7 Garcillano v. House

G.R. No. 170338.December 23, 2008.
VIRGILIO O. GARCILLANO, petitioner, vs. THE HOUSE

OF REPRESENTATIVES COMMITTEES ON PUBLIC
INFORMATION, PUBLIC ORDER AND SAFETY,
NATIONAL DEFENSE AND SECURITY, INFORMATION
AND
COMMUNICATIONS
TECHNOLOGY,
and
SUFFRAGE AND ELECTORAL REFORMS, respondents.
G.R. No. 179275.December 23, 2008.*
SANTIAGO JAVIER RANADA and OSWALDO D.

AGCAOILI, petitioners, vs. THE SENATE OF THE
REPUBLIC OF THE PHILIPPINES, REPRESENTED BY
THE SENATE PRESIDENT THE HONORABLE MANUEL
VILLAR, respondent.
MAJ. LINDSAY REX SAGGE, petitioner-in-intervention.
AQUILINO Q. PIMENTEL, JR., BENIGNO NOYNOY C.
AQUINO, RODOLFO G. BIAZON, PANFILO M. LACSON,
LOREN B. LEGARDA, M.A. JAMBY A.S. MADRIGAL, and
ANTONIO F. TRILLANES, respondents-intervenors.
Remedial Law; Actions; Legal Standing; Concept of legal
standing or locus standi explained in Tolentino vs COMELEC.In
Tolentino v. COMELEC, 420 SCRA 438 (2004), we explained that
[l]egal standing or locus standi refers to a personal and
substantial interest in a case such that the party has sustained or
will sustain direct injury because of the challenged governmental
act x x x, thus, generally, a party will be allowed to litigate only
when (1) he can show that he has personally suffered some actual or
threatened injury because of the allegedly illegal conduct of the
government; (2) the injury is fairly traceable to the challenged
action; and (3) the injury
_______________
* EN BANC.
171
VOL. 575, DECEMBER 23, 2008
171
Garcillano vs. House of Representatives Committees on Public

Information, Public Order and Safety, National Defense and
Security, Information and Communications Technology, and
Suffrage and Electoral Reforms
is likely to be redressed by a favorable action. The gist of the
question of standing is whether a party has alleged such a personal
stake in the outcome of the controversy as to assure that concrete
adverseness which sharpens the presentation of issues upon which
the court so largely depends for illumination of difficult
constitutional questions.
Same; Same; Same; In recent cases, Court has relaxed the
stringent direct injury test.Considering that locus standi is a mere
procedural technicality, the Court, in recent cases, has relaxed the
stringent direct injury test. David v. Macapagal-Arroyo, 489 SCRA
160 (2006), articulates that a liberal policy has been observed,
allowing ordinary citizens, members of Congress, and civic
organizations to prosecute actions involving the constitutionality or
validity of laws, regulations and rulings. The fairly recent Chavez
v. Gonzales, 545 SCRA 441 (2008), even permitted a non-member of
the broadcast media, who failed to allege a personal stake in the
outcome of the controversy, to challenge the acts of the Secretary of
Justice and the National Telecommunications Commission. The
majority, in the said case, echoed the current policy that this Court
has repeatedly and consistently refused to wield procedural barriers
as impediments to its addressing and resolving serious legal
questions that greatly impact on public interest, in keeping with the
Courts duty under the 1987 Constitution to determine whether or
not other branches of government have kept themselves within the
limits of the Constitution and the laws, and that they have not
abused the discretion given to them.
Same; Same; Moot and Academic; Court dismissed G.R. No. 170338
for being moot and academic; The exercise by the Court of judicial
power is limited to the determination and resolution of actual cases
and controversies.The Court, however, dismisses G.R. No. 170338
for being moot and academic. Repeatedly stressed in our prior
decisions is the principle that the exercise by this Court of judicial

power is limited to the determination and resolution of actual cases
and controversies. By actual cases, we mean existing conflicts
appropriate or ripe for judicial determination, not conjectural or
anticipatory, for otherwise the decision of the Court will amount to
an advisory opinion. The power of judicial inquiry does
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172
SUPREME COURT REPORTS ANNOTATED

not extend to hypothetical questions because any attempt at
abstraction could only lead to dialectics and barren legal questions
and to sterile conclusions unrelated to actualities. Neither will the
Court determine a moot question in a case in which no practical
relief can be granted. A case becomes moot when its purpose has
become stale. It is unnecessary to indulge in academic discussion of
a case presenting a moot question as a judgment thereon cannot
have any practical legal effect or, in the nature of things, cannot be
enforced.
Constitutional Law; Legislative Inquiry; Senate cannot be
allowed to continue with the conduct of the questioned legislative
inquiry without duly published rules of procedure; The requisite of
publication of the rules is intended to satisfy the basic requirements
of due process.As to the petition in G.R. No. 179275, the Court
grants the same. The Senate cannot be allowed to continue with the
conduct of the questioned legislative inquiry without duly published
rules of procedure, in clear derogation of the constitutional
requirement. Section 21, Article VI of the 1987 Constitution
explicitly provides that [t]he Senate or the House of
Representatives, or any of its respective committees may conduct
inquiries in aid of legislation in accordance with its duly published
rules of procedure. The requisite of publication of the rules is
intended to satisfy the basic requirements of due process.
Publication is indeed imperative, for it will be the height of injustice
to punish or otherwise burden a citizen for the transgression of a
law or rule of which he had no notice whatsoever, not even a
constructive one. What constitutes publication is set forth in Article
2 of the Civil Code, which provides that [l]aws shall take effect
after 15 days following the completion of their publication either in
the Official Gazette, or in a newspaper of general circulation in the

Philippines. The respondents in G.R. No. 179275 admit in their
pleadings and even on oral argument that the Senate Rules of
Procedure Governing Inquiries in Aid of Legislation had been
published in newspapers of general circulation only in 1995 and in
2006. With respect to the present Senate of the 14th Congress,
however, of which the term of half of its members commenced on
June 30, 2007, no effort was undertaken for the publication of these
rules when they first opened their session.
173
173

Same; Same; The absence of any amendment to the rules cannot

justify the Senates defiance of the clear and unambiguous language
of Section 21, Article VI of the Constitution; The constitutional
mandate to publish the said rules prevails over any custom, practice
or tradition followed by the Senate.Respondents justify their nonobservance of the constitutionally mandated publication by arguing
that the rules have never been amended since 1995 and, despite
that, they are published in booklet form available to anyone for free,
and accessible to the public at the Senates internet web page. The
Court does not agree. The absence of any amendment to the rules
cannot justify the Senates defiance of the clear and unambiguous
language of Section 21, Article VI of the Constitution. The organic
law instructs, without more, that the Senate or its committees may
conduct inquiries in aid of legislation only in accordance with duly
published rules of procedure, and does not make any distinction
whether or not these rules have undergone amendments or revision.
The constitutional mandate to publish the said rules prevails over
any custom, practice or tradition followed by the Senate.
Same; Same; Statutes; Internet; Republic Act (R.A.) No. 8792,
otherwise known as the Electronic Commerce Act of 2000, does not
make the internet a medium for publishing laws, rules and
regulations.The invocation by the respondents of the provisions of
R.A. No. 8792, otherwise known as the Electronic Commerce Act of
2000, to support their claim of valid publication through the
internet is all the more incorrect. R.A. 8792 considers an electronic
data message or an electronic document as the functional
equivalent of a written document only for evidentiary purposes. In

other words, the law merely recognizes the admissibility in evidence
(for their being the original) of electronic data messages and/or
electronic documents. It does not make the internet a medium for
publishing laws, rules and regulations.
Same; Same; The recent publication does not cure the infirmity of
the inquiry sought to be prohibited by the instant petitions.The
Senate caused the publication of the Senate Rules of Procedure
Governing Inquiries in Aid of Legislation in the October 31, 2008
issues of Manila Bulletin and Malaya. While we take judicial notice
of this fact, the recent publication does not cure the infirmity of the
174
174

inquiry sought to be prohibited by the instant petitions. Insofar as
the consolidated cases are concerned, the legislative investigation
subject thereof still could not be undertaken by the respondent
Senate Committees, because no published rules governed it, in clear
contravention of the Constitution.
PUNO, C.J., Dissenting Opinion:
Constitutional Law; Legislative Inquiry; A faithful adherence of
the case at bar to the Neri Ruling would yield the conclusion that the
Garci tapes investigation may be conducted even without the
published Rules of Procedure Governing Inquiries, and that only
those orders and proceedings that result in the violation of the rights
of the witnesses may be considered null and void.It will be
recalled that in the March 25 Neri Decision, the Court struck
down not the entire proceedings of the Senate investigation
on the NBN-ZTE deal for want of published Rules of
Procedure Governing Inquiries, but only the Order dated
January 30, 2008, citing petitioner Romulo L. Neri in contempt of
the Senate Committees and directing his arrest and detention
(January 30 Contempt Order) as stated in the dispositive portion of
the Decision. A faithful adherence of the case at bar to the Neri
Ruling would yield the conclusion that the Garci tapes
investigation may be conducted even without the published Rules of
Procedure Governing Inquiries, and that only those orders and
proceedings that result in the violation of the rights of the witnesses
may be considered null and void. The ponencia did not, however,
show which orders or proceedings resulted in this violation and,
instead, made a blanket prohibition of the conduct of the Garci
tapes investigation for want of published Rules of Procedure
Governing Inquiries.
Same; Same; In both the March 25 Neri Decision and the September
4 Neri Resolution, the Court did not invalidate the entire Senate
investigation proceedings conducted in accordance with the Rules of
Procedure Governing Inquiries, which were not published in the
14th Congress.In both the March 25 Neri Decision and the
September 4 Neri Resolution, the Court did not invalidate the
entire Senate investigation proceedings conducted in accordance
with the Rules of Procedure Governing Inquiries, which were not
175
175

published in the 14th Congress. In fact, the Court ruled on the issue
of executive privilege raised in said proceedings. It struck down
only the January 30 Contempt Order against therein petitioner
Neri for failure to comply with Section 18 of the Rules of Procedure
Governing Inquiries, while at the same time holding these rules as
constitutionally infirm for want of publication.
Same; Same; The continuing effectivity of the Senate Rules from
one Congress to the next, which the Court acknowledged in its
September 4 Neri Resolution, evinces the nature of the Senate as a
continuing body governed by its continuing Senate Rules.The
continuing effectivity of the Senate Rules from one Congress
to the next, which the Court acknowledged in its September
4 Neri Resolution, evinces the nature of the Senate as a
continuing body governed by its continuing Senate Rules. If
the Senate were not a continuing body, there would be no reason for
the Senate Rules to likewise have a continuing effect. In
contradistinction, the effectivity of the Rules of Proceedings of the
House of Representatives (House Rules)which is admittedly not a
continuing body, as the terms of all congressmen end at the same
timeterminates upon the expiration of one Congress. Thus, Rule
1, Section 1 of the 14th Congress House Rules adopted on November
20, 2007 reflects the practice of the House of Representatives of
adopting rules of proceedings on its first meeting and organization

upon the opening of a succeeding Congress.
Same; Same; As a general rule, one-time publication suffices to
satisfy the due process requirement to inform the public of a rule
that would govern it and affect its rights.As a general rule, onetime publication suffices to satisfy the due process requirement to
inform the public of a rule that would govern it and affect its rights.
It is not uncommon for laws and rules to provide that they shall
take effect upon a certain date following publication in a newspaper
of general circulation without having to state that they shall
remain in force until they are amended or repealed for them to
have continuing effect. These laws and rules are published only
once, and yet they continue to be in force. The Court itself employs
this language in its rules as shown in the recently promulgated
Rule on the Writ of Habeas Data and Rule on the Writ of Amparo.
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176

Same; Same; The exception to the general rule that one-time
publication suffices for a law or rule to have continuing effect is
when there are circumstances or factors that interrupt this
continuity.The exception to the general rule that one-time
publication suffices for a law or rule to have continuing effect is
when there are circumstances or factors that interrupt this
continuity. An example is the discontinuation of the existence of the
House of Representatives as a legislative body, which terminates
the effectivity of its published Rules of Procedure Governing
Inquiries and requires the publication of these rules in the
succeeding Congress for them to take effect. As discussed above and
in my Dissents to the March 25 Neri Decision and September 4
Neri Resolution, the Senate, unlike the House of Representatives,
is a continuing body. Thus, contrary to the holding of the ponencia,
the Senates Rules of Procedure Governing Inquiries, sans
amendment, need not be published by the Senate of every Congress
and need not also state that they shall remain in force until they
are amended or repealed for them to be effective from one Congress
to the next. Quite the opposite of the ponencias ruling, in the
absence of language stating that the Rules of Procedure Governing
Inquiries shall not continue in effect from one Congress to the next,
these rules shall have continuing effect.
Same; Anti-Wiretapping Law; What Republic Act (R.A.) 4200
penalizes are the acts of secretly overhearing, intercepting or
recording private communications by means of the devices
enumerated therein.A private communication is characterized as
such based not on the content of the communication, but on the
context that it was said in private and not for public
consumption. That the content or nature of the communication is
immaterial was ruled in Ramirez v. Court of Appeals, 248 SCRA 590
(1995), viz.: ... the nature of the conversations is immaterial to
a violation of the statute. The substance of the same need not
be specifically alleged in the information. What R.A. 4200
penalizes are the acts of secretly overhearing, intercepting
or recording private communications by means of the
devices enumerated therein. The mere allegation that an
individual made a secret recording of a private communication by
means of a tape recorder would suffice to constitute an offense
under Section 1 of R.A. 4200.
177
177

Same; Same; Republic Act (R.A.) No. 4200 provides for
exceptions when wiretapping is allowed by written order of the court.
R.A. No. 4200, however, provides for exceptions when wiretapping
is allowed by written order of the court under Section 3, viz.:
Section 3. Nothing contained in this Act, however, shall render it
unlawful or punishable for any peace officer, who is authorized by
a written order of the Court, to execute any of the acts
declared to be unlawful in the two preceding sections in
cases involving the crimes of treason, espionage, provoking
war and disloyalty in case of war, piracy, mutiny in the high
seas, rebellion, conspiracy and proposal to commit rebellion,
inciting to rebellion, sedition, conspiracy to commit
sedition, inciting to sedition, kidnapping as defined by the
Revised Penal Code, and violations of Commonwealth Act
No. 616, punishing espionage and other offenses against
national security: Provided, That such written order shall only be
issued or granted upon written application and the examination

under oath or affirmation of the applicant and the witnesses he may
produce and a showing: (1) that there are reasonable grounds to
believe that any of the crimes enumerated hereinabove has been
committed or is being committed or is about to be committed:
Provided, however, That in cases involving the offenses of rebellion,
conspiracy and proposal to commit rebellion, inciting to rebellion,
sedition, conspiracy to commit sedition, and inciting to sedition,
such authority shall be granted only upon prior proof that a
rebellion or acts of sedition, as the case may be, have actually been
or are being committed; (2) that there are reasonable grounds to
believe that evidence will be obtained essential to the conviction of
any person for, or to the solution of, or to the prevention of, any of
such crimes; and (3) that there are no other means readily available
for obtaining such evidence.
Same; Same; Republic Act (R.A.) No. 4200 makes illegally
wiretapped communications inadmissible in any proceeding.To
further give teeth to the above prohibition, R.A. No. 4200 makes
illegally wiretapped communications inadmissible in any
proceeding, viz.: Section 4. Any communication or spoken word, or
the existence, contents, substance, purport, effect, or meaning of the
same or any part thereof, or any information therein contained
obtained or se178
178

cured by any person in violation of the preceding sections of this Act
shall not be admissible in evidence in any judicial, quasijudicial,
legislative
or
administrative
hearing
or
investigation.
Same; Same; The exception under Section 1 in relation to
Section 3 of Republic Act (R.A.) No. 4200 does not include the use of
illegally wiretapped communication for purposes of prosecuting
violations of R.A. No. 4200 itself.The exception under Section 1 in
relation to Section 3 of R.A. No. 4200 does not include the use of
illegally wiretapped communication for purposes of prosecuting
violations of R.A. No. 4200 itself as the Court did in Ramirez. Not
reading this exception into the law would impede the prosecution of
the acts it prohibits and contradict the very purpose for adopting
the law as clearly stated in its title, An Act to Prohibit and
Penalize Wire Tapping and Other Related Violations of the Privacy
of Communication, and for Other Purposes. Well-settled is the rule
in statutory construction that where there is ambiguity, such
interpretation as will avoid inconvenience and absurdity is to be
adopted. Interpretatio talis in ambiguis semper frienda est, ut
evitatur inconveniens et absurdum. R.A. No. 4200 should be given a
sensible construction, so as to give effect to its rationale and intent
and thus avoid an unjust or absurd interpretation. The ineluctable
conclusion is that the use of illegally wiretapped communication
must be allowed in a prosecution under R.A. No. 4200 precisely to
deter the commission of illegal wiretapping.
REYES, J., Concurring and Dissenting Opinion:
Remedial Law; Actions; Moot and Academic; While it is true that the
Court is not absolutely precluded from resolving issues that are
otherwise moot, no compelling circumstance is present here that
would warrant the exercise of judicial review.One of the requisites
of judicial power is the presence of an actual controversy. Courts are
prohibited from deciding hypothetical, conjectural or anticipatory
questions despite their vast judicial power. Otherwise, a decision
rendered would amount to nothing but an advisory opinion, which
would not augur well with the function of courts as arbiters of con179
179

troversies. While it is true that the Court is not absolutely
precluded from resolving issues that are otherwise moot, no
compelling circumstance is present here that would warrant the
exercise of judicial review.
Same; Same; Same; When a case is impressed with public
interest, a relaxation of the application of the rules is in order.
Courts should not be shackled by stringent rules which would result
in manifest injustice. Rules of procedure are tools crafted to
facilitate, not to frustrate, the attainment of justice. Thus, their
strict and rigid application, if they result in technicalities that tend
to frustrate rather than promote substantial justice, must be
eschewed. Substantial rights must not be prejudiced by a rigid and
technical application of the rules in the altar of expediency. When a

case is impressed with public interest, a relaxation of the
application of the rules is in order. Time and again, this Court has
suspended its own rules and excepted a particular case from their
operation whenever the higher interests of justice so require.
Constitutional Law; Legislative Inquiry; There is nothing in the
constitutional provision that commands that every new Congress
must publish its rules of procedure.The Constitutional provision
requiring publication of Senate rules is contained in Section 21,
Article VI of the 1987 Constitution, which reads: The Senate or the
House of Representatives or any of its respective Committees may
conduct inquiries in aid of legislation in accordance with its
duly published rules of procedure. The rights of persons
appearing in or affected by such inquiries shall be respected. The
above provision only requires a duly published rule of procedure
for inquiries in aid of legislation. It is silent on republication. There
is nothing in the constitutional provision that commands that every
new Congress must publish its rules of procedure. Implicitly,
republication is necessary only when there is an amendment or
revision to the rules. This is required under the due process clause
of the Constitution.
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180
Garcillano vs. House of Representatives Committees on

Public Information, Public Order and Safety, National
Defense and Security, Information and Communications
Technology, and Suffrage and Electoral Reforms
SPECIAL CIVIL ACTIONS in the Supreme Court.
Prohibition.
The facts are stated in the opinion of the Court.
Eddie U. Tamondong, Tomas A. Garcillano and Rodolfo
G. Palattao for Virgilio O. Garcillano.
M.M. Lazaro & Associates for petitioners.
Ongkiko, Kalaw, Manhit & Acorda Law Offices for
petitioner in G.R. No. 179275.
Leonardo B. Palicte III for public respondents.
Gana & Manlangit Law Office for respondentsintervenors.
NACHURA,J.:
More than three years ago, tapes ostensibly containing a
wiretapped conversation purportedly between the
President of the Philippines and a high-ranking official of

the Commission on Elections (COMELEC) surfaced. They
captured unprecedented public attention and thrust the
country into a controversy that placed the legitimacy of the
present administration on the line, and resulted in the
near-collapse of the Arroyo government. The tapes,
notoriously referred to as the Hello Garci tapes, allegedly
contained the Presidents instructions to COMELEC
Commissioner Virgilio Garcillano to manipulate in her
favor results of the 2004 presidential elections. These
recordings were to become the subject of heated legislative
hearings conducted separately by committees of both
Houses of Congress.1
_______________
1 Rollo (G.R. No. 179275), p. 168.
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181

In the House of Representatives (House), on June 8,
2005, then Minority Floor Leader Francis G. Escudero
delivered a privilege speech, Tale of Two Tapes, and set in
motion a congressional investigation jointly conducted by
the Committees on Public Information, Public Order and
Safety, National Defense and Security, Information and
Communications Technology, and Suffrage and Electoral
Reforms (respondent House Committees). During the
inquiry, several versions of the wiretapped conversation
emerged. But on July 5, 2005, National Bureau of
Investigation (NBI) Director Reynaldo Wycoco, Atty. Alan
Paguia and the lawyer of former NBI Deputy Director
Samuel Ong submitted to the respondent House
Committees seven alleged original tape recordings of the
supposed three-hour taped conversation. After prolonged
and impassioned debate by the committee members on the
admissibility and authenticity of the recordings, the tapes
were eventually played in the chambers of the House.2
On August 3, 2005, the respondent House Committees

decided to suspend the hearings indefinitely. Nevertheless,
they decided to prepare committee reports based on the
said recordings and the testimonies of the resource
persons.3
Alarmed by these developments, petitioner Virgilio O.
Garcillano (Garcillano) filed with this Court a Petition for
Prohibition and Injunction, with Prayer for Temporary
Restraining Order and/or Writ of Preliminary Injunction4
docketed as G.R. No. 170338. He prayed that the
respondent House Committees be restrained from using
these tape recordings of the illegally obtained wiretapped
conversations in their committee reports and for any other
purpose. He further implored that the said recordings and
any reference thereto be ordered
_______________
2 Rollo (G.R. No. 170338), pp. 7-9.
3 Id., at p. 9.
4 Id., at pp. 1-38.
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182

stricken off the records of the inquiry, and the respondent
House Committees directed to desist from further using the
recordings in any of the House proceedings.5
Without reaching its denouement, the House discussion
and debates on the Garci tapes abruptly stopped.
After more than two years of quiescence, Senator Panfilo
Lacson roused the slumbering issue with a privilege
speech, The Lighthouse That Brought Darkness. In his
discourse, Senator Lacson promised to provide the public
the whole unvarnished truththe whats, whens, wheres,
whos and whys of the alleged wiretap, and sought an
inquiry
into
the
perceived
willingness
of
telecommunications providers to participate in nefarious
wiretapping activities.
On motion of Senator Francis Pangilinan, Senator
Lacsons speech was referred to the Senate Committee on

National Defense and Security, chaired by Senator Rodolfo
Biazon, who had previously filed two bills6 seeking to
regulate the sale, purchase and use of wiretapping
equipment and to prohibit the Armed Forces of the
Philippines (AFP) from performing electoral duties.7
In the Senates plenary session the following day, a
lengthy debate ensued when Senator Richard Gordon aired
his concern on the possible transgression of Republic Act
(R.A.) No. 42008 if the body were to conduct a legislative
inquiry on the matter. On August 28, 2007, Senator Miriam
Defensor-Santiago
delivered
a
privilege
speech,
articulating her considered view that the Constitution
absolutely bans the use, pos_______________
5 Id., at pp. 36-38.
6 Rollo (G.R. No. 179275), pp. 215-220.
7 Id., at p. 169.
8An Act to Prohibit and Penalize Wire Tapping and Other Related
Violations of the Privacy of Communications and for Other Purposes.
183
183

session, replay or communication of the contents of the
Hello Garci tapes. However, she recommended a
legislative investigation into the role of the Intelligence
Service of the AFP (ISAFP), the Philippine National Police
or other government entities in the alleged illegal
wiretapping of public officials.9
On September 6, 2007, petitioners Santiago Ranada and
Oswaldo Agcaoili, retired justices of the Court of Appeals,
filed before this Court a Petition for Prohibition with
Prayer for the Issuance of a Temporary Restraining Order
and/or Writ of Preliminary Injunction,10 docketed as G.R.
No. 179275, seeking to bar the Senate from conducting its
scheduled legislative inquiry. They argued in the main that
the intended legislative inquiry violates R.A. No. 4200 and
Section 3, Article III of the Constitution.11

As the Court did not issue an injunctive writ, the Senate
proceeded with its public hearings on the Hello Garci
tapes on September 7,12 1713 and October 1,14 2007.
Intervening as respondents,15 Senators Aquilino Q.
Pimentel, Jr., Benigno Noynoy C. Aquino, Rodolfo G.
Biazon, Panfilo M. Lacson, Loren B. Legarda, M.A. Jamby
A.S. Madrigal and Antonio F. Trillanes filed their
Comment16 on the petition on September 25, 2007.
_______________
9 Rollo (G.R. No. 179275), pp. 169-170.
10 Id., at pp. 3-17.
11 Id., at pp. 7-13.
12 Id., at p. 24.
13 Id., at p. 44.
14 Memorandum of Respondents-Intervenors, p. 6.
15 Rollo (G.R. No. 179275), pp. 68-70.
16 Id., at pp. 71-90.
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184

The Court subsequently heard the case on oral
argument.17
On October 26, 2007, Maj. Lindsay Rex Sagge, a member
of the ISAFP and one of the resource persons summoned by
the Senate to appear and testify at its hearings, moved to
intervene as petitioner in G.R. No. 179275.18
On November 20, 2007, the Court resolved to consolidate
G.R. Nos. 170338 and 179275.19
It may be noted that while both petitions involve the
Hello Garci recordings, they have different objectives
the first is poised at preventing the playing of the tapes in
the House and their subsequent inclusion in the committee
reports, and the second seeks to prohibit and stop the
conduct of the Senate inquiry on the wiretapped
conversation.
The Court dismisses the first petition, G.R. No. 170338,
and grants the second, G.R. No. 179275.

_______________
17 Id., at p. 62. The Court identified the following issues for discussion
in the October 2, 2007 Oral Argument:
1.Whether the petitioners have locus standi to bring this suit.
2.Whether the Rules of Procedure of the Senate and the Senate
Committees governing the conduct of inquiries in aid of legislation have
been published, in accordance with Section 21, Article VI of the
Constitution. Corollarily:
(a)Whether these Rules must be published by every Congress.
(b)What
mode/s
of
publication
will
comply
with
the
constitutional requirement.
3.Whether the inquiry, which is centered on the so-called Garci
tapes, violates Section 3, Article III of the Constitution and/or Republic
Act No. 4200. (Id., at p. 66.)
18Motion for Leave to Intervene and Petition-in-Intervention filed on
October 26, 2007.
19 Resolution dated November 20, 2007.
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185

-IBefore delving into the merits of the case, the Court
shall first resolve the issue on the parties standing, argued
at length in their pleadings.
In Tolentino v. COMELEC,20 we explained that [l]egal
standing or locus standi refers to a personal and
substantial interest in a case such that the party has
sustained or will sustain direct injury because of the
challenged governmental act x x x, thus,
generally, a party will be allowed to litigate only when (1) he can
show that he has personally suffered some actual or threatened
injury because of the allegedly illegal conduct of the government; (2)
the injury is fairly traceable to the challenged action; and (3) the
injury is likely to be redressed by a favorable action.21
The gist of the question of standing is whether a party has

alleged such a personal stake in the outcome of the
controversy as to assure that concrete adverseness which
sharpens the presentation of issues upon which the court
so largely depends for illumination of difficult
constitutional questions.22
However, considering that locus standi is a mere
procedural technicality, the Court, in recent cases, has
relaxed the stringent direct injury test. David v.
Macapagal-Arroyo23 articulates that a liberal policy has
been observed, allowing ordinary citizens, members of
Congress, and civic organizations to prosecute actions
involving the constitutionality or
_______________
20 465 Phil. 385, 402; 420 SCRA 438, 452 (2004).
21 Tolentino v. Commission on Elections, id.
22 Province of Batangas v. Romulo, G.R. No. 152774, May 27, 2004,
429 SCRA 736, 755.
23 G.R. Nos. 171396, 171409, 171485, 171483, 171400, 171489 and
171424, May 3, 2006, 489 SCRA 160.
186
186

validity of laws, regulations and rulings.24 The fairly
recent Chavez v. Gonzales25 even permitted a non-member
of the broadcast media, who failed to allege a personal
stake in the outcome of the controversy, to challenge the
acts of the Secretary of Justice and the National
Telecommunications Commission. The majority, in the said
case, echoed the current policy that this Court has
repeatedly and consistently refused to wield procedural
barriers as impediments to its addressing and resolving
serious legal questions that greatly impact on public
interest, in keeping with the Courts duty under the 1987
Constitution to determine whether or not other branches of
government have kept themselves within the limits of the
Constitution and the laws, and that they have not abused
the discretion given to them.26

In G.R. No. 170338, petitioner Garcillano justifies his
standing to initiate the petition by alleging that he is the
person alluded to in the Hello Garci tapes. Further, his
was publicly identified by the members of the respondent
committees as one of the voices in the recordings.27
Obviously, therefore, petitioner Garcillano stands to be
directly injured by the House committees actions and
charges of electoral fraud. The Court recognizes his
standing to institute the petition for prohibition.
In G.R. No. 179275, petitioners Ranada and Agcaoili
justify their standing by alleging that they are concerned
citizens, taxpayers, and members of the IBP. They are of
the firm conviction that any attempt to use the Hello
Garci tapes will further divide the country. They wish to
see the legal and proper use of public funds that will
necessarily be defrayed in
_______________
24 David v. Macapagal-Arroyo, id., at p. 218.
25 G.R. No. 168338, February 15, 2008, 545 SCRA 441.
26 Id.
27 Reply in G.R. No. 170338, pp. 36-37.
187
187

the ensuing public hearings. They are worried by the
continuous violation of the laws and individual rights, and
the blatant attempt to abuse constitutional processes
through the conduct of legislative inquiries purportedly in
aid of legislation.28
Intervenor Sagge alleges violation of his right to due
process considering that he is summoned to attend the
Senate hearings without being apprised not only of his
rights therein through the publication of the Senate Rules
of Procedure Governing Inquiries in Aid of Legislation, but
also of the intended legislation which underpins the
investigation. He further intervenes as a taxpayer
bewailing the useless and wasteful expenditure of public

funds involved in the conduct of the questioned hearings.29
Given that petitioners Ranada and Agcaoili allege an
interest in the execution of the laws and that intervenor
Sagge asserts his constitutional right to due process,30 they
satisfy the requisite personal stake in the outcome of the
controversy by merely being citizens of the Republic.
Following the Courts ruling in Francisco, Jr. v. The House
of Representatives,31 we find sufficient petitioners Ranadas
and Agcaoilis and intervenor Sagges allegation that the
continuous conduct by the Senate of the questioned
legislative inquiry will necessarily involve the expenditure
of public funds.32 It should be noted that in Francisco,
rights personal to then Chief Justice Hilario G. Davide, Jr.
had been injured by the alleged unconstitutional acts of the
House of Represen_______________
28 Rollo (G.R. No. 179275), p. 4.
29 Petition-in-Intervention, p. 3.
30 David v. Macapagal-Arroyo, supra note 23, at p. 223.
31 460 Phil. 830; 415 SCRA 44 (2003).
32 Francisco, Jr. v. The House of Representatives, id., at p. 897; p. 141.
188
188

tatives, yet the Court granted standing to the petitioners
therein for, as in this case, they invariably invoked the
vindication of their own rightsas taxpayers, members of
Congress, citizens, individually or in a class suit, and
members of the bar and of the legal professionwhich were
also supposedly violated by the therein assailed
unconstitutional acts.33
Likewise, a reading of the petition in G.R. No. 179275
shows that the petitioners and intervenor Sagge advance
constitutional issues which deserve the attention of this
Court in view of their seriousness, novelty and weight as
precedents. The issues are of transcendental and
paramount importance not only to the public but also to the

Bench and the Bar, and should be resolved for the guidance
of all.34
Thus, in the exercise of its sound discretion and given
the liberal attitude it has shown in prior cases climaxing in
the more recent case of Chavez, the Court recognizes the
legal standing of petitioners Ranada and Agcaoili and
intervenor Sagge.
- II The Court, however, dismisses G.R. No. 170338 for being
moot and academic. Repeatedly stressed in our prior
decisions is the principle that the exercise by this Court of
judicial power is limited to the determination and
resolution of actual cases and controversies.35 By actual
cases, we mean existing
_______________
33 Francisco, Jr. v. The House of Representatives, supra note 31, at p.
895; p. 136.
34 Kilosbayan, Inc. v. Guingona, Jr., G.R. No. 113375, May 5, 1994,
232 SCRA 110, 139.
35 Dumlao v. Commission on Elections, 184 Phil. 369, 377; 95 SCRA
392, 400 (1980). This case explains the standards that have to be
followed in the exercise of the power of judicial review, namely: (1) the
existence of an appropriate case; (2) an interest personal and
189
189

conflicts appropriate or ripe for judicial determination, not
conjectural or anticipatory, for otherwise the decision of the
Court will amount to an advisory opinion. The power of
judicial inquiry does not extend to hypothetical questions
because any attempt at abstraction could only lead to
dialectics and barren legal questions and to sterile
conclusions unrelated to actualities.36 Neither will the
Court determine a moot question in a case in which no
practical relief can be granted. A case becomes moot when
its purpose has become stale.37 It is unnecessary to indulge
in academic discussion of a case presenting a moot question

as a judgment thereon cannot have any practical legal
effect or, in the nature of things, cannot be enforced.38
In G.R. No. 170338, petitioner Garcillano implores from
the Court, as aforementioned, the issuance of an injunctive
writ to prohibit the respondent House Committees from
playing the tape recordings and from including the same in
their committee report. He likewise prays that the said
tapes be stricken off the records of the House proceedings.
But the Court notes that the recordings were already
played in the House and heard by its members.39 There is
also the widely publicized fact that the committee reports
on the Hello Garci inquiry were completed and submitted
to the House in
_______________
substantial by the party raising the constitutional question; (3) the plea
that the function be exercised at the earliest opportunity; and (4) the
necessity that the constitutional question be passed upon in order to
decide the case.
36 La Bugal-Blaan Tribal Association, Inc. v. Ramos, 465 Phil. 860,
889-890; 441 SCRA 148, 178 (2004).
37Rufino v. Endriga, G.R. Nos. 139554 and 139565, July 21, 2006,
496 SCRA 13, 46.
38 Lanuza, Jr. v. Yuchengco, G.R. No. 157033, March 28, 2005, 454
SCRA 130, 138.
39 Rollo (G.R. No. 170338), p. 9.
190
190

plenary by the respondent committees.40 Having been
overtaken by these events, the Garcillano petition has to be
dismissed for being moot and academic. After all,
prohibition is a preventive remedy to restrain the doing of
an act about to be done, and not intended to provide a
remedy for an act already accomplished.41
- III As to the petition in G.R. No. 179275, the Court grants

the same. The Senate cannot be allowed to continue with
the conduct of the questioned legislative inquiry without
duly published rules of procedure, in clear derogation of the
Section 21, Article VI of the 1987 Constitution explicitly
provides that [t]he Senate or the House of
Representatives, or any of its respective committees may
conduct inquiries in aid of legislation in accordance with its
duly published rules of procedure. The requisite of
publication of the rules is intended to satisfy the basic
requirements of due process.42 Publication is indeed
imperative, for it will be the height of injustice to punish or
otherwise burden a citizen for the transgression of a law or
rule of which he had no notice whatsoever, not even a
constructive one.43 What constitutes publication is set
_______________
40 See news article Separate findings, no closure by Michael Lim
Umbac published in The Philippine Daily Inquirer on March 29, 2006;
News item 5 House committees in Garci probe file report on Monday
published in The Manila Bulletin on March 25, 2006.
41Simon, Jr. v. Commission on Human Rights, G.R. No. 100150,
January 5, 1994, 229 SCRA 117, 135-136; Agustin v. De la Fuente, 84
Phil. 515, 517 (1949).
42 Bernas, The 1987 Constitution of the Philippines: A Commentary,
1996 ed., p. 679.
43 Taada v. Tuvera, 220 Phil. 422, 432-433; 136 SCRA 27, 38 (1985).
191
191

forth in Article 2 of the Civil Code, which provides that
[l]aws shall take effect after 15 days following the
completion of their publication either in the Official
Gazette, or in a newspaper of general circulation in the
Philippines.44
The respondents in G.R. No. 179275 admit in their

pleadings and even on oral argument that the Senate Rules
of Procedure Governing Inquiries in Aid of Legislation had
been published in newspapers of general circulation only in
1995 and in 2006.45 With respect to the present Senate of
the 14th Congress, however, of which the term of half of its
members commenced on June 30, 2007, no effort was
undertaken for the publication of these rules when they
first opened their session.
Recently, the Court had occasion to rule on this very
same question. In Neri v. Senate Committee on
Accountability of Public Officers and Investigations,46 we
said:
Fourth, we find merit in the argument of the OSG that
respondent Committees likewise violated Section 21 of Article VI of
the Constitution, requiring that the inquiry be in accordance with
the duly published rules of procedure. We quote the OSGs
explanation:
The phrase duly published rules of procedure requires
the Senate of every Congress to publish its rules of procedure
governing inquiries in aid of legislation because every Senate
is distinct from the one before it or after it. Since Senatorial
elections are held every three (3) years for one-half of the
Sen_______________
44 As amended on June 18, 1987 by Executive Order No. 200 entitled
Providing for the Publication of Laws Either in the Official Gazette or in a
Newspaper of General Circulation in the Philippines as a Requirement for
their Effectivity.
45 Rollo (G.R. No. 179275), p. 179; Memorandum of RespondentsIntervenors, pp. 9-10.
46 G.R. No. 180643, March 25, 2008, 549 SCRA 77, 135-136.
192
192

ates membership, the composition of the Senate also changes
by the end of each term. Each Senate may thus enact a
different set of rules as it may deem fit. Not having

published its Rules of Procedure, the subject hearings
in aid of legislation conducted by the 14th Senate, are
therefore, procedurally infirm.
Justice Antonio T. Carpio, in his Dissenting and

Concurring Opinion, reinforces this ruling with the
following rationalization:
The present Senate under the 1987 Constitution is no longer a
continuing legislative body. The present Senate has twenty-four
members, twelve of whom are elected every three years for a term of
six years each. Thus, the term of twelve Senators expires every
three years, leaving less than a majority of Senators to
continue into the next Congress. The 1987 Constitution, like
the 1935 Constitution, requires a majority of Senators to constitute
a quorum to do business. Applying the same reasoning in Arnault v.
Nazareno, the Senate under the 1987 Constitution is not a
continuing body because less than majority of the Senators continue
into the next Congress. The consequence is that the Rules of
Procedure must be republished by the Senate after every expiry of
the term of twelve Senators.47
The subject was explained with greater lucidity in our

Resolution48 (On the Motion for Reconsideration) in the
same case, viz.:
On the nature of the Senate as a continuing body, this Court sees
fit to issue a clarification. Certainly, there is no debate that the
Senate as an institution is continuing, as it is not dissolved as an
entity with each national election or change in the composition of its
members. However, in the conduct of its day-to-day business the
Senate of each Congress acts separately and independently of the
_______________
47 Id., at pp. 297-298.
48 Dated September 4, 2008.
193

193
Senate of the Congress before it. The Rules of the Senate itself
confirms this when it states:
RULE XLIV
UNFINISHED BUSINESS
SEC.123.Unfinished business at the end of the session
shall be taken up at the next session in the same status.
All pending matters and proceedings shall
terminate upon the expiration of one (1) Congress, but
may be taken by the succeeding Congress as if present for the
first time.
Undeniably from the foregoing, all pending matters and
proceedings, i.e. unpassed bills and even legislative investigations,
of the Senate of a particular Congress are considered terminated
upon the expiration of that Congress and it is merely optional on
the Senate of the succeeding Congress to take up such unfinished
matters, not in the same status, but as if presented for the first
time. The logic and practicality of such a rule is readily apparent
considering that the Senate of the succeeding Congress (which will
typically have a different composition as that of the previous
Congress) should not be bound by the acts and deliberations of the
Senate of which they had no part. If the Senate is a continuing body
even with respect to the conduct of its business, then pending
matters will not be deemed terminated with the expiration of one
Congress but will, as a matter of course, continue into the next
Congress with the same status.
This dichotomy of the continuity of the Senate as an institution
and of the opposite nature of the conduct of its business is reflected
in its Rules. The Rules of the Senate (i.e. the Senates main rules of
procedure) states:
RULE LI
AMENDMENTS TO, OR REVISIONS OF, THE RULES
SEC.136.At the start of each session in which the
Senators elected in the preceding elections shall begin their
term of office, the President may endorse the Rules to the
appropriate committee for amendment or revision.
194
194

The Rules may also be amended by means of a motion
which should be presented at least one day before its
consideration, and the vote of the majority of the Senators

present in the session shall be required for its approval.
RULE LII
DATE OF TAKING EFFECT
SEC.137.These Rules shall take effect on the date of
their adoption and shall remain in force until they are
amended or repealed.
Section 136 of the Senate Rules quoted above takes into account the
new composition of the Senate after an election and the possibility
of the amendment or revision of the Rules at the start of each
session in which the newly elected Senators shall begin their term.
However, it is evident that the Senate has determined that its main
rules are intended to be valid from the date of their adoption until
they are amended or repealed. Such language is conspicuously
absent from the Rules. The Rules simply state (t)hese Rules shall
take effect seven (7) days after publication in two (2) newspapers of
general circulation. The latter does not explicitly provide for the
continued effectivity of such rules until they are amended or
repealed. In view of the difference in the language of the two sets of
Senate rules, it cannot be presumed that the Rules (on legislative
inquiries) would continue into the next Congress. The Senate of the
next Congress may easily adopt different rules for its legislative
inquiries which come within the rule on unfinished business.
The language of Section 21, Article VI of the Constitution requiring
that the inquiry be conducted in accordance with the duly
published rules of procedure is categorical. It is incumbent upon
the Senate to publish the rules for its legislative inquiries in each
Congress or otherwise make the published rules clearly state that
the same shall be effective in subsequent Congresses or until they
are amended or repealed to sufficiently put public on notice.
If it was the intention of the Senate for its present rules on
legislative inquiries to be effective even in the next Congress, it
could have
195
195

easily adopted the same language it had used in its main rules
regarding effectivity.
Respondents
justify
their
non-observance
of
the
constitutionally mandated publication by arguing that the

rules have never been amended since 1995 and, despite
that, they are published in booklet form available to
anyone for free, and accessible to the public at the Senates
internet web page.49
The Court does not agree. The absence of any
amendment to the rules cannot justify the Senates
defiance of the clear and unambiguous language of Section
21, Article VI of the Constitution. The organic law
instructs, without more, that the Senate or its committees
may conduct inquiries in aid of legislation only in
accordance with duly published rules of procedure, and
does not make any distinction whether or not these rules
have undergone amendments or revision. The constitutional
mandate to publish the said rules prevails over any custom,
practice or tradition followed by the Senate.
Justice Carpios response to the same argument raised
by the respondents is illuminating:
The publication of the Rules of Procedure in the website of the
Senate, or in pamphlet form available at the Senate, is not
sufficient under the Taada v. Tuvera ruling which requires
publication either in the Official Gazette or in a newspaper of
general circulation. The Rules of Procedure even provide that the
rules shall take effect seven (7) days after publication in two (2)
newspapers of general circulation, precluding any other form of
publication. Publication in accordance with Taada is mandatory to
comply with the due process requirement because the Rules of
Procedure put a persons liberty at risk. A person who violates the
Rules of Procedure could be arrested and detained by the Senate.
_______________
49 TSN, Oral Arguments, March 4, 2008, (G.R. No. 179275), pp. 413414.
196
196

The invocation by the respondents of the provisions of
R.A. No. 8792,50 otherwise known as the Electronic

Commerce Act of 2000, to support their claim of valid
publication through the internet is all the more incorrect.
R.A. 8792 considers an electronic data message or an
electronic document as the functional equivalent of a
written document only for evidentiary purposes.51 In other
words, the law merely recognizes the admissibility in
evidence (for their being the original) of electronic data
messages and/or electronic documents.52 It does
_______________
50Entitled An Act Providing for the Recognition and Use of
Electronic
Commercial
and
Non-Commercial
Transactions
and
Documents, Penalties for Unlawful Use Thereof and For Other

Purposes, approved on June 14, 2000.
51 MCC Industrial Sales Corporation v. Ssangyong Corporation, G.R.
No. 170633, October 15, 2007, 536 SCRA 408. (Emphasis supplied.)
52 Sections 6, 7 and 10 of R.A. No. 8792 read:
Sec.6.Legal Recognition of Data Messages.Infor-mation shall
not be denied legal effect, validity or enforceability solely on the grounds
that it is in the data message purporting to give rise to such legal effect,
or that it is merely referred to in that electronic data message.
Sec.7.Legal Recognition of Electronic Documents.Electronic
documents shall have the legal effect, validity or enforceability as any
other document or legal writing, and
(a)Where the law requires a document to be in writing, that
requirement is met by an electronic document if the said electronic
document
maintains
its
integrity
and
reliability,
and
can
be
authenticated so as to be usable for subsequent reference, in that

(i)The electronic document has remained complete and
unaltered, apart from the addition of any endorsement and any
authorized change, or any change which arises in the normal
course of communication, storage and display; and
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197

not make the internet a medium for publishing laws, rules
and regulations.
_______________
(ii)The electronic document is reliable in the light of the
purpose for which it was generated and in the light of all the
relevant circumstances.
(b)Paragraph (a) applies whether the requirement therein is in the
form of an obligation or whether the law simply provides consequences
for the document not being presented or retained in its original form.
(c)Where the law requires that a document be presented or retained
in its original form, that requirement is met by an electronic document if
(i)There exists a reliable assurance as to the integrity of the

document from the time when it was first generated in its final
form; and
(ii)That document is capable of being displayed to the person
to whom it is to be presented: Provided, That no provision of this
Act shall apply to vary any and all requirements of existing laws
on formalities required in the execution of documents for their
validity.
For evidentiary purposes, an electronic document shall be the
functional equivalent of a written document under existing laws.
This Act does not modify any statutory rule relating to the
admissibility of electronic data messages or electronic documents, except
the rules relating to authentication and best evidence.
Sec.10.Original
Documents.(1)
Where
the
law
requires
information to be presented or retained in its original form, that

requirement is met by an electronic data message or electronic document
if:
(a)The integrity of the information from the time when it was
first generated in its final form, as an electronic data message or
electronic document is shown by evidence aliunde or otherwise;
and
(b)Where it is required that information be presented, that
the information is capable of being displayed to the person to
whom it is to be presented.
198
198

Given
this
discussion,
the
respondent
Senate
Committees, therefore, could not, in violation of the

Constitution, use its unpublished rules in the legislative
inquiry subject of these consolidated cases. The conduct of
inquiries in aid of legislation by the Senate has to be
deferred until it shall have caused the publication of the
rules, because it can do so only in accordance with its duly
published rules of procedure.
Very recently, the Senate caused the publication of the
Senate Rules of Procedure Governing Inquiries in Aid of
Legislation in the October 31, 2008 issues of Manila
Bulletin and Malaya. While we take judicial notice of this
fact, the recent publication does not cure the infirmity of
the inquiry sought to be prohibited by the instant petitions.
Insofar as the consolidated cases are concerned, the
legislative investigation subject thereof still could not be
undertaken by the respondent Senate Committees, because
no published rules governed it, in clear contravention of the
Constitution.
With the foregoing disquisition, the Court finds it
unnecessary to discuss the other issues raised in the
consolidated petitions.
_______________
(2)Paragraph (1) applies whether the requirement therein is in the
form of an obligation or whether the law simply provides consequences
for the information not being presented or retained in its original form.
(3)For the purposes of subparagraph (a) of paragraph (1):
(a)the criteria for assessing integrity shall be whether the
information has remained complete and unaltered, apart from the
addition of any endorsement and any change which arises in the
normal course of communication, storage and display; and
(b)the standard of reliability required shall be assessed in the
light of the purpose for which the information was generated and
in the light of all relevant circumstances.
199
199

WHEREFORE, the petition in G.R. No. 170338 is
DISMISSED, and the petition in G.R. No. 179275 is

GRANTED. Let a writ of prohibition be issued enjoining
the Senate of the Republic of the Philippines and/or any of
its committees from conducting any inquiry in aid of
legislation centered on the Hello Garci tapes.
SO ORDERED.
Quisumbing, Carpio, Tinga, Chico-Nazario, Velasco,
Jr., Leonardo-De Castro and Brion, JJ., concur.
Puno (C.J.), Please see Dissent.
Ynares-Santiago, J., I join the Dissenting Opinion of
C.J. Puno.
Austria-Martinez, J., I join the C.J. in his Dissent.
Azcuna, J., I join the C.J. in his Dissent.
Corona, J., On Leave.
Carpio-Morales, J., I join the Dissent of the Chief
Justice.
Reyes, J., See Concurring and Dissenting Opinion.
DISSENTING OPINION
PUNO,C.J.:
The case at bar takes one to task in distinguishing
between what is apparent and what is real, what is central
and what is peripheral, to get to the core of the issues that
will decide the controversy at bar.
The facts pertaining to both G.R. No. 170338 and G.R.
No. 179275 as narrated in the ponencia are undisputed.
Hence, I will go direct to the issues.
200
200

First, the issues in G.R. No. 179275. These were
delineated in the Oral Argument held on October 2, 2007
as follows:
1.Whether the petitioners have locus standi to bring the suit.
Committees governing the conduct of inquiries in aid of legislation
have been published, in accordance with Section 21, Article VI of
the Constitution. Corollarily:

(a)Whether these Rules must be published by every
Congress.
(b)What mode/s of publication will comply with the
3. Whether the inquiry, which is centered on the so-called
Garci tapes violates Section 3, Article III of the Constitution
and/or Republic Act No. 4200.1
As I agree with the disquisition of the ponencia on the

first issue, I shall limit my discussion to the second and
third issues.
Publication of Senate Rules Governing
Inquiries in Aid of Legislation
Let me hark back to the ruling of the Court on the
publication of the Rules of Procedure Governing Inquiries
in Aid of Legislation (Rules of Procedure Governing
Inquiries) of the Senate in its March 25, 2008 Decision2
(March 25 Neri Decision) and September 4, 2008
Resolution3 (September 4
_______________
1 Rollo, G.R. No. 179275, p. 94.
2 Neri v. Senate Committee on Accountability of Public Officers and
Investigations, Senate Committee on Trade and Commerce, and Senate
Committee on National Defense and Security, G.R. No. 180643, March 25,
2008, 549 SCRA 77.
Investigations, Senate Committee on Trade and Commerce, and
201
201

Neri Resolution). I respectfully submit that the ponencia
is not in accord with the ruling of the Court in these Neri
cases (Neri Ruling). The proper application of the Neri
Ruling to the case at bar will yield the conclusion that the
subject Senate investigation should be allowed to proceed
even if the Rules of Procedure Governing Inquiries were
not published in the 14th Congress prior to the subject

investigation. Still, I maintain my dissent to the Neri
Ruling and arrive at this same conclusion through a
different track.
In the March 25 Neri Decision, the Court ruled, viz.:
Fourth, we find merit in the argument of the OSG that
respondent Committees likewise violated Section 21 of Article VI of
the Constitution, requiring that the inquiry be in accordance with
the duly published rules of procedure. We quote the OSGs
explanation:
The phrase duly published rules of procedure requires the
Senate of every Congress to publish its rules of procedure
Senates membership, the composition of the Senate also
changes by the end of each term. Each Senate may thus enact
a different set of rules as it may deem fit. Not having
therefore, procedurally infirm.4
_______________
Senate Committee on National Defense and Security, G.R. No. 180643,
September 4, 2008, 564 SCRA 152.
2008, 549 SCRA 77, 135-136.
202
202

Subsequently, the Court clarified the above ruling in the
September 4 Neri Resolution. I quote the ruling at
length, viz.:
Having touched the subject of the Rules, we now proceed to
respondent Committees fourth argument. Respondent Committees

argue that the Senate does not have to publish its Rules because the
same was published in 1995 and in 2006. Further, they claim that
the Senate is a continuing body; thus, it is not required to republish
the Rules, unless the same is repealed or amended.
On the nature of the Senate as a continuing body, this Court
sees fit to issue a clarification. Certainly, there is no debate that the
Senate as an institution is continuing, as it is not dissolved as
an entity with each national election or change in the composition of
its members. However, in the conduct of its day-to-day business, the
Senate of each Congress acts separately and independently of the
Senate of the Congress before it. The Rules of the Senate itself
confirms this when it states:
RULE XLIV
UNFINISHED BUSINESS
may be taken by the succeeding Congress as if present for the
first time. (emphasis supplied)
Undeniably from the foregoing, all pending matters and
proceedings, i.e. unpassed bills and even legislative investigations,
of the Senate of a particular Congress are considered terminated
upon the expiration of that Congress and it is merely optional on
the Senate of the succeeding Congress to take up such unfinished
matters, not in the same status, but as if presented for the first
time. The logic and practicality of such a rule is readily apparent
considering that the Senate of the succeeding Congress (which will
typically have a different composition as that of the previous Con203
203

gress) should not be bound by the acts and deliberations of the
Senate of which they had no part. If the Senate is a continuing body
even with respect to the conduct of its business, then pending
matters will not be deemed terminated with the expiration of one
Congress but will, as a matter of course, continue into the next
Congress with the same status.

in its Rules. The Rules of the Senate (i.e. the Senates main Rules of
Procedure) states:
RULE LI
AMENDMENTS TO, OR REVISIONS OF, THE RULES
SEC. 136.At the start of each session in which the
Senators elected in the preceding elections shall begin
their term of office, the President may endorse the Rules
to the appropriate committee for amendment or
revision.
The Rules may also be amended by means of a motion
which should be presented at least one day before its
consideration, and the vote of the majority of the Senators
present in the session shall be required for its approval.
(emphasis supplied)
RULE LII
SEC.137.These Rules shall take effect on the date
of their adoption and shall remain in force until they
are amended or repealed. (emphasis supplied)
Section 136 of the Senate Rules quoted above takes into account
the new composition of the Senate after an election and the
possibility of the amendment or revision of the Rules at the start of
each session in which the newly elected Senators shall begin their
term.
204
204

However, it is evident that the Senate has determined that its
main rules are intended to be valid from the date of their adoption
until they are amended or repealed. Such language is conspicuously
absent from the Rules. The Rules simply state (t)hese Rules shall
take effect seven (7) days after publication in two (2) newspapers of
general circulation. (Section 24, Rules of Procedure Governing
Inquiries in Aid of Legislation) The latter does not explicitly provide
for the continued effectivity of such rules until they are amended or
repealed. In view of the difference in the language of the two sets of
Senate rules, it cannot be presumed that the Rules (on legislative
inquiries) would continue into the next Congress. The Senate of the
next Congress may easily adopt different rules for its legislative
inquiries which come within the rule on unfinished business.

The language of Section 21, Article VI of the Constitution
requiring that the inquiry be conducted in accordance with the duly
are amended or repealed to sufficiently put public on notice.
could have easily adopted the same language it had used in its main
rules regarding effectivity.
Lest the Court be misconstrued, it should likewise be
stressed that not all orders issued or proceedings conducted
pursuant to the subject Rules are null and void. Only those
that result in violation of the rights of witnesses should be
considered null and void, considering that the rationale for
the publication is to protect the rights of witnesses as
expressed in Section 21, Article VI of the Constitution. Sans
such violation, orders and proceedings are considered valid
and effective.5 (emphasis supplied)
_______________
Investigations, Senate Committee on Trade and Commerce, and
205
205

The ponencia quotes the foregoing ruling in the
September 4 Neri Resolution in holding, viz.:
Section 21, Article VI of the 1987 Constitution explicitly
provides that [t]he Senate or the House of Representatives, or any
of its respective committees may conduct inquiries in aid of
legislation in accordance with its duly published rules of procedure.
The requisite of publication of the rules is intended to satisfy the
basic requirements of due process. Publication is indeed imperative,
for it will be the height of injustice to punish or otherwise burden a
citizen for the transgression of a law or rule of which he had no

notice whatsoever, not even a constructive one. What constitutes
publication is set forth in Article 2 of the Civil Code, which provides
that [l]aws shall take effect after 15 days following the completion
of their publication either in the Official Gazette, or in a newspaper
of general circulation in the Philippines.
The respondents in G.R. No. 179275 admit in their pleadings and
even on oral argument that the Senate Rules of Procedure
Governing Inquiries in Aid of Legislation had been published in
newspapers of general circulation only in 1995 and in 2006. With
respect to the present Senate of the 14th Congress, however, of
which the term of half of its members commenced on June 30, 2007,
no effort was undertaken for the publication of these rules when
they first opened their session.
x x xx x xx x x
...the respondent Senate Committees, therefore, could not, in
violation of the Constitution, use its rules in the legislative inquiry
subject of these consolidated cases. The conduct of inquiries in aid
of legislation by the Senate has to be deferred until it shall have
caused the publication of the Rules, because it can do so only in
accordance with its duly published rules of procedure.
Very recently, the Senate caused the publication of the Senate
Rules of Procedure Governing Inquiries in Aid of Legislation in the
October 31, 2008 issues of Manila Bulletin and Malaya. While we
_______________
Senate Committee on National Defense and Security, G.R. No. 180643,
September 4, 2008, pp. 42-25; p. 231.
206
206

take judicial notice of the fact, the recent publication does not cure
the infirmity of the inquiry sought to be prohibited by the instant
petitions. In so far as the consolidated cases are concerned,
the legislative investigation subject thereof still could not be
undertaken by the respondent Senate Committees, because
no published rules govern it, in clear contravention of the
Constitution.6 (emphasis supplied)
While the ponencia cites the Neri Ruling to support its

conclusion that the subject investigation cannot be
conducted without published rules, I submit that it fails to
adhere to the Neri Ruling, as the latter emphasizes that
not all orders issued or proceedings conducted pursuant
to the subject Rules are null and void. Only those that
result in violation of the rights of witnesses should
be considered null and void, considering that the
rationale for the publication is to protect the rights of
witnesses as expressed in Section 21, Article VI of the
Constitution. Sans such violation, orders and proceedings
are considered valid and effective.
It will be recalled that in the March 25 Neri Decision,
the Court struck down not the entire proceedings of
the Senate investigation on the NBN-ZTE deal for
want of published Rules of Procedure Governing
Inquiries, but only the Order dated January 30, 2008,
citing petitioner Romulo L. Neri in contempt of the Senate
Committees and directing his arrest and detention
(January 30 Contempt Order) as stated in the dispositive
portion of the Decision.7 A
_______________
6 Ponencia.
2008, 549 SCRA 77, 139. The dispositive portion reads, viz.:
207
207

faithful adherence of the case at bar to the Neri Ruling
would yield the conclusion that the Garci tapes
investigation may be conducted even without the published
Rules of Procedure Governing Inquiries, and that only
those orders and proceedings that result in the violation of
the rights of the witnesses may be considered null and void.
The ponencia did not, however, show which orders or
proceedings resulted in this violation and, instead, made a

blanket prohibition of the conduct of the Garci tapes
investigation for want of published Rules of Procedure
In line with my position in my Dissents to the March 25
Neri Decision and the September 4 Neri Resolution, it
is my considered view that the subject Garci tapes
investigation is not constitutionally infirm for being
conducted without the publication of the Rules of Procedure
Governing Inquiries in the 14th Congress prior to said
investigation. In addition to the points raised in my two
Dissents, I respectfully submit that the following
inconsistencies and erroneous assumptions in the March
25 Neri Decision and September 4 Neri Resolution
merit a review of the Neri Ruling and a consequent
conclusion that the Rules of Procedure Governing
Inquiries, sans amendment since its publication in two
newspapers of general circulation on August 24, 1995, need
not be published by the Senate of every Congress.
1.The validity of one provision of the Rules of
Procedure Governing Inquiries but invalidity of
the entire Rules
_______________
WHEREFORE, the petition is hereby GRANTED. The subject Order
dated January 30, 2008, citing petitioner Romulo L. Neri in contempt of
the Senate Committees and directing his arrest and detention, is hereby
nullified.
SO ORDERED.
208
208

In the March 25 Neri Decision, the Court recognized
the validity and effectivity of the Rules of Procedure
Governing Inquiries, even without publication in the 14th
Congress, by citing Section 18 of said rules and holding
that the January 30 Contempt Order against therein
petitioner Romulo Neri was invalid for failing to comply
with the majority voting requirement under Section 18. In

the same breath, however, the Court held that the subject
investigation on the NBN-ZTE deal was procedurally
infirm for being conducted without valid Rules of Procedure
Governing Inquiries, as these were not published in the
14th Congress. The inconsistency is apparent in the Courts
explanation of the third and the fourth of the five reasons
for holding that the therein respondent Senate Committees
committed grave abuse of discretion in issuing the January
30 Contempt Order, viz.:
Third, a reading of the transcript of respondent Committees
January 30, 2008 proceeding reveals that only a minority of the
members of the Senate Blue Ribbon Committee was present during
the deliberation. Section 18 of the Rules of Procedure
Governing Inquiries in Aid of Legislation provides that:
The Committee, by a vote of majority of all its
members, may punish for contempt any witness before it who
disobeys any order of the Committee or refuses to be sworn or
to testify or to answer proper questions by the Committee or
any of its members.
Clearly, the needed vote is a majority of all the members
of the Committee. Apparently, members who did not actually
participate in the deliberation were made to sign the contempt
Order. Thus, there is a cloud of doubt as to the validity of the
contempt Order dated January 30, 2008...
x x xx x xx x x
Fourth, we find merit in the argument of the OSG that respondent
Committees likewise violated Section 21 of Article VI of the
Constitution, requiring that the inquiry be in accordance with the
209
209

duly published rules of procedure. We quote the OSGs
explanation:
The phrase duly published rules of procedure requires the
Senate of every Congress to publish its rules of procedure
Senates membership, the composition of the Senate also

changes by the end of each term. Each Senate may thus enact
a different set of rules as it may deem fit. Not having
therefore, procedurally infirm.8 (emphasis supplied)
(footnote omitted)
In the September 4 Neri Resolution, the Court

reiterated its recognition of the validity and effectivity of
Section 18 of the Rules of Procedure Governing Inquiries,
viz.:
In the present case, the Courts exercise of its power of judicial
review is warranted because there appears to be a clear abuse of the
power of contempt on the part of respondent Committees. Section
18 of the Rules provides that:
The Committee, by a vote of majority of all its members, may
punish for contempt any witness before it who disobeys any order of
the Committee or refuses to be sworn or to testify or to answer
proper questions by the Committee or any of its members.
(Emphasis supplied)
In the assailed Decision, we said that there is a cloud of doubt as
to the validity of the contempt order because during the
deliberation of the three (3) respondent Committees, only seven (7)
Senators were present. This number could hardly fulfill the
majority require_______________
Committee on National Defense and Security, G.R. No. 180643, March 25, 2008,
459 SCRA 77, 132-136.
210
210

ment needed by respondent Committee on Accountability of Public
Officers and Investigations which has a membership of seventeen
(17) Senators and respondent Committee on National Defense and
Security which has a membership of eighteen (18) Senators. With

respect to respondent Committee on Trade and Commerce which has
a membership of nine (9) Senators, only three (3) members were
present. These facts prompted us to quote in the Decision the
exchanges between Senators Alan Peter Cayetano and Aquilino
Pimentel, Jr. whereby the former raised the issue of lack of the
required majority to deliberate and vote on the contempt order.9
(emphasis supplied) (footnote omitted)
But in the same breath, it assailed the validity of the Rules

of Procedure Governing Inquiries and held that orders
issued and proceedings conducted pursuant to said rules,
which result in the violation of rights of witnesses were
null and void, viz.:
The language of Section 21, Article VI of the Constitution
requiring that the inquiry be conducted in accordance with the duly
are amended or repealed to sufficiently put the public on notice.
could have easily adopted the same language it had used in its main
rules regarding effectivity.
Lest the Court be misconstrued, it should likewise be stressed
that not all orders issued or proceedings conducted pursuant to the
subject Rules are null and void. Only those that result in violation
of
_______________
Committee on National Defense and Security, G.R. No. 180643, September 4,
2008, pp. 40-41; pp. 226-227.
211

211
the rights of witnesses should be considered null and void,

considering that the rationale for the publication is to protect the
rights of witnesses as expressed in Section 21, Article VI of the
Constitution. Sans such violation, orders and proceedings are
considered valid and effective.10
In sum, in both the March 25 Neri Decision and the

September 4 Neri Resolution, the Court did not
invalidate the entire Senate investigation proceedings
conducted in accordance with the Rules of Procedure
Governing Inquiries, which were not published in the 14th
Congress. In fact, the Court ruled on the issue of executive
privilege raised in said proceedings. It struck down only
the January 30 Contempt Order against therein petitioner
Neri for failure to comply with Section 18 of the Rules of
Procedure Governing Inquiries, while at the same time
holding these rules as constitutionally infirm for want of
publication.
Let us proceed to the second set of inconsistencies.
2.The continuing nature of the Senate as an
institution and the discontinuing nature of its
business vis--vis the continuing nature of the
Rules of the Senate
In attempting to harmonize the above inconsistency in
the March 25 Neri Decision, the Court, in its
September 4 Neri Resolution, saw fit to issue a
clarification...(o)n the nature of the Senate as a continuing
body and dichotomized this nature into the continuity of
the Senate as an institution and the opposite nature of
the conduct of its business. This approach, however,
spawned its own inconsistencies.
In explaining this dichotomy and holding that the Rules
of Procedure Governing Inquiries could not be given
continuing
_______________
10 Id., at pp. 44-45; pp. 230-231.
212
212


effect from one Congress to the next unless expressly so
provided in said Rules, the Court interpreted Section 136
on the unfinished business in conjunction with Section
137 on the date of taking effect of the Rules of the Senate,
viz.:
in its Rules. The Rules of the Senate (i.e. the Senates main rules of
procedure) states:
RULE XLIV
UNFINISHED BUSINESS
may be taken by the succeeding Congress as if presented for
the first time.
RULE LII
SEC.137.These Rules shall take effect on the date
of their adoption and shall remain in force until they
are amended or repealed. (emphasis supplied)
Section 136 of the Senate Rules quoted above takes into account
the new composition of the Senate after an election and the
possibility of the amendment or revision of the Rules at the start
of each session in which the newly elected Senators shall begin
their term.
However, it is evident that the Senate has determined that its
main rules are intended to be valid from the date of their
adoption until they are amended or repealed. Such language
is conspicuously absent from the Rules. The Rules simply
state (t)hese Rules shall take effect seven (7) days after
publication in two (2) newspapers of general circulation.
The latter does not explicitly provide for the continued
effectivity
213

213
of such Rules until they are amended or repealed. In view of

the difference in the language of the two sets of Senate rules, it
cannot be presumed that the Rules (on legislative inquiries)
would continue into the next Congress. The Senate of the
next Congress may easily adopt different rules for its
legislative inquiries which come within the rule on
unfinished business.11 (emphasis supplied) (footnote omitted)
There is no quarreland my Dissent to the September

4 Neri Resolution in fact acknowledgesthat the Rules
of the Senate (Senate Rules) provide in Section 136 that all
unfinished business or pending matters and proceedings of
the Senate terminate with the expiration of a Congress.
This provision, in conjunction with Section 137, does not,
however, lend support to the Courts ruling that absent a
provision in the Rules of Procedure Governing Inquiries
explicitly stating the continued effectivity of such rules
until they are amended or repealed, it cannot be
presumed that the Rules (on legislative inquiries) would
continue into the next Congress for the following reasons:
First, in the September 4 Neri Resolution, the Court
interpreted pending matters in Section 136 of the Senate
Rules to include the Rules of Procedure Governing
Inquiries that may be taken by the succeeding Congress
as if presented for the first time. This posture, however,
comes also with the interpretation that the Senate may
choose not to take up the Rules of Procedure
Governing Inquiries, thereby leaving it without rules to
conduct legislative inquiries as the effectivity of the rules
had terminated with the previous Congress. This is an
absurd interpretation consider_______________
Committee on National Defense and Security, G.R. No. 180643,
September 4, 2008, pp. 43-44; p. 230.
214
214


ing that the Senate is fully aware that Article VI, Section
21 requires legislative investigations to be conducted in
accordance with duly published Rules of Procedure
The September 4 Neri Resolution recognizes that the
Senate Rules have continuing effect from one Congress to
the next, because it provides in Section 137 that the Senate
Rules shall take effect on the date of their adoption and
shall remain in force until they are amended or repealed.
The Senate Rules unmistakably state that their effectivity
can be interrupted only by amendment or repeal as
provided in Section 137 and not by termination of one
Congress as provided in Section 136. The Rules of
Procedure Governing Inquiries have the same character as
the Senate Rules. Both are not pending matters and
proceedings that terminate with the expiration of
the Congress. Pending matters and proceedings include
investigations that have not been terminated or bills that
have not completed the legislative process in the Senate of
one Congress.
The continuing effectivity of the Senate Rules from
one Congress to the next, which the Court
acknowledged in its September 4 Neri Resolution,
evinces the nature of the Senate as a continuing
body governed by its continuing Senate Rules. If the
Senate were not a continuing body, there would be no
reason for the Senate Rules to likewise have a continuing
effect. In contradistinction, the effectivity of the Rules of
Proceedings of the House of Representatives (House Rules)
which is admittedly not a continuing body, as the terms
of all congressmen end at the same timeterminates upon
the expiration of one Congress. Thus, Rule 1, Section 1 of
the 14th Congress House Rules adopted on November 20,
2007 reflects the practice of the House of Representatives
of adopting rules of proceedings on its first meet215
215

ing and organization upon the opening of a succeeding

Congress, viz.:
RULE I
Convening and Organizing the House
x x xx x xx x x
After the oath-taking of the newly-elected Speaker, the body
shall proceed to the adoption of the rules of the immediately
preceding Congress to govern its proceedings until the approval
and adoption of the rules of the current Congress. (emphasis
supplied)
On November 20, 2007, the House of Representatives of the

14th Congress, pending the adoption of its own House
Rules, adopted the House Rules of the 13th Congress as its
provisional rules.12 The House of Representatives of each
Congress adopts its own rules.13
Second, the above-quoted Sections 136 and 137 of the
Senate Rules, adopted under the regime of the 1987
Constitution, do not depart from the provisions of the
Senate Rules adopted under the 1935 Constitution, viz.:
Chapter XLVI
Unfinished Business in the Senate
Sec.108.Unfinished business at the end of one session shall
not be affected by the closing of same, but shall be taken up again
at the next session in the same status in which it was.
_______________
12 1 Journal of the House of Representatives, July 23, 2007.
13 See 13th Cong. Rules of the House of Representatives, adopted October
27, 2004; 12th Cong. Rules of the House of Representatives, adopted October
22, 2002; 11th Cong. Rules of the House of Representatives, adopted August 31,
1999; 10th Cong. Rules of the House of Representatives, adopted July 24, 1995.
216
216

Notwithstanding the provision of the preceding paragraph,
matters pending at the expiration of one Congress shall no longer
be acted on.
Chapter LIII
Sec.122.These Rules shall take effect on the date of their
adoption and shall remain in force until they are amended or
repealed.14
Under the 1935 Constitution (and in the 1987 Constitution,

as I have consistently maintained in my Dissents), it was
well-settled that the Senate was a continuing body as held
in Arnault v. Nazareno, citing the U.S. case McGrain v.
Daugherty.15 The 1935 Constitution provided that twothirds, or a majority of the Senate, continued into the next
Congress.16
Contrary to the notion that the Senate is no longer a
continuing body under the 1987 Constitutionas less than
a majority continue into the Senate of the succeeding
Congress17the termination of the unfinished business of
the
_______________
14 Rules of the Senate approved on January 25, 1950, and revised as
of 1966.
15 273 U.S. 135 (1927).
16 1935 Phil. Const., Art. VIII, 3 provides, viz.:
Section3.The term of office of Senators shall be six years and
shall begin on the thirtieth day of December next following their
election. The first Senators elected under this Constitution shall,
in the manner provided by law, be divided equally into three
groups, the Senators of the first group to serve for a term of six
years; those of the second group, for four years; and those of the
third group, for two years.
17 1987 Phil. Const., Art. VI, 4 in relation to Art. XVIII, 2 provides,
viz.:
Art. VI, Sec. 4.The term of office of the Senators shall be six
years and shall commence, unless otherwise provided by
217
217

Senate at the expiration of a Congress and the effectivity of

the Senate Rules until amended or repealed as provided in
Sections 136 and 137 of the Senate Rules under the 1987
Constitution, do not lend support to a departure from the
Arnault ruling that the Senate is a continuing body. Under
both the 1935 and the 1987 Constitutions, the Senate Rules
show that a continuing Senates unfinished business
terminates at the expiration of one Congress, and its rules
remain in effect from one Congress to the next.
As expounded in my Dissent to the September 4 Neri
Resolution, the Philippine Senate is patterned after the
U.S. Senate, which is a continuing body as ruled by the
U.S. Supreme Court in McGrain. The continuing nature of
the U.S. Senate is also reflected in the Standing Rules of
the Senate under Rule V(2), viz.:
Rule V
Suspension and Amendment of the Rules
x x xx x xx x x
2.The rules of the Senate shall continue from one Congress
to the next Congress unless they are changed as provided in
these rules.18 (emphasis supplied)
In sum, the Philippine Senate Rules under both the

1935 and the 1987 Constitutions and the Standing Rules of
the
_______________
law, at noon on the thirtieth day of June next following their
election.
Art. XVIII, Sec. 2. x x x
Of the Senators elected in the election in 1992, the first twelve
obtaining the highest number of votes shall serve for six years and
the remaining twelve for three years.
18 Standing Rules of the Senate, revised to September 14, 2007.
218
218

U.S. Senate, after which the Philippine Senate was

patterned, reflect the nature of the Senate as a
continuing body. That the Senate is a continuing body
proceeds from its nature as created by the Framers of the
U.S. Constitution and adopted by the 1935 and the 1987
Philippine Constitutions. The Senate Rules are not the
bases for the continuing nature of the Senate, but they
embody and reflect this nature.
Third, the recognition that the Senate is a continuing
body as reflected in the continuing effect of the Senate
Rules from one Congress to the next is not consistent with
the holding of the ponencia that the Rules of Procedure
Governing Inquiries must explicitly provide for this
continuing effectivity if such were the intent of the Senate,
viz.:
The Rules simply state (t)hese Rules shall take effect seven (7)
days after publication in two (2) newspapers of general circulation.
The latter does not explicitly provide for the continued effectivity of
such rules until they are amended or repealed. In view of the
difference in the language of the two sets of Senate rules, it cannot
be presumed that the Rules (on legislative inquiries) would
continue into the next Congress.19 (emphasis supplied)
I reiterate my position in my Dissent to the September

4 Neri Resolution that the publication of the Rules of
Procedure Governing Inquiries on August 24, 1995 has
satisfied the requirement under Section 21, Article VI of
the 1987 Constitution that inquiries in aid of legislation be
conducted in accordance with the Senates duly published
Rules of Procedure. Interpreting Article 2 of the Civil Code
of the Philippines, which states that (l)aws shall take
effect after fifteen
_______________
Committee on National Defense and Security, G.R. No. 180643,
September 4, 2008, p. 44; p. 230.
219
219


days following completion of their publication in the
Official Gazette, unless it is otherwise provided x x x, the
Court ruled in the landmark Taada v. Tuvera,20 viz.:
all statutes, including those of local application and private
laws, shall be published as a condition for their effectivity, which
shall begin fifteen days after publication unless a different
effectivity date is fixed by the legislature... Administrative rules
and regulations must also be published if their purpose is to enforce
or implement existing law pursuant to a valid delegation.21
Publication must be made in the Official Gazette22 or a

newspaper of general circulation.23
As a general rule, one-time publication suffices to satisfy
the due process requirement to inform the public of a rule
that would govern it and affect its rights. It is not
uncommon for laws and rules to provide that they shall
take effect upon a certain date following publication in a
newspaper of general circulation without having to state
that they shall remain in force until they are amended or
repealed for them to have continuing effect. These laws
and rules are published only once, and yet they continue to
be in force. The Court itself employs this language in its
rules as shown in the recently promulgated Rule on the
Writ of Habeas Data and Rule on the Writ of Amparo,
respectively, viz.:
_______________
20 220 Phil. 422; 136 SCRA 27 (1985); Resolution of Motion for
Reconsideration, 230 Phil. 528; 146 SCRA 446 (1986).
21 Taada v. Tuvera, 230 Phil. 528, 533-535; 146 SCRA 446, 453-454
(1986); See also The Veterans Federation of the Philippines v. Reyes, G.R.
No. 155027, February 28, 2006, 483 SCRA 526; Umali v. Estanislao, G.R.
No. 104037, May 29, 1992, 209 SCRA 446.
22 Taada v. Tuvera, 230 Phil. 528; 146 SCRA 446 (1986).
23 Executive Order No. 200, issued by President Corazon C. Aquino.
220
220

Section25.Effectivity.This Rule shall take effect on
February 2, 2008 following its publication in three (3) newspapers
of general circulation.
Section27.Effectivity.This Rule shall take effect on October
24, 2007 following its publication in three (3) newspapers of general
circulation.
The exception to the general rule that one-time

publication suffices for a law or rule to have continuing
effect is when there are circumstances or factors that
interrupt this continuity. An example is the discontinuation
of the existence of the House of Representatives as a
legislative body, which terminates the effectivity of its
published Rules of Procedure Governing Inquiries and
requires the publication of these rules in the succeeding
Congress for them to take effect. As discussed above and in
my Dissents to the March 25 Neri Decision and
September 4 Neri Resolution, the Senate, unlike the
House of Representatives, is a continuing body. Thus,
contrary to the holding of the ponencia, the Senates Rules
of Procedure Governing Inquiries, sans amendment, need
not be published by the Senate of every Congress and need
not also state that they shall remain in force until they are
amended or repealed for them to be effective from one
Congress to the next. Quite the opposite of the ponencias
ruling, in the absence of language stating that the Rules of
Procedure Governing Inquiries shall not continue in effect
from one Congress to the next, these rules shall have
continuing effect.
In sum, the above discussion shows that the March 25
Neri Decision and September 4 Neri Resolution
themselves provide bases for concluding that the Senate is
a continuing body and that one-time publication of the
Rules of Procedure Governing Inquiries, sans amendment,
suffices to satisfy the publication requirement under
Article VI, Section 21 of the 1987 Constitution. I
respectfully submit that the Court ought to so conclude in
order to uphold internal consis221
221

tency in its ruling with respect to the constitutional
requirement of publication of the Senates Rules of
Procedure Governing Inquiries. In line with my position in
my Dissents to the Neri Ruling, I submit that the
publication of the Rules of Procedure Governing Inquiries
in the 14th Congress prior to the conduct of the subject
Garci tapes investigation is not a requirement for
conducting such investigation.
Having dispensed with the issue of the constitutional
requirement of publication of the Rules of Procedure
Governing Inquiries, let us now proceed to the third issue.
The Garci tapes in relation to
Article III, Section 3 of the 1987
Constitution and R.A. No. 4200
Let me begin the disquisition on the issue of whether
the inquiry, which is centered on the so-called Garci tapes
violates Section 3, Article III of the Constitution and/or
Republic Act No. 4200 by stating what the disposition of
the case at bar is not about and proceed forthwith to what
the disposition of this case is about. To avoid clutter, let us
excise the fat to get to the lean meat of the controversy
before the Court.
While the 1987 Constitution affords paramount
importance to the policy of transparency, public
accountability, and informed participation of the citizenry
in a democracy, the case at bar is not about balancing
between the right to privacy of communication under
Article III, Section 324 of the
_______________
24 Article III, Section 3 of the Bill of Rights provides, viz.:
Sec.3.(1) The privacy of communication and correspondence
shall be inviolable except upon lawful order of the court, or when
public safety or order requires otherwise as prescribed by law.
222
222

1987 Constitution and the right to information under
Article III, Section 725 of the charter. The petitioners in this
case are not suing as citizens demanding information from
the government.
While the 1987 Constitution unmistakably recognizes
the indispensable role of legislative investigations in
crafting sound law and also gives prime recognition to the
right to privacy of communication, the case at bar is not
about balancing an asserted right to privacy of
communication against the Senates exercise of its
power of legislative investigation. This case does not
involve a situation in which a witness in a legislative
inquiry invokes the right to privacy of communication, but
the Senate compels him, under pain of contempt, to
disclose the communication on account of an overriding
public interest.
The bone of contention in the case at bar is
whether the Senate can use, in its legislative
investigation,
inadmissible
evidence
of
a
surreptitiously and illegally recorded private
communication.
The law decisive of the case at bar is R.A. No. 4200 or
the Anti-Wiretapping Law enacted in 1965. Introduced
by Senator Lorenzo Taada, the explanatory note of the bill
provides the background and rationale for the law, viz.:
_______________
(2)Any evidence obtained in violation of this or the preceding
section shall be inadmissible for any purpose in any proceeding.
25 Article III, Section 7 of the Bill of Rights provides, viz.:
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, 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.
223
223

The privacy of communication and correspondence
is among the fundamental rights of an individual secured and
guaranteed by our Constitution. Thus, Section 1(5) of the Bill of
Rights of the Constitution provides that, The privacy of
communication and correspondence shall be inviolable except upon
lawful order of the court or when public safety and order require
otherwise.
x x xx x xx x x
At present, the laws penalizing the violation of the privacy of
communication are inadequate to cope with modern developments.
As we are all aware of, technology today has so far advanced, and
will inexorably continue to advance, that there is now an evergrowing array of devices or arrangements for eavesdropping
There could, indeed, be no doubt that these modern devices or
arrangements, if availed of by any or officers of the government, to
spy on another, could be the most obnoxious instruments of
oppression or arbitrary power. Sooner or later we will have to deal
with the danger that these increasingly sensitive electronic ears,
which are as fantastic as they are alarming, may annihilate
completely the privacy of communication. An additional and potent
deterrent is obviously called for if we are to guard against what
might well be subversive of one of our cherished personal freedoms
which makes life worth living.
x x xx x xx x x
Considering our democratic set-up which is founded, among
others on our high regard for the individuals rights and freedoms,
the proposed measure will be but in accord with the principles of
law and government enshrined in the Bill of Rights of our
Constitution which are designed to protect the feelings and
sensibilities of every individual as a human being against
the incursions of unwelcome intruders.
Put succinctly, R.A. No. 4200 prohibits eavesdropping

or
unwelcome
intrusions
into
private
communications. Section 1 of the law provides that these
acts are unlawful:
Section1.It shall be unlawful for any person, not being
authorized by all the parties to any private communication
224
224

or spoken word, to tap any wire or cable, or by using any other
device or arrangement, to secretly overhear, intercept, or
record such communication or spoken word by using a device
commonly known as a dictaphone or dictagraph or walkie-talkie or
tape recorder, or however otherwise described:
It shall also be unlawful for any person, be he a participant or
not in the act or acts penalized in the next preceding sentence, to
knowingly possess any tape record, wire record, disc record,
or any other such record, or copies thereof, of any
communication or spoken word secured either before or after
the effective date of this Act in the manner prohibited by this law;
or to replay the same for any other person or persons; or to
communicate the contents thereof, either verbally or in
writing, or to furnish transcriptions thereof, whether
complete or partial, to any other person: Provided, That the
use of such record or any copies thereof as evidence in any
civil, criminal investigation or trial of offenses mentioned in
Section 3 hereof, shall not be covered by this prohibition.
Section2.Any person who willfully or knowingly does or who
shall aid, permit, or cause to be done any of the acts declared
to be unlawful in the preceding section or who violates the
provisions of the following section or of any order issued
thereunder, or aids, permits, or causes such violation shall,
upon conviction thereof, be punished by imprisonment for not less
than six months or more than six years and with the accessory
penalty of perpetual absolute disqualification from public office if
the offender be a public official at the time of the commission of the
offense, and, if the offender is an alien he shall be subject to
deportation proceedings. (emphases supplied)
A private communication is characterized as such based

not on the content of the communication, but on the
context that it was said in private and not for public
consumption. That the content or nature of the
communication
225
225

is immaterial was ruled in Ramirez v. Court of
Appeals,26 viz.:
... the nature of the conversations is immaterial to a
violation of the statute. The substance of the same need not be
specifically alleged in the information. What R.A. 4200
penalizes are the acts of secretly overhearing, intercepting
or recording private communications by means of the
devices enumerated therein. The mere allegation that an
individual made a secret recording of a private communication by
means of a tape recorder would suffice to constitute an offense
under Section 1 of R.A. 4200. As the Solicitor General pointed out in
his COMMENT before the respondent court: Nowhere (in the said
law) is it required that before one can be regarded as a violator, the
nature of the conversation, as well as its communication to a third
person should be professed. (emphasis supplied) (footnote omitted)
The Senate deliberations on R.A. No. 4200 evince the

meaning of private, as opposed to public,
communication, viz.:
Senator DIOKNO.Do I understand, Mr. Senator, that under
Section 1 of the bill as now worded, if a party secretly records a
public speech, he would be penalized under Section 1? Because the
speech is public, but the recording is done secretly.
Senator TAADA.Well, that particular aspect is not
contemplated by the bill. It is the communication between one
person and another personnot between a speaker and a
public.
Senator DIOKNO.The wording of the law is communication or
spoken word.
Senator TAADA.Yes.
Senator
DIOKNO.The
term
spoken
word
would
automatically include speeches, including, Mr. Senator, what we are
doing here this morning.
_______________
26 G.R. No. 93833, September 28, 1995, 248 SCRA 590.
226
226

Senator TAADA.As I have said, Your Honor, the purpose of
this bill is to prevent the tape recording or interception of a
communication between one person and anothernot
between a speaker and a public. Because precisely, the
speaker speaks so that the public may know what he has in
mind, what he wants to communicate to the people, and there
should be no objection to tape recording that speech....27 (emphases
supplied)
R.A. No. 4200, however, provides for exceptions when

wiretapping is allowed by written order of the court under
Section 3, viz.:
Section3.Nothing contained in this Act, however, shall
render it unlawful or punishable for any peace officer, who is
authorized by a written order of the Court, to execute any of
the acts declared to be unlawful in the two preceding
sections in cases involving the crimes of treason, espionage,
provoking war and disloyalty in case of war, piracy, mutiny
in the high seas, rebellion, conspiracy and proposal to
commit rebellion, inciting to rebellion, sedition, conspiracy
to commit sedition, inciting to sedition, kidnapping as
defined by the Revised Penal Code, and violations of
Commonwealth Act No. 616, punishing espionage and other
offenses against national security: Provided, That such written
order shall only be issued or granted upon written application and
the examination under oath or affirmation of the applicant and the
witnesses he may produce and a showing: (1) that there are
reasonable grounds to believe that any of the crimes enumerated
hereinabove has been committed or is being committed or is about
to be committed: Provided, however, That in cases involving the
offenses of rebellion, conspiracy and proposal to commit rebellion,
inciting to rebellion, sedition, conspiracy to commit sedition, and
inciting to sedition, such authority shall be granted only upon prior
proof that a rebellion or acts of sedition, as the case may be, have
actually been or are being committed; (2) that there are reasonable
grounds to believe that evidence will be obtained essential to the
conviction of any person
_______________
27 III Records of the Senate, March 12, 1964, p. 625.
227
227

for, or to the solution of, or to the prevention of, any of such crimes;
and (3) that there are no other means readily available for
obtaining such evidence. (emphasis supplied)
To further give teeth to the above prohibition, R.A. No.

4200 makes illegally wiretapped communications
inadmissible in any proceeding, viz.:
Section4.Any communication or spoken word, or the
existence, contents, substance, purport, effect, or meaning of the
same or any part thereof, or any information therein contained
obtained or secured by any person in violation of the preceding
sections of this Act shall not be admissible in evidence in any
judicial, quasi-judicial, legislative or administrative hearing
or investigation. (emphasis supplied)
Applying these provisions to the case at bar, the

wiretapping of the communication recorded in the Garci
tapes may be held legal only if it was recorded with
consent of the parties to the conversation or upon written
court order. As the wiretapping was done in the course of
duty by the witness, Technical Sergeant Vidal Doble, he
may be presumed to have been acting regularly in the
performance of his official duties.28 Doble testified that he
presumed that the order of his superior to him to conduct a
wiretap was legal, viz.:
Sen. Cayetano (P)...Ngayon itongnoong sinabi sa iyo ito,
anong pakiramdam mo? Nagulat ka ba o parang normal lang sa iyo
na, Okay, bagong assignment, may naisip ka bang baka violation
ito ng isang batas? May naisip ka bang ganon?
_______________
28 People v. Huang Zhen Hua, G.R. No. 139301, September 29, 2004, 439
SCRA 350, 381.

228
228

Mr. Doble.Ang nasa isip po kasi naming noon since na galing
sa military hierarchy ang order, we assume that is a legal order,
Your Honor.29
The legislative investigation should precisely be allowed to

proceed to establish the circumstances surrounding the
wiretapping and determine whether or not the wiretap was
legally done with the consent of the parties or lawful court
order.
Should it be established, however, that the conversations
in the Garci tapes were illegally wiretapped, the question
that comes to the fore is whether the communication or
spoken word (in the tapes), their existence, contents,
substance, purport, effect, or meaning of the same or any
part thereof, or any information therein contained may be
used in the subject Senate investigations.
In Ramirez, in which the Court found that petitioner
Ramirez violated R.A. No. 4200 for secretly recording her
private conversation with therein respondent Garcia, the
Court published in its decision the transcript of the
illegally wiretapped conversation as part of the narration of
the facts of the case. A mechanical and literal reading of
Sections 1 and 4 of R.A. No. 4200 would yield the absurd
conclusion that the Court violated these provisions for
communicat(ing) the contents thereof (the illegally
wiretapped conversation), either verbally or in writing and
using the inadmissible transcription in its judicial
proceedings. It is clear to the eye that this was not the
intent of the lawmakers in enacting R.A. No. 4200.
Legislative intent is determined principally from the
language of a statute. Where the language of a statute is
clear and unambi_______________
29 Transcript of Senate hearing held by the Joint Committees on
National Defense and Security and the Committees on Accountability of

Public Officers and Investigations (Blue Ribbon) and on Constitutional
Amendments, Revision of Codes and Laws, September 7, 2007, p. 95.
229
229

guous, the law is applied according to its express terms,
and interpretation would be resorted to only where a literal
interpretation would be either impossible (Pacific Oxygen
and Acytelene Co. v. Central Bank, 37 SCRA 685 [1971]) or
absurd or would lead to an injustice. (12 Casela v. Court of
Appeals, 35 SCRA 279 [1970]).30 (emphasis supplied)
There is thus a need to interpret Sections 1 and 4 of R.A.
No. 4200.
Section 1 in relation to Section 2 of R.A. No. 4200
provides an exception to the prohibition on the use of such
record (of wiretapped conversation) or any copies thereof as
evidence in any civil, criminal investigation or trial of
offenses mentioned in Section 3... The offenses under
Section 3 which allows wiretapping upon written order of
the court are as follows: treason, espionage, provoking war
and disloyalty in case of war, piracy, mutiny in the high
seas, rebellion, conspiracy and proposal to commit
rebellion, inciting to rebellion, sedition, conspiracy to
commit sedition, inciting to sedition, kidnapping as defined
by the Revised Penal Code, and violations of
Commonwealth Act No. 616, punishing espionage and
other offenses against national security.
The exception under Section 1 in relation to Section 3 of
R.A. No. 4200 does not include the use of illegally
wiretapped communication for purposes of prosecuting
violations of R.A. No. 4200 itself as the Court did in
Ramirez. Not reading this exception into the law would
impede the prosecution of the acts it prohibits and
contradict the very purpose for adopting the law as clearly
stated in its title, An Act to Prohibit and Penalize Wire
Tapping and Other Related Violations of the Privacy of
Communication, and for Other Purposes. Well-settled is
the rule in statutory construction that where there is
ambiguity, such interpretation as will avoid inconvenience

_______________
30 Ramirez v. Court of Appeals, G.R. No. 93833, September 28, 1995,
248 SCRA 590.
230
230

and absurdity is to be adopted.31 Interpretatio talis in
ambiguis semper frienda est, ut evitatur inconveniens et
absurdum. R.A. No. 4200 should be given a sensible
construction, so as to give effect to its rationale and intent
and thus avoid an unjust or absurd interpretation. The
ineluctable conclusion is that the use of illegally
wiretapped communication must be allowed in a
prosecution under R.A. No. 4200 precisely to deter the
commission of illegal wiretapping.
Corollary to this conclusion is that such evidence should
be an exception to inadmissible evidence under Section 4 of
the law. Judges and prosecutors who possess and use
illegally wiretapped communications in prosecutions for
violations of R.A. No. 4200 are thus not liable for violating
this law in the same manner that, by way of exception,
they are not liable for illegal possession of firearms where
the firearm is presented in evidence in a case involving the
prosecution of a violation of R.A. No. 8294.32 This is true
despite the absence of such an exception to illegal
possession, in contradistinction to the Intellectual Property
Code of the Philippines, which explicitly provides the
following exception to infringement of copyright under
Section 184(l)(k): Any use made of a work for the purpose
of any judicial proceedings or for the giving of professional
advice by a legal practitioner.
For similar reasons, another exception that ought to be
read into Sections 1 and 4 of R.A. No. 4200 is the use and
_______________
31 Lanot, et al. v. Commission on Elections, G.R. No. 164858,

November 16, 2006, 507 SCRA 114.
32 An Act Amending the Provisions of Presidential Decree No. 1866,
As Amended, Entitled Codifying the Laws on Illegal/Unlawful
Possession, Manufacture, Dealing in, Acquisition or Disposition of
Firearms, Ammunition or Explosives or Instruments Used in the
Manufacture of Firearms, Ammunitions or Explosives, and Imposing
Stiffer Penalties for Certain Violations Thereof, and for Relevant
Purposes.
231
231

admissibility of illegally wiretapped communication in
legislative investigations whose particular purpose
is precisely to craft or improve laws that will address the
evil of illegal wiretapping. Without this exception, the
absurd result would be that legislators cannot at all
investigate illegal wiretaps as they happen on the ground
and plug loopholes in the law, because Section 4 of R.A. No.
4200 provides that even the fact of existence of an illegally
wiretapped communication is inadmissible in evidence. To
be sure, this could not have been the intent of the law.
Lest the herein recognized exceptions be misconstrued
and open the floodgates to violations of R.A. No. 4200, it
must be emphasized that as a general rule, illegally
wiretapped material is inadmissible for any purpose in any
proceeding, including legislative investigations, in
accordance with R.A. No. 4200.33 As a very narrow
exception, however, the wiretapped material may be used
and is admitted in a judicial proceeding for prosecution of
violations of R.A. No. 4200 and, akin to this, in a legislative
investigation in aid of legislation whose purpose is
precisely to address the problem of illegal wiretap.
In the case at bar, the focus of the Senate investigation
as shown by the transcripts of its hearings34 has been the
illegal wiretapping of several personalities including the
Commander-in-Chief and President of the Philippines, the
possible involvement of telecommunication providers in the
illegal wiretap, the use of scarce intelligence resources for
wire_______________
33 Salcedo-Ortanez v. Court of Appeals, G.R. No. 110662, August 4,
1994, 235 SCRA 111 and People v. Olivarez, Jr., et al., G.R. No. 77865,
December 4, 1998, 299 SCRA 635.
34 Transcripts of Senate hearings held by the Joint Committees on
National Defense and Security and the Committees on Accountability of
Public Officers and Investigations (Blue Ribbon) and on Constitutional
Amendments, Revision of Codes and Laws, September 7 and 17, 2007.
232
232

tapping in connection with the conduct of the 2004
Presidential elections, and electoral fraud. The purpose of
the investigation may also be gleaned from two bills
previously filed in relation thereto by the Chairperson of
the National Defense and Security Committee, seeking to
(1) control and regulate the sale, purchase and use of
wiretapping equipment; and (2) prohibit the Armed Forces
of the Philippines from performing electoral duties.35
Prescinding from the very narrow contours of the
exception in using illegally wiretapped communications,
the Senate may proceed with the use of the Garci tapes in
a legislative inquiry in aid of legislation whose purpose is
to craft or improve legislation on wiretapping. On the other
hand, the Garci tapes are not admissible in evidence in
legislative investigations for a different purpose such as the
punishment of electoral fraud. While electoral fraud is a
serious anomaly that erodes the foundation of democracy
and should not go unpunished, evidence obtained not
through illegal wiretap should be presented in proceedings
investigating this matter. Resort to illegal wiretapping to
catch perpetrators of electoral fraud will only further erode
our democracy. As Senator Taada exhorted in the
explanatory note of Senate Bill No. 9, which became the
Anti-Wiretapping Law:
Considering our democratic set-up which is founded,

among others on our high regard for the individuals rights
and freedoms, the proposed measure will be but in accord with the
principles of law and government enshrined in the Bill of Rights of
our Constitution which are designed to protect the feelings and
sensibilities of every individual as a human being against
the incursions of unwelcome intruders.
_______________
35Rollo, pp. 216, 218; Comment of respondent Senate of the
Philippines, p. 2.
233
233

In conducting legislative inquiries in aid of legislation
for the purpose of crafting or improving laws on
wiretapping, the legislature ought to abide by the
constitutional command under Article VI, Section 21 that
in conducting such inquiries, (t)he rights of persons
appearing in or affected by such inquiries shall be
respected. The legislature should thus use mechanisms
and procedures available to it, such as executive sessions,
in avoiding any further and unnecessary incursion into the
right to privacy of communication.
With respect to the question of whether the use of the
Garci tapes violates Article III, Section 3 of the Bill of
Rights, the above disquisition on R.A. No. 4200 sufficiently
addresses this issue. Under this constitutional provision,
the privacy of communication and correspondence shall be
inviolable except (1) upon lawful order of the court, or (2)
when public safety or order requires otherwise as
prescribed by law. There is ostensibly no lawful order of the
court under the first exception, and any argument
anchored on the second exception will lead to R.A. No.
4200, being the only Philippine law on wiretapping.
Anent G.R. No. 170338, it is my considered view that the
petition is moot and academic.36 The petition prays that the
Court issue a Resolution:
a)Ordering the immediate issuance of a Temporary

Restraining Order and/or Writ of Preliminary Injunction
restraining and preventing the House of Representatives
Committees on Public Information, Public Order and Safety,
National Defense and Security, Information Communications
Technology, and Suffrage and Electoral Reforms from making use of
the sound recording of the illegally obtained wiretapped
conversations in their Report for the
_______________
36Philippine Airlines v. Joselito Pascua, et al., G.R. No. 143258, August 15,
2003, 409 SCRA 195.
234
234

inquiries conducted relative thereto, or from otherwise making use
of said recordings for any other purpose.
b)Granting the issuance of a Writ of Prohibition by
commanding the Respondent Committees to strike off the record of
the proceedings any and all references to the illegally obtained
wiretapped recordings, and to desist from further using the sound
recordings of the illegally obtained wiretapped conversations in any
of its proceedings.37
The first prayer is moot and academic, as the Garci tapes

were already played in the session floor of the House of
Representatives on July 5, 2005.38 The second prayer is
also moot and academic, as the subject records of
proceedings and reports belong to the House of
Representatives of the Thirteenth Congress, which has
already been terminated. The House of Representatives not
being a continuous body, the current House of
Representatives of the Fourteenth Congress is different
from the House of Representatives of the Thirteenth
Congress. Thus, petitioner Garcillano ought to first seek
recourse to the current House of Representatives with
respect to his second prayer.
I vote to dismiss the petitions in G.R. No. 170338 and
G.R. No. 179275.
CONCURRING AND DISSENTING OPINION

REYES, R.T.,J.:
I concur with the ponencia insofar as it dismisses the
petition in G.R. No. 170338 but dissent insofar as it grants
the petition in G.R. No. 179275.
_______________
37 Rollo, G.R. No. 170338, pp. 36-37.
38 Id., at p. 56.
235
235

I.The petition in G.R. No. 170338 should be
dismissed for being moot.
In G.R. No. 170338, petitioner Virgilio D. Garcillano, via
a petition for prohibition and injunction, with prayer for
temporary restraining order and/or writ of preliminary
injunction, implores the Court to issue a Resolution as
follows:
a)Ordering the immediate issuance of a Temporary
Restraining Order and/or Writ of Preliminary Injunction
restraining and preventing the House of Representatives
Committees on Public Information, Public Order and Safety,
National Defense and Security, Information Communications
Technology, and Suffrage and Electoral Reforms from making use of
the sound recording of the illegally obtained wiretapped
conversations in their Report for the inquiries relative thereto, or
from otherwise making use of said recordings for any other purpose.
b)Granting the issuance of a Writ of Prohibition by
commanding the Respondent Committees to strike off the record of
the proceedings any and all references to the illegally obtained
wiretapped recordings, and to desist from further using the sound
recordings of the illegally obtained wiretapped conversations in any
of its proceedings.1
The Court cannot grant the prayer of petitioner

Garcillano because it has been mooted. It is of public
knowledge, a fit subject of judicial notice,2 that the Hello

Garci tapes were already played in the House of
Representatives and heard by its members.3 Then,
separate committee reports on the Hello
_______________
1 Rollo, G.R. No. 170338, pp. 36-37.
2Rules of Court, Rule 129, Sec. 2. Judicial Notice, when discretionary.
A court may take judicial notice of matters which are of public
knowledge, or are capable of unquestionable demonstration, or ought to
be known to judges because of their judicial functions.
3 Rollo, G.R. No. 170338, p. 9.
236
236

Garci tapes were submitted to then House Speaker Jose
de Venecia, Jr.4
_______________
4 Separate findings, no closure on Hello Garci scandal dated March
29, 2006 by Michael Lim Ubac in http://www.inquirer.net/
specialreports/hellogarci/view.php?db=0&article=20060329-70909.
The
report partly states:

THE HOUSE of Representatives inquiry has resulted in two Hello
Garci reports, separate findings, no closure.
At dusk yesterday, the majority and minority blocs came up with
separate committee reports on the wiretapping scandal that nearly
unseated President Gloria Macapagal-Arroyo last year.
It was the majority bloc represented by the chairs of the Five House
Committees that first handed its report to Speaker Jose de Venecia.
De Venecia congratulated the chairs led by North Cotabato
Representative Emmylou Talio-Santos for their wisdom and dedication
to duty.
The minority report penned by Cavite Representative Gilbert Remulla
highlighted the futility of the search for truth behind an opposition
allegation that the recordings showed that Ms. Arroyo phoned Election
Commissioner Virgilio Garcillano to boost her chances of winning the
2004 presidential race.

Its likewise undeniable that the Arroyo government, in general, has
shown utter disregard, if not disrespect, towards the inquiry. Though
members of the administration appeared during the public hearings,
nothing substantial was presented to help ferret out the truth, said the
minority report.
Lost opportunity
The report said that the 14 public hearings could have finally be the
moment for Congress to address the lingering problem of election
cheating, but with the way the witnesses conducted themselves, the
opportunity was lost.
The minority report would be appended to the main report, said
Santos.
237
237

Article VIII, Section 1 of the Constitution provides:
Section1.The judicial power shall be vested in one Supreme
Court and in such lower courts as may be established by law.
Judicial power includes the duty of the courts of justice to settle
actual controversies involving rights which are legally demandable
and enforceable, and to determine whether or not there has been a
grave abuse of discretion amounting to lack or excess of jurisdiction
on the part of any branch or instrumentality of the Government.
Thus, one of the requisites of judicial power is the

presence of an actual controversy. Courts are prohibited
from deciding hypothetical, conjectural or anticipatory
questions despite their vast judicial power. Otherwise, a
decision rendered would amount to nothing but an advisory
opinion, which would not augur well with the function of
courts as arbiters of controversies. In La Bugal-Blaan
Tribal Association v. Sec. Ramos,5 the Court held:
An actual case or controversy means an existing case or
controversy that is appropriate or ripe for determination, not
conjectural or anticipatory, lest the decision of the court would
amount to an advisory opinion. The power does not extend to
hypothetical ques-
_______________
As expected, there was nothing new in the majoritys findings and
recommendations.
The main report did not deviate from the revised draft report it routed to
committee members on March 13, which admitted the failure of the joint
congressional inquiry to unravel the mystery of the political controversy.
The report said that the hearings only raised more issues and answered
none, thus Congress should continue to seek the answers x x x and in
particular subpoena phone records to establish the likelihood or unlikelihood
that alleged wiretapping conversations could have taken place.
5 465 Phil. 860; 421 SCRA 148 (2004).
238
238

tions since any attempt at abstraction could only lead to dialectics
and barren legal questions and to sterile conclusions unrelated to
actualities.6
While it is true that the Court is not absolutely

precluded from resolving issues that are otherwise moot,7
no compelling circumstance is present here that would
warrant the exercise of judicial review.
Too, the function of the writ of prohibition is to prevent
the execution of an act which is about to be done. It is not
intended to provide a remedy for acts already
accomplished.8 The office of prohibition is to arrest
proceedings rather than
_______________
6 La Bugal-Blaan Tribal Association v. Sec. Ramos, id., at pp. 889890; p. 178.
7 Courts will decide cases, otherwise moot, when (1) there is a grave
violation of the Constitution; (2) the exceptional character of the
situation and the paramount public interest involved demand; (3) the
constitutional issue raised requires formulation of controlling principles
to guide the bench, the bar, and the public; and (4) the case is capable of
repetition yet evading review. David v. Macapagal-Arroyo, G.R. Nos.
171396, 171409, 171485, 171483, 171400, 171489, & 171424, May 3,
2006, 489 SCRA 160; Lacson v. Perez, G.R. No. 147780, May 10, 2001,
357 SCRA 756; Province of Batangas v. Romulo, G.R. No. 152774, May
27, 2004, 429 SCRA 736; Albaa v. Commission on Elections, G.R. No.
163302, July 23, 2004, 435 SCRA 98; Acop v. Guingona, Jr., G.R. No.
134855, July 2, 2002, 383 SCRA 577; Sanlakas v. Executive Secretary,
G.R. No. 159085, February 3, 2004, 277 SCRA 409.
8 Heirs of Eugenia v. Roxas, Inc. v. Intermediate Appellate Court, G.R.
Nos. 67195, 78618 & 78619-20, May 29, 1989, 173 SCRA 581; Agustin v.
De la Fuente, 84 Phil. 515 (1949); Calbanero v. Torres, 61 Phil. 522
(1935).
239
239

to undo them.9 A preventive remedy, as a rule, does not lie
to restrain an act that is already fait accompli.10
II.The petition in G.R. No. 179275 should
likewise be dismissed because the Senate need not
republish its Rules of Procedure Governing
Inquiries in Aid of Legislation.
The issues in G.R. No. 179275 are as follows:
1.Whether the petitioners have locus standi to bring the suit.
Committees governing the conduct of inquiries in aid of legislation
have been published, in accordance with Section 21, Article VI of
the Constitution. Corollarily:
(a)Whether these Rules must be published by every
Congress.
(b)What mode/s of publication will comply with the
constitutional requirement?
3.Whether the inquiry, which is centered on the so-called
Garci tapes violates Section 3, Article III of the Constitution
and/or Republic Act No. 4200.11
Anent the first issue, I agree with the ponencia and the
dissenting opinion of Mr. Chief Justice Reynato Puno that
petitioners Santiago Javier Ranada and Oswaldo D.
Agcaoili, plus intervenor Maj. Lindsay Rex Sagge, possess
the requisite locus standi to bring the suit.
Courts should not be shackled by stringent rules which

would result in manifest injustice. Rules of procedure are
_______________
9 Ferris, The Law of Extraordinary Remedies, p. 418.
10 Montes v. Court of Appeals, G.R. No. 143797, May 4, 2006, 489
SCRA 432.
11 Rollo, G.R. No. 179275, p. 94.
240
240

tools crafted to facilitate, not to frustrate, the attainment of
justice. Thus, their strict and rigid application, if they
result in technicalities that tend to frustrate rather than
promote substantial justice, must be eschewed. Substantial
rights must not be prejudiced by a rigid and technical
application of the rules in the altar of expediency. When a
case is impressed with public interest, a relaxation of the
application of the rules is in order.12 Time and again, this
Court has suspended its own rules and excepted a
particular case from their operation whenever the higher
interests of justice so require.13
There is no question that the issues raised by petitioners
Ranada and Agcaoili and intervener Sagge are of
paramount importance. Thus, any procedural barrier to
their suit should be put aside.
Now to the second issuethe meat of the second
petition.
Section 21, Article VI of the Constitution states:
The Senate or the House of Representatives or any of its
respective committees may conduct inquiries in aid of legislation in
accordance with its duly published rules of procedure. The
rights of persons appearing in or affected by such inquiries shall be
respected.
The ponencia holds that the Senate investigation on

the Hello Garci tapes is infirm because the Senate Rules
of Procedure Governing Inquiries in Aid of Legislation had

not been duly published at the time of the legislative
inquiry in question.
_______________
12 Tomawis v. Tabao-Caudang, G.R. No. 166547, September 12, 2007,
533 SCRA 68.
13 Piczon v. Court of Appeals, G.R. Nos. 76378-81, September 24, 1990,
190 SCRA 31, 38.
241
241

I hold otherwise. On this score, I reiterate my separate
opinion on the motion for reconsideration in Senate v.
Ermita,14 thus:
True it is that, as the Constitution mandates, the Senate may
only conduct an investigation in aid of legislation pursuant to its
duly published rules of procedure. Without publication, the Senate
Rules of Procedure Governing Inquiries in Aid of Legislation is
ineffective. Thus, unless and until said publication is done, the
Senate cannot enforce its own rules of procedure, including its
power to cite a witness in contempt under Section 18.
But the Court can take judicial notice that the Senate Rules of
Procedure Governing Inquiries in Aid of Legislation was published
on August 20 and 21, 1992 in the Philippine Daily Inquirer and
Philippine Star during the 9th Congress.
The Senate again published its said rules on December 1, 2006 in
the Philippine Star and Philippine Daily Inquirer during the 13th
Congress. That the Senate published its rules of procedure twice
more than complied with the Constitutional requirement.
I submit that the Senate remains a continuing body under the
1987 Constitution. That the Senate is a continuing body is premised
on the staggered terms of its members, the idea being to ensure
stability of governmental policies. This is evident from the
deliberations of the framers of the Constitution, thus:
MR. RODRIGO.x x x
I would like to state that in the United States Federal
Congress, the term of the members of the Lower House is

only two years. We have been used to a term of four years
here but I think three years is long enough. But they will be
allowed to run for reelection any number of times. In this
way, we remedy the too frequent elections every two years.
We will have elections every three years under the
scheme and we will have a continuing Senate. Every
election, 12 of 24 Senators will be elected, so that 12
Senators will remain in
_______________
14 G.R. No. 180643, September 4, 2008.
242
242

the Senate. In other words, we will have a continuing
Senate.15
xxxx
MR. DAVIDE.This is just a paragraph of that section that
will follow what has earlier been approved. It reads: OF THE
SENATORS ELECTED IN THE ELECTION IN 1992, THE
FIRST TWELVE OBTAINING THE HIGHEST NUMBER OF
VOTES SHALL SERVE FOR SIX YEARS AND THE
REMAINING TWELVE FOR THREE YEARS.
This is to start the staggering of the Senate to conform to
the idea of a continuing Senate.
THE PRESIDING OFFICER (Mr. Rodrigo).What does the
Committee say?
MR. SUAREZ.The Committee accepts the Davide proposal,
Mr. Presiding Officer.16
The Senate does not cease to be a continuing body merely
because only half of its members continue to the next Congress. To
my mind, even a lesser number of Senators continuing into the next
Congress will still make the Senate a continuing body. The Senate
must be viewed as a collective body. It is an institution quite apart
from the Senators composing it. The Senate as an institution cannot
be equated to its present occupants. It is indivisible. It is not the
sum total of all sitting Senators at any given time. Senators come
and go but the very institution of the Senate remains. It is this
indivisible institution which should be viewed as continuing.

The argument that the Senate is not a continuing body because
it lacks quorum to do business after every midterm or presidential
elections is flawed. It does not take into account that the term of
office of a Senator is fixed by the Constitution. There is no vacancy
in the office of outgoing Senators during midterm or presidential
elections. Article VI, Section 4 of the 1987 Constitution provides:
_______________
15 Constitutional Commission Record (1986), p. 208.
16 Id., at p. 434.
243
243

The term of office of the Senators shall be six years and shall
commence, unless otherwise provided by law, at noon on the thirtieth
day of June next following their election.
The term of a Senator starts at noon of June 30 next following
their election and shall end before noon of June 30 six years after.
The constitutional provision aims to prevent a vacuum in the office
of an outgoing Senator during elections, which is fixed under the
Constitution unless changed by law on the second Monday of May,17
until June 30 when the Senators-elect assume their office. There is
no vacuum created because at the time an outgoing Senators term
ends, the term of a Senator-elect begins.
The same principle holds true for the office of the President. A
president-elect does not assume office until noon of June 30 next
following a presidential election. An outgoing President does not
cease to perform the duties and responsibilities of a President
merely because the people had chosen his/her new successor. Until
her term expires, an outgoing President has the constitutional duty
to discharge the powers and functions of a President unless
restricted18 by the Constitution.
In fine, the Senate is a continuing body as it continues to have a
full or at least majority membership19 even during elections until
the assumption of office of the Senators-elect. The Senate as an
institution does not cease to have a quorum to do business even
during elections. It is to be noted that the Senate is not in session
_______________
17 Constitution (1987), Art. VI, Sec. 8.
18 Id., Secs. 14 and 15 provides:
Section14.Appointments extended by an Acting President shall remain
effective, unless revoked by the elected President, within ninety days from his
assumption or reassumption of office.
Section15.Two months immediately before the next presidential elections
and up to the end of his term, a President or Acting President shall not make
appointments, except temporary appointments to executive positions when
continued vacancies therein will prejudice public service or endanger public
safety.
19 The Office of a Senator may be vacant for causes such as death or
permanent disability.
244
244

during an election until the opening of a new Congress for practical
reasons. This does not mean, however, that outgoing Senators cease
to perform their duties as Senators of the Republic during such
elections. When the President proclaims martial law or suspends
the writ of habeas corpus, for example, the Congress including the
outgoing Senators are required to convene if not in session within
24 hours in accordance with its rules without need of call.20
The Constitutional provision requiring publication of Senate
rules is contained in Section 21, Article VI of the 1987 Constitution,
which reads:
The Senate or the House of Representatives or any of its
respective Committees may conduct inquiries in aid of
legislation in accordance with its duly published rules
of
_______________
20 Constitution (1987), Art. VII, Sec. 18 provides:
The President shall be the Commander-in-Chief of all armed forces of
the Philippines and whenever it becomes necessary, he may call out
such armed forces to prevent or suppress lawless violence, invasion or
rebellion. In case of invasion or rebellion, when the public safety
requires it, he may, for a period not exceeding sixty days, suspend the
privilege of the writ of habeas corpus or place the Philippines or any

part thereof under martial law. Within forty-eight hours from the
proclamation of martial law or the suspension of the privilege of the
writ of habeas corpus, the President shall submit a report in person or
in writing to the Congress. The Congress, voting jointly, by a vote of at
least a majority of all its Members in regular or special session, may
revoke such proclamation or suspension, which revocation shall not be
set aside by the President. Upon the initiative of the President, the
Congress may, in the same manner, extend such proclamation or
suspension for a period to be determined by the Congress, if the
invasion or rebellion shall persist and public safety requires it.
The Congress, if not in session, shall, within twenty-four hours
following such proclamation or suspension, convene in accordance with
its rules without need of a call.
245
245

procedure. The rights of persons appearing in or affected by
such inquiries shall be respected.
The above provision only requires a duly published rule of
procedure for inquiries in aid of legislation. It is silent on
republication. There is nothing in the constitutional provision that
commands that every new Congress must publish its rules of
procedure. Implicitly, republication is necessary only when there is
an amendment or revision to the rules. This is required under the
due process clause of the Constitution.
The Senate in the 13th Congress caused the publication of the
Rules of Procedure Governing Inquiries in Aid of Legislation. The
present Senate (14th Congress) adopted the same rules of procedure
in the NBN-ZTE investigation. It does not need to republish said
rules of procedure because it is not shown that a substantial
amendment or revision was made since its last publication that
would affect the rights of persons appearing before it.
On a more practical note, there is little to be gained in requiring
a new Congress to cause the republication of the rules of procedure
which has not been amended or revised. The exercise is simply a
waste of government funds. Worse, it unduly burdens and hinders
the Senate from discharging its constitutional duties. Publication
takes time and during the interregnum, it cannot be gainsaid that
the Senate is barred or restricted from conducting an investigation
in aid of legislation.
I agree with the Chief Justice that this Court must be wary of the
far-reaching consequences of a case law invalidating the Senate
rules of procedure for lack of republication. Our ruling in this
petition will not only affect the NBN-ZTE investigation, but all
other Senate investigations conducted under the 10th, 11th, 12th,
and the present 14th Congress, for which no republication of the
rules has been done. These investigations have been the basis of
several bills and laws passed in the Senate and the House of
Representatives. Putting a doubt on the authority, effectivity and
validity of these proceedings is imprudent and unwise. This Court
should really be cautious in making a jurisprudential ruling that
will unduly strangle
246
246

the internal workings of a co-equal branch and needlessly burden
the discharge of its constitutional duty.21
In addition, let me point out the Philippine Constitution,

past and present, were largely influenced by the United
States Constitution. In McGrain v. Daugherty,22 the United
States Supreme Court explicitly ruled that the American
Senate is a continuing body. In Arnault v. Nazareno,23 the
Philippine Supreme Court, relying on McGrain, held that
the Philippine Senate is a continuing body. There is no
plausible reason why the rule should be different today.
In view of the foregoing, I find it unnecessary to delve on
the third issue which the ponencia does not also address.
WHEREFORE, I vote to DISMISS both petitions in G.R.
No. 170338 and G.R. No. 179275.
Petition in G.R. No. 170338 dismissed; while petition in
G.R. No. 179275 granted.
Note.Where the issue has become moot and academic,
there is no justiciable controversy, thereby rendering the
resolution of the same of no practical use or value. (Paloma
vs. Court of Appeals, 415 SCRA 590 [2003])
o0o
_______________
21 Senate v. Ermita, supra note 14, at pp. 30-35.
22 273 US 135 (1927).
23 Arnault v. Nazareno, 87 Phil. 29 (1950).
Copyright 2016 Central Book Supply, Inc. All rights reserved.

7 Garcillano v. House

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7 Garcillano v. House

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G.R. No. 170338.December 23, 2008.

VIRGILIO O. GARCILLANO, petitioner, vs. THE HOUSE

G.R. No. 179275.December 23, 2008.*

SANTIAGO JAVIER RANADA and OSWALDO D.

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decisions is the principle that the exercise by this Court of judicial

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the Official Gazette, or in a newspaper of general circulation in the

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Same; Same; The absence of any amendment to the rules cannot

equivalent of a written document only for evidentiary purposes. In

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adopting rules of proceedings on its first meeting and organization

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issued or granted upon written application and the examination

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technical application of the rules in the altar of expediency. When a

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President of the Philippines and a high-ranking official of

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On August 3, 2005, the respondent House Committees

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Lacsons speech was referred to the Senate Committee on

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Section 3, Article III of the Constitution.11

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and grants the second, G.R. No. 179275.

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The gist of the question of standing is whether a party has

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the discretion given to them.26

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Garcillano vs. House of Representatives Committees on

bewailing the useless and wasteful expenditure of public

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paramount importance not only to the public but also to the

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in academic discussion of a case presenting a moot question

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- III As to the petition in G.R. No. 179275, the Court grants

VOL. 575, DECEMBER 23, 2008

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