pambansa who themselves appropriated funds for the GSIS and
were therefore expected to be the first to see to it that the GSIS performed its tasks
with the greatest degree of fidelity and that an its transactions were above board.
In sum, the public nature of the loanable funds of the GSIS and the public office held
by the alleged borrowers make the information sought clearly a matter of public interest
and concern.
A second requisite must be met before the right to information may be enforced through
mandamus proceedings, viz., that the information sought must not be among those
excluded by law.
Respondent maintains that a confidential relationship exists between the GSIS and its
borrowers. It is argued that a policy of confidentiality restricts the indiscriminate
dissemination of information.
Yet, respondent has failed to cite any law granting the GSIS the privilege of
confidentiality as regards the documents subject of this petition. His position is
apparently based merely on considerations of policy. The judiciary does not settle policy
issues. The Court can only declare what the law is, and not what the law should be.
Under our system of government, policy issues are within the domain of the political
branches of the government, and of the people themselves as the repository of all State
power.
Respondent however contends that in view of the right to privacy which is equally
protected by the Constitution and by existing laws, the documents evidencing loan
transactions of the GSIS must be deemed outside the ambit of the right to information.
There can be no doubt that right to privacy is constitutionally protected. In the landmark
case of Morfe v. Mutuc [130 Phil. 415 (1968), 22 SCRA 424], this Court, speaking
through then Mr. Justice Fernando, stated:
... The right to privacy as such is accorded recognition independently of its identification
with liberty; in itself, it is fully deserving of constitutional protection. The language of
Prof. Emerson is particularly apt: "The concept of limited government has always
included the idea that governmental powers stop short of certain intrusions into the
personal life of the citizen. This is indeed one of the basic distinctions between absolute
and limited government. UItimate and pervasive control of the individual, in all aspects
of his life, is the hallmark of the absolute. state, In contrast, a system of limited
government safeguards a private sector, which belongs to the individual, firmly
distinguishing it from the public sector, which the state can control. Protection of this
private sector protection, in other words, of the dignity and integrity of the individual
has become increasingly important as modem society has developed. All the forces
of technological age industrialization, urbanization, and organization operate to
narrow the area of privacy and facilitate intrusion into it. In modern terms, the capacity
to maintain and support this enclave of private life marks the difference between a
democratic and a totalitarian society." [at pp. 444-445.]

When the information requested from the government intrudes into the privacy of a
citizen, a potential conflict between the rights to information and to privacy may arise.
However, the competing interests of these rights need not be resolved in this case.
Apparent from the above-quoted statement of the Court in Morfe is that the right to
privacy belongs to the individual in his private capacity, and not to public and
governmental agencies like the GSIS. Moreover, the right cannot be invoked by juridical
entities like the GSIS. As held in the case of Vassar College v. Loose Wills Biscuit Co.
[197 F. 982 (1912)], a corporation has no right of privacy in its name since the entire
basis of the right to privacy is an injury to the feelings and sensibilities of the party and
a corporation would have no such ground for relief.

Consequently, that the GSIS, in granting the loans, was exercising a proprietary
function would not justify the exclusion of the transactions from the coverage and scope
of the right to information.
Moreover, the intent of the members of the Constitutional Commission of 1986, to
include government-owned and controlled corporations and transactions entered into
by them within the coverage of the State policy of fun public disclosure is manifest from
the records of the proceedings:
xxx

xxx

xxx

THE PRESIDING OFFICER (Mr. Colayco).

Neither can the GSIS through its General Manager, the respondent, invoke the right to
privacy of its borrowers. The right is purely personal in nature [Cf. Atkinson v. John
Doherty & Co., 121 Mich 372, 80 N.W. 285, 46 L.RA. 219 (1899); Schuyler v. Curtis,
147 N.Y. 434, 42 N.E. 22, 31 L.R.A. 286 (1895)), and hence may be invoked only by
the person whose privacy is claimed to be violated.
It may be observed, however, that in the instant case, the concerned borrowers
themselves may not succeed if they choose to invoke their right to privacy, considering
the public offices they were holding at the time the loans were alleged to have been
granted. It cannot be denied that because of the interest they generate and their
newsworthiness, public figures, most especially those holding responsible positions in
government, enjoy a more limited right to privacy as compared to ordinary individuals,
their actions being subject to closer public scrutiny [Cf. Ayer Productions Pty. Ltd. v.
Capulong, G.R. Nos. 82380 and 82398, April 29, 1988; See also Cohen v. Marx, 211
P. 2d 321 (1949).]
Respondent next asserts that the documents evidencing the loan transactions of the
GSIS are private in nature and hence, are not covered by the Constitutional right to
information on matters of public concern which guarantees "(a)ccess to official records,
and to documents, and papers pertaining to official acts, transactions, or decisions"
only.
It is argued that the records of the GSIS, a government corporation performing
proprietary functions, are outside the coverage of the people's right of access to official
records.
It is further contended that since the loan function of the GSIS is merely incidental to its
insurance function, then its loan transactions are not covered by the constitutional
policy of full public disclosure and the right to information which is applicable only to
"official" transactions.
First of all, the "constituent ministrant" dichotomy characterizing government function
has long been repudiated. In ACCFA v. Confederation of Unions and Government
Corporations and Offices (G.R. Nos. L-21484 and L-23605, November 29, 1969, 30
SCRA 6441, the Court said that the government, whether carrying out its sovereign
attributes or running some business, discharges the same function of service to the
people.

Commissioner Suarez is recognized.

MR. SUAREZ.

Thank you. May I ask the Gentleman a few question?

MR. OPLE.

Very gladly.

MR. SUAREZ. Thank you.

When we declare a "policy of full public disclosure of all its transactions" referring to
the transactions of the State and when we say the "State" which I suppose would
include all of the various agencies, departments, ministries and instrumentalities of the
government....
MR. OPLE.

Yes, and individual public officers, Mr. Presiding Officer.

MR. SUAREZ.

Including government-owned and controlled corporations.

MR. OPLE.

That is correct, Mr. Presiding Officer.

MR. SUAREZ.
And when we say "transactions" which should be distinguished from
contracts, agreements, or treaties or whatever, does the Gentleman refer to the steps
leading to the consummation of the contract, or does he refer to the contract itself?
MR. OPLE.
The "transactions" used here I suppose is generic and, therefore, it
can cover both steps leading to a contract, and already a consummated contract, Mr.
Presiding Officer.
MR. SUAREZ.
This contemplates inclusion of negotiations leading to the
consummation of the transaction.
MR. OPLE.

Yes, subject only to reasonable safeguards on the national interest.

MR. SUAREZ.
Thank you. [V Record of the Constitutional Commission 24-25.]
(Emphasis supplied.)
Considering the intent of the framers of the Constitution which, though not binding upon
the Court, are nevertheless persuasive, and considering further that governmentowned and controlled corporations, whether performing proprietary or governmental
functions are accountable to the people, the Court is convinced that transactions

entered into by the GSIS, a government-controlled corporation created by special

legislation are within the ambit of the people's right to be informed pursuant to the
constitutional policy of transparency in government dealings.
In fine, petitioners are entitled to access to the documents evidencing loans granted by
the GSIS, subject to reasonable regulations that the latter may promulgate relating to
the manner and hours of examination, to the end that damage to or loss of the records
may be avoided, that undue interference with the duties of the custodian of the records
may be prevented and that the right of other persons entitled to inspect the records
may be insured [Legaspi v. Civil Service Commission, supra at p. 538, quoting Subido
v. Ozaeta, 80 Phil. 383, 387.] The petition, as to the second and third alternative acts
sought to be done by petitioners, is meritorious.
However, the same cannot be said with regard to the first act sought by petitioners, i.e.,
"to furnish petitioners the list of the names of the Batasang Pambansa members
belonging to the UNIDO and PDP-Laban who were able to secure clean loans
immediately before the February 7 election thru the intercession/marginal note of the
then First Lady Imelda Marcos."
Although citizens are afforded the right to information and, pursuant thereto, are entitled
to "access to official records," the Constitution does not accord them a right to compel
custodians of official records to prepare lists, abstracts, summaries and the like in their
desire to acquire information on matters of public concern.
It must be stressed that it is essential for a writ of mandamus to issue that the applicant
has a well-defined, clear and certain legal right to the thing demanded and that it is the
imperative duty of defendant to perform the act required. The corresponding duty of the
respondent to perform the required act must be clear and specific [Lemi v. Valencia,
G.R. No. L-20768, November 29,1968,126 SCRA 203; Ocampo v. Subido, G.R. No. L28344, August 27, 1976, 72 SCRA 443.] The request of the petitioners fails to meet this
standard, there being no duty on the part of respondent to prepare the list requested.
WHEREFORE, the instant petition is hereby granted and respondent General Manager
of the Government Service Insurance System is ORDERED to allow petitioners access
to documents and records evidencing loans granted to Members of the former
Batasang Pambansa, as petitioners may specify, subject to reasonable regulations as
to the time and manner of inspection, not incompatible with this decision, as the GSIS
may deem necessary.
SO ORDERED.
Fernan, C.J., Narvasa, Melencio-Herrera, Gutierrez, Jr., Paras, Feliciano, Gancayco,
Padilla, Bidin, Sarmiento, Grio-Aquino, Medialdea and Regalado, JJ., concur.

3.

PROVINCE OF COTABATO v. PEACE PANEL ON ANCESTRAL DOMAIN

G.R. No. 74930

documents evidencing their loan. Expenses in connection herewith shall be borne by

us.

February 13, 1989

If we could not secure the above documents could we have access to them?

RICARDO VALMONTE, OSWALDO CARBONELL, DOY DEL CASTILLO, ROLANDO

BARTOLOME, LEO OBLIGAR, JUN GUTIERREZ, REYNALDO BAGATSING, JUN
"NINOY" ALBA, PERCY LAPID, ROMMEL CORRO and ROLANDO FADUL,
petitioners,
vs.
FELICIANO BELMONTE, JR., respondent.
Ricardo C. Valmonte for and in his own behalf and his co-petitioners.
The Solicitor General for respondent.

We are premising the above request on the following provision of the Freedom
Constitution of the present regime.
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, shall be afforded the citizen subject to such limitation as may
be provided by law. (Art. IV, Sec. 6).
We trust that within five (5) days from receipt hereof we will receive your favorable
response on the matter.
Very truly yours,

CORTES, J.:
(Sgd.) RICARDO C. VALMONTE
Petitioners in this special civil action for mandamus with preliminary injunction invoke
their right to information and pray that respondent be directed:

[Rollo, p. 7.]
To the aforesaid letter, the Deputy General Counsel of the GSIS replied:

(a)
to furnish petitioners the list of the names of the Batasang Pambansa
members belonging to the UNIDO and PDP-Laban who were able to secure clean loans
immediately before the February 7 election thru the intercession/marginal note of the
then First Lady Imelda Marcos; and/or
(b)
to furnish petitioners with certified true copies of the documents evidencing
their respective loans; and/or
(c)
to allow petitioners access to the public records for the subject information.
(Petition, pp. 4-5; paragraphing supplied.]
The controversy arose when petitioner Valmonte wrote respondent Belmonte the
following letter:
June 4, 1986
Hon. Feliciano Belmonte
GSIS General Manager
Arroceros, Manila
Sir:
As a lawyer, member of the media and plain citizen of our Republic, I am requesting
that I be furnished with the list of names of the opposition members of (the) Batasang
Pambansa who were able to secure a clean loan of P2 million each on guarranty (sic)
of Mrs. Imelda Marcos. We understand that OIC Mel Lopez of Manila was one of those
aforesaid MPs. Likewise, may we be furnished with the certified true copies of the

June 17, 1986

Atty. Ricardo C. Valmonte
108 E. Benin Street
Caloocan City
Dear Compaero:
Possibly because he must have thought that it contained serious legal implications,
President & General Manager Feliciano Belmonte, Jr. referred to me for study and reply
your letter to him of June 4, 1986 requesting a list of the opposition members of
Batasang Pambansa who were able to secure a clean loan of P2 million each on
guaranty of Mrs. Imelda Marcos.
My opinion in this regard is that a confidential relationship exists between the GSIS and
all those who borrow from it, whoever they may be; that the GSIS has a duty to its
customers to preserve this confidentiality; and that it would not be proper for the GSIS
to breach this confidentiality unless so ordered by the courts.
As a violation of this confidentiality may mar the image of the GSIS as a reputable
financial institution, I regret very much that at this time we cannot respond positively to
your request.
Very truly yours,
(Sgd.) MEYNARDO A. TIRO
Deputy General Counsel
[Rollo, p. 40.]

On June 20, 1986, apparently not having yet received the reply of the Government
Service and Insurance System (GSIS) Deputy General Counsel, petitioner Valmonte
wrote respondent another letter, saying that for failure to receive a reply, "(W)e are now
considering ourselves free to do whatever action necessary within the premises to
pursue our desired objective in pursuance of public interest." [Rollo, p. 8.]
On June 26, 1986, Valmonte, joined by the other petitioners, filed the instant suit.
On July 19, 1986, the Daily Express carried a news item reporting that 137 former
members of the defunct interim and regular Batasang Pambansa, including ten (10)
opposition members, were granted housing loans by the GSIS [Rollo, p. 41.]
Separate comments were filed by respondent Belmonte and the Solicitor General. After
petitioners filed a consolidated reply, the petition was given due course and the parties
were required to file their memoranda. The parties having complied, the case was
deemed submitted for decision.

We shall deal first with the second and third alternative acts sought to be done, both of
which involve the issue of whether or not petitioners are entitled to access to the
documents evidencing loans granted by the GSIS.
This is not the first time that the Court is confronted with a controversy directly involving
the constitutional right to information. In Taada v. Tuvera, G.R. No. 63915, April
24,1985, 136 SCRA 27 and in the recent case of Legaspi v. Civil Service Commission,
G.R. No. 72119, May 29, 1987,150 SCRA 530, the Court upheld the people's
constitutional right to be informed of matters of public interest and ordered the
government agencies concerned to act as prayed for by the petitioners.
The pertinent provision under the 1987 Constitution is Art. 111, Sec. 7 which states:
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.

In his comment respondent raises procedural objections to the issuance of a writ of

mandamus, among which is that petitioners have failed to exhaust administrative
remedies.

The right of access to information was also recognized in the 1973 Constitution, Art. IV
Sec. 6 of which provided:

Respondent claims that actions of the GSIS General Manager are reviewable by the
Board of Trustees of the GSIS. Petitioners, however, did not seek relief from the GSIS
Board of Trustees. It is therefore asserted that since administrative remedies were not
exhausted, then petitioners have no cause of action.

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, shall be afforded the citizen subject to such limitations as
may be provided by law.

To this objection, petitioners claim that they have raised a purely legal issue, viz.,
whether or not they are entitled to the documents sought, by virtue of their constitutional
right to information. Hence, it is argued that this case falls under one of the exceptions
to the principle of exhaustion of administrative remedies.

An informed citizenry with access to the diverse currents in political, moral and artistic
thought and data relative to them, and the free exchange of ideas and discussion of
issues thereon, is vital to the democratic government envisioned under our
Constitution. The cornerstone of this republican system of government is delegation of
power by the people to the State. In this system, governmental agencies and institutions
operate within the limits of the authority conferred by the people. Denied access to
information on the inner workings of government, the citizenry can become prey to the
whims and caprices of those to whom the power had been delegated. The postulate of
public office as a public trust, institutionalized in the Constitution (in Art. XI, Sec. 1) to
protect the people from abuse of governmental power, would certainly be were empty
words if access to such information of public concern is denied, except under limitations
prescribed by implementing legislation adopted pursuant to the Constitution.

Among the settled principles in administrative law is that before a party can be allowed
to resort to the courts, he is expected to have exhausted all means of administrative
redress available under the law. The courts for reasons of law, comity and convenience
will not entertain a case unless the available administrative remedies have been
resorted to and the appropriate authorities have been given opportunity to act and
correct the errors committed in the administrative forum. However, the principle of
exhaustion of administrative remedies is subject to settled exceptions, among which is
when only a question of law is involved [Pascual v. Provincial Board, 106 Phil. 466
(1959); Aguilar v. Valencia, et al., G.R. No. L-30396, July 30, 1971, 40 SCRA 210;
Malabanan v. Ramento, G.R. No. L-2270, May 21, 1984, 129 SCRA 359.] The issue
raised by petitioners, which requires the interpretation of the scope of the constitutional
right to information, is one which can be passed upon by the regular courts more
competently than the GSIS or its Board of Trustees, involving as it does a purely legal
question. Thus, the exception of this case from the application of the general rule on
exhaustion of administrative remedies is warranted. Having disposed of this procedural
issue, We now address ourselves to the issue of whether or not mandamus hes to
compel respondent to perform the acts sought by petitioners to be done, in pursuance
of their right to information.

Petitioners are practitioners in media. As such, they have both the right to gather and
the obligation to check the accuracy of information the disseminate. For them, the
freedom of the press and of speech is not only critical, but vital to the exercise of their
professions. The right of access to information ensures that these freedoms are not
rendered nugatory by the government's monopolizing pertinent information. For an
essential element of these freedoms is to keep open a continuing dialogue or process
of communication between the government and the people. It is in the interest of the
State that the channels for free political discussion be maintained to the end that the
government may perceive and be responsive to the people's will. Yet, this open
dialogue can be effective only to the extent that the citizenry is informed and thus able
to formulate its will intelligently. Only when the participants in the discussion are aware
of the issues and have access to information relating thereto can such bear fruit.

The right to information is an essential premise of a meaningful right to speech and

expression. But this is not to say that the right to information is merely an adjunct of
and therefore restricted in application by the exercise of the freedoms of speech and of
the press. Far from it. The right to information goes hand-in-hand with the constitutional
policies of full public disclosure * and honesty in the public service. ** It is meant to
enhance the widening role of the citizenry in governmental decision-making as well as
in checking abuse in government.
Yet, like all the constitutional guarantees, the right to information is not absolute. As
stated in Legaspi, the people's right to information is limited to "matters of public
concern," and is further "subject to such limitations as may be provided by law."
Similarly, the State's policy of full disclosure is limited to "transactions involving public
interest," and is "subject to reasonable conditions prescribed by law."
Hence, before mandamus may issue, it must be clear that the information sought is of
"public interest" or "public concern," and is not exempted by law from the operation of
the constitutional guarantee [Legazpi v. Civil Service Commission, supra, at p. 542.]
The Court has always grappled with the meanings of the terms "public interest" and
"public concern". As observed in Legazpi:
In determining whether or not a particular information is of public concern there is no
rigid test which can be applied. "Public concern" like "public interest" is a term that
eludes exact definition. Both terms embrace a broad spectrum of subjects which the
public may want to know, either because these directly affect their lives, or simply
because such matters naturally arouse the interest of an ordinary citezen. In the final
analysis, it is for the courts to determine on a case by case basis whether the matter at
issue is of interest or importance, as it relates to or affects the public. [Ibid. at p. 541]
In the Taada case the public concern deemed covered by the constitutional right to
information was the need for adequate notice to the public of the various laws which
are to regulate the actions and conduct of citezens. In Legaspi, it was the "legitimate
concern of citezensof ensure that government positions requiring civil service eligibility
are occupied only by persons who are eligibles" [Supra at p. 539.]
The information sought by petitioners in this case is the truth of reports that certain
Members of the Batasang Pambansa belonging to the opposition were able to secure
"clean" loans from the GSIS immediately before the February 7, 1986 election through
the intercession of th eformer First Lady, Mrs. Imelda Marcos.
The GSIS is a trustee of contributions from the government and its employees and the
administrator of various insurance programs for the benefit of the latter. Undeniably, its
funds assume a public character. More particularly, Secs. 5(b) and 46 of P.D. 1146, as
amended (the Revised Government Service Insurance Act of 1977), provide for annual
appropriations to pay the contributions, premiums, interest and other amounts payable
to GSIS by the government, as employer, as well as the obligations which the Republic
of the Philippines assumes or guarantees to pay. Considering the nature of its funds,
the GSIS is expected to manage its resources with utmost prudence and in strict
compliance with the pertinent laws or rules and regulations. Thus, one of the reasons
that prompted the revision of the old GSIS law (C.A. No. 186, as amended) was the
necessity "to preserve at all times the actuarial solvency of the funds administered by

the System" [Second Whereas Clause, P.D. No. 1146.] Consequently, as respondent
himself admits, the GSIS "is not supposed to grant 'clean loans.'" [Comment, p. 8.] It is
therefore the legitimate concern of the public to ensure that these funds are managed
properly with the end in view of maximizing the benefits that accrue to the insured
government employees. Moreover, the supposed borrowers were Members of the
defunct Batasang Pambansa who themselves appropriated funds for the GSIS and
were therefore expected to be the first to see to it that the GSIS performed its tasks
with the greatest degree of fidelity and that an its transactions were above board.
In sum, the public nature of the loanable funds of the GSIS and the public office held
by the alleged borrowers make the information sought clearly a matter of public interest
and concern.
A second requisite must be met before the right to information may be enforced through
mandamus proceedings, viz., that the information sought must not be among those
excluded by law.
Respondent maintains that a confidential relationship exists between the GSIS and its
borrowers. It is argued that a policy of confidentiality restricts the indiscriminate
dissemination of information.
Yet, respondent has failed to cite any law granting the GSIS the privilege of
confidentiality as regards the documents subject of this petition. His position is
apparently based merely on considerations of policy. The judiciary does not settle policy
issues. The Court can only declare what the law is, and not what the law should be.
Under our system of government, policy issues are within the domain of the political
branches of the government, and of the people themselves as the repository of all State
power.
Respondent however contends that in view of the right to privacy which is equally
protected by the Constitution and by existing laws, the documents evidencing loan
transactions of the GSIS must be deemed outside the ambit of the right to information.
There can be no doubt that right to privacy is constitutionally protected. In the landmark
case of Morfe v. Mutuc [130 Phil. 415 (1968), 22 SCRA 424], this Court, speaking
through then Mr. Justice Fernando, stated:
... The right to privacy as such is accorded recognition independently of its identification
with liberty; in itself, it is fully deserving of constitutional protection. The language of
Prof. Emerson is particularly apt: "The concept of limited government has always
included the idea that governmental powers stop short of certain intrusions into the
personal life of the citizen. This is indeed one of the basic distinctions between absolute
and limited government. UItimate and pervasive control of the individual, in all aspects
of his life, is the hallmark of the absolute. state, In contrast, a system of limited
government safeguards a private sector, which belongs to the individual, firmly
distinguishing it from the public sector, which the state can control. Protection of this
private sector protection, in other words, of the dignity and integrity of the individual
has become increasingly important as modem society has developed. All the forces
of technological age industrialization, urbanization, and organization operate to
narrow the area of privacy and facilitate intrusion into it. In modern terms, the capacity
to maintain and support this enclave of private life marks the difference between a
democratic and a totalitarian society." [at pp. 444-445.]

When the information requested from the government intrudes into the privacy of a
citizen, a potential conflict between the rights to information and to privacy may arise.
However, the competing interests of these rights need not be resolved in this case.
Apparent from the above-quoted statement of the Court in Morfe is that the right to
privacy belongs to the individual in his private capacity, and not to public and
governmental agencies like the GSIS. Moreover, the right cannot be invoked by juridical
entities like the GSIS. As held in the case of Vassar College v. Loose Wills Biscuit Co.
[197 F. 982 (1912)], a corporation has no right of privacy in its name since the entire
basis of the right to privacy is an injury to the feelings and sensibilities of the party and
a corporation would have no such ground for relief.

Consequently, that the GSIS, in granting the loans, was exercising a proprietary
function would not justify the exclusion of the transactions from the coverage and scope
of the right to information.
Moreover, the intent of the members of the Constitutional Commission of 1986, to
include government-owned and controlled corporations and transactions entered into
by them within the coverage of the State policy of fun public disclosure is manifest from
the records of the proceedings:
xxx

xxx

xxx

THE PRESIDING OFFICER (Mr. Colayco).

Neither can the GSIS through its General Manager, the respondent, invoke the right to
privacy of its borrowers. The right is purely personal in nature [Cf. Atkinson v. John
Doherty & Co., 121 Mich 372, 80 N.W. 285, 46 L.RA. 219 (1899); Schuyler v. Curtis,
147 N.Y. 434, 42 N.E. 22, 31 L.R.A. 286 (1895)), and hence may be invoked only by
the person whose privacy is claimed to be violated.
It may be observed, however, that in the instant case, the concerned borrowers
themselves may not succeed if they choose to invoke their right to privacy, considering
the public offices they were holding at the time the loans were alleged to have been
granted. It cannot be denied that because of the interest they generate and their
newsworthiness, public figures, most especially those holding responsible positions in
government, enjoy a more limited right to privacy as compared to ordinary individuals,
their actions being subject to closer public scrutiny [Cf. Ayer Productions Pty. Ltd. v.
Capulong, G.R. Nos. 82380 and 82398, April 29, 1988; See also Cohen v. Marx, 211
P. 2d 321 (1949).]
Respondent next asserts that the documents evidencing the loan transactions of the
GSIS are private in nature and hence, are not covered by the Constitutional right to
information on matters of public concern which guarantees "(a)ccess to official records,
and to documents, and papers pertaining to official acts, transactions, or decisions"
only.
It is argued that the records of the GSIS, a government corporation performing
proprietary functions, are outside the coverage of the people's right of access to official
records.
It is further contended that since the loan function of the GSIS is merely incidental to its
insurance function, then its loan transactions are not covered by the constitutional
policy of full public disclosure and the right to information which is applicable only to
"official" transactions.
First of all, the "constituent ministrant" dichotomy characterizing government function
has long been repudiated. In ACCFA v. Confederation of Unions and Government
Corporations and Offices (G.R. Nos. L-21484 and L-23605, November 29, 1969, 30
SCRA 6441, the Court said that the government, whether carrying out its sovereign
attributes or running some business, discharges the same function of service to the
people.

Commissioner Suarez is recognized.

MR. SUAREZ.

Thank you. May I ask the Gentleman a few question?

MR. OPLE.

Very gladly.

MR. SUAREZ. Thank you.

When we declare a "policy of full public disclosure of all its transactions" referring to
the transactions of the State and when we say the "State" which I suppose would
include all of the various agencies, departments, ministries and instrumentalities of the
government....
MR. OPLE.

Yes, and individual public officers, Mr. Presiding Officer.

MR. SUAREZ.

Including government-owned and controlled corporations.

MR. OPLE.

That is correct, Mr. Presiding Officer.

MR. SUAREZ.
And when we say "transactions" which should be distinguished from
contracts, agreements, or treaties or whatever, does the Gentleman refer to the steps
leading to the consummation of the contract, or does he refer to the contract itself?
MR. OPLE.
The "transactions" used here I suppose is generic and, therefore, it
can cover both steps leading to a contract, and already a consummated contract, Mr.
Presiding Officer.
MR. SUAREZ.
This contemplates inclusion of negotiations leading to the
consummation of the transaction.
MR. OPLE.

Yes, subject only to reasonable safeguards on the national interest.

MR. SUAREZ.
Thank you. [V Record of the Constitutional Commission 24-25.]
(Emphasis supplied.)
Considering the intent of the framers of the Constitution which, though not binding upon
the Court, are nevertheless persuasive, and considering further that governmentowned and controlled corporations, whether performing proprietary or governmental
functions are accountable to the people, the Court is convinced that transactions

entered into by the GSIS, a government-controlled corporation created by special

legislation are within the ambit of the people's right to be informed pursuant to the
constitutional policy of transparency in government dealings.
In fine, petitioners are entitled to access to the documents evidencing loans granted by
the GSIS, subject to reasonable regulations that the latter may promulgate relating to
the manner and hours of examination, to the end that damage to or loss of the records
may be avoided, that undue interference with the duties of the custodian of the records
may be prevented and that the right of other persons entitled to inspect the records
may be insured [Legaspi v. Civil Service Commission, supra at p. 538, quoting Subido
v. Ozaeta, 80 Phil. 383, 387.] The petition, as to the second and third alternative acts
sought to be done by petitioners, is meritorious.
However, the same cannot be said with regard to the first act sought by petitioners, i.e.,
"to furnish petitioners the list of the names of the Batasang Pambansa members
belonging to the UNIDO and PDP-Laban who were able to secure clean loans
immediately before the February 7 election thru the intercession/marginal note of the
then First Lady Imelda Marcos."
Although citizens are afforded the right to information and, pursuant thereto, are entitled
to "access to official records," the Constitution does not accord them a right to compel
custodians of official records to prepare lists, abstracts, summaries and the like in their
desire to acquire information on matters of public concern.
It must be stressed that it is essential for a writ of mandamus to issue that the applicant
has a well-defined, clear and certain legal right to the thing demanded and that it is the
imperative duty of defendant to perform the act required. The corresponding duty of the
respondent to perform the required act must be clear and specific [Lemi v. Valencia,
G.R. No. L-20768, November 29,1968,126 SCRA 203; Ocampo v. Subido, G.R. No. L28344, August 27, 1976, 72 SCRA 443.] The request of the petitioners fails to meet this
standard, there being no duty on the part of respondent to prepare the list requested.
WHEREFORE, the instant petition is hereby granted and respondent General Manager
of the Government Service Insurance System is ORDERED to allow petitioners access
to documents and records evidencing loans granted to Members of the former
Batasang Pambansa, as petitioners may specify, subject to reasonable regulations as
to the time and manner of inspection, not incompatible with this decision, as the GSIS
may deem necessary.
SO ORDERED.
Fernan, C.J., Narvasa, Melencio-Herrera, Gutierrez, Jr., Paras, Feliciano, Gancayco,
Padilla, Bidin, Sarmiento, Grio-Aquino, Medialdea and Regalado, JJ., concur.

4.

ECHAGARAY v. SECRETARY OF JUSTICE

respondents from acting under the questioned rules by setting a date for petitioner's
execution.

[G.R. No. 132601. October 12, 1998]

LEO ECHEGARAY y PILO, petitioner, vs. THE SECRETARY OF JUSTICE and THE
DIRECTOR OF THE BUREAU OF CORRECTIONS, THE EXECUTIVE JUDGE OF
THE REGIONAL TRIAL COURT OF QUEZON CITY AND THE PRESIDING JUDGE
OF REGIONAL TRIAL COURT OF QUEZON CITY, BRANCH 104, respondents.
DECISION
PER CURIAM:
On June 25, 1996, this Court affirmed[1] the conviction of petitioner Leo Echegaray y
Pilo for the crime of rape of the 10 year-old daughter of his common-law spouse and
the imposition upon him of the death penalty for the said crime.
Petitioner duly filed a Motion for Reconsideration raising mainly factual issues, and on
its heels, a Supplemental Motion for Reconsideration raising for the first time the issue
of the constitutionality of Republic Act No. 7659[2] (the death penalty law) and the
imposition of the death penalty for the crime of rape.
On February 7, 1998, this Court denied[3] petitioner's Motion for Reconsideration and
Supplemental Motion for Reconsideration with a finding that Congress duly complied
with the requirements for the reimposition of the death penalty and therefore the death
penalty law is not unconstitutional.
In the meantime, Congress had seen it fit to change the mode of execution of the death
penalty from electrocution to lethal injection,[4] and passed Republic Act No. 8177, AN
ACT DESIGNATING DEATH BY LETHAL INJECTION AS THE METHOD OF
CARRYING OUT CAPITAL PUNISHMENT, AMENDING FOR THE PURPOSE
ARTICLE 81 OF THE REVISED PENAL CODE, AS AMENDED BY SECTION 24 OF
REPUBLIC ACT NO. 7659.[5] Pursuant to the provisions of said law, the Secretary of
Justice promulgated the Rules and Regulations to Implement Republic Act No. 8177
("implementing rules")[6] and directed the Director of the Bureau of Corrections to
prepare the Lethal Injection Manual.[7]
On March 2, 1998, petitioner filed a Petition[8] for Prohibition, Injunction and/or
Temporary Restraining Order to enjoin respondents Secretary of Justice and Director
of the Bureau of Prisons from carrying out the execution by lethal injection of petitioner
under R.A. No. 8177 and its implementing rules as these are unconstitutional and void
for being: (a) cruel, degrading and inhuman punishment per se as well as by reason of
its being (b) arbitrary, unreasonable and a violation of due process, (c) a violation of
the Philippines' obligations under international covenants, (d) an undue delegation of
legislative power by Congress, (e) an unlawful exercise by respondent Secretary of the
power to legislate, and (f) an unlawful delegation of delegated powers by the Secretary
of Justice to respondent Director.
On March 3, 1998, petitioner, through counsel, filed a Motion for Leave of Court[9] to
Amend and Supplement Petition with the Amended and Supplemental Petition[10]
attached thereto, invoking the additional ground of violation of equal protection, and
impleading the Executive Judge of the Regional Trial Court of Quezon City and the
Presiding Judge of the Regional Trial Court, Branch 104, in order to enjoin said public

On March 3, 1998, the Court resolved, without giving due course to the petition, to
require the respondents to COMMENT thereon within a non-extendible period of ten
(10) days from notice, and directed the parties "to MAINTAIN the status quo prevailing
at the time of the filing of this petition."
On March 10, 1998, the Court granted the Motion for Leave of Court to Amend and
Supplement Petition, and required respondents to COMMENT thereon within ten (10)
days from notice.
On March 16, 1998, petitioner filed a Very Urgent Motion (1) To clarify Status Quo
Order, and (2) For the Issuance of a Temporary Restraining Order expressly enjoining
public respondents from taking any action to carry out petitioner's execution until the
petition is resolved.
On March 16, 1998, the Office of the Solicitor General[11] filed a Comment (On the
Petition and the Amended Supplemental Petition)[12] stating that (1) this Court has
already upheld the constitutionality of the Death Penalty Law, and has repeatedly
declared that the death penalty is not cruel, unjust, excessive or unusual punishment;
(2) execution by lethal injection, as authorized under R.A. No. 8177 and the questioned
rules, is constitutional, lethal injection being the most modern, more humane, more
economical, safer and easier to apply (than electrocution or the gas chamber); (3) the
International Covenant on Civil and Political Rights does not expressly or impliedly
prohibit the imposition of the death penalty; (4) R.A. No. 8177 properly delegated
legislative power to respondent Director; and that (5) R.A. No. 8177 confers the power
to promulgate the implementing rules to the Secretary of Justice, Secretary of Health
and the Bureau of Corrections.
On March 17, 1998, the Court required the petitioner to file a REPLY thereto within a
non-extendible period of ten days from notice.
On March 25, 1998, the Commission on Human Rights[13] filed a Motion for Leave of
Court to Intervene and/or Appear as Amicus Curiae[14] with the attached Petition to
Intervene and/or Appear as Amicus Curiae[15] alleging that the death penalty imposed
under R.A. No. 7659 which is to be implemented by R.A. No. 8177 is cruel, degrading
and outside the limits of civil society standards, and further invoking (a) Article II,
Section 11 of the Constitution which provides: "The State values the dignity of every
human person and guarantees full respect for human rights."; (b) Article III of the
Universal Declaration of Human Rights which states that "Everyone has the right to life,
liberty and security of person," and Article V thereof, which states that "No one shall be
subjected to torture or to cruel, inhuman or degrading treatment or punishment."; (c)
The International Covenant on Civil and Political Rights, in particular, Article 6 thereof,
and the Second Optional Protocol to the International Covenant on Civil and Political
Rights Aiming At The Abolition of the Death Penalty; (d) Amnesty International statistics
showing that as of October 1996, 58 countries have abolished the death penalty for all
crimes, 15 countries have abolished the death penalty for ordinary crimes, and 26
countries are abolitionists de facto, which means that they have retained the death
penalty for ordinary crimes but are considered abolitionists in practice that they have
not executed anyone during the past ten (10) years or more, or in that they have made
an international commitment not to carry out executions, for a total of 99 countries which

are total abolitionists in law or practice, and 95 countries as retentionists;[16] and (e)
Pope John Paul II's encyclical, "Evangelium Vitae." In a Resolution dated April 3, 1998,
the Court duly noted the motion.

RESPONDENT SECRETARY EXCEEDED THE AUTHORITY DELEGATED TO HIM

UNDER REPUBLIC ACT NO. 8177 AND UNLAWFULLY USURPED THE POWER TO
LEGISLATE IN PROMULGATING THE QUESTIONED RULES.

On March 27, 1998, petitioner filed a Reply[17] stating that (1) this Court is not barred
from exercising judicial review over the death penalty per se, the death penalty for rape
and lethal injection as a mode of carrying out the death penalty; (2) capital punishment
is a cruel, degrading and inhuman punishment; (3) lethal injection is cruel, degrading
and inhuman punishment, and that being the "most modern" does not make it less cruel
or more humane, and that the Solicitor General's "aesthetic" criteria is short-sighted,
and that the lethal injection is not risk free nor is it easier to implement; and (4) the
death penalty violates the International Covenant on Civil and Political Rights
considering that the Philippines participated in the deliberations of and voted for the
Second Optional Protocol.

VII.

After deliberating on the pleadings, the Court gave due course to the petition, which it
now resolves on the merits.
In the Amended and Supplemental Petition, petitioner assails the constitutionality of the
mode of carrying out his death sentence by lethal injection on the following grounds:[18]
I.
DEATH BY LETHAL INJECTION IS UNCONSTITUTIONAL FOR BEING A CRUEL,
DEGRADING AND INHUMAN PUNISHMENT.
II.
THE DEATH PENALTY VIOLATES THE INTERNATIONAL COVENANT ON CIVIL
AND POLITICAL RIGHTS, WHICH IS PART OF THE LAW OF THE LAND.
III.
LETHAL INJECTION, AS AUTHORIZED UNDER REPUBLIC ACT NO. 8177 AND THE
QUESTIONED RULES, IS UNCONSTITUTIONAL BECAUSE IT IS AN
UNNECESSARY AND WANTON INFLICTION OF PAIN ON A PERSON AND IS,
THUS, A CRUEL, DEGRADING, AND INHUMAN PUNISHMENT.
IV.
REPUBLIC ACT NO. 8177 UNDULY DELEGATES LEGISLATIVE POWER TO
RESPONDENT DIRECTOR.
V.
RESPONDENT SECRETARY UNLAWFULLY DELEGATED THE LEGISLATIVE
POWERS DELEGATED TO HIM UNDER REPUBLIC ACT NO. 8177 TO
RESPONDENT DIRECTOR.
VI.

SECTION 17 OF THE QUESTIONED RULES IS UNCONSTITUTIONAL FOR BEING

DISCRIMINATORY AS WELL AS FOR BEING AN INVALID EXERCISE BY
RESPONDENT SECRETARY OF THE POWER TO LEGISLATE.
VIII.
INJUCTION MUST ISSUE TO PREVENT IRREPARABLE DAMAGE AND INJURY TO
PETITIONER'S RIGHTS BY REASON OF THE EXISTENCE, OPERATION AND
IMPLEMENTATION OF AN UNCONSTITUTIONAL STATUTE AND EQUALLY
INVALID AND IMPLEMENTING RULES.
Concisely put, petitioner argues that R.A. No. 8177 and its implementing rules do not
pass constitutional muster for: (a) violation of the constitutional proscription against
cruel, degrading or inhuman punishment, (b) violation of our international treaty
obligations, (c) being an undue delegation of legislative power, and (d) being
discriminatory.
The Court shall now proceed to discuss these issues in seriatim.
I. LETHAL INJECTION, NOT CRUEL, DEGRADING OR INHUMAN PUNISHMENT
UNDER SECTION 19, ARTICLE III OF THE 1987 CONSTITUTION.
The main challenge to R.A. 8177 and its implementing rules is anchored on Article III,
Section 19 (1) of the 1987 Constitution which proscribes the imposition of "cruel,
degrading or inhuman" punishment. "The prohibition in the Philippine Bill against cruel
and unusual punishments is an Anglo-Saxon safeguard against governmental
oppression of the subject, which made its first appearance in the reign of William and
Mary of England in 'An Act declaring the rights and liberties of the subject, and settling
the succession of the crown,' passed in the year 1689. It has been incorporated into
the Constitution of the United States (of America) and into most constitutions of the
various States in substantially the same language as that used in the original statute.
The exact language of the Constitution of the United States is used in the Philippine
Bill."[19] "The counterpart of Section 19 (1) in the 1935 Constitution reads: 'Excessive
fines shall not be imposed, nor cruel and inhuman punishment inflicted.' xxx In the 1973
Constitution the phrase became 'cruel or unusual punishment.' The Bill of Rights
Committee of the 1986 Constitutional Commission read the 1973 modification as
prohibiting 'unusual' punishment even if not 'cruel.' It was thus seen as an obstacle to
experimentation in penology. Consequently, the Committee reported out the present
text which prohibits 'cruel, degrading or inhuman punishment' as more consonant with
the meaning desired and with jurisprudence on the subject."[20]
Petitioner contends that death by lethal injection constitutes cruel, degrading and
inhuman punishment considering that (1) R.A. No. 8177 fails to provide for the drugs to
be used in carrying out lethal injection, the dosage for each drug to be administered,
and the procedure in administering said drug/s into the accused; (2) R.A. No. 8177 and
its implementing rules are uncertain as to the date of the execution, time of notification,

the court which will fix the date of execution, which uncertainties cause the greatest
pain and suffering for the convict; and (3) the possibility of "botched executions" or
mistakes in administering the drugs renders lethal injection inherently cruel.
Before the Court proceeds any further, a brief explanation of the process of
administering lethal injection is in order.
In lethal injection, the condemned inmate is strapped on a hospital gurney and wheeled
into the execution room. A trained technician inserts a needle into a vein in the inmate's
arm and begins an intravenous flow of saline solution. At the warden's signal, a lethal
combination of drugs is injected into the intravenous line. The deadly concoction
typically includes three drugs: (1) a nonlethal dose of sodium thiopenthotal, a sleep
inducing barbiturate; (2) lethal doses of pancuronium bromide, a drug that paralyzes
the muscles; and (3) potassium chloride, which stops the heart within seconds. The first
two drugs are commonly used during surgery to put the patient to sleep and relax
muscles; the third is used in heart bypass surgery.[21]
Now it is well-settled in jurisprudence that the death penalty per se is not a cruel,
degrading or inhuman punishment.[22] In the oft-cited case of Harden v. Director of
Prisons,[23] this Court held that "[p]unishments are cruel when they involve torture or
a lingering death; but the punishment of death is not cruel, within the meaning of that
word as used in the constitution. It implies there something inhuman and barbarous,
something more than the mere extinguishment of life." Would the lack in particularity
then as to the details involved in the execution by lethal injection render said law "cruel,
degrading or inhuman"? The Court believes not. For reasons hereafter discussed, the
implementing details of R.A. No. 8177 are matters which are properly left to the
competence and expertise of administrative officials.[24]
Petitioner contends that Sec. 16[25] of R.A. No. 8177 is uncertain as to which "court"
will fix the time and date of execution, and the date of execution and time of notification
of the death convict. As petitioner already knows, the "court" which designates the date
of execution is the trial court which convicted the accused, that is, after this Court has
reviewed the entire records of the case[26] and has affirmed the judgment of the lower
court. Thereupon, the procedure is that the "judgment is entered fifteen (15) days after
its promulgation, and 10 days thereafter, the records are remanded to the court below
including a certified copy of the judgment for execution.[27] Neither is there any
uncertainty as to the date of execution nor the time of notification. As to the date of
execution, Section 15 of the implementing rules must be read in conjunction with the
last sentence of Section 1 of R.A. No. 8177 which provides that the death sentence
shall be carried out "not earlier than one (1) year nor later then eighteen (18) months
from the time the judgment imposing the death penalty became final and executory,
without prejudice to the exercise by the President of his executive clemency powers at
all times." Hence, the death convict is in effect assured of eighteen (18) months from
the time the judgment imposing the death penalty became final and executory[28]
wherein he can seek executive clemency[29] and attend to all his temporal and spiritual
affairs.[30]
Petitioner further contends that the infliction of "wanton pain" in case of possible
complications in the intravenous injection, considering and as petitioner claims, that
respondent Director is an untrained and untested person insofar as the choice and
administration of lethal injection is concerned, renders lethal injection a cruel, degrading
and inhuman punishment. Such supposition is highly speculative and unsubstantiated.

First. Petitioner has neither alleged nor presented evidence that lethal injection required
the expertise only of phlebotomists and not trained personnel and that the drugs to be
administered are unsafe or ineffective.[31] Petitioner simply cites situations in the
United States wherein execution by lethal injection allegedly resulted in prolonged and
agonizing death for the convict,[32] without any other evidence whatsoever.
Second. Petitioner overlooked Section 1, third paragraph of R.A. No. 8177 which
requires that all personnel involved in the execution proceedings should be trained prior
to the performance of such task. We must presume that the public officials entrusted
with the implementation of the death penalty (by lethal injection) will carefully avoid
inflicting cruel punishment.[33]
Third. Any infliction of pain in lethal injection is merely incidental in carrying out the
execution of death penalty and does not fall within the constitutional proscription against
cruel, degrading and inhuman punishment. "In a limited sense, anything is cruel which
is calculated to give pain or distress, and since punishment imports pain or suffering to
the convict, it may be said that all punishments are cruel. But of course the Constitution
does not mean that crime, for this reason, is to go unpunished."[34] The cruelty against
which the Constitution protects a convicted man is cruelty inherent in the method of
punishment, not the necessary suffering involved in any method employed to extinguish
life humanely.[35] Numerous federal and state courts of the United States have been
asked to review whether lethal injections constitute cruel and unusual punishment. No
court has found lethal injections to implicate prisoner's Eighth Amendment rights. In
fact, most courts that have addressed the issue state in one or two sentences that lethal
injection clearly is a constitutional form of execution.[36] A few jurisdictions, however,
have addressed the merits of the Eighth Amendment claims. Without exception, these
courts have found that lethal injection does not constitute cruel and unusual
punishment. After reviewing the medical evidence that indicates that improper doses
or improper administration of the drugs causes severe pain and that prison officials tend
to have little training in the administration of the drugs, the courts have found that the
few minutes of pain does not rise to a constitutional violation.[37]
What is cruel and unusual "is not fastened to the obsolete but may acquire meaning as
public opinion becomes enlightened by a humane justice" and "must draw its meaning
from the evolving standards of decency that mark the progress of a maturing
society."[38] Indeed, "[o]ther (U.S.) courts have focused on 'standards of decency'
finding that the widespread use of lethal injections indicates that it comports with
contemporary norms."[39] the primary indicator of society's standard of decency with
regard to capital punishment is the response of the country's legislatures to the
sanction.[40] Hence, for as long as the death penalty remains in our statute books and
meets the most stringent requirements provided by the Constitution, we must confine
our inquiry to the legality of R.A. No. 8177, whose constitutionality we duly sustain in
the face of petitioner's challenge. We find that the legislature's substitution of the mode
of carrying out the death penalty from electrocution to lethal injection infringes no
constitutional rights of petitioner herein.
II. REIMPOSITION OF THE DEATH PENALTY LAW DOES NOT VIOLATE
INTERNATIONAL TREATY OBLIGATIONS
Petitioner assiduously argues that the reimposition of the death penalty law violates our
international obligations, in particular, the International Covenant on Civil And Political

Rights, which was adopted by the General Assembly of the United Nations on
December 16, 1996, signed and ratified by the Philippines on December 19, 1966 and
October 23, 1986,[41] respectively.
Article 6 of the International Covenant on Civil and Political Rights provides:
"1. Every human being has the inherent right to life. This right shall be protected by law.
No one shall be arbitrarily deprived of his life.

term 'most serious crimes' should not go beyond intentional crimes, with lethal or other
extremely grave consequences.
The Optional Protocol to the International Covenant on Civil and Political Rights was
adopted by the General Assembly of the United Nations on December 16, 1966, and
signed and ratified by the Philippines on December 19, 1966 and August 22, 1989,[43]
respectively. The Optional Protocol provides that the Human Rights Committee shall
receive and consider communications from individuals claiming to be victims of
violations of any of the rights set forth in the Covenant.

2. In countries which have not abolished the death penalty, sentence of death may be
imposed only for the most serious crimes in accordance with the law in force at the time
of the commission of the crime and not contrary to the provisions of the present
Covenant and to the Convention on the Prevention and Punishment of the Crime of
Genocide. This penalty can only be carried out pursuant to a final judgment rendered
by a competent court." (emphasis supplied)

On the other hand, the Second Optional Protocol to the International Covenant on Civil
and Political Rights, Aiming at the Abolition of the Death Penalty was adopted by the
General Assembly on December 15, 1989. The Philippines neither signed nor ratified
said document.[44] Evidently, petitioner's assertion of our obligation under the Second
Optional Protocol is misplaced.

3. When deprivation of life constitutes the crime of genocide, it is understood that

nothing in this article shall authorize any State Party to the present Covenant to
derogate in any way from any obligation assumed under the provisions of the
Convention on the Prevention and Punishment of the Crime of Genocide.

III. THERE IS NO UNDUE DELEGATION OF LEGISLATIVE POWER IN R.A. NO. 8177

TO THE SECRETARY OF JUSTICE AND THE DIRECTOR OF BUREAU OF
CORRECTIONS, BUT SECTION 19 OF THE RULES AND REGULATIONS TO
IMPLEMENT R.A. NO. 8177 IS INVALID.

4. Anyone sentenced to death shall have the right to seek pardon or commutation of
the sentence. Amnesty, pardon or commutation of the sentence of death may be
granted in all-cases.

The separation of powers is a fundamental principle in our system of government. It

obtains not through express provision but by actual division in the framing of our
Constitution. Each department of the government has exclusive cognizance of matters
placed within its jurisdiction, and is supreme within its own sphere.[45] Corollary to the
doctrine of separation of powers is the principle of non-delegation of powers. "The rule
is that what has been delegated, cannot be delegated or as expressed in a Latin maxim:
potestas delegata non delegari potest."[46] The recognized exceptions to the rule are
as follows:

5. Sentence of death shall not be imposed for crimes committed by persons below
eighteen years of age and shall not be carried out on pregnant women.
6. Nothing in this article shall be invoked to delay or to prevent the abolition of capital
punishment by any State. Party to the present Covenant."
Indisputably, Article 6 of the Covenant enshrines the individual's right to life.
Nevertheless, Article 6 (2) of the Covenant explicitly recognizes that capital punishment
is an allowable limitation on the right to life, subject to the limitation that it be imposed
for the "most serious crimes". Pursuant to Article 28 of the Covenant, a Human Rights
Committee was established and under Article 40 of the Covenant, State parties to the
Covenant are required to submit an initial report to the Committee on the measures
they have adopted which give effect to the rights recognized within the Covenant and
on the progress made on the enjoyment of those rights one year of its entry into force
for the State Party concerned and thereafter, after five years. On July 27, 1982, the
Human Rights Committee issued General Comment No. 6 interpreting Article 6 of the
Covenant stating that "(while) it follows from Article 6 (2) to (6) that State parties are
not obliged to abolish the death penalty totally, they are obliged to limit its use and, in
particular, to abolish it for other than the 'most serious crimes.' Accordingly, they ought
to consider reviewing their criminal laws in this light and, in any event, are obliged to
restrict the application of the death penalty to the most serious crimes.' The article
strongly suggests (pars. 2 (2) and (6) that abolition is desirable. xxx The Committee is
of the opinion that the expression 'most serious crimes' must be read restrictively to
mean that the death penalty should be a quite exceptional measure." Further, the
Safeguards Guaranteeing Protection of Those Facing the Death Penalty[42] adopted
by the Economic and Social Council of the United Nations declare that the ambit of the

(1) Delegation of tariff powers to the President under Section 28 (2) of Article VI of the
Constitution;
(2) Delegation of emergency powers to the President under Section 23 (2) of Article VI
of the Constitution;
(3) Delegation to the people at large;
(4) Delegation to local governments; and
(5) Delegation to administrative bodies.[47]
Empowering the Secretary of Justice in conjunction with the Secretary of Health and
the Director of the Bureau of Corrections, to promulgate rules and regulations on the
subject of lethal injection is a form of delegation of legislative authority to administrative
bodies.
The reason for delegation of authority to administrative agencies is the increasing
complexity of the task of government requiring expertise as well as the growing inability
of the legislature to cope directly with the myriad problems demanding its attention. The
growth of society has ramified its activities and created peculiar and sophisticated
problems that the legislature cannot be expected to attend to by itself. Specialization

even in legislation has become necessary. On many problems involving day-to-day

undertakings, the legislature may not have the needed competence to provide the
required direct and efficacious, not to say, specific solutions. These solutions may,
however, be expected from its delegates, who are supposed to be experts in the
particular fields assigned to them.[48]

Further, the Department of Justice is tasked, among others, to take charge of the
"administration of the correctional system."[60] Hence, the import of the phraseology of
the law is that the Secretary of Justice should supervise the Director of the Bureau of
Corrections in promulgating the Lethal Injection Manual, in consultation with the
Department of Health.[61]

Although Congress may delegate to another branch of the Government the power to
fill in the details in the execution, enforcement or administration of a law, it is essential,
to forestall a violation of the principle of separation of powers, that said law: (a) be
complete in itself - it must set forth therein the policy to be executed, carried out or
implemented by the delegate[49] - and (b) fix a standard - the limits of which are
sufficiently determinate or determinable - to which the delegate must conform in the
performance of his functions.[50]

However, the Rules and Regulations to Implement Republic Act No. 8177 suffer serious
flaws that could not be overlooked. To begin with, something basic appears missing in
Section 19 of the implementing rules which provides:

Considering the scope and the definiteness of R.A. No. 8177, which changed the mode
of carrying out the death penalty, the Court finds that the law sufficiently describes what
job must be done, who is to do it, and what is the scope of his authority.[51]
R.A. No. 8177 likewise provides the standards which define the legislative policy, mark
its limits, map out its boundaries, and specify the public agencies which will apply it. it
indicates the circumstances under which the legislative purpose may be carried out.[52]
R.A. No. 8177 specifically requires that "[t]he death sentence shall be executed under
the authority of the Director of the Bureau of Corrections, endeavoring so far as possible
to mitigate the sufferings of the person under the sentence during the lethal injection
as well as during the proceedings prior to the execution."[53] Further, "[t]he Director of
the Bureau of Corrections shall take steps to ensure that the lethal injection to be
administered is sufficient to cause the instantaneous death of the convict."[54] The
legislature also mandated that "all personnel involved in the administration of lethal
injection shall be trained prior to the performance of such task."[55] The Court cannot
see that any useful purpose would be served by requiring greater detail.[56] The
question raised is not the definition of what constitutes a criminal offense,[57] but the
mode of carrying out the penalty already imposed by the Courts. In this sense, R.A. No.
8177 is sufficiently definite and the exercise of discretion by the administrative officials
concerned is, to use the words of Justice Benjamin Cardozo, canalized within banks
that keep it from overflowing.
Thus, the Court finds that the existence of an area for exercise of discretion by the
Secretary of Justice and the Director of the Bureau of Corrections under delegated
legislative power is proper where standards are formulated for the guidance and the
exercise of limited discretion, which though general, are capable of reasonable
application.[58]
It is also noteworthy that Article 81 of the Revised Penal Code which originally provided
for the death penalty by electrocution was not subjected to attack on the ground that it
failed to provide for details such as the kind of chair to be used, the amount of voltage,
volume of amperage or place of attachment of electrodes on the death convict. Hence,
petitioner's analogous argument with respect to lethal injection must fail.
A careful reading of R.A. No. 8177 would show that there is no undue delegation of
legislative power from the Secretary of Justice to the Director of the Bureau of
Corrections for the simple reason that under the Administrative Code of 1987, the
Bureau of Corrections is a mere constituent unit of the Department of Justice.[59]

"SEC. 19. EXECUTION PROCEDURE. - Details of the procedure prior to, during and
after administering the lethal injection shall be set forth in a manual to be prepared by
the Director. The manual shall contain details of, among others, the sequence of events
before and after execution; procedures in setting up the intravenous line; the
administration of the lethal drugs; the pronouncement of death; and the removal of the
intravenous system.
Said manual shall be confidential and its distribution shall be limited to authorized prison
personnel."
Thus, the Courts finds in the first paragraph of Section 19 of the implementing rules a
veritable vacuum. The Secretary of Justice has practically abdicated the power to
promulgate the manual on the execution procedure to the Director of the Bureau of
Corrections, by not providing for a mode of review and approval thereof. Being a mere
constituent unit of the Department of Justice, the Bureau of Corrections could not
promulgate a manual that would not bear the imprimatur of the administrative superior,
the Secretary of Justice as the rule-making authority under R.A. No. 8177. Such
apparent abdication of departmental responsibility renders the said paragraph invalid.
As to the second paragraph of section 19, the Court finds the requirement of
confidentiality of the contents of the manual even with respect to the convict unduly
suppressive. It sees no legal impediment for the convict, should he so desire, to obtain
a copy of the manual. The contents of the manual are matters of public concern "which
the public may want to know, either because these directly affect their lives, or simply
because such matters naturally arouse the interest of an ordinary citizen."[62] Section
7 of Article III of the 1987 Constitution provides:
"SEC. 7. The right of the people to information on matters of public concern shall be
recognized. Access to official records, and to documents and papers pertaining to
official acts, transaction, or decisions, as well as to government research data used as
a basis for policy development, shall be afforded the citizen, subject to such limitation
as may be provided by law."
The incorporation in the Constitution of a guarantee of access to information of public
concern is a recognition of the essentiality of the free flow of ideas and information in a
democracy.[63] In the same way that free discussion enables members of society to
cope with the exigencies of their time,[64] access to information of general interest aids
the people in democratic decision-making[65] by giving them a better perspective of
the vital issues confronting the nation.[66]
D. SECTION 17 OF THE RULES AND REGULATIONS TO IMPLEMENT R.A. NO.
8177 IS INVALID FOR BEING DISCRIMINATORY AND CONTRARY TO LAW.

Even more seriously flawed than Section 19 is Section of the implementing rules which
provides:
"SEC. 17. SUSPENSION OF THE EXECUTION OF THE DEATH SENTENCE.
Execution by lethal injection shall not be inflicted upon a woman within the three years
next following the date of the sentence or while she is pregnant, nor upon any person
over seventy (70) years of age. In this latter case, the death penalty shall be commuted
to the penalty of reclusion perpetua with the accessory penalties provided in Article 40
of the Revised Penal Code."
Petitioner contends that Section 17 is unconstitutional for being discriminatory as well
as for being an invalid exercise of the power to legislate by respondent Secretary.
Petitioner insists that Section 17 amends the instances when lethal injection may be
suspended, without an express amendment of Article 83 of the Revised Penal Code,
as amended by section 25 of R.A. No. 7659.
Article 83 f the Revised Penal Code, as amended by section 25 of R.A. No. 7659 now
reads as follows:
"ART. 83, Suspension of the execution of the death sentence.- The death sentence
shall not be inflicted upon a woman while she is pregnant or within one (1) year after
delivery, nor upon any person over seventy years of age. In this last case, the death
sentence shall be commuted to the penalty of reclusion perpetua with the accessory
penalty provided in Article 40. x x x".
On this point, the Courts finds petitioner's contention impressed with merit. While Article
83 of the Revised Penal Code, as amended by Section 25 of Republic Act No. 7659,
suspends the implementation of the death penalty while a woman is pregnant or within
one (1) year after delivery, Section 17 of the implementing rules omits the one (1) year
period following delivery as an instance when the death sentence is suspended, and
adds a ground for suspension of sentence no longer found under Article 83 of the
Revised Penal Code as amended, which is the three-year reprieve after a woman is
sentenced. This addition is, in petitioner's view, tantamount to a gender-based
discrimination sans statutory basis, while the omission is an impermissible
contravention of the applicable law.
Being merely an implementing rule, Section 17 aforecited must not override, but instead
remain consistent and in harmony with the law it seeks to apply and implement.
Administrative rules and regulations are intended to carry out, neither to supplant nor
to modify, the law."[67] An administrative agency cannot amend an act of Congress.[68]
In case of discrepancy between a provision of statute and a rule or regulation issued to
implement said statute, the statutory provision prevails. Since the cited clause in
Section 17 which suspends the execution of a woman within the three (3) years next
following the date of sentence finds no supports in Article 83 of the Revised Penal Code
as amended, perforce Section 17 must be declared invalid.
One member of the Court voted to declare Republic Act. No. 8177 as unconstitutional
insofar as it delegates the power to make rules over the same subject matter to two
persons (the Secretary of Justice and the Director of the Bureau of Corrections) and
constitutes a violation of the international norm towards the abolition of the death
penalty. One member of the Court, consistent with his view in People v. Echegaray,

267 SCRA 682, 734-758 (1997) that the death penalty law (Republic Act. No. 7659) is
itself unconstitutional, believes that Republic Act No. 8177 which provides for the
means of carrying out the death sentence, is likewise unconstitutional. Two other
members of the court concurred in the aforesaid Separate Opinions in that the death
penalty law (Republic Act No. 7659) together with the assailed statute (Republic Act
No. 8177) are unconstitutional. In sum, four members of the Court voted to declare
Republic Act. No. 8177 as unconstitutional. These Separate Opinions are hereto
annexed, infra.
WHEREFORE, the petition is DENIED insofar as petitioner seeks to declare the
assailed statute (Republic Act No. 8177) as unconstitutional; but GRANTED insofar as
Sections 17 and 19 of the Rules and Regulations to Implement Republic Act No. 8177
are concerned, which are hereby declared INVALID because (a) Section 17
contravenes Article 83 of the Revised Penal Code, as amended by Section 25 of the
Republic Act No. 7659; and (b) Section 19 fails to provide for review and approval of
the Lethal Injection Manual by the Secretary of Justice, and unjustifiably makes the
manual confidential, hence unavailable to interested parties including the
accused/convict and counsel. Respondents are hereby enjoined from enforcing and
implementing Republic Act No. 8177 until the aforesaid Sections 17 and 19 of the Rules
and Regulations to Implement Republic Act No. 8177 are appropriately amended,
revised and/or corrected in accordance with this Decision.
NO COSTS.
SO ORDERED.

5.

CHAVEZ v. PCGG

the people in general have a right to know the transactions or deals being contrived
and effected by the government.

[G.R. No. 130716. December 9, 1998]

FRANCISCO I. CHAVEZ, petitioner, vs. PRESIDENTIAL COMMISSION ON GOOD
GOVERNMENT (PCGG) and MAGTANGGOL GUNIGUNDO, (in his capacity as
chairman of the PCGG), respondents. GLORIA A. JOPSON, CELNAN A. JOPSON,
SCARLET A. JOPSON, and TERESA A. JOPSON, petitioners-in-intervention.
DECISION
PANGANIBAN, J:
Petitioner asks this Court to define the nature and the extent of the peoples
constitutional right to information on matters of public concern. Does this right include
access to the terms of government negotiations prior to their consummation or
conclusion? May the government, through the Presidential Commission on Good
Government (PCGG), be required to reveal the proposed terms of a compromise
agreement with the Marcos heirs as regards their alleged ill-gotten wealth? More
specifically, are the General Agreement and Supplemental Agreement, both dated
December 28, 1993 and executed between the PCGG and the Marcos heirs, valid and
binding?
The Case

Respondents, on the other hand, do not deny forging a compromise agreement with
the Marcos heirs. They claim, though, that petitioners action is premature, because
there is no showing that he has asked the PCGG to disclose the negotiations and the
Agreements. And even if he has, PCGG may not yet be compelled to make any
disclosure, since the proposed terms and conditions of the Agreements have not
become effective and binding.
Respondents further aver that the Marcos heirs have submitted the subject Agreements
to the Sandiganbayan for its approval in Civil Case No. 141, entitled Republic v. Heirs
of Ferdinand E. Marcos, and that the Republic opposed such move on the principal
grounds that (1) said Agreements have not been ratified by or even submitted to the
President for approval, pursuant to Item No. 8 of the General Agreement; and (2) the
Marcos heirs have failed to comply with their undertakings therein, particularly the
collation and submission of an inventory of their assets. The Republic also cited an
April 11, 1995 Resolution in Civil Case No. 0165, in which the Sandiganbayan
dismissed a similar petition filed by the Marcoses attorney-in-fact.
Furthermore, then President Fidel V. Ramos, in his May 4, 1998 Memorandum[5] to
then PCGG Chairman Magtanggol Gunigundo, categorically stated:

These are the main questions raised in this original action seeking (1) to prohibit and
[e]njoin respondents [PCGG and its chairman] from privately entering into, perfecting
and/or executing any agreement with the heirs of the late President Ferdinand E.
Marcos x x x relating to and concerning the properties and assets of Ferdinand Marcos
located in the Philippines and/or abroad -- including the so-called Marcos gold hoard;
and (2) to [c]ompel respondent[s] to make public all negotiations and agreement, be
they ongoing or perfected, and all documents related to or relating to such negotiations
and agreement between the PCGG and the Marcos heirs.[1]

This is to reiterate my previous position embodied in the Palace Press Release of 6

April 1995 that I have not authorized you to approve the Compromise Agreements of
December 28, 1993 or any agreement at all with the Marcoses, and would have
disapproved them had they been submitted to me.

The Facts

The assailed principal Agreement[6] reads:

Petitioner Francisco I. Chavez, as taxpayer, citizen and former government official who
initiated the prosecution of the Marcoses and their cronies who committed unmitigated
plunder of the public treasury and the systematic subjugation of the countrys economy,
alleges that what impelled him to bring this action were several news reports[2]
bannered in a number of broadsheets sometime in September 1997. These news items
referred to (1) the alleged discovery of billions of dollars of Marcos assets deposited in
various coded accounts in Swiss banks; and (2) the reported execution of a
compromise, between the government (through PCGG) and the Marcos heirs, on how
to split or share these assets.

GENERAL AGREEMENT

Petitioner, invoking his constitutional right to information[3] and the correlative duty of
the state to disclose publicly all its transactions involving the national interest,[4]
demands that respondents make public any and all negotiations and agreements
pertaining to PCGGs task of recovering the Marcoses ill-gotten wealth. He claims that
any compromise on the alleged billions of ill-gotten wealth involves an issue of
paramount public interest, since it has a debilitating effect on the countrys economy
that would be greatly prejudicial to the national interest of the Filipino people. Hence,

The Full Powers of Attorney of March 1994 and July 4, 1994, did not authorize you to
approve said Agreements, which I reserve for myself as President of the Republic of
the Philippines.

KNOW ALL MEN BY THESE PRESENTS:

This Agreement entered into this 28th day of December, 1993, by and between The Republic of the Philippines, through the Presidential Commission on Good
Government (PCGG), a governmental agency vested with authority defined under
Executive Orders Nos. 1, 2 and 14, with offices at the Philcomcen Building, Pasig,
Metro Manila, represented by its Chairman referred to as the FIRST PARTY,
-- and -Estate of Ferdinand E. Marcos, represented by Imelda Romualdez Marcos and
Ferdinand R. Marcos, Jr., all of legal age, and with address at c/o No. 154 Lopez Rizal
St., Mandaluyong, Metro Manila, and Imelda Romualdez Marcos, Imee Marcos
Manotoc, Ferdinand E. Marcos, Jr., and Irene Marcos Araneta, hereinafter collectively
referred to as the PRIVATE PARTY.

W I T N E S S E T H:
WHEREAS, the PRIVATE PARTY has been impelled by their sense of nationalism and
love of country and of the entire Filipino people, and their desire to set up a foundation
and finance impact projects like installation of power plants in selected rural areas and
initiation of other community projects for the empowerment of the people;
WHEREAS, the FIRST PARTY has obtained a judgment from the Swiss Federal
Tribunal of December 21, 1990, that the $356 million belongs in principle to the
Republic of the Philippines provided certain conditionalities are met, but even after 7
years, the FIRST PARTY has not been able to procure a final judgment of conviction
against the PRIVATE PARTY;
WHEREAS, the FIRST PARTY is desirous of avoiding a long-drawn out litigation which,
as proven by the past 7 years, is consuming money, time and effort, and is counterproductive and ties up assets which the FIRST PARTY could otherwise utilize for its
Comprehensive Agrarian Reform Program, and other urgent needs;
WHEREAS, His Excellency, President Fidel V. Ramos, has adopted a policy of unity
and reconciliation in order to bind the nations wounds and start the process of rebuilding
this nation as it goes on to the twenty-first century;
WHEREAS, this Agreement settles all claims and counterclaims which the parties may
have against one another, whether past, present, or future, matured or inchoate.
NOW, THEREFORE, for and in consideration of the mutual covenants set forth herein,
the parties agree as follows:
1. The parties will collate all assets presumed to be owned by, or held by other parties
for the benefit of, the PRIVATE PARTY for purposes of determining the totality of the
assets covered by the settlement. The subject assets shall be classified by the nature
thereof, namely: (a) real estate; (b) jewelry; (c) paintings and other works of art; (d)
securities; (e) funds on deposit; (f) precious metals, if any, and (g) miscellaneous assets
or assets which could not appropriately fall under any of the preceding classification.
The list shall be based on the full disclosure of the PRIVATE PARTY to insure its
accuracy.
2. Based on the inventory, the FIRST PARTY shall determine which shall be ceded to
the FIRST PARTY, and which shall be assigned to/retained by the PRIVATE PARTY.
The assets of the PRIVATE PARTY shall be net of, and exempt from, any form of taxes
due the Republic of the Philippines. However, considering the unavailability of all
pertinent and relevant documents and information as to balances and ownership, the
actual specification of assets to be retained by the PRIVATE PARTY shall be covered
by supplemental agreements which shall form part of this Agreement.
3. Foreign assets which the PRIVATE PARTY shall fully disclose but which are held by
trustees, nominees, agents or foundations are hereby waived over by the PRIVATE
PARTY in favor of the FIRST PARTY. For this purpose, the parties shall cooperate in
taking the appropriate action, judicial and/or extrajudicial, to recover the same for the
FIRST PARTY.

4. All disclosures of assets made by the PRIVATE PARTY shall not be used as
evidence by the FIRST PARTY in any criminal, civil, tax or administrative case, but shall
be valid and binding against said PARTY for use by the FIRST PARTY in withdrawing
any account and/or recovering any asset. The PRIVATE PARTY withdraws any
objection to the withdrawal by and/or release to the FIRST PARTY by the Swiss banks
and/or Swiss authorities of the $356 million, its accrued interests, and/or any other
account; over which the PRIVATE PARTY waives any right, interest or participation in
favor of the FIRST PARTY. However, any withdrawal or release of any account
aforementioned by the FIRST PARTY shall be made in the presence of any authorized
representative of the PRIVATE PARTY.
5. The trustees, custodians, safekeepers, depositaries, agents, nominees,
administrators, lawyers, or any other party acting in similar capacity in behalf of the
PRIVATE PARTY are hereby informed through this General Agreement to insure that
it is fully implemented and this shall serve as absolute authority from both parties for
full disclosure to the FIRST PARTY of said assets and for the FIRST PARTY to
withdraw said account and/or assets and any other assets which the FIRST PARTY on
its own or through the help of the PRIVATE PARTY/their trustees, etc., may discover.
6. Any asset which may be discovered in the future as belonging to the PRIVATE
PARTY or is being held by another for the benefit of the PRIVATE PARTY and which
is not included in the list per No. 1 for whatever reason shall automatically belong to
the FIRST PARTY, and the PRIVATE PARTY in accordance with No. 4 above, waives
any right thereto.
7. This Agreement shall be binding on, and inure to the benefit of, the parties and their
respective legal representatives, successors and assigns and shall supersede any
other prior agreement.
8. The PARTIES shall submit this and any other implementing Agreements to the
President of the Philippines for approval. In the same manner, the PRIVATE PARTY
shall provide the FIRST PARTY assistance by way of testimony or deposition on any
information it may have that could shed light on the cases being pursued by the FIRST
PARTY against other parties. The FIRST PARTY shall desist from instituting new suits
already subject of this Agreement against the PRIVATE PARTY and cause the
dismissal of all other cases pending in the Sandiganbayan and in other courts.
9. In case of violation by the PRIVATE PARTY of any of the conditions herein
contained, the PARTIES shall be restored automatically to the status quo ante the
signing of this Agreement.
For purposes of this Agreement, the PRIVATE PARTY shall be represented by Atty.
Simeon M. Mesina, Jr., as their only Attorney-in-Fact.
IN WITNESS WHEREOF, the parties have signed this instrument this 28th day of
December, 1993, in Makati, Metro Manila.
PRESIDENTIAL COMMISSION ON
GOOD GOVERNMENT
By:

[Sgd.] MAGTANGGOL C. GUNIGUNDO

Chairman

traveling expenses and all other expenses related thereto shall be for the account of
the PRIVATE PARTY.

ESTATE OF FERDINAND E. MARCOS, IMELDA R. MARCOS, MA. IMELDA

MARCOS-MANOTOC, FERDINAND R. MARCOS, JR., & IRENE MARCOS-ARANETA

In consideration of the foregoing, the parties hereby agree that the PRIVATE PARTY
shall be entitled to the equivalent of 25% of the amount that may be eventually
withdrawn from said $356 million Swiss deposits.

By:
[Sgd.]IMELDA ROMUALDEZ-MARCOS
[Sgd.] MA. IMELDA MARCOS-MANOTOC

IN WITNESS WHEREOF, the parties have signed this instrument this 28th day of
December, 1993, in Makati, Metro Manila.
PRESIDENTIAL COMMISSION ON
GOOD GOVERNMENT

FERDINAND R. MARCOS, JR.[7]

By:
[Sgd.] IRENE MARCOS-ARANETA
[Sgd.] MAGTANGGOL C. GUNIGUNDO
Assisted by:
Chairman
[Sgd.] ATTY. SIMEON M. MESINA, JR.
Counsel & Attorney-in-Fact

ESTATE OF FERDINAND E. MARCOS, IMELDA R. MARCOS, MA. IMELDA

MARCOS-MANOTOC, FERDINAND R. MARCOS, JR., & IRENE MARCOS-ARANETA

Petitioner also denounces this supplement to the above Agreement: [8]

By:
SUPPLEMENTAL AGREEMENT
[Sgd.] IMELDA ROMUALDEZ-MARCOS
This Agreement entered into this 28th day of December, 1993, by and between -[Sgd.] MA. IMELDA MARCOS-MANOTOC
The Republic of the Philippines, through the Presidential Commission on Good
Government (PCGG), a governmental agency vested with authority defined under
Executive Orders Nos. 1, 2 and 14, with offices at the Philcomcen Building, Pasig,
Metro Manila, represented by its Chairman Magtanggol C. Gunigundo, hereinafter
referred to as the FIRST PARTY,

FERDINAND R. MARCOS, JR.[9]

[Sgd.] IRENE MARCOS-ARANETA
Assisted by:

-- and -Estate of Ferdinand E. Marcos, represented by Imelda Romualdez Marcos and

Ferdinand R. Marcos, Jr., all of legal age, and with address at c/o No. 154 Lopez Rizal
St., Mandaluyong, Metro Manila, and Imelda Romualdez Marcos, Imee Marcos
Manotoc, Ferdinand E. Marcos, Jr., and Irene Marcos Araneta, hereinafter collectively
referred to as the PRIVATE PARTY.

[Sgd.] ATTY. SIMEON M. MESINA, JR.

Counsel & Attorney-in-Fact
Acting on a motion of petitioner, the Court issued a Temporary Restraining Order[10]
dated March 23, 1998, enjoining respondents, their agents and/or representatives from
entering into, or perfecting and/or executing any agreement with the heirs of the late
President Ferdinand E. Marcos relating to and concerning their ill-gotten wealth.

W I T N E S S E T H:
Issues
The parties in this case entered into a General Agreement dated Dec. 28, 1993;
The Oral Argument, held on March 16, 1998, focused on the following issues:
The PRIVATE PARTY expressly reserve their right to pursue their interest and/or sue
over local assets located in the Philippines against parties other than the FIRST
PARTY.
The parties hereby agree that all expenses related to the recovery and/or withdrawal of
all assets including lawyers fees, agents fees, nominees service fees, bank charges,

(a) Procedural:
(1) Whether or not the petitioner has the personality or legal standing to file the instant
petition; and
(2) Whether or not this Court is the proper court before which this action may be filed.

(b) Substantive:
(1) Whether or not this Court could require the PCGG to disclose to the public the details
of any agreement, perfected or not, with the Marcoses; and
(2) Whether or not there exist any legal restraints against a compromise agreement
between the Marcoses and the PCGG relative to the Marcoses ill-gotten wealth.[11]

public funds is involved and said petitioner has no actual interest in the alleged
agreement. Respondents further insist that the instant petition is premature, since there
is no showing that petitioner has requested PCGG to disclose any such negotiations
and agreements; or that, if he has, the Commission has refused to do so.
Indeed, the arguments cited by petitioner constitute the controlling decisional rule as
regards his legal standing to institute the instant petition. Access to public documents
and records is a public right, and the real parties in interest are the people
themselves.[16]

After their oral presentations, the parties filed their respective memoranda.
On August 19, 1998, Gloria, Celnan, Scarlet and Teresa, all surnamed Jopson, filed
before the Court a Motion for Intervention, attaching thereto their Petition in
Intervention. They aver that they are among the 10,000 claimants whose right to claim
from the Marcos Family and/or the Marcos Estate is recognized by the decision in In re
Estate of Ferdinand Marcos, Human Rights Litigation, Maximo Hilao, et al., Class
Plaintiffs No. 92-15526, U.S. Court of Appeals for the 9th Circuit US App. Lexis 14796,
June 16, 1994 and the Decision of the Swiss Supreme Court of December 10, 1997.
As such, they claim to have personal and direct interest in the subject matter of the
instant case, since a distribution or disposition of the Marcos properties may adversely
affect their legitimate claims. In a minute Resolution issued on August 24, 1998, the
Court granted their motion to intervene and required the respondents to comment
thereon. The September 25, 1998 Comment[12] of the solicitor general on said motion
merely reiterated his aforecited arguments against the main petition.[13]
The Courts Ruling
The petition is imbued with merit.
First Procedural Issue: Petitioners Standing
Petitioner, on the one hand, explains that as a taxpayer and citizen, he has the legal
personality to file the instant petition. He submits that since ill-gotten wealth belongs to
the Filipino people and [is], in truth and in fact, part of the public treasury, any
compromise in relation to it would constitute a diminution of the public funds, which can
be enjoined by a taxpayer whose interest is for a full, if not substantial, recovery of such
assets.
Besides, petitioner emphasizes, the matter of recovering the ill-gotten wealth of the
Marcoses is an issue of transcendental importance to the public. He asserts that
ordinary taxpayers have a right to initiate and prosecute actions questioning the validity
of acts or orders of government agencies or instrumentalities, if the issues raised are
of paramount public interest; and if they immeasurably affect the social, economic, and
moral well-being of the people.
Moreover, the mere fact that he is a citizen satisfies the requirement of personal
interest, when the proceeding involves the assertion of a public right,[14] such as in this
case. He invokes several decisions[15] of this Court which have set aside the
procedural matter of locus standi, when the subject of the case involved public interest.
On the other hand, the solicitor general, on behalf of respondents, contends that
petitioner has no standing to institute the present action, because no expenditure of

In Taada v. Tuvera,[17] the Court asserted that when the issue concerns a public right
and the object of mandamus is to obtain the enforcement of a public duty, the people
are regarded as the real parties in interest; and because it is sufficient that petitioner is
a citizen and as such is interested in the execution of the laws, he need not show that
he has any legal or special interest in the result of the action.[18] In the aforesaid case,
the petitioners sought to enforce their right to be informed on matters of public concern,
a right then recognized in Section 6, Article IV of the 1973 Constitution,[19] in
connection with the rule that laws in order to be valid and enforceable must be
published in the Official Gazette or otherwise effectively promulgated. In ruling for the
petitioners legal standing, the Court declared that the right they sought to be enforced
is a public right recognized by no less than the fundamental law of the land.
Legaspi v. Civil Service Commission,[20] while reiterating Taada, further declared that
when a mandamus proceeding involves the assertion of a public right, the requirement
of personal interest is satisfied by the mere fact that petitioner is a citizen and, therefore,
part of the general public which possesses the right.[21]
Further, in Albano v. Reyes,[22] we said that while expenditure of public funds may not
have been involved under the questioned contract for the development, the
management and the operation of the Manila International Container Terminal, public
interest [was] definitely involved considering the important role [of the subject contract]
x x x in the economic development of the country and the magnitude of the financial
consideration involved. We concluded that, as a consequence, the disclosure provision
in the Constitution would constitute sufficient authority for upholding the petitioners
standing.
Similarly, the instant petition is anchored on the right of the people to information and
access to official records, documents and papers -- a right guaranteed under Section
7, Article III of the 1987 Constitution. Petitioner, a former solicitor general, is a Filipino
citizen. Because of the satisfaction of the two basic requisites laid down by decisional
law to sustain petitioners legal standing, i.e. (1) the enforcement of a public right (2)
espoused by a Filipino citizen, we rule that the petition at bar should be allowed.
In any event, the question on the standing of Petitioner Chavez is rendered moot by
the intervention of the Jopsons, who are among the legitimate claimants to the Marcos
wealth. The standing of the Jopsons is not seriously contested by the solicitor general.
Indeed, said petitioners-intervenors have a legal interest in the subject matter of the
instant case, since a distribution or disposition of the Marcoses ill-gotten properties may
adversely affect the satisfaction of their claims.
Second Procedural Issue:The Courts Jurisdiction

Petitioner asserts that because this petition is an original action for mandamus and one
that is not intended to delay any proceeding in the Sandiganbayan, its having been filed
before this Court was proper. He invokes Section 5, Article VIII of the Constitution,
which confers upon the Supreme Court original jurisdiction over petitions for prohibition
and mandamus.
The solicitor general, on the other hand, argues that the petition has been erroneously
brought before this Court, since there is neither a justiciable controversy nor a violation
of petitioners rights by the PCGG. He alleges that the assailed agreements are already
the very lis mota in Sandiganbayan Civil Case No. 0141, which has yet to dispose of
the issue; thus, this petition is premature. Furthermore, respondents themselves have
opposed the Marcos heirs motion, filed in the graft court, for the approval of the subject
Agreements. Such opposition belies petitioners claim that the government, through
respondents, has concluded a settlement with the Marcoses as regards their alleged
ill-gotten assets.
In Taada and Legaspi, we upheld therein petitioners resort to a mandamus proceeding,
seeking to enforce a public right as well as to compel performance of a public duty
mandated by no less than the fundamental law.[23] Further, Section 5, Article VIII of
the Constitution, expressly confers upon the Supreme Court original jurisdiction over
petitions for certiorari, prohibition, mandamus, quo warranto and habeas corpus.

Sec. 28 [Article II]. Subject to reasonable conditions prescribed by law, the State adopts
and implements a policy of full public disclosure of all its transactions involving public
interest.
Respondents opposite view is that the above constitutional provisions refer to
completed and operative official acts, not to those still being considered. As regards
the assailed Agreements entered into by the PCGG with the Marcoses, there is yet no
right of action that has accrued, because said Agreements have not been approved by
the President, and the Marcos heirs have failed to fulfill their express undertaking
therein. Thus, the Agreements have not become effective. Respondents add that they
are not aware of any ongoing negotiation for another compromise with the Marcoses
regarding their alleged ill-gotten assets.
The information and the transactions referred to in the subject provisions of the
Constitution have as yet no defined scope and extent. There are no specific laws
prescribing the exact limitations within which the right may be exercised or the
correlative state duty may be obliged. However, the following are some of the
recognized restrictions: (1) national security matters and intelligence information, (2)
trade secrets and banking transactions, (3) criminal matters, and (4) other confidential
information.
Limitations to the Right: (1) National Security Matters

Respondents argue that petitioner should have properly sought relief before the
Sandiganbayan, particularly in Civil Case No. 0141, in which the enforcement of the
compromise Agreements is pending resolution. There may seem to be some merit in
such argument, if petitioner is merely seeking to enjoin the enforcement of the
compromise and/or to compel the PCGG to disclose to the public the terms contained
in said Agreements. However, petitioner is here seeking the public disclosure of all
negotiations and agreement, be they ongoing or perfected, and documents related to
or relating to such negotiations and agreement between the PCGG and the Marcos
heirs.
In other words, this petition is not confined to the Agreements that have already been
drawn, but likewise to any other ongoing or future undertaking towards any settlement
on the alleged Marcos loot. Ineluctably, the core issue boils down to the precise
interpretation, in terms of scope, of the twin constitutional provisions on public
transactions. This broad and prospective relief sought by the instant petition brings it
out of the realm of Civil Case No. 0141.
First Substantive Issue:
Public Disclosure of Terms of Any Agreement, Perfected or Not
In seeking the public disclosure of negotiations and agreements pertaining to a
compromise settlement with the Marcoses as regards their alleged ill-gotten wealth,
petitioner invokes the following provisions of the Constitution:
Sec. 7 [Article III]. 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.

At the very least, 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.[24] But where there is no need
to protect such state secrets, the privilege may not be invoked to withhold documents
and other information,[25] provided that they are examined in strict confidence and
given scrupulous protection.
Likewise, information on inter-government exchanges prior to the conclusion of treaties
and executive agreements may be subject to reasonable safeguards for the sake of
national interest.[26]
(2) Trade Secrets and Banking Transactions
The drafters of the Constitution also unequivocally affirmed that, aside from national
security matters and intelligence information, trade or industrial secrets (pursuant to the
Intellectual Property Code[27] and other related laws) as well as banking transactions
(pursuant to the Secrecy of Bank Deposits Act[28]) are also exempted from compulsory
disclosure.[29]
(3) Criminal Matters
Also excluded are classified law enforcement matters, such as those relating to the
apprehension, the prosecution and the detention of criminals,[30] which courts may not
inquire into prior to such arrest, detention and prosecution. Efforts at effective law
enforcement would be seriously jeopardized by free public access to, for example,
police information regarding rescue operations, the whereabouts of fugitives, or leads
on covert criminal activities.
(4) Other Confidential Information

The Ethical Standards Act[31] further prohibits public officials and employees from
using or divulging confidential or classified information officially known to them by
reason of their office and not made available to the public.[32]
Other acknowledged limitations to information access include diplomatic
correspondence, closed door Cabinet meetings and executive sessions of either house
of Congress, as well as the internal deliberations of the Supreme Court.[33]

servants.[38] Undeniably, the essence of democracy lies in the free flow of thought;[39]
but thoughts and ideas must be well-informed so that the public would gain a better
perspective of vital issues confronting them and, thus, be able to criticize as well as
participate in the affairs of the government in a responsible, reasonable and effective
manner. Certainly, it is by ensuring an unfettered and uninhibited exchange of ideas
among a well-informed public that a government remains responsive to the changes
desired by the people.[40]
The Nature of the Marcoses Alleged Ill-Gotten Wealth

Scope: Matters of Public Concern and Transactions Involving Public Interest

We now come to the immediate matter under consideration.
In Valmonte v. Belmonte Jr.,[34] the Court emphasized that the information sought must
be matters of public concern, access to which may be limited by law. Similarly, the state
policy of full public disclosure extends only to transactions involving public interest and
may also be subject to reasonable conditions prescribed by law. As to the meanings of
the terms public interest and public concern, the Court, in Legaspi v. Civil Service
Commission,[35] elucidated:
In determining whether or not a particular information is of public concern there is no
rigid test which can be applied. Public concern like public interest is a term that eludes
exact definition. Both terms embrace a broad spectrum of subjects which the public
may want to know, either because these directly affect their lives, or simply because
such matters naturally arouse the interest of an ordinary citizen. In the final analysis, it
is for the courts to determine on a case by case basis whether the matter at issue is of
interest or importance, as it relates to or affects the public.
Considered a public concern in the above-mentioned case was the legitimate concern
of citizens to ensure that government positions requiring civil service eligibility are
occupied only by persons who are eligibles. So was the need to give the general public
adequate notification of various laws that regulate and affect the actions and conduct
of citizens, as held in Taada. Likewise did the public nature of the loanable funds of the
GSIS and the public office held by the alleged borrowers (members of the defunct
Batasang Pambansa) qualify the information sought in Valmonte as matters of public
interest and concern. In Aquino-Sarmiento v. Morato,[36] the Court also held that official
acts of public officers done in pursuit of their official functions are public in character;
hence, the records pertaining to such official acts and decisions are within the ambit of
the constitutional right of access to public records.
Under Republic Act No. 6713, public officials and employees are mandated to provide
information on their policies and procedures in clear and understandable language,
[and] ensure openness of information, public consultations and hearings whenever
appropriate x x x, except when otherwise provided by law or when required by the public
interest. In particular, the law mandates free public access, at reasonable hours, to the
annual performance reports of offices and agencies of government and governmentowned or controlled corporations; and the statements of assets, liabilities and financial
disclosures of all public officials and employees.[37]
In general, writings coming into the hands of public officers in connection with their
official functions must be accessible to the public, consistent with the policy of
transparency of governmental affairs. This principle is aimed at affording the people an
opportunity to determine whether those to whom they have entrusted the affairs of the
government are honestly, faithfully and competently performing their functions as public

Upon the departure from the country of the Marcos family and their cronies in February
1986, the new government headed by President Corazon C. Aquino was specifically
mandated to [r]ecover ill-gotten properties amassed by the leaders and supporters of
the previous regime and [to] protect the interest of the people through orders of
sequestration or freezing of assets or accounts.[41] Thus, President Aquinos very first
executive orders (which partook of the nature of legislative enactments) dealt with the
recovery of these alleged ill-gotten properties.
Executive Order No. 1, promulgated on February 28, 1986, only two (2) days after the
Marcoses fled the country, created the PCGG which was primarily tasked to assist the
President in the recovery of vast government resources allegedly amassed by former
President Marcos, his immediate family, relatives and close associates both here and
abroad.
Under Executive Order No. 2, issued twelve (12) days later, all persons and entities
who had knowledge or possession of ill-gotten assets and properties were warned and,
under pain of penalties prescribed by law, prohibited from concealing, transferring or
dissipating them or from otherwise frustrating or obstructing the recovery efforts of the
government.
On May 7, 1986, another directive (EO No. 14) was issued giving additional powers to
the PCGG which, taking into account the overriding considerations of national interest
and national survival, required it to achieve expeditiously and effectively its vital task of
recovering ill-gotten wealth.
With such pronouncements of our government, whose authority emanates from the
people, there is no doubt that the recovery of the Marcoses alleged ill-gotten wealth is
a matter of public concern and imbued with public interest.[42] We may also add that
ill-gotten wealth, by its very nature, assumes a public character. Based on the
aforementioned Executive Orders, ill-gotten wealth refers to assets and properties
purportedly acquired, directly or indirectly, by former President Marcos, his immediate
family, relatives and close associates through or as a result of their improper or illegal
use of government funds or properties; or their having taken undue advantage of their
public office; or their use of powers, influences or relationships, resulting in their unjust
enrichment and causing grave damage and prejudice to the Filipino people and the
Republic of the Philippines. Clearly, the assets and properties referred to supposedly
originated from the government itself. To all intents and purposes, therefore, they
belong to the people. As such, upon reconveyance they will be returned to the public
treasury, subject only to the satisfaction of positive claims of certain persons as may be
adjudged by competent courts. Another declared overriding consideration for the

expeditious recovery of ill-gotten wealth is that it may be used for national economic
recovery.
We believe the foregoing disquisition settles the question of whether petitioner has a
right to respondents disclosure of any agreement that may be arrived at concerning the
Marcoses purported ill-gotten wealth.
Access to Information on Negotiating Terms
But does the constitutional provision likewise guarantee access to information
regarding ongoing negotiations or proposals prior to the final agreement? This same
clarification was sought and clearly addressed by the constitutional commissioners
during their deliberations, which we quote hereunder:[43]
MR. SUAREZ. And when we say transactions which should be distinguished from
contracts, agreements, or treaties or whatever, does the Gentleman refer to the steps
leading to the consummation of the contract, or does he refer to the contract itself?
MR. OPLE. The transactions used here, I suppose, is generic and, therefore, it can
cover both steps leading to a contract, and already a consummated contract, Mr.
Presiding Officer.
MR. SUAREZ. This contemplates inclusion of negotiations leading to the
consummation of the transaction?

separation, (3) any ground for legal separation, (4) future support, (5) the jurisdiction of
courts, and (6) future legitime.[45] And like any other contract, the terms and conditions
of a compromise must not be contrary to law, morals, good customs, public policy or
public order.[46] A compromise is binding and has the force of law between the
parties,[47] unless the consent of a party is vitiated -- such as by mistake, fraud,
violence, intimidation or undue influence -- or when there is forgery, or if the terms of
the settlement are so palpably unconscionable. In the latter instances, the agreement
may be invalidated by the courts.[48]
Effect of Compromise on Civil Actions
One of the consequences of a compromise, and usually its primary object, is to avoid
or to end a litigation.[49] In fact, the law urges courts to persuade the parties in a civil
case to agree to a fair settlement.[50] As an incentive, a court may mitigate damages
to be paid by a losing party who shows a sincere desire to compromise.[51]
In Republic & Campos Jr. v. Sandiganbayan,[52] which affirmed the grant by the PCGG
of civil and criminal immunity to Jose Y. Campos and family, the Court held that in the
absence of an express prohibition, the rule on compromises in civil actions under the
Civil Code is applicable to PCGG cases. Such principle is pursuant to the objectives of
EO No. 14, particularly the just and expeditious recovery of ill-gotten wealth, so that it
may be used to hasten economic recovery. The same principle was upheld in Benedicto
v. Board of Administrators of Television Stations RPN, BBC and IBC[53] and Republic
v. Benedicto,[54] which ruled in favor of the validity of the PCGG compromise
agreement with Roberto S. Benedicto.

MR. OPLE. Yes, subject to reasonable safeguards on the national interest.

Immunity from Criminal Prosecution
Considering the intent of the framers of the Constitution, we believe that it is incumbent
upon the PCGG and its officers, as well as other government representatives, to
disclose sufficient public information on any proposed settlement they have decided to
take up with the ostensible owners and holders of ill-gotten wealth. Such information,
though, must pertain to definite propositions of the government, not necessarily to intraagency or inter-agency recommendations or communications[44] during the stage
when common assertions are still in the process of being formulated or are in the
exploratory stage. There is a need, of course, to observe the same restrictions on
disclosure of information in general, as discussed earlier -- such as on matters involving
national security, diplomatic or foreign relations, intelligence and other classified
information.
Second Substantive Issue: Legal Restraints on a Marcos-PCGG Compromise
Petitioner lastly contends that any compromise agreement between the government
and the Marcoses will be a virtual condonation of all the alleged wrongs done by them,
as well as an unwarranted permission to commit graft and corruption.
Respondents, for their part, assert that there is no legal restraint on entering into a
compromise with the Marcos heirs, provided the agreement does not violate any law.
Prohibited Compromises
In general, the law encourages compromises in civil cases, except with regard to the
following matters: (1) the civil status of persons, (2) the validity of a marriage or a legal

However, any compromise relating to the civil liability arising from an offense does not
automatically terminate the criminal proceeding against or extinguish the criminal
liability of the malefactor.[55] While a compromise in civil suits is expressly authorized
by law, there is no similar general sanction as regards criminal liability. The authority
must be specifically conferred. In the present case, the power to grant criminal immunity
was conferred on PCGG by Section 5 of EO No. 14, as amended by EO No. 14-A,
which provides:
SECTION 5. The Presidential Commission on Good Government is authorized to grant
immunity from criminal prosecution to any person who provides information or testifies
in any investigation conducted by such Commission to establish the unlawful manner
in which any respondent, defendant or accused has acquired or accumulated the
property or properties in question in any case where such information or testimony is
necessary to ascertain or prove the latters guilt or his civil liability. The immunity thereby
granted shall be continued to protect the witness who repeats such testimony before
the Sandiganbayan when required to do so by the latter or by the Commission.
The above provision specifies that the PCGG may exercise such authority under these
conditions: (1) the person to whom criminal immunity is granted provides information
or testifies in an investigation conducted by the Commission; (2) the information or
testimony pertains to the unlawful manner in which the respondent, defendant or
accused acquired or accumulated ill-gotten property; and (3) such information or
testimony is necessary to ascertain or prove guilt or civil liability of such individual. From

the wording of the law, it can be easily deduced that the person referred to is a witness
in the proceeding, not the principal respondent, defendant or accused.
Thus, in the case of Jose Y. Campos, the grant of both civil and criminal immunity to
him and his family was [i]n consideration of the full cooperation of Mr. Jose Y. Campos
[with] this Commission, his voluntary surrender of the properties and assets [--]
disclosed and declared by him to belong to deposed President Ferdinand E. Marcos [-] to the Government of the Republic of the Philippines[;] his full, complete and truthful
disclosures[;] and his commitment to pay a sum of money as determined by the
Philippine Government.[56] Moreover, the grant of criminal immunity to the Camposes
and the Benedictos was limited to acts and omissions prior to February 25, 1996. At
the time such immunity was granted, no criminal cases have yet been filed against them
before the competent courts.
Validity of the PCGG-Marcos Compromise Agreements
Going now to the subject General and Supplemental Agreements between the PCGG
and the Marcos heirs, a cursory perusal thereof reveals serious legal flaws. First, the
Agreements do not conform to the above requirements of EO Nos. 14 and 14-A. We
believe that criminal immunity under Section 5 cannot be granted to the Marcoses, who
are the principal defendants in the spate of ill-gotten wealth cases now pending before
the Sandiganbayan. As stated earlier, the provision is applicable mainly to witnesses
who provide information or testify against a respondent, defendant or accused in an illgotten wealth case.
While the General Agreement states that the Marcoses shall provide the [government]
assistance by way of testimony or deposition on any information [they] may have that
could shed light on the cases being pursued by the [government] against other
parties,[57] the clause does not fully comply with the law. Its inclusion in the Agreement
may have been only an afterthought, conceived in pro forma compliance with Section
5 of EO No. 14, as amended. There is no indication whatsoever that any of the Marcos
heirs has indeed provided vital information against any respondent or defendant as to
the manner in which the latter may have unlawfully acquired public property.
Second, under Item No. 2 of the General Agreement, the PCGG commits to exempt
from all forms of taxes the properties to be retained by the Marcos heirs. This is a clear
violation of the Constitution. The power to tax and to grant tax exemptions is vested in
the Congress and, to a certain extent, in the local legislative bodies.[58] Section 28 (4),
Article VI of the Constitution, specifically provides: No law granting any tax exemption
shall be passed without the concurrence of a majority of all the Members of the
Congress. The PCGG has absolutely no power to grant tax exemptions, even under
the cover of its authority to compromise ill-gotten wealth cases.
Even granting that Congress enacts a law exempting the Marcoses from paying taxes
on their properties, such law will definitely not pass the test of the equal protection
clause under the Bill of Rights. Any special grant of tax exemption in favor only of the
Marcos heirs will constitute class legislation. It will also violate the constitutional rule
that taxation shall be uniform and equitable.[59]
Neither can the stipulation be construed to fall within the power of the commissioner of
internal revenue to compromise taxes. Such authority may be exercised only when (1)
there is reasonable doubt as to the validity of the claim against the taxpayer, and (2)

the taxpayers financial position demonstrates a clear inability to pay.[60] Definitely,

neither requisite is present in the case of the Marcoses, because under the Agreement
they are effectively conceding the validity of the claims against their properties, part of
which they will be allowed to retain. Nor can the PCGG grant of tax exemption fall within
the power of the commissioner to abate or cancel a tax liability. This power can be
exercised only when (1) the tax appears to be unjustly or excessively assessed, or (2)
the administration and collection costs involved do not justify the collection of the tax
due.[61] In this instance, the cancellation of tax liability is done even before the
determination of the amount due. In any event, criminal violations of the Tax Code, for
which legal actions have been filed in court or in which fraud is involved, cannot be
compromised.[62]
Third, the government binds itself to cause the dismissal of all cases against the Marcos
heirs, pending before the Sandiganbayan and other courts.[63] This is a direct
encroachment on judicial powers, particularly in regard to criminal jurisdiction. Wellsettled is the doctrine that once a case has been filed before a court of competent
jurisdiction, the matter of its dismissal or pursuance lies within the full discretion and
control of the judge. In a criminal case, the manner in which the prosecution is handled,
including the matter of whom to present as witnesses, may lie within the sound
discretion of the government prosecutor;[64] but the court decides, based on the
evidence proffered, in what manner it will dispose of the case. Jurisdiction, once
acquired by the trial court, is not lost despite a resolution, even by the justice secretary,
to withdraw the information or to dismiss the complaint.[65] The prosecutions motion to
withdraw or to dismiss is not the least binding upon the court. On the contrary,
decisional rules require the trial court to make its own evaluation of the merits of the
case, because granting such motion is equivalent to effecting a disposition of the case
itself.[66]
Thus, the PCGG, as the government prosecutor of ill-gotten wealth cases, cannot
guarantee the dismissal of all such criminal cases against the Marcoses pending in the
courts, for said dismissal is not within its sole power and discretion.
Fourth, the government also waives all claims and counterclaims, whether past,
present, or future, matured or inchoate, against the Marcoses.[67] Again, this allencompassing stipulation is contrary to law. Under the Civil Code, an action for future
fraud may not be waived.[68] The stipulation in the Agreement does not specify the
exact scope of future claims against the Marcoses that the government thereby
relinquishes. Such vague and broad statement may well be interpreted to include all
future illegal acts of any of the Marcos heirs, practically giving them a license to
perpetrate fraud against the government without any liability at all. This is a palpable
violation of the due process and equal protection guarantees of the Constitution. It
effectively ensconces the Marcoses beyond the reach of the law. It also sets a
dangerous precedent for public accountability. It is a virtual warrant for public officials
to amass public funds illegally, since there is an open option to compromise their liability
in exchange for only a portion of their ill-gotten wealth.
Fifth, the Agreements do not provide for a definite or determinable period within which
the parties shall fulfill their respective prestations. It may take a lifetime before the
Marcoses submit an inventory of their total assets.
Sixth, the Agreements do not state with specificity the standards for determining which
assets shall be forfeited by the government and which shall be retained by the

Marcoses. While the Supplemental Agreement provides that the Marcoses shall be
entitled to 25 per cent of the $356 million Swiss deposits (less government recovery
expenses), such sharing arrangement pertains only to the said deposits. No similar
splitting scheme is defined with respect to the other properties. Neither is there,
anywhere in the Agreements, a statement of the basis for the 25-75 percent sharing
ratio. Public officers entering into an arrangement appearing to be manifestly and
grossly disadvantageous to the government, in violation of the Anti-Graft and Corrupt
Practices Act,[69] invite their indictment for corruption under the said law.
Finally, the absence of then President Ramos approval of the principal Agreement, an
express condition therein, renders the compromise incomplete and unenforceable.
Nevertheless, as detailed above, even if such approval were obtained, the Agreements
would still not be valid.
From the foregoing disquisition, it is crystal clear to the Court that the General and
Supplemental Agreements, both dated December 28, 1993, which the PCGG entered
into with the Marcos heirs, are violative of the Constitution and the laws
aforementioned.
WHEREFORE, the petition is GRANTED. The General and Supplemental Agreements
dated December 28, 1993, which PCGG and the Marcos heirs entered into are hereby
declared NULL AND VOID for being contrary to law and the Constitution. Respondent
PCGG, its officers and all government functionaries and officials who are or may be
directly or indirectly involved in the recovery of the alleged ill-gotten wealth of the
Marcoses and their associates are DIRECTED to disclose to the public the terms of
any proposed compromise settlement, as well as the final agreement, relating to such
alleged ill-gotten wealth, in accordance with the discussions embodied in this Decision.
No pronouncement as to costs.
SO ORDERED.

6.

AKBAYAN v. AQUINO

EN BANC
AKBAYAN CITIZENS ACTION PARTY (AKBAYAN), PAMBANSANG KATIPUNAN NG
MGA SAMAHAN SA KANAYUNAN (PKSK), ALLIANCE OF PROGRESSIVE LABOR
(APL), VICENTE A. FABE, ANGELITO R. MENDOZA, MANUEL P. QUIAMBAO,
ROSE BEATRIX CRUZ-ANGELES, CONG. LORENZO R. TANADA III, CONG. MARIO
JOYO AGUJA, CONG. LORETA ANN P. ROSALES, CONG. ANA THERESIA
HONTIVEROS-BARAQUEL, AND CONG. EMMANUEL JOEL J. VILLANUEVA,
Petitioners,

CARPIO,
AUSTRIA-MARTINEZ,
CORONA,
CARPIO MORALES,
AZCUNA,
TINGA,
CHICO-NAZARIO,
VELASCO, JR.,
NACHURA,
REYES,
LEONARDO-DE CASTRO, &
BRION, JJ.

- versus
THOMAS G. AQUINO, in his capacity as Undersecretary of the Department of Trade
and Industry (DTI) and Chairman and Chief Delegate of the Philippine Coordinating
Committee (PCC) for the Japan-Philippines Economic Partnership Agreement, EDSEL
T. CUSTODIO, in his capacity as Undersecretary of the Department of Foreign Affairs
(DFA) and Co-Chair of the PCC for the JPEPA, EDGARDO ABON, in his capacity as
Chairman of the Tariff Commission and lead negotiator for Competition Policy and
Emergency Measures of the JPEPA, MARGARITA SONGCO, in her capacity as
Assistant Director-General of the National Economic Development Authority (NEDA)
and lead negotiator for Trade in Services and Cooperation of the JPEPA, MALOU
MONTERO, in her capacity as Foreign Service Officer I, Office of the Undersecretary
for International Economic Relations of the DFA and lead negotiator for the General
and Final Provisions of the JPEPA, ERLINDA ARCELLANA, in her capacity as Director
of the Board of Investments and lead negotiator for Trade in Goods (General Rules) of
the JPEPA, RAQUEL ECHAGUE, in her capacity as lead negotiator for Rules of Origin
of the JPEPA, GALLANT SORIANO, in his official capacity as Deputy Commissioner
of the Bureau of Customs and lead negotiator for Customs Procedures and Paperless
Trading of the JPEPA, MA. LUISA GIGETTE IMPERIAL, in her capacity as Director of
the Bureau of Local Employment of the Department of Labor and Employment (DOLE)
and lead negotiator for Movement of Natural Persons of the JPEPA, PASCUAL DE
GUZMAN, in his capacity as Director of the Board of Investments and lead negotiator
for Investment of the JPEPA, JESUS MOTOOMULL, in his capacity as Director for the
Bureau of Product Standards of the DTI and lead negotiator for Mutual Recognition of
the JPEPA, LOUIE CALVARIO, in his capacity as lead negotiator for Intellectual
Property of the JPEPA, ELMER H. DORADO, in his capacity as Officer-in-Charge of
the Government Procurement Policy Board Technical Support Office, the government
agency that is leading the negotiations on Government Procurement of the JPEPA,
RICARDO V. PARAS, in his capacity as Chief State Counsel of the Department of
Justice (DOJ) and lead negotiator for Dispute Avoidance and Settlement of the JPEPA,
ADONIS SULIT, in his capacity as lead negotiator for the General and Final Provisions
of the JPEPA, EDUARDO R. ERMITA, in his capacity as Executive Secretary, and
ALBERTO ROMULO, in his capacity as Secretary of the DFA,*
Respondents.
G.R. No. 170516
Present:
PUNO, C.J.,
QUISUMBING,
YNARES-SANTIAGO,

Promulgated:
July 16, 2008
x - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -x
DECISION
CARPIO MORALES, J.:
Petitioners non-government organizations, Congresspersons, citizens and taxpayers
seek via the present petition for mandamus and prohibition to obtain from respondents
the full text of the Japan-Philippines Economic Partnership Agreement (JPEPA)
including the Philippine and Japanese offers submitted during the negotiation process
and all pertinent attachments and annexes thereto.
Petitioners Congressmen Lorenzo R. Taada III and Mario Joyo Aguja filed on January
25, 2005 House Resolution No. 551 calling for an inquiry into the bilateral trade
agreements then being negotiated by the Philippine government, particularly the
JPEPA. The Resolution became the basis of an inquiry subsequently conducted by the
House Special Committee on Globalization (the House Committee) into the
negotiations of the JPEPA.
In the course of its inquiry, the House Committee requested herein respondent
Undersecretary Tomas Aquino (Usec. Aquino), Chairman of the Philippine
Coordinating Committee created under Executive Order No. 213 (CREATION OF A
PHILIPPINE COORDINATING COMMITTEE TO STUDY THE FEASIBILITY OF THE
JAPAN-PHILIPPINES ECONOMIC PARTNERSHIP AGREEMENT)[1] to study and
negotiate the proposed JPEPA, and to furnish the Committee with a copy of the latest
draft of the JPEPA. Usec. Aquino did not heed the request, however.
Congressman Aguja later requested for the same document, but Usec. Aquino, by letter
of November 2, 2005, replied that the Congressman shall be provided with a copy
thereof once the negotiations are completed and as soon as a thorough legal review of
the proposed agreement has been conducted.

In a separate move, the House Committee, through Congressman Herminio G. Teves,

requested Executive Secretary Eduardo Ermita to furnish it with all documents on the
subject including the latest draft of the proposed agreement, the requests and offers
etc.[2] Acting on the request, Secretary Ermita, by letter of June 23, 2005, wrote
Congressman Teves as follows:

filed up to the filing of petitioners Reply when the JPEPA was still being negotiated the
initial drafts thereof were kept from public view.
Before delving on the substantive grounds relied upon by petitioners in support of the
petition, the Court finds it necessary to first resolve some material procedural issues.
Standing

In its letter dated 15 June 2005 (copy enclosed), [the] D[epartment of] F[oreign] A[ffairs]
explains that the Committees request to be furnished all documents on the JPEPA may
be difficult to accomplish at this time, since the proposed Agreement has been a work
in progress for about three years. A copy of the draft JPEPA will however be forwarded
to the Committee as soon as the text thereof is settled and complete. (Emphasis
supplied)
Congressman Aguja also requested NEDA Director-General Romulo Neri and Tariff
Commission Chairman Edgardo Abon, by letter of July 1, 2005, for copies of the latest
text of the JPEPA.
Chairman Abon replied, however, by letter of July 12, 2005 that the Tariff Commission
does not have a copy of the documents being requested, albeit he was certain that
Usec. Aquino would provide the Congressman with a copy once the negotiation is
completed. And by letter of July 18, 2005, NEDA Assistant Director-General Margarita
R. Songco informed the Congressman that his request addressed to Director-General
Neri had been forwarded to Usec. Aquino who would be in the best position to respond
to the request.

For a petition for mandamus such as the one at bar to be given due course, it must be
instituted by a party aggrieved by the alleged inaction of any tribunal, corporation, board
or person which unlawfully excludes said party from the enjoyment of a legal right.[7]
Respondents deny that petitioners have such standing to sue. [I]n the interest of a
speedy and definitive resolution of the substantive issues raised, however, respondents
consider it sufficient to cite a portion of the ruling in Pimentel v. Office of Executive
Secretary[8] which emphasizes the need for a personal stake in the outcome of the
controversy on questions of standing.
In a petition anchored upon the right of the people to information on matters of public
concern, which is a public right by its very nature, petitioners need not show that they
have any legal or special interest in the result, it being sufficient to show that they are
citizens and, therefore, part of the general public which possesses the right.[9] As the
present petition is anchored on the right to information and petitioners are all suing in
their capacity as citizens and groups of citizens including petitioners-members of the
House of Representatives who additionally are suing in their capacity as such, the
standing of petitioners to file the present suit is grounded in jurisprudence.
Mootness

In its third hearing conducted on August 31, 2005, the House Committee resolved to
issue a subpoena for the most recent draft of the JPEPA, but the same was not pursued
because by Committee Chairman Congressman Teves information, then House
Speaker Jose de Venecia had requested him to hold in abeyance the issuance of the
subpoena until the President gives her consent to the disclosure of the documents.[3]
Amid speculations that the JPEPA might be signed by the Philippine government within
December 2005, the present petition was filed on December 9, 2005.[4] The agreement
was to be later signed on September 9, 2006 by President Gloria Macapagal-Arroyo
and Japanese Prime Minister Junichiro Koizumi in Helsinki, Finland, following which
the President endorsed it to the Senate for its concurrence pursuant to Article VII,
Section 21 of the Constitution. To date, the JPEPA is still being deliberated upon by the
Senate.
The JPEPA, which will be the first bilateral free trade agreement to be entered into by
the Philippines with another country in the event the Senate grants its consent to it,
covers a broad range of topics which respondents enumerate as follows: trade in
goods, rules of origin, customs procedures, paperless trading, trade in services,
investment, intellectual property rights, government procurement, movement of natural
persons, cooperation, competition policy, mutual recognition, dispute avoidance and
settlement, improvement of the business environment, and general and final
provisions.[5]
While the final text of the JPEPA has now been made accessible to the public since
September 11, 2006,[6] respondents do not dispute that, at the time the petition was

Considering, however, that [t]he principal relief petitioners are praying for is the
disclosure of the contents of the JPEPA prior to its finalization between the two States
parties,[10] public disclosure of the text of the JPEPA after its signing by the President,
during the pendency of the present petition, has been largely rendered moot and
academic.
With the Senate deliberations on the JPEPA still pending, the agreement as it now
stands cannot yet be considered as final and binding between the two States. Article
164 of the JPEPA itself provides that the agreement does not take effect immediately
upon the signing thereof. For it must still go through the procedures required by the
laws of each country for its entry into force, viz:
Article 164
Entry into Force
This Agreement shall enter into force on the thirtieth day after the date on which the
Governments of the Parties exchange diplomatic notes informing each other that their
respective legal procedures necessary for entry into force of this Agreement have been
completed. It shall remain in force unless terminated as provided for in Article 165.[11]
(Emphasis supplied)
President Arroyos endorsement of the JPEPA to the Senate for concurrence is part of
the legal procedures which must be met prior to the agreements entry into force.

The text of the JPEPA having then been made accessible to the public, the petition has
become moot and academic to the extent that it seeks the disclosure of the full text
thereof.
The petition is not entirely moot, however, because petitioners seek to obtain, not
merely the text of the JPEPA, but also the Philippine and Japanese offers in the course
of the negotiations.[12]
A discussion of the substantive issues, insofar as they impinge on petitioners demand
for access to the Philippine and Japanese offers, is thus in order.

Grounds relied upon by petitioners

Petitioners assert, first, that the refusal of the government to disclose the documents
bearing on the JPEPA negotiations violates their right to information on matters of
public concern[13] and contravenes other constitutional provisions on transparency,
such as that on the policy of full public disclosure of all transactions involving public
interest.[14] Second, they contend that non-disclosure of the same documents
undermines their right to effective and reasonable participation in all levels of social,
political, and economic decision-making.[15] Lastly, they proffer that divulging the
contents of the JPEPA only after the agreement has been concluded will effectively
make the Senate into a mere rubber stamp of the Executive, in violation of the principle
of separation of powers.
Significantly, the grounds relied upon by petitioners for the disclosure of the latest text
of the JPEPA are, except for the last, the same as those cited for the disclosure of the
Philippine and Japanese offers.
The first two grounds relied upon by petitioners which bear on the merits of respondents
claim of privilege shall be discussed. The last, being purely speculatory given that the
Senate is still deliberating on the JPEPA, shall not.
The JPEPA is a matter of public concern
To be covered by the right to information, the information sought must meet the
threshold requirement that it be a matter of public concern. Apropos is the teaching of
Legaspi v. Civil Service Commission:
In determining whether or not a particular information is of public concern there is no
rigid test which can be applied. Public concern like public interest is a term that eludes
exact definition. Both terms embrace a broad spectrum of subjects which the public
may want to know, either because these directly affect their lives, or simply because
such matters naturally arouse the interest of an ordinary citizen. In the final analysis, it
is for the courts to determine on a case by case basis whether the matter at issue is of
interest or importance, as it relates to or affects the public.[16] (Underscoring supplied)

From the nature of the JPEPA as an international trade agreement, it is evident that the
Philippine and Japanese offers submitted during the negotiations towards its execution
are matters of public concern. This, respondents do not dispute. They only claim that
diplomatic negotiations are covered by the doctrine of executive privilege, thus
constituting an exception to the right to information and the policy of full public
disclosure.
Respondents claim of privilege
It is well-established in jurisprudence that neither the right to information nor the policy
of full public disclosure is absolute, there being matters which, albeit of public concern
or public interest, are recognized as privileged in nature. The types of information which
may be considered privileged have been elucidated in Almonte v. Vasquez,[17] Chavez
v. PCGG,[18] Chavez v. Public Estates Authority,[19] and most recently in Senate v.
Ermita[20] where the Court reaffirmed the validity of the doctrine of executive privilege
in this jurisdiction and dwelt on its scope.
Whether a claim of executive privilege is valid depends on the ground invoked to justify
it and the context in which it is made.[21] In the present case, the ground for
respondents claim of privilege is set forth in their Comment, viz:
x x x The categories of information that may be considered privileged includes matters
of diplomatic character and under negotiation and review. In this case, the privileged
character of the diplomatic negotiations has been categorically invoked and clearly
explained by respondents particularly respondent DTI Senior Undersecretary.
The documents on the proposed JPEPA as well as the text which is subject to
negotiations and legal review by the parties fall under the exceptions to the right of
access to information on matters of public concern and policy of public disclosure. They
come within the coverage of executive privilege. At the time when the Committee was
requesting for copies of such documents, the negotiations were ongoing as they are
still now and the text of the proposed JPEPA is still uncertain and subject to change.
Considering the status and nature of such documents then and now, these are evidently
covered by executive privilege consistent with existing legal provisions and settled
jurisprudence.
Practical and strategic considerations likewise counsel against the disclosure of the
rolling texts which may undergo radical change or portions of which may be totally
abandoned. Furthermore, the negotiations of the representatives of the Philippines as
well as of Japan must be allowed to explore alternatives in the course of the
negotiations in the same manner as judicial deliberations and working drafts of opinions
are accorded strict confidentiality.[22] (Emphasis and underscoring supplied)
The ground relied upon by respondents is thus not simply that the information sought
involves a diplomatic matter, but that it pertains to diplomatic negotiations then in
progress.
Privileged character of diplomatic negotiations
The privileged character of diplomatic negotiations has been recognized in this
jurisdiction. In discussing valid limitations on the right to information, the Court in

Chavez v. PCGG held that information on inter-government exchanges prior to the

conclusion of treaties and executive agreements may be subject to reasonable
safeguards for the sake of national interest.[23] Even earlier, the same privilege was
upheld in Peoples Movement for Press Freedom (PMPF) v. Manglapus[24] wherein the
Court discussed the reasons for the privilege in more precise terms.
In PMPF v. Manglapus, the therein petitioners were seeking information from the
Presidents representatives on the state of the then on-going negotiations of the RP-US
Military Bases Agreement.[25] The Court denied the petition, stressing that secrecy of
negotiations with foreign countries is not violative of the constitutional provisions of
freedom of speech or of the press nor of the freedom of access to information. The
Resolution went on to state, thus:

x x x In this vast external realm, with its important, complicated, delicate and manifold
problems, the President alone has the power to speak or listen as a representative of
the nation. He makes treaties with the advice and consent of the Senate; but he alone
negotiates. Into the field of negotiation the Senate cannot intrude; and Congress itself
is powerless to invade it. As Marshall said in his great argument of March 7, 1800, in
the House of Representatives, The President is the sole organ of the nation in its
external relations, and its sole representative with foreign nations. Annals, 6th Cong.,
col. 613. . . (Emphasis supplied; underscoring in the original)

The nature of diplomacy requires centralization of authority and expedition of decision

which are inherent in executive action. Another essential characteristic of diplomacy is
its confidential nature. Although much has been said about open and secret diplomacy,
with disparagement of the latter, Secretaries of State Hughes and Stimson have clearly
analyzed and justified the practice. In the words of Mr. Stimson:

Applying the principles adopted in PMPF v. Manglapus, it is clear that while the final
text of the JPEPA may not be kept perpetually confidential since there should be ample
opportunity for discussion before [a treaty] is approved the offers exchanged by the
parties during the negotiations continue to be privileged even after the JPEPA is
published. It is reasonable to conclude that the Japanese representatives submitted
their offers with the understanding that historic confidentiality[27] would govern the
same. Disclosing these offers could impair the ability of the Philippines to deal not only
with Japan but with other foreign governments in future negotiations.

A complicated negotiation . . . cannot be carried through without many, many private

talks and discussion, man to man; many tentative suggestions and proposals.
Delegates from other countries come and tell you in confidence of their troubles at
home and of their differences with other countries and with other delegates; they tell
you of what they would do under certain circumstances and would not do under other
circumstances. . . If these reports . . . should become public . . . who would ever trust
American Delegations in another conference? (United States Department of State,
Press Releases, June 7, 1930, pp. 282-284.).

A ruling that Philippine offers in treaty negotiations should now be open to public
scrutiny would discourage future Philippine representatives from frankly expressing
their views during negotiations. While, on first impression, it appears wise to deter
Philippine representatives from entering into compromises, it bears noting that treaty
negotiations, or any negotiation for that matter, normally involve a process of quid pro
quo, and oftentimes negotiators have to be willing to grant concessions in an area of
lesser importance in order to obtain more favorable terms in an area of greater national
interest. Apropos are the following observations of Benjamin S. Duval, Jr.:

xxxx

x x x [T]hose involved in the practice of negotiations appear to be in agreement that

publicity leads to grandstanding, tends to freeze negotiating positions, and inhibits the
give-and-take essential to successful negotiation. As Sissela Bok points out, if
negotiators have more to gain from being approved by their own sides than by making
a reasoned agreement with competitors or adversaries, then they are inclined to 'play
to the gallery . . .'' In fact, the public reaction may leave them little option. It would be a
brave, or foolish, Arab leader who expressed publicly a willingness for peace with Israel
that did not involve the return of the entire West Bank, or Israeli leader who stated
publicly a willingness to remove Israel's existing settlements from Judea and Samaria
in return for peace.[28] (Emphasis supplied)

There is frequent criticism of the secrecy in which negotiation with foreign powers on
nearly all subjects is concerned. This, it is claimed, is incompatible with the substance
of democracy. As expressed by one writer, It can be said that there is no more rigid
system of silence anywhere in the world. (E.J. Young, Looking Behind the Censorship,
J. B. Lippincott Co., 1938) President Wilson in starting his efforts for the conclusion of
the World War declared that we must have open covenants, openly arrived at. He
quickly abandoned his thought.
No one who has studied the question believes that such a method of publicity is
possible. In the moment that negotiations are started, pressure groups attempt to
muscle in. An ill-timed speech by one of the parties or a frank declaration of the
concession which are exacted or offered on both sides would quickly lead to
widespread propaganda to block the negotiations. After a treaty has been drafted and
its terms are fully published, there is ample opportunity for discussion before it is
approved. (The New American Government and Its Works, James T. Young, 4th
Edition, p. 194) (Emphasis and underscoring supplied)
Still in PMPF v. Manglapus, the Court adopted the doctrine in U.S. v. Curtiss-Wright
Export Corp.[26] that the President is the sole organ of the nation in its negotiations
with foreign countries, viz:

Indeed, by hampering the ability of our representatives to compromise, we may be

jeopardizing higher national goals for the sake of securing less critical ones.
Diplomatic negotiations, therefore, are recognized as privileged in this jurisdiction, the
JPEPA negotiations constituting no exception. It bears emphasis, however, that such
privilege is only presumptive. For as Senate v. Ermita holds, recognizing a type of
information as privileged does not mean that it will be considered privileged in all
instances. Only after a consideration of the context in which the claim is made may it
be determined if there is a public interest that calls for the disclosure of the desired
information, strong enough to overcome its traditionally privileged status.

Whether petitioners have established the presence of such a public interest shall be
discussed later. For now, the Court shall first pass upon the arguments raised by
petitioners against the application of PMPF v. Manglapus to the present case.
Arguments proffered by petitioners against the application of PMPF v. Manglapus
Petitioners argue that PMPF v. Manglapus cannot be applied in toto to the present
case, there being substantial factual distinctions between the two.
To petitioners, the first and most fundamental distinction lies in the nature of the treaty
involved. They stress that PMPF v. Manglapus involved the Military Bases Agreement
which necessarily pertained to matters affecting national security; whereas the present
case involves an economic treaty that seeks to regulate trade and commerce between
the Philippines and Japan, matters which, unlike those covered by the Military Bases
Agreement, are not so vital to national security to disallow their disclosure.
Petitioners argument betrays a faulty assumption that information, to be considered
privileged, must involve national security. The recognition in Senate v. Ermita[29] that
executive privilege has encompassed claims of varying kinds, such that it may even be
more accurate to speak of executive privileges, cautions against such generalization.
While there certainly are privileges grounded on the necessity of safeguarding national
security such as those involving military secrets, not all are founded thereon. One
example is the informers privilege, or the privilege of the Government not to disclose
the identity of a person or persons who furnish information of violations of law to officers
charged with the enforcement of that law.[30] The suspect involved need not be so
notorious as to be a threat to national security for this privilege to apply in any given
instance. Otherwise, the privilege would be inapplicable in all but the most high-profile
cases, in which case not only would this be contrary to long-standing practice. It would
also be highly prejudicial to law enforcement efforts in general.
Also illustrative is the privilege accorded to presidential communications, which are
presumed privileged without distinguishing between those which involve matters of
national security and those which do not, the rationale for the privilege being that
x x x [a] frank exchange of exploratory ideas and assessments, free from the glare of
publicity and pressure by interested parties, is essential to protect the independence of
decision-making of those tasked to exercise Presidential, Legislative and Judicial
power. x x x[31] (Emphasis supplied)
In the same way that the privilege for judicial deliberations does not depend on the
nature of the case deliberated upon, so presidential communications are privileged
whether they involve matters of national security.
It bears emphasis, however, that the privilege accorded to presidential communications
is not absolute, one significant qualification being 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. [32] This qualification applies whether
the privilege is being invoked in the context of a judicial trial or a congressional
investigation conducted in aid of legislation.[33]

Closely related to the presidential communications privilege is the deliberative process

privilege recognized in the United States. As discussed by the U.S. Supreme Court in
NLRB v. Sears, Roebuck & Co,[34] deliberative process covers documents reflecting
advisory opinions, recommendations and deliberations comprising part of a process by
which governmental decisions and policies are formulated. Notably, the privileged
status of such documents rests, not on the need to protect national security but, on the
obvious realization that officials will not communicate candidly among themselves if
each remark is a potential item of discovery and front page news, the objective of the
privilege being to enhance the quality of agency decisions. [35]
The diplomatic negotiations privilege bears a close resemblance to the deliberative
process and presidential communications privilege. It may be readily perceived that the
rationale for the confidential character of diplomatic negotiations, deliberative process,
and presidential communications is similar, if not identical.
The earlier discussion on PMPF v. Manglapus[36] shows that the privilege for
diplomatic negotiations is meant to encourage a frank exchange of exploratory ideas
between the negotiating parties by shielding such negotiations from public view. Similar
to the privilege for presidential communications, the diplomatic negotiations privilege
seeks, through the same means, to protect the independence in decision-making of the
President, particularly in its capacity as the sole organ of the nation in its external
relations, and its sole representative with foreign nations. And, as with the deliberative
process privilege, the privilege accorded to diplomatic negotiations arises, not on
account of the content of the information per se, but because the information is part of
a process of deliberation which, in pursuit of the public interest, must be presumed
confidential.
The decision of the U.S. District Court, District of Columbia in Fulbright & Jaworski v.
Department of the Treasury[37] enlightens on the close relation between diplomatic
negotiations and deliberative process privileges. The plaintiffs in that case sought
access to notes taken by a member of the U.S. negotiating team during the U.S.-French
tax treaty negotiations. Among the points noted therein were the issues to be
discussed, positions which the French and U.S. teams took on some points, the draft
language agreed on, and articles which needed to be amended. Upholding the
confidentiality of those notes, Judge Green ruled, thus:
Negotiations between two countries to draft a treaty represent a true example of a
deliberative process. Much give-and-take must occur for the countries to reach an
accord. A description of the negotiations at any one point would not provide an onlooker
a summary of the discussions which could later be relied on as law. It would not be
working law as the points discussed and positions agreed on would be subject to
change at any date until the treaty was signed by the President and ratified by the
Senate.
The policies behind the deliberative process privilege support non-disclosure. Much
harm could accrue to the negotiations process if these notes were revealed. Exposure
of the pre-agreement positions of the French negotiators might well offend foreign
governments and would lead to less candor by the U. S. in recording the events of the
negotiations process. As several months pass in between negotiations, this lack of
record could hinder readily the U. S. negotiating team. Further disclosure would reveal
prematurely adopted policies. If these policies should be changed, public confusion
would result easily.

Finally, releasing these snapshot views of the negotiations would be comparable to

releasing drafts of the treaty, particularly when the notes state the tentative provisions
and language agreed on. As drafts of regulations typically are protected by the
deliberative process privilege, Arthur Andersen & Co. v. Internal Revenue Service, C.A.
No. 80-705 (D.C.Cir., May 21, 1982), drafts of treaties should be accorded the same
protection. (Emphasis and underscoring supplied)

In fine, Fulbright was not overturned. The court in CIEL merely found the same to be
irrelevant in light of its distinct factual setting. Whether this conclusion was valid a
question on which this Court would not pass the ruling in Fulbright that [n]egotiations
between two countries to draft a treaty represent a true example of a deliberative
process was left standing, since the CIEL court explicitly stated that it did not reach the
question of deliberative process.

Clearly, the privilege accorded to diplomatic negotiations follows as a logical

consequence from the privileged character of the deliberative process.

The Court is not unaware that in Center for International Environmental Law (CIEL), et
al. v. Office of U.S. Trade Representative[38] where the plaintiffs sought information
relating to the just-completed negotiation of a United States-Chile Free Trade
Agreement the same district court, this time under Judge Friedman, consciously
refrained from applying the doctrine in Fulbright and ordered the disclosure of the
information being sought.

Since the factual milieu in CIEL seemed to call for the straight application of the doctrine
in Fulbright, a discussion of why the district court did not apply the same would help
illumine this Courts own reasons for deciding the present case along the lines of
Fulbright.

In both Fulbright and CIEL, the U.S. government cited a statutory basis for withholding
information, namely, Exemption 5 of the Freedom of Information Act (FOIA).[39] In
order to qualify for protection under Exemption 5, a document must satisfy two
conditions: (1) it must be either inter-agency or intra-agency in nature, and (2) it must
be both pre-decisional and part of the agency's deliberative or decision-making
process.[40]

Judge Friedman, in CIEL, himself cognizant of a superficial similarity of context

between the two cases, based his decision on what he perceived to be a significant
distinction: he found the negotiators notes that were sought in Fulbright to be clearly
internal, whereas the documents being sought in CIEL were those produced by or
exchanged with an outside party, i.e. Chile. The documents subject of Fulbright being
clearly internal in character, the question of disclosure therein turned not on the
threshold requirement of Exemption 5 that the document be inter-agency, but on
whether the documents were part of the agency's pre-decisional deliberative process.
On this basis, Judge Friedman found that Judge Green's discussion [in Fulbright] of the
harm that could result from disclosure therefore is irrelevant, since the documents at
issue [in CIEL] are not inter-agency, and the Court does not reach the question of
deliberative process. (Emphasis supplied)

Going back to the present case, the Court recognizes that the information sought by
petitioners includes documents produced and communicated by a party external to the
Philippine government, namely, the Japanese representatives in the JPEPA
negotiations, and to that extent this case is closer to the factual circumstances of CIEL
than those of Fulbright.

Nonetheless, for reasons which shall be discussed shortly, this Court echoes the
principle articulated in Fulbright that the public policy underlying the deliberative
process privilege requires that diplomatic negotiations should also be accorded
privileged status, even if the documents subject of the present case cannot be
described as purely internal in character.

It need not be stressed that in CIEL, the court ordered the disclosure of information
based on its finding that the first requirement of FOIA Exemption 5 that the documents
be inter-agency was not met. In determining whether the government may validly refuse
disclosure of the exchanges between the U.S. and Chile, it necessarily had to deal with
this requirement, it being laid down by a statute binding on them.

In this jurisdiction, however, there is no counterpart of the FOIA, nor is there any
statutory requirement similar to FOIA Exemption 5 in particular. Hence, Philippine
courts, when assessing a claim of privilege for diplomatic negotiations, are more free
to focus directly on the issue of whether the privilege being claimed is indeed supported
by public policy, without having to consider as the CIEL court did if these negotiations
fulfill a formal requirement of being inter-agency. Important though that requirement
may be in the context of domestic negotiations, it need not be accorded the same
significance when dealing with international negotiations.

There being a public policy supporting a privilege for diplomatic negotiations for the
reasons explained above, the Court sees no reason to modify, much less abandon, the
doctrine in PMPF v. Manglapus.

A second point petitioners proffer in their attempt to differentiate PMPF v. Manglapus

from the present case is the fact that the petitioners therein consisted entirely of
members of the mass media, while petitioners in the present case include members of
the House of Representatives who invoke their right to information not just as citizens
but as members of Congress.

treaty negotiations as such than on a particular socio-political school of thought. If

petitioners are suggesting that the nature of treaty negotiations have so changed that
[a]n ill-timed speech by one of the parties or a frank declaration of the concession which
are exacted or offered on both sides no longer lead[s] to widespread propaganda to
block the negotiations, or that parties in treaty negotiations no longer expect their
communications to be governed by historic confidentiality, the burden is on them to
substantiate the same. This petitioners failed to discharge.
Whether the privilege applies only at certain stages of the negotiation process

Petitioners thus conclude that the present case involves the right of members of
Congress to demand information on negotiations of international trade agreements
from the Executive branch, a matter which was not raised in PMPF v. Manglapus.
While indeed the petitioners in PMPF v. Manglapus consisted only of members of the
mass media, it would be incorrect to claim that the doctrine laid down therein has no
bearing on a controversy such as the present, where the demand for information has
come from members of Congress, not only from private citizens.
The privileged character accorded to diplomatic negotiations does not ipso facto lose
all force and effect simply because the same privilege is now being claimed under
different circumstances. The probability of the claim succeeding in the new context
might differ, but to say that the privilege, as such, has no validity at all in that context is
another matter altogether.
The Courts statement in Senate v. Ermita that presidential refusals to furnish
information may be actuated by any of at least three distinct kinds of considerations
[state secrets privilege, informers privilege, and a generic privilege for internal
deliberations], and may be asserted, with differing degrees of success, in the context
of either judicial or legislative investigations,[41] implies that a privilege, once
recognized, may be invoked under different procedural settings. That this principle
holds true particularly with respect to diplomatic negotiations may be inferred from
PMPF v. Manglapus itself, where the Court held that it is the President alone who
negotiates treaties, and not even the Senate or the House of Representatives, unless
asked, may intrude upon that process.
Clearly, the privilege for diplomatic negotiations may be invoked not only against
citizens demands for information, but also in the context of legislative investigations.

Petitioners admit that diplomatic negotiations on the JPEPA are entitled to a reasonable
amount of confidentiality so as not to jeopardize the diplomatic process. They argue,
however, that the same is privileged only at certain stages of the negotiating process,
after which such information must necessarily be revealed to the public.[43] They add
that the duty to disclose this information was vested in the government when the
negotiations moved from the formulation and exploratory stage to the firming up of
definite propositions or official recommendations, citing Chavez v. PCGG[44] and
Chavez v. PEA.[45]
The following statement in Chavez v. PEA, however, suffices to show that the doctrine
in both that case and Chavez v. PCGG with regard to the duty to disclose definite
propositions of the government does not apply to diplomatic negotiations:
We rule, therefore, that the constitutional right to information includes official
information on on-going negotiations before a final contract. The information, however,
must constitute definite propositions by the government and should not cover
recognized exceptions like privileged information, military and diplomatic secrets and
similar matters affecting national security and public order. x x x[46] (Emphasis and
underscoring supplied)
It follows from this ruling that even definite propositions of the government may not be
disclosed if they fall under recognized exceptions. The privilege for diplomatic
negotiations is clearly among the recognized exceptions, for the footnote to the
immediately quoted ruling cites PMPF v. Manglapus itself as an authority.
Whether there is sufficient public interest to overcome the claim of privilege

Hence, the recognition granted in PMPF v. Manglapus to the privileged character of

diplomatic negotiations cannot be considered irrelevant in resolving the present case,
the contextual differences between the two cases notwithstanding.
As third and last point raised against the application of PMPF v. Manglapus in this case,
petitioners proffer that the socio-political and historical contexts of the two cases are
worlds apart. They claim that the constitutional traditions and concepts prevailing at the
time PMPF v. Manglapus came about, particularly the school of thought that the
requirements of foreign policy and the ideals of transparency were incompatible with
each other or the incompatibility hypothesis, while valid when international relations
were still governed by power, politics and wars, are no longer so in this age of
international cooperation.[42]
Without delving into petitioners assertions respecting the incompatibility hypothesis, the
Court notes that the ruling in PMPF v. Manglapus is grounded more on the nature of

It being established that diplomatic negotiations enjoy a presumptive privilege against

disclosure, even against the demands of members of Congress for information, the
Court shall now determine whether petitioners have shown the existence of a public
interest sufficient to overcome the privilege in this instance.
To clarify, there are at least two kinds of public interest that must be taken into account.
One is the presumed public interest in favor of keeping the subject information
confidential, which is the reason for the privilege in the first place, and the other is the
public interest in favor of disclosure, the existence of which must be shown by the party
asking for information. [47]

The criteria to be employed in determining whether there is a sufficient public interest

in favor of disclosure may be gathered from cases such as U.S. v. Nixon,[48] Senate
Select Committee on Presidential Campaign Activities v. Nixon,[49] and In re Sealed
Case.[50]

account factors such as "the relevance of the evidence," "the availability of other
evidence," "the seriousness of the litigation," "the role of the government," and the
"possibility of future timidity by government employees. x x x (Emphasis, italics and
underscoring supplied)

U.S. v. Nixon, which involved a claim of the presidential communications privilege

against the subpoena duces tecum of a district court in a criminal case, emphasized
the need to balance such claim of privilege against the constitutional duty of courts to
ensure a fair administration of criminal justice.

Petitioners have failed to present the strong and sufficient showing of need referred to
in the immediately cited cases. The arguments they proffer to establish their entitlement
to the subject documents fall short of this standard.

x x x the allowance of the privilege to withhold evidence that is demonstrably relevant

in a criminal trial would cut deeply into the guarantee of due process of law and gravely
impair the basic function of the courts. A Presidents acknowledged need for
confidentiality in the communications of his office is general in nature, whereas the
constitutional need for production of relevant evidence in a criminal proceeding is
specific and central to the fair adjudication of a particular criminal case in the
administration of justice. Without access to specific facts a criminal prosecution may be
totally frustrated. The Presidents broad interest in confidentiality of communications will
not be vitiated by disclosure of a limited number of conversations preliminarily shown
to have some bearing on the pending criminal cases. (Emphasis, italics and
underscoring supplied)
Similarly, Senate Select Committee v. Nixon,[51] which involved a claim of the
presidential communications privilege against the subpoena duces tecum of a Senate
committee, spoke of the need to balance such claim with the duty of Congress to
perform its legislative functions.
The staged decisional structure established in Nixon v. Sirica was designed to ensure
that the President and those upon whom he directly relies in the performance of his
duties could continue to work under a general assurance that their deliberations would
remain confidential. So long as the presumption that the public interest favors
confidentiality can be defeated only by a strong showing of need by another institution
of government- a showing that the responsibilities of that institution cannot responsibly
be fulfilled without access to records of the President's deliberations- we believed in
Nixon v. Sirica, and continue to believe, that the effective functioning of the presidential
office will not be impaired. x x x
xxxx
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. x x x (Emphasis and underscoring supplied)

Petitioners go on to assert that the non-involvement of the Filipino people in the JPEPA
negotiation process effectively results in the bargaining away of their economic and
property rights without their knowledge and participation, in violation of the due process
clause of the Constitution. They claim, moreover, that it is essential for the people to
have access to the initial offers exchanged during the negotiations since only through
such disclosure can their constitutional right to effectively participate in decision-making
be brought to life in the context of international trade agreements.
Whether it can accurately be said that the Filipino people were not involved in the
JPEPA negotiations is a question of fact which this Court need not resolve. Suffice it to
state that respondents had presented documents purporting to show that public
consultations were conducted on the JPEPA. Parenthetically, petitioners consider
these alleged consultations as woefully selective and inadequate.[53]
AT ALL EVENTS, since it is not disputed that the offers exchanged by the Philippine
and Japanese representatives have not been disclosed to the public, the Court shall
pass upon the issue of whether access to the documents bearing on them is, as
petitioners claim, essential to their right to participate in decision-making.
The case for petitioners has, of course, been immensely weakened by the disclosure
of the full text of the JPEPA to the public since September 11, 2006, even as it is still
being deliberated upon by the Senate and, therefore, not yet binding on the Philippines.
Were the Senate to concur with the validity of the JPEPA at this moment, there has
already been, in the words of PMPF v. Manglapus, ample opportunity for discussion
before [the treaty] is approved.
The text of the JPEPA having been published, petitioners have failed to convince this
Court that they will not be able to meaningfully exercise their right to participate in
decision-making unless the initial offers are also published.

In re Sealed Case[52] involved a claim of the deliberative process and presidential

communications privileges against a subpoena duces tecum of a grand jury. On the
claim of deliberative process privilege, the court stated:

It is of public knowledge that various non-government sectors and private citizens have
already publicly expressed their views on the JPEPA, their comments not being limited
to general observations thereon but on its specific provisions. Numerous articles and
statements critical of the JPEPA have been posted on the Internet.[54] Given these
developments, there is no basis for petitioners claim that access to the Philippine and
Japanese offers is essential to the exercise of their right to participate in decisionmaking.

The deliberative process privilege is a qualified privilege and can be overcome by a

sufficient showing of need. This need determination is to be made flexibly on a caseby-case, ad hoc basis. "[E]ach time [the deliberative process privilege] is asserted the
district court must undertake a fresh balancing of the competing interests," taking into

Petitioner-members of the House of Representatives additionally anchor their claim to

have a right to the subject documents on the basis of Congress inherent power to
regulate commerce, be it domestic or international. They allege that Congress cannot
meaningfully exercise the power to regulate international trade agreements such as the

JPEPA without being given copies of the initial offers exchanged during the negotiations
thereof. In the same vein, they argue that the President cannot exclude Congress from
the JPEPA negotiations since whatever power and authority the President has to
negotiate international trade agreements is derived only by delegation of Congress,
pursuant to Article VI, Section 28(2) of the Constitution and Sections 401 and 402 of
Presidential Decree No. 1464.[55]

with foreign nations. As the chief architect of foreign policy, the President acts as the
country's mouthpiece with respect to international affairs. Hence, the President is
vested with the authority to deal with foreign states and governments, extend or
withhold recognition, maintain diplomatic relations, enter into treaties, and otherwise
transact the business of foreign relations. In the realm of treaty-making, the President
has the sole authority to negotiate with other states.

The subject of Article VI Section 28(2) of the Constitution is not the power to negotiate
treaties and international agreements, but the power to fix tariff rates, import and export
quotas, and other taxes. Thus it provides:

Nonetheless, while the President has the sole authority to negotiate and enter into
treaties, the Constitution provides a limitation to his power by requiring the concurrence
of 2/3 of all the members of the Senate for the validity of the treaty entered into by him.
x x x (Emphasis and underscoring supplied)

(2) The Congress may, by law, authorize the President to fix within specified limits, and
subject to such limitations and restrictions as it may impose, tariff rates, import and
export quotas, tonnage and wharfage dues, and other duties or imposts within the
framework of the national development program of the Government.

As to the power to negotiate treaties, the constitutional basis thereof is Section 21 of

Article VII the article on the Executive Department which states:
No treaty or international agreement shall be valid and effective unless concurred in by
at least two-thirds of all the Members of the Senate.

The doctrine in PMPF v. Manglapus that the treaty-making power is exclusive to the
President, being the sole organ of the nation in its external relations, was echoed in
BAYAN v. Executive Secretary[56] where the Court held:
By constitutional fiat and by the intrinsic nature of his office, the President, as head of
State, is the sole organ and authority in the external affairs of the country. In many
ways, the President is the chief architect of the nation's foreign policy; his "dominance
in the field of foreign relations is (then) conceded." Wielding vast powers and influence,
his conduct in the external affairs of the nation, as Jefferson describes, is executive
altogether.
As regards the power to enter into treaties or international agreements, the Constitution
vests the same in the President, subject only to the concurrence of at least two thirds
vote of all the members of the Senate. In this light, the negotiation of the VFA and the
subsequent ratification of the agreement are exclusive acts which pertain solely to the
President, in the lawful exercise of his vast executive and diplomatic powers granted
him no less than by the fundamental law itself. Into the field of negotiation the Senate
cannot intrude, and Congress itself is powerless to invade it. x x x (Italics in the original;
emphasis and underscoring supplied)

While the power then to fix tariff rates and other taxes clearly belongs to Congress, and
is exercised by the President only by delegation of that body, it has long been
recognized that the power to enter into treaties is vested directly and exclusively in the
President, subject only to the concurrence of at least two-thirds of all the Members of
the Senate for the validity of the treaty. In this light, the authority of the President to
enter into trade agreements with foreign nations provided under P.D. 1464[58] may be
interpreted as an acknowledgment of a power already inherent in its office. It may not
be used as basis to hold the President or its representatives accountable to Congress
for the conduct of treaty negotiations.
This is not to say, of course, that the Presidents power to enter into treaties is unlimited
but for the requirement of Senate concurrence, since the President must still ensure
that all treaties will substantively conform to all the relevant provisions of the
Constitution.
It follows from the above discussion that Congress, while possessing vast legislative
powers, may not interfere in the field of treaty negotiations. While Article VII, Section
21 provides for Senate concurrence, such pertains only to the validity of the treaty under
consideration, not to the conduct of negotiations attendant to its conclusion. Moreover,
it is not even Congress as a whole that has been given the authority to concur as a
means of checking the treaty-making power of the President, but only the Senate.
Thus, as in the case of petitioners suing in their capacity as private citizens, petitionersmembers of the House of Representatives fail to present a sufficient showing of need
that the information sought is critical to the performance of the functions of Congress,
functions that do not include treaty-negotiation.
Respondents alleged failure to timely claim executive privilege

The same doctrine was reiterated even more recently in Pimentel v. Executive
Secretary[57] where the Court ruled:

On respondents invocation of executive privilege, petitioners find the same defective,

not having been done seasonably as it was raised only in their Comment to the present
petition and not during the House Committee hearings.
That respondents invoked the privilege for the first time only in their Comment to the
present petition does not mean that the claim of privilege should not be credited.
Petitioners position presupposes that an assertion of the privilege should have been
made during the House Committee investigations, failing which respondents are
deemed to have waived it.

In our system of government, the President, being the head of state, is regarded as the
sole organ and authority in external relations and is the country's sole representative

When the House Committee and petitioner-Congressman Aguja requested

respondents for copies of the documents subject of this case, respondents replied that

the negotiations were still on-going and that the draft of the JPEPA would be released
once the text thereof is settled and complete. There was no intimation that the
requested copies are confidential in nature by reason of public policy. The response
may not thus be deemed a claim of privilege by the standards of Senate v. Ermita,
which recognizes as claims of privilege only those which are accompanied by precise
and certain reasons for preserving the confidentiality of the information being sought.
Respondents failure to claim the privilege during the House Committee hearings may
not, however, be construed as a waiver thereof by the Executive branch. As the
immediately preceding paragraph indicates, what respondents received from the
House Committee and petitioner-Congressman Aguja were mere requests for
information. And as priorly stated, the House Committee itself refrained from pursuing
its earlier resolution to issue a subpoena duces tecum on account of then Speaker Jose
de Venecias alleged request to Committee Chairperson Congressman Teves to hold
the same in abeyance.
While it is a salutary and noble practice for Congress to refrain from issuing subpoenas
to executive officials out of respect for their office until resort to it becomes necessary,
the fact remains that such requests are not a compulsory process. Being mere
requests, they do not strictly call for an assertion of executive privilege.
The privilege is an exemption to Congress power of inquiry.[59] So long as Congress
itself finds no cause to enforce such power, there is no strict necessity to assert the
privilege. In this light, respondents failure to invoke the privilege during the House
Committee investigations did not amount to a waiver thereof.
The Court observes, however, that the claim of privilege appearing in respondents
Comment to this petition fails to satisfy in full the requirement laid down in Senate v.
Ermita that the claim should be invoked by the President or through the Executive
Secretary by order of the President.[60] Respondents claim of privilege is being
sustained, however, its flaw notwithstanding, because of circumstances peculiar to the
case.
The assertion of executive privilege by the Executive Secretary, who is one of the
respondents herein, without him adding the phrase by order of the President, shall be
considered as partially complying with the requirement laid down in Senate v. Ermita.
The requirement that the phrase by order of the President should accompany the
Executive Secretarys claim of privilege is a new rule laid down for the first time in
Senate v. Ermita, which was not yet final and executory at the time respondents filed
their Comment to the petition.[61] A strict application of this requirement would thus be
unwarranted in this case.
Response to the Dissenting Opinion of the Chief Justice
We are aware that behind the dissent of the Chief Justice lies a genuine zeal to protect
our peoples right to information against any abuse of executive privilege. It is a zeal
that We fully share.
The Court, however, in its endeavor to guard against the abuse of executive privilege,
should be careful not to veer towards the opposite extreme, to the point that it would
strike down as invalid even a legitimate exercise thereof.

We respond only to the salient arguments of the Dissenting Opinion which have not yet
been sufficiently addressed above.
1. After its historical discussion on the allocation of power over international trade
agreements in the United States, the dissent concludes that it will be turning
somersaults with history to contend that the President is the sole organ for external
relations in that jurisdiction. With regard to this opinion, We make only the following
observations:
There is, at least, a core meaning of the phrase sole organ of the nation in its external
relations which is not being disputed, namely, that the power to directly negotiate
treaties and international agreements is vested by our Constitution only in the
Executive. Thus, the dissent states that Congress has the power to regulate commerce
with foreign nations but does not have the power to negotiate international agreements
directly.[62]
What is disputed is how this principle applies to the case at bar.
The dissent opines that petitioner-members of the House of Representatives, by asking
for the subject JPEPA documents, are not seeking to directly participate in the
negotiations of the JPEPA, hence, they cannot be prevented from gaining access to
these documents.
On the other hand, We hold that this is one occasion where the following ruling in Agan
v. PIATCO[63] and in other cases both before and since should be applied:
This Court has long and consistently adhered to the legal maxim that those that cannot
be done directly cannot be done indirectly. To declare the PIATCO contracts valid
despite the clear statutory prohibition against a direct government guarantee would not
only make a mockery of what the BOT Law seeks to prevent -- which is to expose the
government to the risk of incurring a monetary obligation resulting from a contract of
loan between the project proponent and its lenders and to which the Government is not
a party to -- but would also render the BOT Law useless for what it seeks to achieve to make use of the resources of the private sector in the financing, operation and
maintenance of infrastructure and development projects which are necessary for
national growth and development but which the government, unfortunately, could illafford to finance at this point in time.[64]
Similarly, while herein petitioners-members of the House of Representatives may not
have been aiming to participate in the negotiations directly, opening the JPEPA
negotiations to their scrutiny even to the point of giving them access to the offers
exchanged between the Japanese and Philippine delegations would have made a
mockery of what the Constitution sought to prevent and rendered it useless for what it
sought to achieve when it vested the power of direct negotiation solely with the
President.
What the U.S. Constitution sought to prevent and aimed to achieve in defining the
treaty-making power of the President, which our Constitution similarly defines, may be
gathered from Hamiltons explanation of why the U.S. Constitution excludes the House
of Representatives from the treaty-making process:

x x x The fluctuating, and taking its future increase into account, the multitudinous
composition of that body, forbid us to expect in it those qualities which are essential to
the proper execution of such a trust. Accurate and comprehensive knowledge of foreign
politics; a steady and systematic adherence to the same views; a nice and uniform
sensibility to national character, decision, secrecy and dispatch; are incompatible with
a body so variable and so numerous. The very complication of the business by
introducing a necessity of the concurrence of so many different bodies, would of itself
afford a solid objection. The greater frequency of the calls upon the house of
representatives, and the greater length of time which it would often be necessary to
keep them together when convened, to obtain their sanction in the progressive stages
of a treaty, would be source of so great inconvenience and expense, as alone ought to
condemn the project.[65]
These considerations a fortiori apply in this jurisdiction, since the Philippine
Constitution, unlike that of the U.S., does not even grant the Senate the power to advise
the Executive in the making of treaties, but only vests in that body the power to concur
in the validity of the treaty after negotiations have been concluded.[66] Much less,
therefore, should it be inferred that the House of Representatives has this power.
Since allowing petitioner-members of the House of Representatives access to the
subject JPEPA documents would set a precedent for future negotiations, leading to the
contravention of the public interests articulated above which the Constitution sought to
protect, the subject documents should not be disclosed.
2. The dissent also asserts that respondents can no longer claim the diplomatic secrets
privilege over the subject JPEPA documents now that negotiations have been
concluded, since their reasons for nondisclosure cited in the June 23, 2005 letter of
Sec. Ermita, and later in their Comment, necessarily apply only for as long as the
negotiations were still pending;
In their Comment, respondents contend that the negotiations of the representatives of
the Philippines as well as of Japan must be allowed to explore alternatives in the course
of the negotiations in the same manner as judicial deliberations and working drafts of
opinions are accorded strict confidentiality. That respondents liken the documents
involved in the JPEPA negotiations to judicial deliberations and working drafts of
opinions evinces, by itself, that they were claiming confidentiality not only until, but even
after, the conclusion of the negotiations.
Judicial deliberations do not lose their confidential character once a decision has been
promulgated by the courts. The same holds true with respect to working drafts of
opinions, which are comparable to intra-agency recommendations. Such intra-agency
recommendations are privileged even after the position under consideration by the
agency has developed into a definite proposition, hence, the rule in this jurisdiction that
agencies have the duty to disclose only definite propositions, and not the inter-agency
and intra-agency communications during the stage when common assertions are still
being formulated.[67]
3. The dissent claims that petitioner-members of the House of Representatives have
sufficiently shown their need for the same documents to overcome the privilege. Again,
We disagree.
The House Committee that initiated the investigations on the JPEPA did not pursue its
earlier intention to subpoena the documents. This strongly undermines the assertion

that access to the same documents by the House Committee is critical to the
performance of its legislative functions. If the documents were indeed critical, the House
Committee should have, at the very least, issued a subpoena duces tecum or, like what
the Senate did in Senate v. Ermita, filed the present petition as a legislative body, rather
than leaving it to the discretion of individual Congressmen whether to pursue an action
or not. Such acts would have served as strong indicia that Congress itself finds the
subject information to be critical to its legislative functions.
Further, given that respondents have claimed executive privilege, petitioner-members
of the House of Representatives should have, at least, shown how its lack of access to
the Philippine and Japanese offers would hinder the intelligent crafting of legislation.
Mere assertion that the JPEPA covers a subject matter over which Congress has the
power to legislate would not suffice. As Senate Select Committee v. Nixon[68] held, the
showing required to overcome the presumption favoring confidentiality turns, not only
on the nature and appropriateness of the function in the performance of which the
material was sought, but also the degree to which the material was necessary to its
fulfillment. This petitioners failed to do.
Furthermore, from the time the final text of the JPEPA including its annexes and
attachments was published, petitioner-members of the House of Representatives have
been free to use it for any legislative purpose they may see fit. Since such publication,
petitioners need, if any, specifically for the Philippine and Japanese offers leading to
the final version of the JPEPA, has become even less apparent.
In asserting that the balance in this instance tilts in favor of disclosing the JPEPA
documents, the dissent contends that the Executive has failed to show how disclosing
them after the conclusion of negotiations would impair the performance of its functions.
The contention, with due respect, misplaces the onus probandi. While, in keeping with
the general presumption of transparency, the burden is initially on the Executive to
provide precise and certain reasons for upholding its claim of privilege, once the
Executive is able to show that the documents being sought are covered by a recognized
privilege, the burden shifts to the party seeking information to overcome the privilege
by a strong showing of need.
When it was thus established that the JPEPA documents are covered by the privilege
for diplomatic negotiations pursuant to PMPF v. Manglapus, the presumption arose that
their disclosure would impair the performance of executive functions. It was then
incumbent on petitioner- requesting parties to show that they have a strong need for
the information sufficient to overcome the privilege. They have not, however.
4. Respecting the failure of the Executive Secretary to explicitly state that he is claiming
the privilege by order of the President, the same may not be strictly applied to the
privilege claim subject of this case.
When the Court in Senate v. Ermita limited the power of invoking the privilege to the
President alone, it was laying down a new rule for which there is no counterpart even
in the United States from which the concept of executive privilege was adopted. As held
in the 2004 case of Judicial Watch, Inc. v. Department of Justice,[69] citing In re Sealed
Case,[70] the issue of whether a President must personally invoke the [presidential
communications] privilege remains an open question. U.S. v. Reynolds,[71] on the
other hand, held that [t]here must be a formal claim of privilege, lodged by the head of

the department which has control over the matter, after actual personal consideration
by that officer.

executive privilege, but the general public would have access to the same information,
the claim of privilege notwithstanding.

The rule was thus laid down by this Court, not in adherence to any established
precedent, but with the aim of preventing the abuse of the privilege in light of its highly
exceptional nature. The Courts recognition that the Executive Secretary also bears the
power to invoke the privilege, provided he does so by order of the President, is meant
to avoid laying down too rigid a rule, the Court being aware that it was laying down a
new restriction on executive privilege. It is with the same spirit that the Court should not
be overly strict with applying the same rule in this peculiar instance, where the claim of
executive privilege occurred before the judgment in Senate v. Ermita became final.

Absurdity would be the ultimate result if, for instance, the Court adopts the clear and
present danger test for the assessment of claims of privilege against citizens demands
for information. If executive information, when demanded by a citizen, is privileged only
when there is a clear and present danger of a substantive evil that the State has a right
to prevent, it would be very difficult for the Executive to establish the validity of its claim
in each instance. In contrast, if the demand comes from Congress, the Executive
merely has to show that the information is covered by a recognized privilege in order to
shift the burden on Congress to present a strong showing of need. This would lead to
a situation where it would be more difficult for Congress to access executive information
than it would be for private citizens.

5. To show that PMPF v. Manglapus may not be applied in the present case, the dissent
implies that the Court therein erred in citing US v. Curtiss Wright[72] and the book
entitled The New American Government and Its Work[73] since these authorities, so
the dissent claims, may not be used to calibrate the importance of the right to
information in the Philippine setting.
The dissent argues that since Curtiss-Wright referred to a conflict between the
executive and legislative branches of government, the factual setting thereof was
different from that of PMPF v. Manglapus which involved a collision between
governmental power over the conduct of foreign affairs and the citizens right to
information.
That the Court could freely cite Curtiss-Wright a case that upholds the secrecy of
diplomatic negotiations against congressional demands for information in the course of
laying down a ruling on the public right to information only serves to underscore the
principle mentioned earlier that the privileged character accorded to diplomatic
negotiations does not ipso facto lose all force and effect simply because the same
privilege is now being claimed under different circumstances.
PMPF v. Manglapus indeed involved a demand for information from private citizens
and not an executive-legislative conflict, but so did Chavez v. PEA[74] which held that
the [publics] right to information . . . does not extend to matters recognized as privileged
information under the separation of powers. What counts as privileged information in
an executive-legislative conflict is thus also recognized as such in cases involving the
publics right to information.
Chavez v. PCGG[75] also involved the publics right to information, yet the Court
recognized as a valid limitation to that right the same privileged information based on
separation of powers closed-door Cabinet meetings, executive sessions of either house
of Congress, and the internal deliberations of the Supreme Court.
These cases show that the Court has always regarded claims of privilege, whether in
the context of an executive-legislative conflict or a citizens demand for information, as
closely intertwined, such that the principles applicable to one are also applicable to the
other.
The reason is obvious. If the validity of claims of privilege were to be assessed by
entirely different criteria in each context, this may give rise to the absurd result where
Congress would be denied access to a particular information because of a claim of

We maintain then that when the Executive has already shown that an information is
covered by executive privilege, the party demanding the information must present a
strong showing of need, whether that party is Congress or a private citizen.
The rule that the same showing of need test applies in both these contexts, however,
should not be construed as a denial of the importance of analyzing the context in which
an executive privilege controversy may happen to be placed. Rather, it affirms it, for it
means that the specific need being shown by the party seeking information in every
particular instance is highly significant in determining whether to uphold a claim of
privilege. This need is, precisely, part of the context in light of which every claim of
privilege should be assessed.
Since, as demonstrated above, there are common principles that should be applied to
executive privilege controversies across different contexts, the Court in PMPF v.
Manglapus did not err when it cited the Curtiss-Wright case.
The claim that the book cited in PMPF v. Manglapus entitled The New American
Government and Its Work could not have taken into account the expanded statutory
right to information in the FOIA assumes that the observations in that book in support
of the confidentiality of treaty negotiations would be different had it been written after
the FOIA. Such assumption is, with due respect, at best, speculative.
As to the claim in the dissent that [i]t is more doubtful if the same book be used to
calibrate the importance of the right of access to information in the Philippine setting
considering its elevation as a constitutional right, we submit that the elevation of such
right as a constitutional right did not set it free from the legitimate restrictions of
executive privilege which is itself constitutionally-based.[76] Hence, the comments in
that book which were cited in PMPF v. Manglapus remain valid doctrine.
6. The dissent further asserts that the Court has never used need as a test to uphold
or allow inroads into rights guaranteed under the Constitution. With due respect, we
assert otherwise. The Court has done so before, albeit without using the term need.
In executive privilege controversies, the requirement that parties present a sufficient
showing of need only means, in substance, that they should show a public interest in
favor of disclosure sufficient in degree to overcome the claim of privilege.[77] Verily,
the Court in such cases engages in a balancing of interests. Such a balancing of
interests is certainly not new in constitutional adjudication involving fundamental rights.

Secretary of Justice v. Lantion,[78] which was cited in the dissent, applied just such a
test.
Given that the dissent has clarified that it does not seek to apply the clear and present
danger test to the present controversy, but the balancing test, there seems to be no
substantial dispute between the position laid down in this ponencia and that reflected
in the dissent as to what test to apply. It would appear that the only disagreement is on
the results of applying that test in this instance.
The dissent, nonetheless, maintains that it suffices that information is of public concern
for it to be covered by the right, regardless of the publics need for the information, and
that the same would hold true even if they simply want to know it because it interests
them. As has been stated earlier, however, there is no dispute that the information
subject of this case is a matter of public concern. The Court has earlier concluded that
it is a matter of public concern, not on the basis of any specific need shown by
petitioners, but from the very nature of the JPEPA as an international trade agreement.
However, when the Executive has as in this case invoked the privilege, and it has been
established that the subject information is indeed covered by the privilege being
claimed, can a party overcome the same by merely asserting that the information being
demanded is a matter of public concern, without any further showing required?
Certainly not, for that would render the doctrine of executive privilege of no force and
effect whatsoever as a limitation on the right to information, because then the sole test
in such controversies would be whether an information is a matter of public concern.
Moreover, in view of the earlier discussions, we must bear in mind that, by disclosing
the documents of the JPEPA negotiations, the Philippine government runs the grave
risk of betraying the trust reposed in it by the Japanese representatives, indeed, by the
Japanese government itself. How would the Philippine government then explain itself
when that happens? Surely, it cannot bear to say that it just had to release the
information because certain persons simply wanted to know it because it interests
them.
Thus, the Court holds that, in determining whether an information is covered by the
right to information, a specific showing of need for such information is not a relevant
consideration, but only whether the same is a matter of public concern. When, however,
the government has claimed executive privilege, and it has established that the
information is indeed covered by the same, then the party demanding it, if it is to
overcome the privilege, must show that that the information is vital, not simply for the
satisfaction of its curiosity, but for its ability to effectively and reasonably participate in
social, political, and economic decision-making.[79]
7. The dissent maintains that [t]he treaty has thus entered the ultimate stage where the
people can exercise their right to participate in the discussion whether the Senate
should concur in its ratification or not. (Emphasis supplied) It adds that this right will be
diluted unless the people can have access to the subject JPEPA documents. What, to
the dissent, is a dilution of the right to participate in decision-making is, to Us, simply a
recognition of the qualified nature of the publics right to information. It is beyond dispute
that the right to information is not absolute and that the doctrine of executive privilege
is a recognized limitation on that right.
Moreover, contrary to the submission that the right to participate in decision-making
would be diluted, We reiterate that our people have been exercising their right to

participate in the discussion on the issue of the JPEPA, and they have been able to
articulate their different opinions without need of access to the JPEPA negotiation
documents.
Thus, we hold that the balance in this case tilts in favor of executive privilege.
8. Against our ruling that the principles applied in U.S. v. Nixon, the Senate Select
Committee case, and In re Sealed Case, are similarly applicable to the present
controversy, the dissent cites the caveat in the Nixon case that the U.S. Court was there
addressing only the Presidents assertion of privilege in the context of a criminal trial,
not a civil litigation nor a congressional demand for information. What this caveat
means, however, is only that courts must be careful not to hastily apply the ruling
therein to other contexts. It does not, however, absolutely mean that the principles
applied in that case may never be applied in such contexts.
Hence, U.S. courts have cited U.S. v. Nixon in support of their rulings on claims of
executive privilege in contexts other than a criminal trial, as in the case of Nixon v.
Administrator of General Services[80] which involved former President Nixons
invocation of executive privilege to challenge the constitutionality of the Presidential
Recordings and Materials Preservation Act[81] and the above-mentioned In re Sealed
Case which involved a claim of privilege against a subpoena duces tecum issued in a
grand jury investigation.
Indeed, in applying to the present case the principles found in U.S. v. Nixon and in the
other cases already mentioned, We are merely affirming what the Chief Justice stated
in his Dissenting Opinion in Neri v. Senate Committee on Accountability[82] a case
involving an executive-legislative conflict over executive privilege. That dissenting
opinion stated that, while Nixon was not concerned with the balance between the
Presidents generalized interest in confidentiality and congressional demands for
information, [n]onetheless the [U.S.] Court laid down principles and procedures that can
serve as torch lights to illumine us on the scope and use of Presidential communication
privilege in the case at bar.[83] While the Court was divided in Neri, this opinion of the
Chief Justice was not among the points of disagreement, and We similarly hold now
that the Nixon case is a useful guide in the proper resolution of the present controversy,
notwithstanding the difference in context.
Verily, while the Court should guard against the abuse of executive privilege, it should
also give full recognition to the validity of the privilege whenever it is claimed within the
proper bounds of executive power, as in this case. Otherwise, the Court would
undermine its own credibility, for it would be perceived as no longer aiming to strike a
balance, but seeking merely to water down executive privilege to the point of
irrelevance.
Conclusion
To recapitulate, petitioners demand to be furnished with a copy of the full text of the
JPEPA has become moot and academic, it having been made accessible to the public
since September 11, 2006. As for their demand for copies of the Philippine and
Japanese offers submitted during the JPEPA negotiations, the same must be denied,
respondents claim of executive privilege being valid.

Diplomatic negotiations have, since the Court promulgated its Resolution in PMPF v.
Manglapus on September 13, 1988, been recognized as privileged in this jurisdiction
and the reasons proffered by petitioners against the application of the ruling therein to
the present case have not persuaded the Court. Moreover, petitioners both private
citizens and members of the House of Representatives have failed to present a
sufficient showing of need to overcome the claim of privilege in this case.
That the privilege was asserted for the first time in respondents Comment to the present
petition, and not during the hearings of the House Special Committee on Globalization,
is of no moment, since it cannot be interpreted as a waiver of the privilege on the part
of the Executive branch.
For reasons already explained, this Decision shall not be interpreted as departing from
the ruling in Senate v. Ermita that executive privilege should be invoked by the
President or through the Executive Secretary by order of the President.
WHEREFORE, the petition is DISMISSED.
SO ORDERED.