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X. RIGHT TO INFORMATION

a. Legaspi vs. Civil Service Commission [G.R. No. 72119, May 29, 1987]

[G.R. No. 72119. May 29, 1987.]

VALENTIN L. LEGASPI,petitioner,vs.CIVIL SERVICECOMMISSION,respondent.

D E C I S I O N

CORTES,Jp:

The fundamental right of the people to information on matters of public concern isinvoked in this special civil action for Mandamus instituted by petitioner Valentin L.Legaspi against the Civil Service Commission. The respondent had earlier deniedLegaspi's request for information on the civil service eligibilities of certain persons

employed as sanitarians in the Health Department of Cebu City. These governmentemployees, Julian Sibonghanoy and Mariano Agas, had allegedly represented themselvesas civil service eligibles who passed the civil service examinations for sanitarians.

Claiming that his right to be informed of the eligibilities of Julian Sibonghanoy andMariano Agas is guaranteed by the Constitution, and that he has no other plain, speedyand adequate remedy to acquire the information, petitioner prays for the issuance of theextraordinary writ of Mandamus to compel the respondent Commission to disclose saidinformation.

This is not the first time that the writ of Mandamus is sought to enforce the fundamentalright to information. The same remedy was resorted to in the case ofTanada et al. vs.

Tuvera et al., (G.R. No. L-63915, April 24, 1985, 136 SCRA 27) wherein the people'sright to be informed under the 1973 Constitution (Article IV, Section 6) was invoked inorder to compel the publication in the Official Gazette of various presidential decrees,letters of instructions and other presidential issuances. Prior to the recognition of the rightin said Constitution, the statutory right to information provided for in the LandRegistration Act (Section 56, Act 496, as amended) was claimed by a newspaper editor inanother Mandamus proceeding, this time to demand access to the records of the Registerof Deeds for the purpose of gathering data on real estate transactions involving aliens(Subido vs. Ozaeta, 80 Phil. 383 [1948]).

The constitutional right to information on matters of public concern first gainedrecognition in the Bill of Rights, Article IV, of the 1973 Constitution, which states:

Sec. 6.The right of the people to information onmatters of public concern shall be recognized. Access toofficial records, and to documents and papers pertaining toofficial acts, transactions, or decisions, shall be afforded thecitizen subject to such limitations as may be provided by law.

The foregoing provision has been retained and the right therein provided amplifiedin Article III, Sec. 7 of the 1987 Constitution with the addition of the phrase, "aswell as to government research data used as basis for policy development." The new

provision reads: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 researchdata used as basis for policy development, shall be afforded thecitizen, subject to such limitations as may be provided bylaw. cdphil

These constitutional provisions are self-executing. They supply the ru les by means ofwhich the right to information may be enjoyed (Cooley, A Treatise on the ConstitutionalLimitations 167 [1927]) by guaranteeing the right and mandating the duty to afford

access to sources of information. Hence, the fundamental right therein recognized may beasserted by the people upon the ratification of the constitution without need for anyancillary act of the Legislature. (Id.at, p. 165) What may be provided for by theLegislature are reason able conditions and limitations upon the access to be affordedwhich must, of necessity, be consistent with the declared State policy of full publicdisclosure of all transactions involving public interest (Constitution, Art. II, Sec. 28).However, it cannot be overemphasized that whatever limitation may be prescribed by theLegislature, the right and the duty under Art. III, Sec. 7 have become operative andenforceable by virtue of the adoption of the New Charter. Therefore, the right may be

properly invoked in a Mandamus proceeding such as this one.

The Solicitor General interposes procedural objections to Our giving due course to thisPetition. He challenges the petitioner's standing to sue upon the ground that the latter

does not possess any clear legal right to be informed of the civil service eligibilities of thegovernment employees concerned. He calls attention to the alleged failure of the

petitioner to show his actual interest in securing this particular information. He furtherargues that there is no ministerial duty on the part of the Commission to furnish the

petitioner with the information he seeks.

1.To be given due course, a Petition for Mandamus must have been instituted by a partyaggrieved by the alleged inaction of any tribunal, corporation, board or person whichunlawfully excludes said party from the enjoyment of a legal right. (Anti-Chinese Leagueof the Philippines vs. Felix, 77 Phil. 1012 [1947]). The petitioner in every case musttherefore be an "aggrieved party" in the sense that he possesses a clear legal right to beenforced and a direct interest in the duty or act to be performed.


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In the case before Us, the respondent takes issue on the personality of the petitioner tobring this suit. It is asserted that, the instant Petition is bereft of any allegation ofLegaspi's actual interestin the civil service eligibilities of Julian Sibonghanoy andMariano Agas. At most there is a vague reference to an unnamed client in whose behalfhe had allegedly acted when he made inquiries on the subject (Petition, Rollo, p. 3).

But what is clear upon the face of the Petition is that the petitioner has firmly anchoredhis case upon the right of the people to information on matters of public concern, which,

by its very nature, is a public right. It has been held that: LLphil

. . . when the question is one of public right and the object of themandamus is to procure the enforcement of a public duty, the

people are regarded as the real party in interest and the relator atwhose instigation the proceedings are instituted need not show thathe has any legal or special interest in the result, it being sufficient toshow that he is a citizen and as such interested in the execution ofthe laws . . . (Tanada et al. vs. Tuvera, et al., G.R. No. L-63915,April 24, 1985, 136 SCRA 27, 36).

From the foregoing, it becomes apparent that when a Mandamus proceedinginvolves the assertion of a public right, the requirement of personal interest is

satisfied by the mere fact that the petitioner is a citizen, and therefore, part of thegeneral "public" which possesses the right.

The Court had opportunity to define the word "public" in the Subidocase, supra, when itheld that even those who have no direct or tangible interest in any real estate transactionare part of the "public" to whom "(a)ll records relating to registered lands in the Office ofthe Register of Deeds shall be open . . ." (Sec. 56, Act No. 496, as amended). In thewords of the Court:

. . . "Public" is a comprehensive, all-inclusive term. Properlyconstrued, it embraces every person. To say that only those whohave a present and existing interest of a pecuniary character in the

particular information sought are given the right of inspection is tomake an unwarranted distinction. . . . (Subido vs. Ozaeta,supraat p.387).

The petitioner, being a citizen who, as such is clothed with personality to seekredress for the alleged obstruction of the exercise of the public right. We find nocogent reason to deny his standing to bring the present suit.

2.For every right of the people recognized as fundamental, there lies a correspondingduty on the part of those who govern, to respect and protect that right. That is the veryessence of the Bill of Rights in a constitutional regime. Only governments operatingunder fundamental rules defining the limits of their power so as to shield individual rights

against its arbitrary exercise can properly claim to be constitutional (Cooley, supra. at p.5). Without a government's acceptance of the limitations imposed upon it by the

Constitution in order to uphold individual liberties, without an acknowledgment on itspart of those duties exacted by the rights pertaining to the citizens, the Bill of Rightsbecomes a sophistry, and liberty, the ultimate illusion.

In recognizing the people's right to be informed, both the 1973 Constitution and the NewCharter expressly mandate the duty of the State and its agents to afford access to officialrecords, documents, papers and in addition, government research data used as basis for

policy development, subject to such limitations as may be provided by law. Theguarantee has been further enhanced in the New Constitution with the adoption of a

policy of full public disclosure, this time "subject to reasonable conditions prescribed bylaw," in Article II, Section 28 thereof, to wit:

Subject to reasonable conditions prescribed by law, the State adoptsand implements a policy of full public disclosure of all itstransactions involving public interest. (Art. II, Sec. 28).

In the Tanadacase,supra, the constitutional guarantee was bolstered by what this Courtdeclared as an imperative duty of the government officials concerned to publish allimportant legislative acts and resolutions of a public nature as well as all executive ordersand proclamations of general applicability. We granted Mandamus in said case, and inthe process, We found occasion to expound briefly on the nature of said duty: LexLib

. . . That duty must be enforced if the Constitutional right of thepeople to be informed on matters of public concern is to be givensubstance and reality. The law itself makes a list of what should be

published in the Official Gazette. Such listing, to our mind, leavesrespondents with no discretion whatsoever as to what must beincluded or excluded from such publication. (Tanada v.Tuvera,supra, at 39), (Emphasis supplied).

The absence of discretion on the part of government agencies in allowing the

examination of public records, specifically, the records in the Office of the Registerof Deeds, is emphasized in Subido vs. Ozaeta, supra:

Except, perhaps when it is clear that the purpose of the examinationis unlawful, or sheer, idle curiosity, we do not believe it is the dutyunder the law of registration officers to concern themselves with themotives, reasons, and objects of the person seeking access to therecords. It is not their prerogative to see that the information whichthe records contain is not flaunted before public gaze, or thatscandal is not made of it.If it be wrong to publish the contents of therecords, it is the legislature and not the officials having custody

thereof which is called upon to devise a remedy. . . . (Subido v.

Ozaeta,supraat 388). (Emphasis supplied).


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It is clear from the foregoing pronouncements of this Court that government agencies arewithout discretion in refusing disclosure of, or access to, information of public concern.This is not to lose sight of the reasonable regulations which may be imposed by saidagencies in custody of public records on the manner in which the right to informationmay be exercised by the public. In the Subidocase, We recognized the authority of theRegister of Deeds to regulate the manner in which persons desiring to do so, may inspect,examine or copy records relating to registered lands. However, the regulations which theRegister of Deeds may promulgate are confined to:

. . . prescribing the manner and hours of examination to the end thatdamage to or loss of, the records may be avoided, that undueinterference with the duties of the custodian of the books anddocuments and other employees may be prevented, that the right ofother persons entitled to make inspection may be insured . . .(Subido vs. Ozaeta, 80 Phil. 383, 387).

Applying the Subidoruling by analogy, We recognized a similar authority in a munic ipaljudge, to regulate the manner of inspection by the public of criminal docket records in thecase ofBaldoza vs. Dimaano(Adm. Matter No. 1120-MJ, May 5, 1976, 71 SCRA 14).Said administrative case was filed against the respondent judge for his alleged refusal toallow examination of the criminal docket records in his sala. Upon a finding by the

Investigating Judge that the respondent had allowed the complainant to open and viewthe subject records, We absolved the respondent. In effect, We have also held that therules and conditions imposed by him upon themannerof examining the public recordswere reasonable.

In both the Subidoand theBaldozacases, We were emphatic in Our statement that theauthority to regulate the manner of examining public records does not carry with it the

power to prohibit. A distinction has to be made between the discretion to refuse outrightthe disclosure of or access to a particular information and the authority to regulate themanner in which the access is to be afforded. The first is a limitation upon the availabilityof access to the information sought, which only the Legislature may impose (Art. III, Sec.6, 1987 Constitution). The second pertains to the government agency charged with thecustody of public records. Its authority to regulate access is to be exercised solely to theend that damage to, or loss of, public records may be avoided, undue interference withthe duties of said agencies may be prevented, and more importantly, that the exercise ofthe same constitutional right by other persons shall be assured (Subido vs.Ozaeta,supra). Cdpr

Thus, while the manner of examining public records may be subject to reasonableregulation by the government agency in custody thereof, the duty to disclose theinformation of public concern, and to afford access to public records cannot bediscretionary on the part of said agencies. Certainly, its performance cannot be madecontingent upon the discretion of such agencies. Otherwise, the enjoyment of theconstitutional right may be rendered nugatory by any whimsical exercise of agencydiscretion. The constitutional duty, not being discretionary, its performance may be

compelled by a writ of Mandamus in aproper case.

But what is a proper case for Mandamus to issue? In the case before Us, the public rightto be enforced and the concomitant duty of the State are unequivocably set forth in theConstitution. The decisive question on the propriety of the issuance of the writ ofMandamus in this case is, whether the information sought by the petitioner is within theambit of the constitutional guarantee.

3.The incorporation in the Constitution of a guarantee of access to information of publicconcern is a recognition of the essentiality of the free flow of ideas and information in ademocracy (Baldoza v. Dimaano, Adm. Matter No. 1120-MJ, May 5, 1976, 17 SCRA14). In the same way that free discussion enables members of society to cope with theexigencies of their time (Thornhill vs. Alabama, 310 U.S. 88, 102 [1939]), access toinformation of general interest aids the people in democratic decision-making (87Harvard Law Review 1505 [1974] by giving them a better perspective of the vital issuesconfronting the nation.

But the constitutional guarantee to information on matters of public concern is notabsolute. It does not open every door to any and all information. Under the Constitution,access to official records, papers, etc., are "subject to limitations as may be provided bylaw" (Art. III, Sec. 7, second sentence). The law may therefore exempt certain types ofinformation from public scrutiny, such as those affecting national security (Journal No.90, September 23, 1986, p. 10; and Journal No. 91, September 24, 1986, p. 32, 1986

Constitutional Commission). It follows that, in every case, the availability of access to aparticular public record must be circumscribed by the nature of the information sought,i.e., (a) being of public concern or one that involves public interest, and, (b) not beingexempted by law from the operation of the constitutional guarantee. The thresholdquestion is, therefore, whether or not the information sought is of public interest or publicconcern.

a.This question is first addressed to the government agency having custody of the desiredinformation. However, as already discussed, this does not give the agency concerned anydiscretion to grant or deny access. In case of denial of access, the government agency hasthe burden of showing that the information requested is not of public concern, or, if it isof public concern, that the same has been exempted by law from the operation of theguarantee. To hold otherwise will serve to dilute the constitutional right. As aptlyobserved, ". . . the government is in an advantageous position to marshall and interpretarguments against release . . ." (87 Harvard Law Review 1511 [1974]). To safeguard theconstitutional right, every denial of access by the government agency concerned issubject to review by the courts, and in the proper case, access may be compelled by a writof Mandamus.

In determining whether or not a particular information is of public concern there is norigid test which can be applied. "Public concern" like "public interest" is a term thateludes exact definition. Both terms embrace a broad spectrum of subjects which the

public may want to know, either because these directly affect their lives, or simplybecause such matters naturally arouse the interest of an ordinary citizen. In the finalanalysis, it is for the courts to determine in a case by case basis whether the matter at

issue is of interest or importance, as it relates to or affects the public. LibLex


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The public concern invoked in the case of Taada v. Tuvera, supra, was the need foradequate notice to the public of the various laws which are to regulate the actions andconduct of citizens. In Subido vs. Ozaeta, supra, the public concern deemed covered bythe statutory right was the knowledge of those real estate transactions which some

believed to have been registered in violation of the Constitution.

The information sought by the petitioner in this case is the truth of the claim of certaingovernment employees that they are civil service eligibles for the positions to which theywere appointed. The Constitution expressly declares as a State policy that:

Appointments in the civil service shall be made only according tomerit and fitness to be determined, as far as practicable, and exceptas to positions which are policy determining, primarily confidentialor highly technical, by competitive examination. (Art. IX, B, Sec. 2.[2]).

Public office being a public trust, [Const., Art. XI, Sec: 1] it is the legitimate concernof citizens to ensure that government positions requiring civil service eligibility areoccupied only by persons who are eligibles. Public officers are at all timesaccountable to the people even as to their eligibilities for their respective positions.

b.But then, it is not enough that the information sought is of public interest. ForMandamus to lie in a given case, the information must not be among the speciesexempted by law from the operation of the constitutional guarantee.

In the instant, case while refusing to confirm or deny the claims of eligibility, therespondent has failed to cite any provision in the Civil Service Law which would limitthe petitioner's right to know who are, and who are not, civil service eligibles. We take

judicial notice of the fact that the names of those who pass the civil service examinations,as in bar examinations and licensure examinations for various professions, are released tothe public. Hence, there is nothing secret about one's civil service eligibility, if actually

possessed. Petitioner's request is, therefore, neither unusual nor unreasonable. And when,as in this case, the government employees concerned claim to be civil service eligibles,

the public, through any citizen, has a right to verify their professed eligibilities from theCivil Service Commission.

The civil service eligibility of a sanitarian being of public concern, and in the absence ofexpress limitations under the law upon access to the register of civil service eligibles forsaid position, the duty of the respondent Commission to confirm or deny the civil serviceeligibility of any person occupying the position becomes imperative. Mandamus,therefore lies.

WHEREFORE:, the Civil Service Commission is ordered to open its register of eligibles

for the position of sanitarian, and to confirm or deny, the civil service eligibility of Julian

Sibonghanoy and Mariano Agas for said position in the Health Department of Cebu City,as requested by the petitioner Valentin L. Legaspi.

Teehankee, C.J., Yap, Fernan, Narvasa, Melencio-Herrera, Gutierrez, Jr., Cruz, Paras,Gancayco, Padilla, Bidin andSarmiento, JJ.,concur.


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[G.R. No. 74930. February 13, 1989.]

RICARDO VALMONTE, OSWALDO CARBONELL, DOY

DEL CASTILLO, ROLANDO BARTOLOME, LEO

OBLIGAR, JUN GUTIERREZ, REYNALDO BAGATSING,

JUN "NINOY" ALBA, PERCY LAPID, ROMMEL CORRO

and ROLANDO FADUL,petitioners,vs.FELICIANOBELMONTE, JR.,respondent.

SYLLABUS

1.ADMINISTRATIVE LAW; EXHAUSTION OF ADMINISTRATIVE REMEDIESBEFORE RESORT TO COURTS OF LAW MAY BE ALLOWED; EXCEPTIONS. A settled principles in administrative law is that before a party can be allowed to resort tothe courts, he is expected to have exhausted all means of administrative redress availableunder the law. The courts for reasons of law, comity and convenience will not entertain acase unless the available administrative remedies have been resorted to and theappropriate authorities have been given opportunity to act and correct the errorscommitted in the administrative forum. However, the principle of exhaustion of

administrative remedies is subject to settled exceptions, among which is when only aquestion of law is involved.

2.CONSTITUTIONAL LAW; RIGHT OF ACCESS TO INFORMATION; EFFECT OFDENIAL THEREOF.The cornerstone of this republican system of government isdelegation of power by the people to the State. In this system, governmental agencies andinstitutions operate within the limits of the authority conferred by the people. Deniedaccess to information on the inner workings of government, the citizenry can become

prey to the whims and caprices of those to whom the power had been delegated. Thepostulate of public office as a public trust, institutionalized in the Constitution (in Art. XI,Sec. 1) to protect the people from abuse of governmental power, would certainly be mereempty words if access to such information of public concern is denied, except underlimitations prescribed by implementing legislation adopted pursuant to the Constitution.

3.ID.; ID.; NOT RESTRICTED BY THE EXERCISE OF THE FREEDOM OF SPEECHAND OF THE PRESS.The right to information is an essential premise of ameaningful right to speech and expression. But this is not to say that the right toinformation is merely an adjunct of and therefore restricted in application by the exerciseof the freedoms of speech and of the press. Far from it. The right to information goeshand-in-hand with the constitutional policies of full public disclosure and honesty in the

public service. It is meant to enhance the widening role of the citizenry in governmentaldecision-making as well in checking abuse in government.

4.ID.; ID.; NOT ABSOLUTE.Like all the constitutional guarantees, the right toinformation is not absolute. The people's right to information is limited to "matters of

public concern", and is further "subject to such limitations as may be provided by law."

Similarly, the State's policy of full disclosure is limited to "transactions involving publicinterest", and is "subject to reasonable conditions prescribed by law."

5.ID.; RIGHT OF PRIVACY; CANNOT BE INVOKED BY A JURIDICAL ENTITY;RIGHT IS PURELY PERSONAL IN NATURE. When the information requestedfrom the government intrudes into the privacy of a citizen, a potential conflict betweenthe rights to information and to privacy may arise. The right to privacy belongs to theindividual in his private capacity, and not to public and governmental agencies like theGSIS. A corporation has no right to privacy since the entire basis of the right to privacy is

injury to the feelings and sensibilities of the party and a corporation would have no suchground for relief. Neither can the GSIS through its General Manager, the respondent,invoke the right to privacy of its borrowers. The right is purely personal in nature.

6.ID.; RIGHT OF ACCESS TO INFORMATION; GOVERNMENT AGENCYPERFORMING PROPRIETARY FUNCTIONS, NOT EXCLUDED FROM THECOVERAGE.The government, whether carrying out its sovereign attributes orrunning some business, discharges the same function of service to the people.Consequently, that the GSIS, in granting the loans, was exercising a proprietary functionwould not justify the exclusion of the transactions from the coverage and scope of theright to information.

7.ID.; ID.; LIMITATION.The consideration in guaranting access to information onmatters of public concern does not however, accord to citizen the right to compelcustodian of public records to prepare lists, abstracts, summaries and the like in theirdesire to acquire such information.

8.REMEDIAL LAW; SPECIAL CIVIL ACTION; MANDAMUS; REQUISITES FORISSUANCE OF WRIT.It must be stressed that it is essential for a writ of mandamusto issue that the applicant has a well-defined, clear and certain legal right to the thingdemanded and that it is the imperative duty of defendant to perform the act required. Thecorresponding duty of the respondent to perform the required act must be clear andspecific.

D E C I S I O N

CORTES,Jp:

Petitioners in this special civil action for mandamus with preliminaryinjunction invoke their right to information and pray that respondent be directed:

(a)to furnish petitioners the list of the names of the BatasangPambansa members belonging to the UNIDO and PDP-Laban who

were able to secure clean loans immediately before the February 7


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election thru the intercession/marginal note of the then First LadyImelda Marcos; and/or

(b)to furnish petitioners with certified true copies of the documentsevidencing their respective loans; and/or

(c)to allow petitioners access to the public records for the subjectinformation. [Petition, pp. 4-5; paragraphing supplied.]

The controversy arose when petitioner Valmonte wrote respondentBelmonte the following letter:

June 4, 1986

Hon. Feliciano BelmonteGSIS General ManagerArroceros, Manila.

Sir:

As a lawyer, member of the media and plain citizen of our Republic,I am requesting that I be furnished with the list of names of theopposition members of (the) Batasang Pambansa who were able tosecure a clean loan of P2 million each on guaranty (sic) of Mrs.Imelda Marcos. We understand that OIC Mel Lopez of Manila wasone of those aforesaid MPs. Likewise, may we be furnished with thecertified true copies of the documents evidencing their loan.Expenses in connection herewith shall be borne by us.

If we could not secure the above documents could we have access tothem?

We are premising the above request on the following provision ofthe Freedom Constitution of the present regime.

The right of the people to information on matters of publicconcern shall be recognized. Access to official records,and to documents and papers pertaining to official acts,transactions or decisions, shall be afforded the citizensubject to such limitation as may be provided by law. (Art.IV, Sec. 6).

We trust that within five (5) days from receipt hereof we willreceive your favorable response on the matter.

Very truly yours,

(Sgd.) RICARDO C.VALMONTE

[Rollo, p. 7.]

To the aforesaid letter, the Deputy General Counsel of the GSIS replied:

June 17, 1986

Atty. Ricardo C. Valmonte108 E. Benin StreetCaloocan CityDear Companero:

Possibly because he must have thought that it contained seriouslegal implications, President & General Manager FelicianoBelmonte, Jr. referred to me for study and reply your letter to him ofJune 4, 1986 requesting a list of "the opposition members ofBatasang Pambansa who were able to secure a clean loan of P2million each on guaranty of Mrs. Imelda Marcos."

My opinion in this regard is that a confidential relationship existsbetween the GSIS and all those who borrow from it, whoever theymay be; that the GSIS has a duty to its customers to preserve thisconfidentiality; and that it would not be proper for the GSIS to

breach this confidentiality unless so ordered by the courts.

As a violation of this confidentiality may mar the image of the GSISas a reputable financial institution, I regret very much that at thistime we cannot respond positively to your request.

Very truly yours,

(Sgd.) MEYNARDOA. TIRO

Deputy GeneralCounsel

[Rollo, p. 40.]

On June 20, 1986, apparently not having yet received the reply of theGovernment Service and Insurance System (GSIS) Deputy General Counsel,

petitioner Valmonte wrote respondent another letter, saying that for failure toreceive a reply "(W)e are now considering ourselves free to do whatever action

necessary within the premises to pursue our desired objective in pursuance of publicinterest." [Rollo, p. 8.]


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On June 26, 1986, Valmonte, joined by the other petitioners, filed theinstant suit.

On July 19, 1986, theDaily Expresscarried a news item reporting that 137former members of the defunct interim and regular Batasang Pambansa, includingten (10) opposition members, were granted housing loans by the GSIS [Rollo, p.41.].

Separate comments were filed by respondent Belmonte and the SolicitorGeneral. After petitioners filed a consolidated reply, the petition was given due

course and the parties were required to file their memoranda. The parties havingcomplied, the case was deemed submitted for decision.

In his comment respondent raises procedural objections to the issuance of awrit of mandamus, among which is that petitioners have failed to exhaustadministrative remedies.

Respondent claims that actions of the GSIS General Manager arereviewable by the Board of Trustees of the GSIS. Petitioners, however did not seekrelief from the GSIS Board of Trustees. It is therefore asserted that sinceadministrative remedies were not exhausted, then petitioners have no cause ofaction.

To this objection, petitioners claim that they have raised a purely legal

issue, viz.,whether or not they are entitled to the documents sought, by virtue oftheir constitutional right to information. Hence, it is argued that this case falls underone of the exceptions to the principle of exhaustion of administrative remedies.

Among the settled principles in administrative law is that before a partycan be allowed to resort to the courts, he is expected to have exhausted all means ofadministrative redress available under the law. The courts for reasons of law, comityand convenience will not entertain a case unless the available administrativeremedies have been resorted to and the appropriate authorities have been givenopportunity to act and correct the errors committed in the administrative forum.However, the principle of exhaustion of administrative remedies is subject to settledexceptions, among which is when only a question of law is involved [Pascual v.

Provincial Board, 106 Phil. 466 (1959); Aguilar v. Valencia, et al., G.R. No. L-30396, July 30, 1971, 40 SCRA 210; Malabanan v. Ramento, G.R. No. L-2270, May21, 1984, 129 SCRA 359.] The issue raised by petitioners, which requires theinterpretation of the scope of the constitutional right to information, is one whichcan be passed upon by the regular courts more competently than the GSIS or itsBoard of Trustees, involving as it does a purely legal question. Thus, the exceptionof this case from the application of the general rule on exhaustion of administrativeremedies is warranted. Having disposed of this procedural issue, We now addressourselves to the issue of whether or not mandamus lies to compel respondent to

perform the acts sought by petitioners to be done, in pursuance of their right toinformation.

We shall deal first with the second and third alternative acts sought to bedone, both of which involve the issue of whether or not petitioners are entitled toaccess to the documents evidencing loans granted by the GSIS.

This is not the first time that the Court is confronted with a controversydirectly involving the constitutional right to information. In Tanada v. Tuvera,G.R.

No. 63915, April 24, 1985, 136 SCRA 27 and in the recent case ofLegaspi v. CivilService Commission,G.R. No. 72119, May 29, 1987, 150 SCRA 530, the Courtupheld the people's constitutional right to be informed of matters of public interestand ordered the government agencies concerned to act as prayed for by the

petitioners.

The pertinent provision under the 1987 Constitution is Art. 111, Sec. 7which states:

The right of the people to information on matters of public concernshall be recognized. Access to official records, and to documents,and papers pertaining to official acts, transactions, or decisions, aswell as to government research data used as basis for policydevelopment, shall be afforded the citizen, subject to suchlimitations as may be provided by law.

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

The right of the people to information on matters of public concernshall be recognized. Access to official records, and to documentsand papers pertaining to official acts, transactions, or decisions,shall be afforded the citizen subject to such limitations as may be

provided by law.

An informed citizenry with access to the diverse currents in political,moral and artistic thought and data relative to them, and the free exchange of ideasand discussion of issues thereon, is vital to the democratic government envisionedunder our Constitution. The cornerstone of this republican system of government isdelegation of power by the people to the State. In this system, governmentalagencies and institutions operate within the limits of the authority conferred by the

people. Denied access to information on the inner workings of government, the

citizenry can become prey to the whims and caprices of those to whom the powerhad been delegated. The postulate of public office as a public trust, institutionalizedin the Constitution (in Art. XI, Sec. 1) to protect the people from abuse ofgovernmental power, would certainly be mere empty words if access to suchinformation of public concern is denied, except under limitations prescribed byimplementing legislation adopted pursuant to the Constitution.

Petitioners are practitioners in media. As such, they have both the right togather and the obligation to check the accuracy of information they disseminate. Forthem, the freedom of the press and of speech is not only critical, but vital to theexercise of their professions. The right of access to information ensures that thesefreedoms are not rendered nugatory by the government's monopolizing pertinentinformation. For an essential element of these freedoms is to keep open a continuing

dialogue or process of communication between the government and the people. It isin the interest of the State that the channels for free political discussion be


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maintained to the end that the government may perceive and be responsive to thepeople's will. Yet, this open dialogue can be effective only to the extent that thecitizenry is informed and thus able to formulate its will intelligently. Only when the

participants in the discussion are aware of the issues and have access to informationrelating thereto can such bear fruit.

The right to information is an essential premise of a meaningful right tospeech and expression. But this is not to say that the right to information is merelyan adjunct of and therefore restricted in application by the exercise of the freedomsof speech and of the press. Far from it. The right to information goes hand-in-handwith the constitutional policies offull public disclosure ** and honesty in the public

service.***It is meant to enhance the widening role of the citizenry ingovernmental decision-making as well in checking abuse in government.

Yet, like all the constitutional guarantees, the right to information is notabsolute. As stated inLegaspi,The people's right to information is limited to"matters of public concern", and is further "subject to such limitations as may be

provided by law." Similarly, the State's policy of full disclosure is limited to"transactions involving public interest", and is "subject to reasonable conditions

prescribed by law."

Hence, before mandamus may issue, it must be clear that the informationsought is of "public interest" or "public concern", and is not exempted by law from

the operation of the constitutional guarantee [Legaspi v. Civil Service Commission,supra,at p. 542.].

The Court has always grappled with the meanings of the terms "publicinterest" and "public concern". As observed in Legaspi: prcd

In determining whether or not a particular information is of publicconcern there is no rigid test which can be applied. "Public concern"like "public interest" is a term that eludes exact definition. Bothterms embrace a broad spectrum of subjects which the public maywant to know, either because these directly affect their lives, orsimply because such matters naturally arouse the interest of anordinary citizen. In the final analysis, it is for the courts to

determine on a case by case basis whether the matter at issue is ofinterest or importance, as it relates to or affects the public. [Ibid. atp. 541.]

In the Taadacase the public concern deemed covered by theconstitutional right to information was the need for adequate notice to the public ofthe various laws which are to regulate the actions and conduct of citizens.InLegaspi,it was the "legitimate concern of citizens to ensure that government

positions requiring civil service eligibility are occupied only by persons who areeligibles" [Supraat p. 539.].

The information sought by petitioners in this case is the truth of reportsthat certain Members of the Batasang Pambansa belonging to the opposition were

able to secure "clean" loans from the GSIS immediately before the February 7, 1986election through the intercession of the former First Lady, Mrs. Imelda R. Marcos.

The GSIS is a trustee of contributions from the government and itsemployees and the administrator of various insurance programs for the benefit of thelatter. Undeniably, its funds assume a public character. More particularly, Secs. 5(b)and 46 of P.D. 1146, as amended (the Revised Government Service Insurance Act of1977), provide for annual appropriations to pay the contributions, premiums, interestand other amounts payable to GSIS by the government, as employer, as well as theobligations which the Republic of the Philippines assumes or guarantees to pay.Considering the nature of its funds, the GSIS is expected to manage its resourceswith utmost prudence and in strict compliance with the pertinent laws or rules and

regulations. Thus, one of the reasons that prompted the revision of the old GSIS law(C.A No. 186, as amended) was the necessity "to preserve at all times the actuarialsolvency of the funds administered by the Systems [Second Whereas Clause, P.D.

No. 1146.] Consequently, as respondent himself admits, the GSIS "is not supposedto grant `clean loans'." [Comment, p. 8.] It is therefore the legitimate concern of the

public to ensure that these funds are managed properly with the end in view ofmaximizing the benefits that accrue to the insured government employees.Moreover, the supposed borrowers were Members of the defunct BatasangPambansa who themselves appropriated funds for the GSIS and were thereforeexpected to be the first to see to it that the GSIS performed its tasks with the greatestdegree of fidelity and that all its transactions were above board.

In sum, the public nature of the loanable funds of the GSIS and the public

office held by the alleged borrowers make the information sought clearly a matter ofpublic interest and concern.

A second requisite must be met before the right to information may beenforced through mandamus proceedings, viz.,that the information sought must not

be among those excluded by law.

Respondent maintains that a confidential relationship exists between theGSIS and its borrowers. It is argued that a policy of confidentiality restricts theindiscriminate dissemination of information.

Yet, respondent has failed to cite any law granting the GSIS the privilegeof confidentiality as regards the documents subject of this petition. His position is

apparently based merely on considerations of policy. The judiciary does not settlepolicy issues. The Court can only declare what the law is, and not what the lawshould be. Under our system of government, policy issues are within the domain ofthe political branches of the government, and of the people themselves as therepository of all State power.

Respondent however contends that in view of the right to privacy which isequally protected by the Constitution and by existing laws, the documentsevidencing loan transactions of the GSIS must be deemed outside the ambit of theright to information. llcd

There can be no doubt that right to privacy is constitutionally protected. In thelandmark case ofMorfe v. Mutuc[130 Phil. 415 (1968), 22 SCRA 424], this Court,speaking through then Mr. Justice Fernando, stated:
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. . . The right to privacy as such is accorded recognitionindependently of its identification with liberty; in itself, it is fullydeserving of constitutional protection. The language of Prof.Emerson is particularly apt: "The concept of limited government hasalways included the idea that governmental powers stop short ofcertain intrusions into the personal life of the citizen. This is indeedone of the basic distinctions between absolute and limitedgovernment. Ultimate and pervasive control of the individual, in allaspects of his life, is the hallmark of the absolute state. In contrast, a

system of limited government safeguards a private sector, whichbelongs to the individual, firmly distinguishing it from the publicsector, which the state can control. Protection of this private sector

protection, in other words, of the dignity and integrity of theindividualhas become increasingly important as modern societyhas developed. All the forces of technological ageindustrialization, urbanization, and organizationoperate tonarrow the area of privacy and facilitate intrusion into it. In modernterms, the capacity to maintain and support this enclave of privatelife marks the difference between a democratic and a totalitariansociety." [at pp. 444-445.]

When the information requested from the government intrudes into theprivacy of a citizen, a potential conflict between the rights to information and toprivacy may arise. However, the competing interests of these rights need not beresolved in this case. Apparent from the above-quoted statement of the CourtinMorfeis that the right to privacy belongs to the individual in his private capacity,and not to public and governmental agencies like the GSIS. Moreover, the rightcannot be invoked by juridical entities like the GSIS. As held in the case of VassarCollege v. Loose Wills Biscuit Co.[197 F. 982 (1912)], a corporation has no right of

privacy in its name since the entire basis of the right to privacy is an injury to thefeelings and sensibilities of the party and a corporation would have no such groundfor relief.

Neither can the GSIS through its General Manager, the respondent, invokethe right to privacy of its borrowers. The right is purely personal in nature

[Cf.Atkinson v. John Doherty & Co., 121 Mich 372, 80 N.W. 285, 46 L.R.A. 219(1899); Schuyler v. Curtis, 147 N.Y. 434, 42 N.E. 22, 31 L.R.A. 286 (1895)], andhence may be invoked only by the person whose privacy is claimed to be violated.

It may be observed, however, that in the instant case, the concernedborrowers themselves may not succeed if they choose to invoke their right toprivacy, considering the public offices they were holding at the time the loans werealleged to have been granted. It cannot be denied that because of the interest theygenerate and their newsworthiness, public figures, most especially those holdingresponsible positions in government, enjoy a more limited right to privacy ascompared to ordinary individuals, their actions being subject to closer publicscrutiny [Cf.Ayer Productions Pty. Ltd. v. Capulong, G.R. Nos. 82380 and 82398,April 29, 1988; See alsoCohen v. Marx, 211 P. 2d 321 (1949).].

Respondent next asserts that the documents evidencing the loantransactions of the GSIS areprivatein nature and hence, are not covered by theConstitutional right to information on matters of public concern which guarantees"(a)ccess to officialrecords, and to documents, and papers pertaining to officialacts,transactions, or decisions" only.

It is argued that the records of the GSIS, a government corporationperforming proprietary functions, are outside the coverage of the people's right ofaccess to officialrecords. llcd

It is further contended that since the loan function of the GSIS is merelyincidental to its insurance function, then its loan transactions are not covered by theconstitutional policy of full public disclosure and the right to information which isapplicable only to "official" transactions.

First of all, the "constituentministrant" dichotomy characterizinggovernment function has long been repudiated. InACCFA v. Confederation ofUnions and Government Corporations and Offices [G.R. Nos. L-21484 and L-23605, November 29, 1969, 30 SCRA 644], the Court said that the government,whether carrying out its sovereign attributes or running some business, dischargesthe same function of service to the people.

Consequently, that the GSIS, in granting the loans, was exercising aproprietary function would not justify the exclusion of the transactions from the

coverage and scope of the right to information.

Moreover, the intent of the members of the Constitutional Commission of1986, to include government-owned and controlled corporations and transactionsentered into by them within the coverage of the State policy of full public disclosureis manifest from the records of the proceedings:

xxx xxx xxx

THE PRESIDING OFFICER (Mr. Colayco).

Commissioner Suarez is recognized.

MR. SUAREZ.Thank you. May I ask the Gentleman a fewquestion?

MR. OPLE.Very gladly.

MR. SUAREZ.Thank you.

When we declare "a policy of full public disclosure of all itstransactions"referring to the transactions of the Stateand when we say the "State" which I suppose wouldinclude all of the various agencies, departments, ministries

and instrumentalities of the government. . . .


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MR. OPLE.Yes, and individual public officers, Mr. PresidingOfficer.

MR. SUAREZ.Including government-owned and controlledcorporations.

MR. OPLE.That is correct, Mr. Presiding Officer.

MR. SUAREZ.And when we say "transactions which should bedistinguished from contracts, agreements, or treaties orwhatever, does the Gentleman refer to the steps leading tothe consummation of the contract, or does he refer to thecontract itself?

MR. OPLE.The "transactions"used here, I suppose, is generic and,therefore, it can cover both steps leading to a contract,and already a consummated contract, Mr. PresidingOfficer.

MR. SUAREZ.This contemplates inclusion of negotiations leading

to the consummation of the transaction.

MR. OPLE.Yes, subject only to reasonable safeguards on thenational interest.

MR. SUAREZ.Thank you. [V Record of the ConstitutionalCommission 24-25.] (Emphasis supplied.)

Considering the intent of the framers of the Constitution which, though notbinding upon the Court, are nevertheless persuasive, and considering further thatgovernment-owned and controlled corporations, whether performing proprietary orgovernmental functions are accountable to the people, the Court is convinced that

transactions entered into by the GSIS, a government-controlled corporation createdby special legislation are within the ambit of the people's right to be informedpursuant to the constitutional policy of transparency in government dealings.

In fine, petitioners are entitled to access to the documents evidencing loansgranted by the GSIS, subject to reasonable regulations that the latter may

promulgate relating to the manner and hours of examination, to the end that damageto or loss of the records may be avoided, that undue interference with the duties ofthe custodian of the records may be prevented and that the right of other personsentitled to inspect the records may be insured [Legaspi v. Civil ServiceCommission,supraat p. 538, quoting Subido v. Ozaeta, 80 Phil. 383, 387.] The

petition, as to the second and third alternative acts sought to be done by petitioners,is meritorious.

However, the same cannot be said with regard to the first act sought bypetitioners, i.e., "to furnish petitioners the list of the names of the Batasang

Pambansa members belonging to the UNIDO and PDP-Laban who were able tosecure clean loans immediately before the February 7 election thru theintercession/marginal note of the then First Lady Imelda Marcos."

Although citizens are afforded the right to information and, pursuantthereto, are entitled to "access to official records," the constitution does not accordthem a right to compel custodians of official records to prepare lists, abstracts,summaries and the like in their desire to acquire information or matters of publicconcern. cdrep

It must be stressed that it is essential for a writ of mandamus to issue thatthe applicant has a well-defined, clear and certain legal right to the thing demandedand that it is the imperative duty of defendant to perform the act required. Thecorresponding duty of the respondent to perform the required act must be clear andspecific [Lemi v. Valencia, G.R. No. L-20768, November 29, 1968, 126 SCRA 203;Ocampo v. Subido, G.R. No. L-28344, August 27, 1976, 72 SCRA 443.] Therequest of the petitioners fails to meet this standard, there being no duty on the partof respondent to prepare the list requested.

WHEREFORE, the instant petition is hereby granted and respondentGeneral Manager of the Government Service Insurance System is ORDERED toallow petitioners access to documents and records evidencing loans granted toMembers of the former Batasang Pambansa, as petitioners may specify, inspection,

not incompatible with this decision, as the GSIS may deem necessary.

SO ORDERED.

c. Province of Cotabato vs. The Govt. of the RP Peace Panel on Ancestral Domain [G.R.

No. 183591, October 14, 2008]


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d. Echagaray vs. Secretary of Justice [G.R. NO. 132601, October 12, 1998]

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

LEO ECHEGARAY y PILO,petitioner, vs. THE SECRETARYOF JUSTICE and THE DIRECTOR OF THE BUREAU OF

CORRECTIONS, THE EXECUTIVE JUDGE OF THE

REGIONAL TRIAL COURT OF QUEZON CITY AND THE

PRESIDING JUDGE OF REGIONAL TRIAL COURT OFQUEZON CITY, BRANCH 104,respondents.

SYLLABUS

1.CONSTITUTIONAL LAW; BILL OF RIGHTS; PROSCRIPTION AGAINSTCRUEL, DEGRADING OR INHUMAN PUNISHMENT; DEATHPER SE, NOTCRUEL, DEGRADING OR INHUMAN.The death penaltyper seis not a cruel,degrading or inhuman punishment. In the oft-cited case of Harden vs. Director of

Prisons, this Court held that "[p]unishments are cruel when they involve torture or alingering death; but the punishment of death is not cruel, within the meaning of that word

as used in the constitution .It implies there something inhuman and barbarous, somethingmore than the mere extinguishment of life."

2.ID; ID; ID; DEATH BY LETHAL INJECTION, CONSTITUTIONAL; INFLICTIONOF PAIN, MERELY INCIDENTAL.Any infliction of pain in lethal injection ismerely in carrying out the execution of the death penalty and does not fall within theconstitutional prescription against cruel, degrading or inhuman punishment. "In a limitedsense, anything is cruel which is calculated to give pain or distress, and since punishmentimports pain of suffering to the convict, it may be said that all punishment are cruel. Butof course the Constitution does not mean that crime, for this reason, is to go unpunished."The cruelty against which the Constitution protects a convicted man is cruelty inherent inthe method of punishment, not the necessary suffering involved in any method employed

to extinguish life humanely.

3.ID.; ID.; REIMPOSITION OF DEATH PENALTY DOES NOT VIOLATEINTERNATIONAL TREATY OBLIGATIONS.Petitioner assiduously argues that thereimposition of the death penalty law violates our international obligations, in particular,theInternational Covenant on Civil and Political Rights, which was adopted by theGeneral Assembly of the United Nations on December 16, 1966, signed and ratified bythe Philippines on December 19, 1966 and October 23, 1986, respectively. Indisputably,Article 6 of the Covenantenshrines the individual's right to life. Nevertheless, Article 6(2) of the Covenant explicitly recognizes that capital punishment is an allowablelimitation on the right to life, subject to the limitation that it be imposed for the " most

serious crimes." On the other hand, the Second Optional Protocol to the InternationalCovenant on Civil and Political Rights, Aiming at the Abolition of the Death Penalty was

adopted by the General Assembly on December 15, 1989. The Philippines neither signed

nor ratified said document. Evidently, petitioner's assertion of our obligationunder Second Optional Protocol is misplaced.

4.POLITICAL LAW; SEPARATION OF POWERS; CONSTRUED.The separationof powers is a fundamental principle in our system of government. It obtains not throughexpress provision but by actual division in the framing of our Constitution. eachdepartment of the government has exclusive cognizance of matters placed within its

jurisdiction, and is supreme within its own sphere. ACETSa

5.CONSTITUTIONAL LAW; NON-DELEGATION OF POWERS; EXCEPTIONS.Corollary to the doctrine of separation of powers is the principle of non-delegation of

powers. "The rule is that what has been delegated, cannot be delegated or as expressed inLatin maxim:potestas delegata non delegari potest." The recognized exceptions to therule are as follows: (1) Delegation of tariff powers to the President under Section 28 (2)of Article VI of the Constitution; (2) Delegation of emergency powers to the Presidentunder Section 23 (2) of Article VI of the Constitution; (3) Delegation to the people atlarge; (4) Delegation to local governments; and (5) Delegation of administrative bodies.

6.ID.; DELEGATION OF POWERS; REQUISITES.Although Congress maydelegate to another branch of the Government the power to fill in the details in theexecution, enforcement or administration of a law, it is essential, to forestall a violation

of the principle of separation of powers, that said law: (a) be complete in itself it mustset forth therein the policy to be executed, carried out or implemented by the delegate and (b) fix a standardthe limits of which are sufficiently determinate or determinable

to which the delegate must conform in the performance of his functions. aEHASI

7.ID.; ID.; R.A. 8177, VALID DELEGATION OF AUTHORITY TO SECRETARY OFJUSTICE.Empowering the Secretary of Justice in conjunction with the Secretary ofHealth and the Director of the Bureau of Corrections, to promulgate rules and regulationson the subject of lethal injection is a form of delegation of legislative authority toadministrative bodies. Considering the scope and the definiteness of R.A. No. 8177,which changed the mode of carrying out the death penalty, the Court finds that the lawsufficiently describes what job must be done, who is to do it and what is the scope of his

authority. R.A No. 8177 likewise provides the standards which define the legislativepolicy, marks its limits, map out its boundaries and specify the public agencies which willapply it. Thus, the Court finds that the existence of an area for exercise of discretion bythe Secretary of Justice and the Director of the Bureau of Corrections under delegatedlegislative power is proper where standards are formulated for the guidance and theexercise of limited discretion, which though general, are capable of reasonableapplication. A careful reading of R.A. No. 8177 would show that there is no unduedelegation of legislative power from the Secretary of Justice to the Director of the Bureauof Corrections for the simple reason that under the Administrative Code of 1987, theBureau of Corrections is a mere constituent unit of the Department of Justice. Further, theDepartment of Justice is tasked, among others, to take charge of the "administration ofcorrectional system." Hence, the import of the phraseology of the law is that theSecretary of Justice should supervise the Director of the Bureau of Corrections in

promulgating the Lethal Injection Manual, in consultation with the Department ofHealth. CaAIES


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8.ID.; ID.; RULES AND REGULATIONS TO IMPLEMENT R.A. No. 8177, ANUNDUE DELEGATION OF POWER.The Rules and Regulations to ImplementRepublic Act No. 8177 suffer serious flaws that could not be overlooked. the Court findsin the first paragraph of Section 19 of the implementing rules a veritable vacuum. TheSecretary of Justice has practically abdicated the power to promulgate the manual on theexecution procedure to the Director of the Bureau of Corrections, by not providing for amode of review and approval thereof. Being a mere constituent unit of the Department ofJustice, the Bureau of Corrections could not promulgate a manual that would not bear theimprimatur of the administrative superior, the Secretary of Justice as the rule-making

authority under R.A. No. 8177. Such apparent abdication of departmental responsibilityrenders the said paragraph invalid. As to the second paragraph of Section 19, the Courtfinds the requirement of confidentiality of the contents of the manual even with respect tothe convict unduly suppressive. It sees no legal impediment for the convict, should he sodesire, to obtain, a copy of the manual. The contents of the manual are matters of publicconcern, "which the public may want to know, either because these directly affect theirlives, or simply because such matters naturally arouse the interest of an ordinary citizen."

9.ID.; BILL OF RIGHTS; FREE ACCESS TO INFORMATION OF PUBLICCONCERN; A RECOGNITION OF ESSENTIALITY OF THE FREE FLOW OFIDEAS AND INFORMATION.The incorporation in the Constitution of a guaranteeof access to information of public concern is a recognition of the essentiality of the freeflow of ideas and information in a democracy. In the same way that free discussionenables members of society to cope with the exigencies of their time, access toinformation of general interest aids the people in democratic decision-making by givingthem a better perspective of the vital issues confronting the nation. caIDSH

10.ID.; DELEGATION OF POWER; RULES AND REGULATIONS TO IMPLEMENTR.A. NO. 8177; SECTION 17 THEREOF ADDING A GROUND FOR SUSPENSIONOF DEATH SENTENCE, DISCRIMINATORY.While Article 83 of the RevisedPenal Code, as amended by Section 25 of Republic Act No. 7659, suspends theimplementation of the death penalty while a woman is pregnant or within one (1) yearafter delivery, Section 17 of the implementing rules omitsthe one (1) year periodfollowing delivery as an instance when the death sentence is suspended, and addsaground for suspension of sentence no longer found under Article 83 of the Revised Penal

Code as amended, which is the three-year reprieve after a woman is sentenced.This additionis, in petitioner's review, tantamount to a gender-based discrimination sansstatutory basis, while the omissionis an impermissible contravention of the applicablelaw.

11.ADMINISTRATIVE LAW; ADMINISTRATIVE RULES AND REGULATIONS;CANNOT SUPPLANT OR MODIFY LAW; CASE AT BAR.Being merely animplementing rule, Section 17 aforecited must not override, but instead remain consistentand in harmony with the law it seeks to apply and implement. Administrative rules andregulations are intended to carry out, neither to supplant nor to modify, the law. Anadministrative agency cannot amend an act of Congress. In case of discrepancy between a

provision of statute and a rule or regulation issued to implement said statute, the statutory

provision prevails. Since the cited clause in Section 17 which suspends the execution of awoman within the three years (3) next following the date of sentence finds no support in

Article 83 of the Revised Penal Code as amended, perforce Section 17 must be declaredinvalid. ETAICc

PER CURIAMp:

On June 25, 1996, this Court affirmed1 the conviction of petitioner Leo Echegaray y Pilo

for the crime of rape of the 10 year-old daughter of his common-law spouse and theimposition upon him of the death penalty for the said crime. LexLib

Petitioner duly filed a Motion for Reconsideration raising mainly factual issues, and onits heels, a Supplemental Motion for Reconsideration raising for the first time the issue ofthe constitutionality of Republic Act No. 76592 (the death penalty law) and theimposition of the death penalty for the crime of rape.

On February 7, 1998, this Court denied3petitioner's Motion for Reconsideration andSupplemental Motion for Reconsideration with a finding that Congress duly compliedwith the requirements for the reimposition of the death penalty and therefore the death

penalty law is not unconstitutional.

In the meantime, Congress had seen it fit to change the mode of execution of the deathpenalty from electrocution to lethal injection,4and passed Republic Act No. 8177, ANACT DESIGNATING DEATH BY LETHAL INJECTION AS THE METHOD OFCARRYING OUT CAPITAL PUNISHMENT, AMENDING FOR THE PURPOSEARTICLE 81 OF THE REVISED PENAL CODE, AS AMENDED BY SECTION 24OF REPUBLIC ACT NO. 7659.5Pursuant to the provisions of said law, the Secretary ofJustice promulgated the Rules and Regulations to Implement Republic Act No. 8177("implementing rules")6and directed the Director of the Bureau of Corrections to

prepare the Lethal Injection Manual.7

On March 2, 1998, petitioner filed a Petition8 for Prohibition, Injunction and/orTemporary Restraining Order to enjoin respondents Secretary of Justice and Director ofthe Bureau of Prisons from carrying out the execution by lethal injection of petitionerunder R.A. No. 8177 and its implementing rules as these are unconstitutional and void for

being: (a) cruel, degrading and inhuman punishmentper se as well as by reason of itsbeing (b) arbitrary, unreasonable and a violation of due process, (c) a violation of thePhilippines' obligations under international covenants, (d) an undue delegation oflegislative power by Congress, (e) an unlawful exercise by respondent Secretary of the

power to legislate, and (f) an unlawful delegation of delegated powers by the Secretary ofJustice to respondent Director.

On March 3, 1998, petitioner, through counsel, filed a Motion for Leave of Court 9toAmend and Supplement Petition with the Amended and SupplementalPetition10attached thereto, invoking the additional ground of violation of equal

protection, and impleading the Executive Judge of the Regional Trial Court of QuezonCity and the Presiding Judge of the Regional Trial Court, Branch 104, in order to enjoin
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said public respondents from acting under the questioned rules by setting a date forpetitioner's execution.

On March 3, 1998, the Court resolved, without giving due course to the petition, torequire the respondents to COMMENT thereon within a non-extendible period of ten (10)days from notice, and directed the parties "to MAINTAIN thestatus quoprevailing at thetime of the filing of this petition."

On March 10, 1998, the Court granted the Motion for Leave of Court to Amend andSupplement Petition, and required respondents to COMMENT thereon within ten (10)days from notice.

On March 16, 1998, petitioner filed a Very Urgent Motion (1) To Clarify Status QuoOrder, and (2) For the Issuance of a Temporary Restraining Order expressly enjoining

public respondents from taking any action to carry out petitioner's execution until thepetition is resolved.

On March 16, 1998, the Office of the Solicitor General11filed a Comment (On thePetition and the Amended Supplemental Petition)12stating that (1) this Court hasalready upheld the constitutionality of the Death Penalty Law, and has repeatedlydeclared that the death penalty is not cruel, unjust, excessive or unusual punishment; (2)

execution by lethal injection, as authorized under R.A. No. 8177 and the questioned rules,is constitutional, lethal injection being the most modern, more humane, more economical,safer and easier to apply (than electrocution or the gas chamber); (3) the InternationalCovenant on Civil and Political Rights does not expressly or impliedly prohibit theimposition of the death penalty; (4) R.A. No. 8177 properly delegated legislative powerto respondent Director; and that (5) R.A. No. 8177 confers the power to promulgate theimplementing rules to the Secretary of Justice, Secretary of Health and the Bureau ofCorrections.

On March 17, 1998, the Court required the petitioner to file a REPLY thereto within anon-extendible period of ten days from notice.

On March 25, 1998, the Commission on Human Rights13 filed a Motion for Leave ofCourt to Intervene and/or Appear as Amicus Curiae14 with the attached Petition toIntervene and/or Appear as Amicus Curiae15 alleging that the death penalty imposedunder R.A. No. 7659 which is to be implemented by R.A. No. 8177 is cruel, degradingand outside the limits of civil society standards, and further invoking (a) Article II,Section 11 of the Constitution which provides: "The State values the dignity of everyhuman person and guarantees full respect for human rights ."; (b) Article III ofthe Universal Declaration of Human Rights which states that "Everyone has the right tolife, liberty and security of person," and Article V thereof, which states that "No one shallbe subjected to torture or to cruel, inhuman or degrading treatment or punishment."; (c)TheInternational Covenant on Civil and Political Rights, in particular, Article 6 thereof,and the Second Optional Protocol to the International Covenant on Civil and Political

Rights Aiming At The Abolition of The Death Penalty; (d) Amnesty International statisticsshowing that as of October 1996, 58 countries have abolished the death penalty for all

crimes, 15 countries have abolished the death penalty for ordinary crimes, and 26countries are abolitionists de facto, which means that they have retained the death penaltyfor ordinary crimes but are considered abolitionists in practice in that they have notexecuted anyone during the past ten (10) years or more, or in that they have made aninternational commitment not to carry out executions, for a total of 99 countries whichare total abolitionists in law or practice, and 95 countries as retentionists; 16 and (e) PopeJohn Paul II's encyclical, "Evangelium Vitae." In a Resolution dated April 3, 1998, theCourt duly noted the motion.

On March 27, 1998, petitioner filed a Reply17 stating that (1) this Court is not barredfrom exercising judicial review over the death penalty per se, the death penalty for rapeand lethal injection as a mode of carrying out the death penalty; (2) capital punishment isa cruel, degrading and inhuman punishment; (3) lethal injection is cruel, degrading andinhuman punishment, and that being the "most modern" does not make it less cruel ormore humane, and that the Solicitor General's "aesthetic" criteria is short-sighted, andthat lethal injection is not risk free nor is it easier to implement; and (4) the death penaltyviolates theInternational Covenant on Civil and Political Rights considering that thePhilippines participated in the deliberations of and voted for the Second Optional

Protocol.

After deliberating on the pleadings, the Court gave due course to the petition, which it

now resolves on the merits.

In the Amended and Supplemental Petition, petitioner assails the constitutionality of themode of carrying out his death sentence by lethal injection on the following grounds: 18

I.

DEATH BY LETHAL INJECTION IS UNCONSTITUTIONALFOR BEING A CRUEL, DEGRADING AND INHUMANPUNISHMENT.

II.

THE DEATH PENALTY VIOLATES THE INTERNATIONALCOVENANT ON CIVIL AND POLITICAL RIGHTS, WHICH ISPART OF THE LAW OF THE LAND.

III.

LETHAL INJECTION, AS AUTHORIZED UNDER REPUBLICACT NO. 8177 AND THE QUESTIONED RULES, ISUNCONSTITUTIONAL BECAUSE IT IS AN UNNECESSARYAND WANTON INFLICTION OF PAIN ON A PERSON AND IS,THUS, A CRUEL, DEGRADING, AND INHUMAN

PUNISHMENT.
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IV.

REPUBLIC ACT NO. 8177 UNDULY DELEGATESLEGISLATIVE POWER TO RESPONDENT DIRECTOR.

V.

RESPONDENT SECRETARY UNLAWFULLY DELEGATED

THE LEGISLATIVE POWERS DELEGATED TO HIM UNDERREPUBLIC ACT NO. 8177 T O RESPONDENT DIRECTOR.

VI.

RESPONDENT SECRETARY EXCEEDED THE AUTHORITYDELEGATED TO HIM UNDER REPUBLIC ACT NO. 8177 ANDUNLAWFULLY USURPED THE POWER TO LEGISLATE INPROMULGATING THE QUESTIONED RULES.

VII.

SECTION 17 OF THE QUESTIONED RULES ISUNCONSTITUTIONAL FOR BEING DISCRIMINATORY ASWELL AS FOR BEING AN INVALID EXERCISE BYRESPONDENT SECRETARY OF THE POWER TOLEGISLATE.

VIII.

INJUNCTION MUST ISSUE TO PREVENT IRREPARABLEDAMAGE AND INJURY TO PETITIONER'S RIGHTS BYREASON OF THE EXISTENCE, OPERATION ANDIMPLEMENTATION OF AN UNCONSTITUTIONAL STATUTE

AND EQUALLY INVALID IMPLEMENTING RULES.

Concisely put, petitioner argues that R.A. No. 8177 and its implementing rules do notpass constitutional muster for: (a) violation of the constitutional proscription againstcruel, degrading or inhuman punishment, (b) violation of our international treatyobligations, (c) being an undue delegation of legislative power, and (d) beingdiscriminatory.

The Court shall now proceed to discuss these issues in seriatim.

I.LETHAL INJECTION, NOT CRUEL, DEGRADING OR INHUMANPUNISHMENT UNDER SECTION 19, ARTICLE III OF THE 1987

CONSTITUTION

The main challenge to R.A. No. 8177 and its implementing rules is anchored on ArticleIII, Section 19 (1) of the 1987 Constitution which proscribes the imposition of "cruel,degrading or inhuman" punishment. "The prohibition in the Philippine Bill against crueland unusual punishments is an Anglo-Saxon safeguard against governmental oppressionof the subject, which made its first appearance in the reign of William and Mary ofEngland in 'An Act declaring the rights and liberties of the subject, and settling thesuccession of the crown,' passed in the year 1689. It has been incorporated into theConstitution of the United States (of America) and into most constitutions of the variousStates in substantially the same language as that used in the original statute. The exact

language of the Constitution of the United States is used in the Philippine Bill." 19"Thecounterpart of Section 19 (1) in the 1935 Constitution reads: 'Excessive fines shall not beimposed, nor cruel and inhuman punishment inflicted.' . . . In the 1973 Constitution the

phrase became 'cruel orunusual punishment.' The Bill of Rights Committee of the 1986Constitutional Commission read the 1973 modification as prohibiting 'unusual'

punishment even if not 'cruel.' It was thus seen as an obstacle to experimentation inpenology. Consequently, the Committee reported out the present text which prohibits'cruel, degrading or inhuman punishment' as more consonant with the meaning desiredand with jurisprudence on the subject."20

Petitioner contends that death by lethal injection constitutes cruel, degrading andinhuman punishment considering that (1) R.A. No. 8177 fails to provide for the drugs tobe used in carrying out lethal injection, the dosage for each drug to be administered, andthe procedure in administering said drug/s into the accused; (2) R.A. No. 8177 and itsimplementing rules are uncertain as to the date of execution, time of notification, thecourt which will fix the date of execution, which uncertainties cause the greatest pain andsuffering for the convict; and (3) the possibility of "botched executions" or mistakes inadministering the drugs renders lethal injection inherently cruel.

Before the Court proceeds any further, a brief explanation of the process of administeringlethal injection is in order.

In lethal injection, the condemned inmate is strapped on a hospital gurney and wheeledinto the execution room. A trained technician inserts a needle into a vein in the inmate'sarm and begins an intravenous flow of saline solution. At the warden's signal, a lethalcombination of drugs is injected into the intravenous line. The deadly concoctiontypically includes three drugs: (1) a nonlethal dose of sodium thiopenthotal, a sleepinducing barbiturate; (2) lethal doses of pancuronium bromide, a drug that paralyzes themuscles; and (3) potassium chloride, which stops the heart within seconds. The first twodrugs are commonly used during surgery to put the patient to sleep and relax muscles; thethird is used in heart bypass surgery.21

Now it is well-settled in jurisprudence that the death penaltyper se is not a cruel,degrading or inhuman punishment.22In the oft-cited case ofHarden v.Director of

Prisons,23this Court held that "[p]unishments are cruel when they involve torture or a

lingering death; but the punishment of death is not cruel, within the meaning of that wordas used in the constitution. It implies there something inhuman and barbarous, something
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more than the mere extinguishment of life." Would the lack in particularity then as to thedetails involved in the execution by lethal injection render said law "cruel, degrading orinhuman"? The Court believes not. For reasons hereafter discussed, the implementingdetails of R.A. No. 8177 are matters which are properly left to the competence andexpertise of administrative officials.24

Petitioner contends that Sec. 1625of R.A. No. 8177 is uncertain as to which "court" willfix the time and date of execution, and the date of execution and time of notification ofthe death convict. As petitioner already knows, the "court" which designates the date of

execution is the trial court which convicted the accused, that is, after this Court hasreviewed the entire records of the case26and has affirmed the judgment of the lowercourt. Thereupon, the procedure is that the "judgment is entered fifteen (15) days after its

promulgation, and 10 days thereafter, the records are remanded to the court belowincluding a certified copy of the judgment for execution."27Neither is there anyuncertainty as to the date of execution nor the time of notification. As to the date ofexecution, Section 15 of the implementing rules must be read in conjunction with the lastsentence of Section 1 of R.A. No. 8177 which provides that the death sentence shall becarried out "not earlier than one (1) year nor later than eighteen (18) months after the

judgment has become final and executory, without prejudice to the exercise by thePresident of his executive clemency powers at all times." Hence, the death convict is ineffect assured of eighteen (18) months from the time the judgment imposing the death

penalty became final and executory28wherein he can seek executive clemency29andattend to all his temporal and spiritual affairs. 30

Petitioner further contends that the infliction of "wanton pain" in case of possiblecomplications in the intravenous injection, considering and as petitioner claims, thatrespondent Director is an untrained and untested person insofar as the choice andadministration of lethal injection is concerned, renders lethal injection a cruel, degradingand inhuman punishment. Such supposition is highly speculative and unsubstantiated.

First. Petitioner has neither alleged nor presented evidence that lethal injection requiresthe expertise only of phlebotomists and not trained personnel and that the drugs to beadministered are unsafe or ineffective.31Petitioner simply cites situations in the UnitedStates wherein execution by lethal injection allegedly resulted in prolonged and

agonizing death for the convict,32without any other evidence whatsoever. cdrep

Second. Petitioner overlooked Section 1, third paragraph of R.A. No. 8177 whichrequires that all personnel involved in the execution proceedings should be trained priorto the performance of such task. We must presume that the public officials entrusted withthe implementation of the death penalty (by lethal injection) will carefully avoidinflicting cruel punishment.33

Third. Any infliction of pain in lethal injection is merely incidental in carrying out theexecution of the death penalty and does not fall within the constitutional proscriptionagainst cruel, degrading or inhuman punishment. "In a limited sense, anything is cruelwhich is calculated to give pain or distress, and since punishment imports pain or

suffering to the convict, it may be said that all punishments are cruel. But of course theConstitution does not mean that crime, for this reason, is to go unpunished." 34The

cruelty against which the Constitution protects a convicted man is cruelty inherent in themethod of punishment, not the necessary suffering involved in any method employed toextinguish life humanely.35Numerous federal and state courts of the United States have

been asked to review whether lethal injections constitute cruel and unusual punishment.No court has found lethal injections to implicate prisoners' Eighth Amendment rights. Infact, most courts that have addressed the issue state in one or two sentences that lethalinjection clearly is a constitutional form of execution. 36A few jurisdictions, however,have addressed the merits of the Eighth Amendment claims. Without exception, thesecourts have found that lethal injection does not constitute cruel and unusual punishment.

After reviewing medical evidence that indicates that improper doses or improperadministration of the drugs causes severe pain and that prison officials tend to have littletraining in the administration of the drugs, the courts have found that the few minutes of

pain does not rise to a constitutional violation.37

What is cruel and unusual "is not fastened to the obsolete but may acquire meaning aspublic opinion becomes enlightened by a humane justice" and "must draw its meaningfrom the evolving standards of decency that mark the progress of a maturingsociety."38Indeed, "[o]ther (U.S.) courts have focused on 'standards of decency' findingthat the widespread use of lethal injections indicates that it comports with contemporarynorms."39The primary indicator of society's standard of decency with regard to capital

punishment is the response of the country's legislatures to the sanction.40Hence, for aslong as the death penalty remains in our statute books and meets the most stringentrequirements provided by the Constitution, we must confine our inquiry to the legality ofR.A. No. 8177, whose constitutionality we duly sustain in the face of petitioner'schallenge. We find that the legislature's substitution of the mode of carrying out the death

penalty from electrocution to lethal injection infringes no constitutional rights ofpetitioner herein.

II.REIMPOSITION OF T

consti expression 2

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