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G.R. No.

119976 September 18, 1995


IMELDA
ROMUALDEZ-MARCOS, petitioner, vs.COMMISSION
ELECTIONS and CIRILO ROY MONTEJO, respondents.

ON

KAPUNAN, J.:
A constitutional provision should be construed as to give it effective operation
and suppress the mischief at which it is aimed. 1 The 1987 Constitution
mandates that an aspirant for election to the House of Representatives be "a
registered voter in the district in which he shall be elected, and a resident
thereof for a period of not less than one year immediately preceding the
election." 2 The mischief which this provision reproduced verbatim from the
1973 Constitution seeks to prevent is the possibility of a "stranger or
newcomer unacquainted with the conditions and needs of a community and
not identified with the latter, from an elective office to serve that community." 3
Petitioner Imelda Romualdez-Marcos filed her Certificate of Candidacy for the
position of Representative of the First District of Leyte with the Provincial
Election Supervisor on March 8, 1995, providing the following information in
item no. 8: 4
RESIDENCE IN THE CONSTITUENCY WHERE I SEEK TO BE ELECTED
IMMEDIATELY
PRECEDING
THE
ELECTION:
__________
Years
and seven Months.
On March 23, 1995, private respondent Cirilo Roy Montejo, the incumbent
Representative of the First District of Leyte and a candidate for the same
position, filed a "Petition for Cancellation and Disqualification" 5 with the
Commission on Elections alleging that petitioner did not meet the
constitutional requirement for residency. In his petition, private respondent
contended that Mrs. Marcos lacked the Constitution's one year residency
requirement for candidates for the House of Representatives on the evidence
of declarations made by her in Voter Registration Record 94-No. 3349772 6and
in her Certificate of Candidacy. He prayed that "an order be issued declaring
(petitioner) disqualified and canceling the certificate of candidacy." 7
On March 29, 1995, petitioner filed an Amended/Corrected Certificate of
Candidacy, changing the entry "seven" months to "since childhood" in item no.
8 of the amended certificate. 8 On the same day, the Provincial Election
Supervisor of Leyte informed petitioner that:
[T]his office cannot receive or accept the aforementioned Certificate
of Candidacy on the ground that it is filed out of time, the deadline for
the filing of the same having already lapsed on March 20, 1995. The
Corrected/Amended Certificate of Candidacy should have been filed on
or before the March 20, 1995 deadline. 9
Consequently, petitioner filed the Amended/Corrected Certificate of Candidacy
with
the
COMELEC's
Head
Office
in
Intramuros,
Manila
on

March 31, 1995. Her Answer to private respondent's petition in SPA No. 95-009
was likewise filed with the head office on the same day. In said Answer,
petitioner averred that the entry of the word "seven" in her original Certificate
of Candidacy was the result of an "honest misinterpretation" 10 which she
sought to rectify by adding the words "since childhood" in her
Amended/Corrected Certificate of Candidacy and that "she has always
maintained Tacloban City as her domicile or residence. 11 Impugning
respondent's motive in filing the petition seeking her disqualification, she
noted that:
When respondent (petitioner herein) announced that she was
intending to register as a voter in Tacloban City and run for Congress
in the First District of Leyte, petitioner immediately opposed her
intended registration by writing a letter stating that "she is not a
resident of said city but of Barangay Olot, Tolosa, Leyte. After
respondent had registered as a voter in Tolosa following completion of
her six month actual residence therein, petitioner filed a petition with
the COMELEC to transfer the town of Tolosa from the First District to
the Second District and pursued such a move up to the Supreme
Court, his purpose being to remove respondent as petitioner's
opponent in the congressional election in the First District. He also
filed a bill, along with other Leyte Congressmen, seeking the creation
of another legislative district to remove the town of Tolosa out of the
First District, to achieve his purpose. However, such bill did not pass
the Senate. Having failed on such moves, petitioner now filed the
instant petition for the same objective, as it is obvious that he is afraid
to submit along with respondent for the judgment and verdict of the
electorate of the First District of Leyte in an honest, orderly, peaceful,
free and clean elections on May 8, 1995. 12
On April 24, 1995, the Second Division of the Commission on Elections
(COMELEC), by a vote of 2 to 1, 13 came up with a Resolution 1) finding private
respondent's Petition for Disqualification in SPA 95-009 meritorious; 2) striking
off petitioner's Corrected/Amended Certificate of Candidacy of March 31, 1995;
and 3) canceling her original Certificate of Candidacy. 14 Dealing with two
primary issues, namely, the validity of amending the original Certificate of
Candidacy after the lapse of the deadline for filing certificates of candidacy,
and petitioner's compliance with the one year residency requirement, the
Second Division held:
Respondent raised the affirmative defense in her Answer that the
printed word "Seven" (months) was a result of an "honest
misinterpretation or honest mistake" on her part and, therefore, an
amendment should subsequently be allowed. She averred that she
thought that what was asked was her "actual and physical" presence
in Tolosa and not residence of origin or domicile in the First Legislative
District, to which she could have responded "since childhood." In an
accompanying affidavit, she stated that her domicile is Tacloban City,
a component of the First District, to which she always intended to
return whenever absent and which she has never abandoned.
Furthermore, in her memorandum, she tried to discredit petitioner's
theory of disqualification by alleging that she has been a resident of
the First Legislative District of Leyte since childhood, although she

only became a resident of the Municipality of Tolosa for seven months.


She asserts that she has always been a resident of Tacloban City, a
component of the First District, before coming to the Municipality of
Tolosa.
Along this point, it is interesting to note that prior to her registration in
Tolosa, respondent announced that she would be registering in
Tacloban City so that she can be a candidate for the District. However,
this intention was rebuffed when petitioner wrote the Election Officer
of Tacloban not to allow respondent since she is a resident of Tolosa
and not Tacloban. She never disputed this claim and instead implicitly
acceded to it by registering in Tolosa.
This incident belies respondent's claim of "honest misinterpretation or
honest mistake." Besides, the Certificate of Candidacy only asks for
RESIDENCE. Since on the basis of her Answer, she was quite aware of
"residence of origin" which she interprets to be Tacloban City, it is
curious why she did not cite Tacloban City in her Certificate of
Candidacy. Her explanation that she thought what was asked was her
actual and physical presence in Tolosa is not easy to believe because
there is none in the question that insinuates about Tolosa. In fact, item
no. 8 in the Certificate of Candidacy speaks clearly of "Residency in
the CONSTITUENCY where I seek to be elected immediately preceding
the election." Thus, the explanation of respondent fails to be
persuasive.
From the foregoing, respondent's defense of an honest mistake or
misinterpretation, therefore, is devoid of merit.
To further buttress respondent's contention that an amendment may
be made, she cited the case ofAlialy v. COMELEC (2 SCRA 957). The
reliance of respondent on the case of Alialy is misplaced. The case
only applies to the "inconsequential deviations which cannot affect the
result of the election, or deviations from provisions intended primarily
to secure timely and orderly conduct of elections." The Supreme Court
in that case considered the amendment only as a matter of form. But
in the instant case, the amendment cannot be considered as a matter
of form or an inconsequential deviation. The change in the number of
years of residence in the place where respondent seeks to be elected
is a substantial matter which determines her qualification as a
candidacy, specially those intended to suppress, accurate material
representation in the original certificate which adversely affects the
filer. To admit the amended certificate is to condone the evils brought
by the shifting minds of manipulating candidate, of the detriment of
the integrity of the election.
Moreover, to allow respondent to change the seven (7) month period
of her residency in order to prolong it by claiming it was "since
childhood" is to allow an untruthfulness to be committed before this
Commission. The arithmetical accuracy of the 7 months residency the
respondent indicated in her certificate of candidacy can be gleaned
from her entry in her Voter's Registration Record accomplished on

January 28, 1995 which reflects that she is a resident of Brgy. Olot,
Tolosa, Leyte for 6 months at the time of the said registration (Annex
A, Petition). Said accuracy is further buttressed by her letter to the
election officer of San Juan, Metro Manila, dated August 24, 1994,
requesting for the cancellation of her registration in the Permanent
List of Voters thereat so that she can be re-registered or transferred to
Brgy. Olot, Tolosa, Leyte. The dates of these three (3) different
documents show the respondent's consistent conviction that she has
transferred her residence to Olot, Tolosa, Leyte from Metro Manila only
for such limited period of time, starting in the last week of August
1994 which on March 8, 1995 will only sum up to 7 months. The
Commission, therefore, cannot be persuaded to believe in the
respondent's contention that it was an error.
xxx xxx xxx
Based on these reasons the Amended/Corrected Certificate of
Candidacy cannot be admitted by this Commission.
xxx xxx xxx
Anent the second issue, and based on the foregoing discussion, it is
clear that respondent has not complied with the one year residency
requirement of the Constitution.
In election cases, the term "residence" has always been considered as
synonymous with "domicile" which imports not only the intention to
reside in a fixed place but also personal presence in-that place,
coupled with conduct indicative of such intention. Domicile denotes a
fixed permanent residence to which when absent for business or
pleasure, or for like reasons, one intends to return. (Perfecto Faypon
vs. Eliseo Quirino, 96 Phil 294; Romualdez vs. RTC-Tacloban, 226 SCRA
408). In respondent's case, when she returned to the Philippines in
1991, the residence she chose was not Tacloban but San Juan, Metro
Manila. Thus, her animus revertendi is pointed to Metro Manila and not
Tacloban.
This Division is aware that her claim that she has been a resident of
the First District since childhood is nothing more than to give her a
color of qualification where she is otherwise constitutionally
disqualified. It cannot hold ground in the face of the facts admitted by
the respondent in her affidavit. Except for the time that she studied
and worked for some years after graduation in Tacloban City, she
continuously lived in Manila. In 1959, after her husband was elected
Senator, she lived and resided in San Juan, Metro Manila where she
was a registered voter. In 1965, she lived in San Miguel, Manila where
she was again a registered voter. In 1978, she served as member of
the Batasang Pambansa as the representative of the City of Manila
and later on served as the Governor of Metro Manila. She could not
have served these positions if she had not been a resident of the City
of Manila. Furthermore, when she filed her certificate of candidacy for
the office of the President in 1992, she claimed to be a resident of San

Juan, Metro Manila. As a matter of fact on August 24, 1994,


respondent wrote a letter with the election officer of San Juan, Metro
Manila requesting for the cancellation of her registration in the
permanent list of voters that she may be re-registered or transferred
to Barangay Olot, Tolosa, Leyte. These facts manifest that she could
not have been a resident of Tacloban City since childhood up to the
time she filed her certificate of candidacy because she became a
resident of many places, including Metro Manila. This debunks her
claim that prior to her residence in Tolosa, Leyte, she was a resident of
the First Legislative District of Leyte since childhood.

In a Resolution promulgated a day before the May 8, 1995 elections, the


COMELEC en banc denied petitioner's Motion for Reconsideration 16 of the April
24, 1995 Resolution declaring her not qualified to run for the position of
Member of the House of Representatives for the First Legislative District of
Leyte. 17 The Resolution tersely stated:

In this case, respondent's conduct reveals her lack of intention to


make Tacloban her domicile. She registered as a voter in different
places and on several occasions declared that she was a resident of
Manila. Although she spent her school days in Tacloban, she is
considered to have abandoned such place when she chose to stay and
reside in other different places. In the case of Romualdez vs. RTC(226
SCRA 408) the Court explained how one acquires a new domicile by
choice. There must concur: (1) residence or bodily presence in the
new locality; (2) intention to remain there; and (3) intention to
abandon the old domicile. In other words there must basically
be animus manendi with animus non revertendi. When respondent
chose to stay in Ilocos and later on in Manila, coupled with her
intention to stay there by registering as a voter there and expressly
declaring that she is a resident of that place, she is deemed to have
abandoned Tacloban City, where she spent her childhood and school
days, as her place of domicile.

On May 11, 1995, the COMELEC issued a Resolution allowing petitioner's


proclamation should the results of the canvass show that she obtained the
highest number of votes in the congressional elections in the First District of
Leyte. On the same day, however, the COMELEC reversed itself and issued a
second Resolution directing that the proclamation of petitioner be suspended
in the event that she obtains the highest number of votes. 19

Pure intention to reside in that place is not sufficient, there must


likewise be conduct indicative of such intention. Respondent's
statements to the effect that she has always intended to return to
Tacloban, without the accompanying conduct to prove that intention,
is not conclusive of her choice of residence. Respondent has not
presented any evidence to show that her conduct, one year prior the
election, showed intention to reside in Tacloban. Worse, what was
evident was that prior to her residence in Tolosa, she had been a
resident of Manila.
It is evident from these circumstances that she was not a resident of
the First District of Leyte "since childhood."
To further support the assertion that she could have not been a
resident of the First District of Leyte for more than one year, petitioner
correctly pointed out that on January 28, 1995 respondent registered
as a voter at precinct No. 18-A of Olot, Tolosa, Leyte. In doing so, she
placed in her Voter Registration Record that she resided in the
municipality of Tolosa for a period of six months. This may be
inconsequential as argued by the respondent since it refers only to her
residence in Tolosa, Leyte. But her failure to prove that she was a
resident of the First District of Leyte prior to her residence in Tolosa
leaves nothing but a convincing proof that she had been a resident of
the district for six months only. 15

After deliberating on the Motion for Reconsideration, the Commission


RESOLVED to DENY it, no new substantial matters having been raised
therein to warrant re-examination of the resolution granting the
petition for disqualification. 18

In a Supplemental Petition dated 25 May 1995, petitioner averred that she was
the overwhelming winner of the elections for the congressional seat in the First
District of Leyte held May 8, 1995 based on the canvass completed by the
Provincial Board of Canvassers on May 14, 1995. Petitioner alleged that the
canvass showed that she obtained a total of 70,471 votes compared to the
36,833 votes received by Respondent Montejo. A copy of said Certificate of
Canvass was annexed to the Supplemental Petition.
On account of the Resolutions disqualifying petitioner from running for the
congressional seat of the First District of Leyte and the public respondent's
Resolution suspending her proclamation, petitioner comes to this court for
relief.
Petitioner raises several issues in her Original and Supplemental Petitions. The
principal issues may be classified into two general areas:
I. The issue of Petitioner's qualifications
Whether or not petitioner was a resident, for election purposes, of the
First District of Leyte for a period of one year at the time of the May 9,
1995 elections.
II. The Jurisdictional Issue
a) Prior to the elections
Whether or not the COMELEC properly exercised its jurisdiction in
disqualifying petitioner outside the period mandated by the Omnibus
Election Code for disqualification cases under Article 78 of the said
Code.

b) After the Elections


Whether or not the House of Representatives Electoral Tribunal
assumed exclusive jurisdiction over the question of petitioner's
qualifications after the May 8, 1995 elections.
I. Petitioner's qualification
A perusal of the Resolution of the COMELEC's Second Division reveals a
startling confusion in the application of settled concepts of "Domicile" and
"Residence" in election law. While the COMELEC seems to be in agreement
with the general proposition that for the purposes of election law, residence is
synonymous with domicile, the Resolution reveals a tendency to substitute or
mistake the concept of domicile for actual residence, a conception not
intended for the purpose of determining a candidate's qualifications for
election to the House of Representatives as required by the 1987 Constitution.
As it were, residence, for the purpose of meeting the qualification for an
elective position, has a settled meaning in our jurisdiction.
Article 50 of the Civil Code decrees that "[f]or the exercise of civil rights and
the fulfillment of civil obligations, the domicile of natural persons is their place
of habitual residence." In Ong vs. Republic 20 this court took the concept of
domicile to mean an individual's "permanent home", "a place to which,
whenever absent for business or for pleasure, one intends to return, and
depends on facts and circumstances in the sense that they disclose
intent." 21 Based on the foregoing, domicile includes the twin elements of "the
fact of residing or physical presence in a fixed place" and animus manendi, or
the intention of returning there permanently.
Residence, in its ordinary conception, implies the factual relationship of an
individual to a certain place. It is the physical presence of a person in a given
area, community or country. The essential distinction between residence and
domicile in law is that residence involves the intent to leave when the purpose
for which the resident has taken up his abode ends. One may seek a place for
purposes such as pleasure, business, or health. If a person's intent be to
remain, it becomes his domicile; if his intent is to leave as soon as his purpose
is established it is residence. 22 It is thus, quite perfectly normal for an
individual to have different residences in various places. However, a person
can only have a single domicile, unless, for various reasons, he successfully
abandons his domicile in favor of another domicile of choice. In Uytengsu
vs. Republic, 23 we laid this distinction quite clearly:

it is not by any means necessarily so since no length of residence


without intention of remaining will constitute domicile.
For political purposes the concepts of residence and domicile are dictated by
the peculiar criteria of political laws. As these concepts have evolved in our
election law, what has clearly and unequivocally emerged is the fact that
residence for election purposes is used synonymously with domicile.
In Nuval vs. Guray, 24 the Court held that "the term residence. . . is
synonymous with domicile which imports not only intention to reside in a fixed
place, but also personal presence in that place, coupled with conduct
indicative of such intention." 25 Larena vs. Teves 26 reiterated the same
doctrine in a case involving the qualifications of the respondent therein to the
post of Municipal President of Dumaguete, Negros Oriental. Faypon
vs. Quirino, 27 held that the absence from residence to pursue studies or
practice a profession or registration as a voter other than in the place where
one is elected does not constitute loss of residence. 28 So settled is the concept
(of domicile) in our election law that in these and other election law cases, this
Court has stated that the mere absence of an individual from his permanent
residence without the intention to abandon it does not result in a loss or
change of domicile.
The deliberations of the 1987 Constitution on the residence qualification for
certain elective positions have placed beyond doubt the principle that when
the Constitution speaks of "residence" in election law, it actually means only
"domicile" to wit:
Mr. Nolledo: With respect to Section 5, I remember that in the 1971
Constitutional Convention, there was an attempt to require residence
in the place not less than one year immediately preceding the day of
the elections. So my question is: What is the Committee's concept of
residence of a candidate for the legislature? Is it actual residence or is
it the concept of domicile or constructive residence?
Mr. Davide: Madame President, insofar as the regular members of the
National Assembly are concerned, the proposed section merely
provides, among others, "and a resident thereof", that is, in the district
for a period of not less than one year preceding the day of the
election. This was in effect lifted from the 1973 Constitution, the
interpretation given to it was domicile. 29
xxx xxx xxx

There is a difference between domicile and residence. "Residence" is


used to indicate a place of abode, whether permanent or temporary;
"domicile" denotes a fixed permanent residence to which, when
absent, one has the intention of returning. A man may have a
residence in one place and a domicile in another. Residence is not
domicile, but domicile is residence coupled with the intention to
remain for an unlimited time. A man can have but one domicile for the
same purpose at any time, but he may have numerous places of
residence. His place of residence is generally his place of domicile, but

Mrs. Rosario Braid: The next question is on Section 7, page 2. I think


Commissioner Nolledo has raised the same point that "resident" has
been interpreted at times as a matter of intention rather than actual
residence.
Mr. De los Reyes: Domicile.

Ms. Rosario Braid: Yes, So, would the gentleman consider at the proper
time to go back to actual residence rather than mere intention to
reside?
Mr. De los Reyes: But we might encounter some difficulty especially
considering that a provision in the Constitution in the Article on
Suffrage says that Filipinos living abroad may vote as enacted by law.
So, we have to stick to the original concept that it should be by
domicile and not physical residence. 30
In Co vs. Electoral Tribunal of the House of Representatives, 31 this Court
concluded that the framers of the 1987 Constitution obviously adhered to the
definition given to the term residence in election law, regarding it as having
the same meaning as domicile. 32
In the light of the principles just discussed, has petitioner Imelda Romualdez
Marcos satisfied the residency requirement mandated by Article VI, Sec. 6 of
the 1987 Constitution? Of what significance is the questioned entry in
petitioner's Certificate of Candidacy stating her residence in the First
Legislative District of Leyte as seven (7) months?
It is the fact of residence, not a statement in a certificate of candidacy which
ought to be decisive in determining whether or not and individual has satisfied
the constitution's residency qualification requirement. The said statement
becomes material only when there is or appears to be a deliberate attempt to
mislead, misinform, or hide a fact which would otherwise render a candidate
ineligible. It would be plainly ridiculous for a candidate to deliberately and
knowingly make a statement in a certificate of candidacy which would lead to
his or her disqualification.
It stands to reason therefore, that petitioner merely committed an honest
mistake in jotting the word "seven" in the space provided for the residency
qualification requirement. The circumstances leading to her filing the
questioned entry obviously resulted in the subsequent confusion which
prompted petitioner to write down the period of her actual stay in Tolosa, Leyte
instead of her period of residence in the First district, which was "since
childhood" in the space provided. These circumstances and events are amply
detailed in the COMELEC's Second Division's questioned resolution, albeit with
a different interpretation. For instance, when herein petitioner announced that
she would be registering in Tacloban City to make her eligible to run in the First
District, private respondent Montejo opposed the same, claiming that
petitioner was a resident of Tolosa, not Tacloban City. Petitioner then registered
in her place of actual residence in the First District, which is Tolosa, Leyte, a
fact which she subsequently noted down in her Certificate of Candidacy. A
close look at said certificate would reveal the possible source of the confusion:
the entry for residence (Item No. 7) is followed immediately by the entry for
residence in the constituency where a candidate seeks election thus:
7. RESIDENCE (complete Address): Brgy. Olot, Tolosa, Leyte

POST OFFICE ADDRESS FOR ELECTION PURPOSES: Brgy. Olot, Tolosa,


Leyte
8. RESIDENCE IN THE CONSTITUENCY WHERE I SEEK TO
BE ELECTED IMMEDIATELY PRECEDING THE ELECTION:_________ Years
and Seven Months.
Having been forced by private respondent to register in her place of actual
residence in Leyte instead of petitioner's claimed domicile, it appears that
petitioner had jotted down her period of stay in her legal residence or domicile.
The juxtaposition of entries in Item 7 and Item 8 the first requiring actual
residence and the second requiring domicile coupled with the circumstances
surrounding petitioner's registration as a voter in Tolosa obviously led to her
writing down an unintended entry for which she could be disqualified. This
honest mistake should not, however, be allowed to negate the fact of
residence in the First District if such fact were established by means more
convincing than a mere entry on a piece of paper.
We now proceed to the matter of petitioner's domicile.
In support of its asseveration that petitioner's domicile could not possibly be in
the First District of Leyte, the Second Division of the COMELEC, in its assailed
Resolution of April 24,1995 maintains that "except for the time when
(petitioner) studied and worked for some years after graduation in Tacloban
City, she continuously lived in Manila." The Resolution additionally cites certain
facts as indicative of the fact that petitioner's domicile ought to be any place
where she lived in the last few decades except Tacloban, Leyte. First, according
to the Resolution, petitioner, in 1959, resided in San Juan, Metro Manila where
she was also registered voter. Then, in 1965, following the election of her
husband to the Philippine presidency, she lived in San Miguel, Manila where
she as a voter. In 1978 and thereafter, she served as a member of the
Batasang Pambansa and Governor of Metro Manila. "She could not, have
served these positions if she had not been a resident of Metro Manila," the
COMELEC stressed. Here is where the confusion lies.
We have stated, many times in the past, that an individual does not lose his
domicile even if he has lived and maintained residences in different places.
Residence, it bears repeating, implies a factual relationship to a given place for
various purposes. The absence from legal residence or domicile to pursue a
profession, to study or to do other things of a temporary or semi-permanent
nature does not constitute loss of residence. Thus, the assertion by the
COMELEC that "she could not have been a resident of Tacloban City since
childhood up to the time she filed her certificate of candidacy because she
became a resident of many places" flies in the face of settled jurisprudence in
which this Court carefully made distinctions between (actual) residence and
domicile for election law purposes. InLarena vs. Teves, 33 supra, we stressed:
[T]his court is of the opinion and so holds that a person who has his
own house wherein he lives with his family in a municipality without
having ever had the intention of abandoning it, and without having
lived either alone or with his family in another municipality, has his
residence in the former municipality, notwithstanding his having

registered as an elector in the other municipality in question and


having been a candidate for various insular and provincial positions,
stating every time that he is a resident of the latter municipality.
More significantly, in Faypon vs. Quirino,

34

We explained that:

A citizen may leave the place of his birth to look for "greener
pastures," as the saying goes, to improve his lot, and that, of course
includes study in other places, practice of his avocation, or engaging
in business. When an election is to be held, the citizen who left his
birthplace to improve his lot may desire to return to his native town to
cast his ballot but for professional or business reasons, or for any
other reason, he may not absent himself from his professional or
business activities; so there he registers himself as voter as he has the
qualifications to be one and is not willing to give up or lose the
opportunity to choose the officials who are to run the government
especially in national elections. Despite such registration, the animus
revertendi to his home, to his domicile or residence of origin has not
forsaken him. This may be the explanation why the registration of a
voter in a place other than his residence of origin has not been
deemed sufficient to constitute abandonment or loss of such
residence. It finds justification in the natural desire and longing of
every person to return to his place of birth. This strong feeling of
attachment to the place of one's birth must be overcome by positive
proof of abandonment for another.
From the foregoing, it can be concluded that in its above-cited statements
supporting its proposition that petitioner was ineligible to run for the position
of Representative of the First District of Leyte, the COMELEC was obviously
referring to petitioner's various places of (actual) residence, not her domicile.
In doing so, it not only ignored settled jurisprudence on residence in election
law and the deliberations of the constitutional commission but also the
provisions of the Omnibus Election Code (B.P. 881). 35
What is undeniable, however, are the following set of facts which establish the
fact of petitioner's domicile, which we lift verbatim from the COMELEC's
Second Division's assailed Resolution: 36
In or about 1938 when respondent was a little over 8 years old, she
established her domicile in Tacloban, Leyte (Tacloban City). She
studied in the Holy Infant Academy in Tacloban from 1938 to 1949
when she graduated from high school. She pursued her college
studies in St. Paul's College, now Divine Word University in Tacloban,
where she earned her degree in Education. Thereafter, she taught in
the Leyte Chinese School, still in Tacloban City. In 1952 she went to
Manila to work with her cousin, the late speaker Daniel Z. Romualdez
in his office in the House of Representatives. In 1954, she married exPresident Ferdinand E. Marcos when he was still a congressman of
Ilocos Norte and registered there as a voter. When her husband was
elected Senator of the Republic in 1959, she and her husband lived
together in San Juan, Rizal where she registered as a voter. In 1965,
when her husband was elected President of the Republic of the

Philippines, she lived with him in Malacanang Palace and registered as


a voter in San Miguel, Manila.
[I]n February 1986 (she claimed that) she and her family were
abducted and kidnapped to Honolulu, Hawaii. In November 1991, she
came home to Manila. In 1992, respondent ran for election as
President of the Philippines and filed her Certificate of Candidacy
wherein she indicated that she is a resident and registered voter of
San Juan, Metro Manila.
Applying the principles discussed to the facts found by COMELEC, what is
inescapable is that petitioner held various residences for different purposes
during the last four decades. None of these purposes unequivocally point to an
intention to abandon her domicile of origin in Tacloban, Leyte. Moreover, while
petitioner was born in Manila, as a minor she naturally followed the domicile of
her parents. She grew up in Tacloban, reached her adulthood there and
eventually established residence in different parts of the country for various
reasons. Even during her husband's presidency, at the height of the Marcos
Regime's powers, petitioner kept her close ties to her domicile of origin by
establishing residences in Tacloban, celebrating her birthdays and other
important personal milestones in her home province, instituting well-publicized
projects for the benefit of her province and hometown, and establishing a
political power base where her siblings and close relatives held positions of
power either through the ballot or by appointment, always with either her
influence or consent. These well-publicized ties to her domicile of origin are
part of the history and lore of the quarter century of Marcos power in our
country. Either they were entirely ignored in the COMELEC'S Resolutions, or the
majority of the COMELEC did not know what the rest of the country always
knew: the fact of petitioner's domicile in Tacloban, Leyte.
Private respondent in his Comment, contends that Tacloban was not
petitioner's domicile of origin because she did not live there until she was eight
years old. He avers that after leaving the place in 1952, she "abandoned her
residency (sic) therein for many years and . . . (could not) re-establish her
domicile in said place by merely expressing her intention to live there again."
We do not agree.
First, minor follows the domicile of his parents. As domicile, once acquired is
retained until a new one is gained, it follows that in spite of the fact of
petitioner's being born in Manila, Tacloban, Leyte was her domicile of origin by
operation of law. This domicile was not established only when her father
brought his family back to Leyte contrary to private respondent's averments.
Second, domicile of origin is not easily lost. To successfully effect a change of
domicile, one must demonstrate: 37
1. An actual removal or an actual change of domicile;
2. A bona fide intention of abandoning the former place of residence
and establishing a new one; and

3. Acts which correspond with the purpose.


In the absence of clear and positive proof based on these criteria, the
residence of origin should be deemed to continue. Only with evidence showing
concurrence of all three requirements can the presumption of continuity or
residence be rebutted, for a change of residence requires an actual and
deliberate abandonment, and one cannot have two legal residences at the
same time. 38 In the case at bench, the evidence adduced by private
respondent plainly lacks the degree of persuasiveness required to convince
this court that an abandonment of domicile of origin in favor of a domicile of
choice indeed occurred. To effect an abandonment requires the voluntary act
of relinquishing petitioner's former domicile with an intent to supplant the
former domicile with one of her own choosing (domicilium voluntarium).
In this connection, it cannot be correctly argued that petitioner lost her
domicile of origin by operation of law as a result of her marriage to the late
President Ferdinand E. Marcos in 1952. For there is a clearly established
distinction between the Civil Code concepts of "domicile" and
"residence." 39 The presumption that the wife automatically gains the
husband's domicile by operation of law upon marriage cannot be inferred from
the use of the term "residence" in Article 110 of the Civil Code because the
Civil Code is one area where the two concepts are well delineated. Dr. Arturo
Tolentino, writing on this specific area explains:
In the Civil Code, there is an obvious difference between domicile and
residence. Both terms imply relations between a person and a place;
but in residence, the relation is one of fact while in domicile it is legal
or juridical, independent of the necessity of physical presence. 40
Article 110 of the Civil Code provides:
Art. 110. The husband shall fix the residence of the family. But the
court may exempt the wife from living with the husband if he should
live abroad unless in the service of the Republic.
A survey of jurisprudence relating to Article 110 or to the concepts of domicile
or residence as they affect the female spouse upon marriage yields nothing
which would suggest that the female spouse automatically loses her domicile
of origin in favor of the husband's choice of residence upon marriage.
Article 110 is a virtual restatement of Article 58 of the Spanish Civil Code of
1889 which states:
La mujer esta obligada a seguir a su marido donde quiera que fije su
residencia. Los Tribunales, sin embargo, podran con justa causa
eximirla de esta obligacion cuando el marido transende su residencia
a ultramar o' a pais extranjero.
Note the use of the phrase "donde quiera su fije de residencia" in the
aforequoted article, which means wherever (the husband) wishes to establish

residence. This part of the article clearly contemplates only actual residence
because it refers to a positive act of fixing a family home or residence.
Moreover, this interpretation is further strengthened by the phrase "cuando el
marido translade su residencia" in the same provision which means, "when the
husband shall transfer his residence," referring to another positive act of
relocating the family to another home or place of actual residence. The article
obviously cannot be understood to refer to domicile which is a fixed,
fairly-permanent concept when it plainly connotes the possibility of
transferring from one place to another not only once, but as often as the
husband may deem fit to move his family, a circumstance more consistent
with the concept of actual residence.
The right of the husband to fix the actual residence is in harmony with the
intention of the law to strengthen and unify the family, recognizing the fact
that the husband and the wife bring into the marriage different domiciles (of
origin). This difference could, for the sake of family unity, be reconciled only by
allowing the husband to fix a single place of actual residence.
Very significantly, Article 110 of the Civil Code is found under Title V under the
heading: RIGHTS AND OBLIGATIONS BETWEEN HUSBAND AND WIFE.
Immediately preceding Article 110 is Article 109 which obliges the husband
and wife to live together, thus:
Art. 109. The husband and wife are obligated to live together,
observe mutual respect and fidelity and render mutual help and
support.
The duty to live together can only be fulfilled if the husband and wife are
physically together. This takes into account the situations where the couple
has many residences (as in the case of the petitioner). If the husband has to
stay in or transfer to any one of their residences, the wife should necessarily
be with him in order that they may "live together." Hence, it is illogical to
conclude that Art. 110 refers to "domicile" and not to "residence." Otherwise,
we shall be faced with a situation where the wife is left in the domicile while
the husband, for professional or other reasons, stays in one of their (various)
residences. As Dr. Tolentino further explains:
Residence and Domicile Whether the word "residence" as used with
reference to particular matters is synonymous with "domicile" is a
question of some difficulty, and the ultimate decision must be made
from a consideration of the purpose and intent with which the word is
used. Sometimes they are used synonymously, at other times they are
distinguished from one another.
xxx xxx xxx
Residence in the civil law is a material fact, referring to the physical
presence of a person in a place. A person can have two or more
residences, such as a country residence and a city residence.
Residence is acquired by living in place; on the other hand, domicile
can exist without actually living in the place. The important thing for

domicile is that, once residence has been established in one place,


there be an intention to stay there permanently, even if residence is
also
established
in
some
other
place. 41
In fact, even the matter of a common residence between the husband and the
wife during the marriage is not an iron-clad principle; In cases applying the
Civil Code on the question of a common matrimonial residence, our
jurisprudence has recognized certain situations 42 where the spouses could not
be compelled to live with each other such that the wife is either allowed to
maintain a residence different from that of her husband or, for obviously
practical reasons, revert to her original domicile (apart from being allowed to
opt for a new one). In De la Vina vs. Villareal 43 this Court held that "[a] married
woman may acquire a residence or domicile separate from that of her husband
during the existence of the marriage where the husband has given cause for
divorce." 44 Note that the Court allowed the wife either to obtain new residence
or to choose a new domicile in such an event. In instances where the wife
actually opts, .under the Civil Code, to live separately from her husband either
by taking new residence or reverting to her domicile of origin, the Court has
held that the wife could not be compelled to live with her husband on pain of
contempt. In Arroyo vs. Vasques de Arroyo 45 the Court held that:
Upon examination of the authorities, we are convinced that it is not
within the province of the courts of this country to attempt to compel
one of the spouses to cohabit with, and render conjugal rights to, the
other. Of course where the property rights of one of the pair are
invaded, an action for restitution of such rights can be maintained. But
we are disinclined to sanction the doctrine that an order, enforcible
(sic) by process of contempt, may be entered to compel the restitution
of the purely personal right of consortium. At best such an order can
be effective for no other purpose than to compel the spouses to live
under the same roof; and he experience of those countries where the
courts of justice have assumed to compel the cohabitation of married
people shows that the policy of the practice is extremely questionable.
Thus in England, formerly the Ecclesiastical Court entertained suits for
the restitution of conjugal rights at the instance of either husband or
wife; and if the facts were found to warrant it, that court would make a
mandatory decree, enforceable by process of contempt in case of
disobedience, requiring the delinquent party to live with the other and
render conjugal rights. Yet this practice was sometimes criticized even
by the judges who felt bound to enforce such orders, and inWeldon
v. Weldon (9 P.D. 52), decided in 1883, Sir James Hannen, President in
the Probate, Divorce and Admiralty Division of the High Court of
Justice, expressed his regret that the English law on the subject was
not the same as that which prevailed in Scotland, where a decree of
adherence, equivalent to the decree for the restitution of conjugal
rights in England, could be obtained by the injured spouse, but could
not be enforced by imprisonment. Accordingly, in obedience to the
growing sentiment against the practice, the Matrimonial Causes Act
(1884) abolished the remedy of imprisonment; though a decree for the
restitution of conjugal rights can still be procured, and in case of
disobedience may serve in appropriate cases as the basis of an order
for the periodical payment of a stipend in the character of alimony.

In the voluminous jurisprudence of the United States, only one court,


so far as we can discover, has ever attempted to make a preemptory
order requiring one of the spouses to live with the other; and that was
in a case where a wife was ordered to follow and live with her
husband, who had changed his domicile to the City of New Orleans.
The decision referred to (Bahn v. Darby, 36 La. Ann., 70) was based on
a provision of the Civil Code of Louisiana similar to article 56 of the
Spanish Civil Code. It was decided many years ago, and the doctrine
evidently has not been fruitful even in the State of Louisiana. In other
states of the American Union the idea of enforcing cohabitation by
process of contempt is rejected. (21 Cyc., 1148).
In a decision of January 2, 1909, the Supreme Court of Spain appears
to have affirmed an order of the Audiencia Territorial de Valladolid
requiring a wife to return to the marital domicile, and in the
alternative, upon her failure to do so, to make a particular disposition
of certain money and effects then in her possession and to deliver to
her husband, as administrator of the ganancial property, all income,
rents, and interest which might accrue to her from the property which
she had brought to the marriage. (113 Jur. Civ., pp. 1, 11) But it does
not appear that this order for the return of the wife to the marital
domicile was sanctioned by any other penalty than the consequences
that would be visited upon her in respect to the use and control of her
property; and it does not appear that her disobedience to that order
would necessarily have been followed by imprisonment for contempt.
Parenthetically when Petitioner was married to then Congressman Marcos, in
1954, petitioner was obliged by virtue of Article 110 of the Civil Code to
follow her husband's actual place of residence fixed by him. The problem here
is that at that time, Mr. Marcos had several places of residence, among which
were San Juan, Rizal and Batac, Ilocos Norte. There is no showing which of
these places Mr. Marcos did fix as his family's residence. But assuming that Mr.
Marcos had fixed any of these places as the conjugal residence, what
petitioner gained upon marriage was actual residence. She did not lose her
domicile of origin.
On the other hand, the common law concept of "matrimonial domicile"
appears to have been incorporated, as a result of our jurisprudential
experiences after the drafting of the Civil Code of 1950, into the New Family
Code. To underscore the difference between the intentions of the Civil Code
and the Family Code drafters, the term residence has been supplanted by the
term domicile in an entirely new provision (Art. 69) distinctly different in
meaning and spirit from that found in Article 110. The provision recognizes
revolutionary changes in the concept of women's rights in the intervening
years by making the choice of domicile a product of mutual agreement
between the spouses. 46
Without as much belaboring the point, the term residence may mean one thing
in civil law (or under the Civil Code) and quite another thing in political law.
What stands clear is that insofar as the Civil Code is concerned-affecting the
rights and obligations of husband and wife the term residence should only
be interpreted to mean "actual residence." The inescapable conclusion derived

from this unambiguous civil law delineation therefore, is that when petitioner
married the former President in 1954, she kept her domicile of origin and
merely gained a new home, not a domicilium necessarium.
Even assuming for the sake of argument that petitioner gained a new
"domicile" after her marriage and only acquired a right to choose a new one
after her husband died, petitioner's acts following her return to the country
clearly indicate that she not only impliedly but expressly chose her domicile of
origin (assuming this was lost by operation of law) as her domicile. This
"choice" was unequivocally expressed in her letters to the Chairman of the
PCGG when petitioner sought the PCGG's permission to "rehabilitate (our)
ancestral house in Tacloban and Farm in Olot, Leyte. . . to make them livable
for the Marcos family to have a home in our homeland." 47 Furthermore,
petitioner obtained her residence certificate in 1992 in Tacloban, Leyte, while
living in her brother's house, an act which supports the domiciliary intention
clearly manifested in her letters to the PCGG Chairman. She could not have
gone straight to her home in San Juan, as it was in a state of disrepair, having
been previously looted by vandals. Her "homes" and "residences" following her
arrival in various parts of Metro Manila merely qualified as temporary or
"actual residences," not domicile. Moreover, and proceeding from our
discussion pointing out specific situations where the female spouse either
reverts to her domicile of origin or chooses a new one during the subsistence
of the marriage, it would be highly illogical for us to assume that she cannot
regain her original domicile upon the death of her husband absent a positive
act of selecting a new one where situations exist within the subsistence of the
marriage itself where the wife gains a domicile different from her husband.
In the light of all the principles relating to residence and domicile enunciated
by this court up to this point, we are persuaded that the facts established by
the parties weigh heavily in favor of a conclusion supporting petitioner's claim
of legal residence or domicile in the First District of Leyte.
II. The jurisdictional issue
Petitioner alleges that the jurisdiction of the COMELEC had already lapsed
considering that the assailed resolutions were rendered on April 24, 1995,
fourteen (14) days before the election in violation of Section 78 of the Omnibus
Election Code. 48 Moreover, petitioner contends that it is the House of
Representatives Electoral Tribunal and not the COMELEC which has jurisdiction
over the election of members of the House of Representatives in accordance
with Article VI Sec. 17 of the Constitution. This is untenable.
It is a settled doctrine that a statute requiring rendition of judgment within a
specified time is generally construed to be merely directory, 49 "so that noncompliance with them does not invalidate the judgment on the theory that if
the statute had intended such result it would have clearly indicated it." 50 The
difference between a mandatory and a directory provision is often made on
grounds of necessity. Adopting the same view held by several American
authorities, this court in Marcelino vs. Cruz held that: 51
The difference between a mandatory and directory provision is often
determined on grounds of expediency, the reason being that less

injury results to the general public by disregarding than enforcing the


letter of the law.
In Trapp v. Mc Cormick, a case calling for the interpretation of a
statute containing a limitation of thirty (30) days within which a
decree may be entered without the consent of counsel, it was held
that "the statutory provisions which may be thus departed from with
impunity, without affecting the validity of statutory proceedings, are
usually those which relate to the mode or time of doing that which is
essential to effect the aim and purpose of the Legislature or some
incident of the essential act." Thus, in said case, the statute under
examination was construed merely to be directory.
The mischief in petitioner's contending that the COMELEC should have
abstained from rendering a decision after the period stated in the Omnibus
Election Code because it lacked jurisdiction, lies in the fact that our courts and
other quasi-judicial bodies would then refuse to render judgments merely on
the ground of having failed to reach a decision within a given or prescribed
period.
In any event, with the enactment of Sections 6 and 7 of R.A. 6646 in relation to
Section 78 of B.P. 881, 52 it is evident that the respondent Commission does
not lose jurisdiction to hear and decide a pending disqualification case under
Section 78 of B.P. 881 even after the elections.
As to the House of Representatives Electoral Tribunal's supposed assumption
of jurisdiction over the issue of petitioner's qualifications after the May 8, 1995
elections, suffice it to say that HRET's jurisdiction as the sole judge of all
contests relating to the elections, returns and qualifications of members of
Congress begins only after a candidate has become a member of the House of
Representatives. 53 Petitioner not being a member of the House of
Representatives, it is obvious that the HRET at this point has no jurisdiction
over the question.
It would be an abdication of many of the ideals enshrined in the 1987
Constitution for us to either to ignore or deliberately make distinctions in law
solely on the basis of the personality of a petitioner in a case. Obviously a
distinction was made on such a ground here. Surely, many established
principles of law, even of election laws were flouted for the sake perpetuating
power during the pre-EDSA regime. We renege on these sacred ideals,
including the meaning and spirit of EDSA ourselves bending established
principles of principles of law to deny an individual what he or she justly
deserves in law. Moreover, in doing so, we condemn ourselves to repeat the
mistakes of the past.
WHEREFORE, having determined that petitioner possesses the necessary
residence qualifications to run for a seat in the House of Representatives in the
First District of Leyte, the COMELEC's questioned Resolutions dated April 24,
May 7, May 11, and May 25, 1995 are hereby SET ASIDE. Respondent
COMELEC is hereby directed to order the Provincial Board of Canvassers to
proclaim petitioner as the duly elected Representative of the First District of
Leyte.

SO ORDERED.

G.R. No. L-17144

October 28, 1960

SERGIO OSMEA, JR., petitioner, vs. SALIPADA K. PENDATUN, LEON Z.


GUINTO, JR., VICENTE L. PERALTA, FAUSTINO TOBIA, LORENZO G.
TEVES, JOPSE J. ROY, FAUSTINO DUGENIO, ANTONIO Y. DE PIO,
BENJAMIN T. LIGOT, PEDRO G. TRONO, FELIPE ABRIGO, FELIPE S.
ABELEDA, TECLA SAN ANDRES ZIGA, ANGEL B. FERNADEZ, and
EUGENIO S. BALTAO, in their capacity as members of the Special
Committee created by House Resolution No. 59,respondents.
BENGZON, J.:
On July 14, 1960, Congressman Sergio Osmea, Jr., submitted to this Court a
verified petition for "declaratory relief, certiorari and prohibition with
preliminary injunction" against Congressman Salapida K. Pendatun and
fourteen other congressmen in their capacity as members of the Special
Committee created by House Resolution No. 59. He asked for annulment of
such Resolution on the ground of infringenment of his parliamentary immunity;
he also asked, principally, that said members of the special committee be
enjoined from proceeding in accordance with it, particularly the portion
authorizing them to require him to substantiate his charges against the
President with the admonition that if he failed to do so, he must show cause
why the House should not punish him.
The petition attached a copy of House Resolution No. 59, the pertinent portions
of which reads as follows:
WHEREAS, on the 23rd day of June, 1960 , the Honorable Sergio
Osmea, Jr., Member of the House of Representatives from the Second
District of the province of Cebu, took the floor of this chamber on the
one hour privilege to deliver a speech, entitled 'A Message to Garcia;
WHEREAS, in the course of said speech, the Congressman from the
Second District of Cebu stated the following:.
xxx

xxx

xxx

The people, Mr. President, have been hearing of ugly reports that
under your unpopular administration the free things they used to get
from the government are now for sale at premium prices. They say
that even pardons are for sale, and that regardless of the gravity or
seriousness of a criminal case, the culprit can always be bailed out
forever from jail as long as he can come across with a handsome dole.
I am afraid, such an anomalous situation would reflect badly on the
kind of justice that your administration is dispensing. . . . .

WHEREAS, the charges of the gentleman from the Second District of


Cebu, if made maliciously or recklessly and without basis in truth and
in fact, would constitute a serious assault upon the dignity and
prestige of the Office of 37 3 the President, which is the one visible
symbol of the sovereignty of the Filipino people, and would expose
said office to contempt and disrepute; . . . .
Resolved by the House of Representative, that a special committee of
fifteen Members to be appointed by the Speaker be, and the same
hereby is, created to investigate the truth of the charges against the
President of the Philippines made by Honorable Sergio Osmea, Jr., in
his privilege speech of June 223, 1960, and for such purpose it is
authorized to summon Honorable Sergio Osmea, jr., to appear before
it
to
substantiate
his
charges,
as
well
as
to
issue subpoena and/or subpoena
duces
tecum to
require
the
attendance of witnesses and/or the production of pertinent papers
before it, and if Honorable Sergio Osmea, Jr., fails to do so to require
him to show cause why he should not be punished by the House. The
special committee shall submit to the House a report of its findings
and recommendations before the adjournment of the present special
session of the Congress of the Philippines.
In support of his request, Congressman Osmea alleged; first, the Resolution
violated his constitutional absolute parliamentary immunity for speeches
delivered in the House; second, his words constituted no actionable conduct;
and third, after his allegedly objectionable speech and words, the House took
up other business, and Rule XVII, sec. 7 of the Rules of House provides that if
other business has intervened after the member had uttered obnoxious words
in debate, he shall not be held to answer therefor nor be subject to censure by
the House.
Although some members of the court expressed doubts of petitioner's cause of
action and the Court's jurisdiction, the majority decided to hear the matter
further, and required respondents to answer, without issuing any preliminary
injunction. Evidently aware of such circumstance with its implications, and
pressed for time in view of the imminent adjournment of the legislative
session, the special committee continued to perform its talk, and after giving
Congressman Osmea a chance to defend himself, submitted its reports on
July 18, 1960, finding said congressman guilty of serious disorderly behaviour;
and acting on such report, the House approved on the same daybefore
closing its sessionHouse Resolution No. 175, declaring him guilty as
recommended, and suspending him from office for fifteen months.
Thereafter, on July 19, 1960, the respondents (with the exception of
Congressmen De Pio, Abeleda, San Andres Ziga, Fernandez and Balatao) 1 filed
their answer, challenged the jurisdiction of this Court to entertain the petition,
defended the power of Congress to discipline its members with suspension,
upheld a House Resolution No. 175 and then invited attention to the fact that
Congress having ended its session on July 18, 1960, the Committeewhose
members are the sole respondentshad thereby ceased to exist.

There is no question that Congressman Osmea, in a privilege speech


delivered before the House, made the serious imputations of bribery against
the President which are quoted in Resolution No. 59 and that he refused to
produce before the House Committee created for the purpose, evidence to
substantiate such imputations. There is also no question that for having made
the imputations and for failing to produce evidence in support thereof, he was,
by resolution of the House, suspended from office for a period of fifteen
months for serious disorderly behaviour.
Resolution No. 175 states in part:
WHEREAS, the Special Committee created under and by virtue of
Resolution No. 59, adopted on July 8, 1960, found Representative
Sergio Osmea, Jr., guilty of serious disorderly behaviour for making
without basis in truth and in fact, scurrilous, malicious, reckless and
irresponsible charges against the President of the Philippines in his
privilege speech of June 23, 1960; and
WHEREAS, the said charges are so vile in character that they affronted
and degraded the dignity of the House of Representative: Now,
Therefore, be it
RESOLVED by the House of Representatives. That Representative
Sergio Osmea, Jr., be, as he hereby is, declared guilty of serious
disorderly behaviour; and . . .
As previously stated, Osmea contended in his petition that: (1) the
Constitution gave him complete parliamentary immunity, and so, for words
spoken in the House, he ought not to be questioned; (20 that his speech
constituted no disorderly behaviour for which he could be punished; and (3)
supposing he could be questioned and discipline therefor, the House had lost
the power to do so because it had taken up other business before approving
House Resolution No. 59. Now, he takes the additional position (4) that the
House has no power, under the Constitution, to suspend one of its members.
Section 15, Article VI of our Constitution provides that "for any speech or
debate" in Congress, the Senators or Members of the House of Representative
"shall not be questioned in any other place." This section was taken or is a
copy of sec. 6, clause 1 of Art. 1 of the Constitution of the United States. In
that country, the provision has always been understood to mean that although
exempt from prosecution or civil actions for their words uttered in Congress,
the members of Congress may, nevertheless, be questioned in Congress itself.
Observe that "they shall not be questioned in any other place" than Congress.
Furthermore, the Rules of the House which petitioner himself has invoked (Rule
XVII, sec. 7), recognize the House's power to hold a member responsible "for
words spoken in debate."
Our Constitution enshrines parliamentary immunity which is a fundamental
privilege cherished in every legislative assembly of the democratic world. As
old as the English Parliament, its purpose "is to enable and encourage a

representative of the public to discharge his public trust with firmness and
success" for "it is indispensably necessary that he should enjoy the fullest
liberty of speech, and that he should be protected from the resentment of
every one, however powerful, to whom exercise of that liberty may occasion
offense."2 Such immunity has come to this country from the practices of
Parliamentary as construed and applied by the Congress of the United States.
Its extent and application remain no longer in doubt in so far as related to the
question before us. It guarantees the legislator complete freedom of
expression without fear of being made responsible in criminal or civil actions
before the courts or any other forum outside of the Congressional Hall. But is
does not protect him from responsibility before the legislative body itself
whenever his words and conduct are considered by the latter disorderly or
unbecoming a member thereof. In the United States Congress, Congressman
Fernando Wood of New York was censured for using the following language on
the floor of the House: "A monstrosity, a measure the most infamous of the
many infamous acts of the infamous Congress." (Hinds' Precedents, Vol. 2,. pp.
798-799). Two other congressmen were censured for employing insulting
words during debate. (2 Hinds' Precedents, 799-801). In one case, a member
of Congress was summoned to testify on a statement made by him in debate,
but invoked his parliamentary privilege. The Committee rejected his plea. (3
Hinds' Precedents 123-124.)
For unparliamentary conduct, members of Parliament or of Congress have
been, or could be censured, committed to prison 3, even expelled by the votes
of their colleagues. The appendix to this decision amply attest to the
consensus of informed opinion regarding the practice and the traditional power
of legislative assemblies to take disciplinary action against its
members, including imprisonment, suspension or expulsion. It mentions one
instance of suspension of a legislator in a foreign country.
And to cite a local illustration, the Philippine Senate, in April 1949, suspended
a senator for one year.
Needless to add, the Rules of Philippine House of Representatives provide that
the parliamentary practices of the Congress of the United States shall apply in
a supplementary manner to its proceedings.
This brings up the third point of petitioner: the House may no longer take
action against me, he argues, because after my speech, and before approving
Resolution No. 59, it had taken up other business. Respondents answer that
Resolution No. 59 was unanimously approved by the House, that such approval
amounted to a suspension of the House Rules, which according to standard
parliamentary practice may done by unanimous consent.
Granted, counters the petitioner, that the House may suspended the operation
of its Rules, it may not, however, affect past acts or renew its rights to take
action which had already lapsed.
The situation might thus be compared to laws 4 extending the period of
limitation of actions and making them applicable to actions that had lapsed.
The Supreme Court of the United States has upheld such laws as against the
contention that they impaired vested rights in violation of the Fourteenth

Amendment (Campbell vs. Holt, 115 U. S. 620). The states hold divergent
views. At any rate, court are subject to revocation modification or waiver at the
pleasure of the body adopting them." 5 And it has been said that "Parliamentary
rules are merely procedural, and with their observancem, the courts have no
concern. They may be waived or disregarded by the legislative body."
Consequently, "mere failure to conform to parliamentary usage will not
invalidate the action (taken by a deliberative body) when the requisited
number of members have agreed to a particular measure." 6
The following is quoted from a reported decision of the Supreme court of
Tennessee:
The rule here invoked is one of parliamentary procedure, and it is
uniformly held that it is within the power of all deliberative bodies to
abolish, modify, or waive their own rules of procedure, adopted for the
orderly con duct of business, and as security against hasty action.
(Bennet vs. New Bedford, 110 Mass, 433; Holt vs.Somerville, 127
Mass. 408, 411; City of Sadalia vs. Scott, 104 Mo. App. 595, 78 S. W.
276; Ex parte Mayor, etc., of Albany, 23 Wend. [N. Y.] 277, 280;
Wheelock vs. City of Lowell, 196 Mass. 220, 230. 81 N. e. 977, 124
Am. St. Rep. 543, 12 Ann. Cas. 1109; City of Corinth vs. Sharp, 107
Miss. 696, 65 So. 888; McGraw vs.Whitson, 69 Iowa, 348, 28 N. W.
632; Tuell vs. Meacham Contracting Co. 145 Ky. 181, 186, 140 S. W.
Ann. Cas. 1913B, 802.) [Takenfrom the case of Rutherford vs. City of
Nashville, 78 south Western Reporter, p. 584.]
It may be noted in this connection, that in the case of Congressman Stanbery
of Ohio, who insulted the Speaker, for which Act a resolution of censure was
presented, the House approved the resolution, despite the argument that other
business had intervened after the objectionable remarks. (2 Hinds' Precedents
pp. 799-800.)
On the question whether delivery of speeches attacking the Chief Executive
constitutes disorderly conduct for which Osmea may be discipline, many
arguments pro and con have been advanced. We believe, however, that the
House is the judge of what constitutes disorderly behaviour, not only because
the Constitution has conferred jurisdiction upon it, but also because the matter
depends mainly on factual circumstances of which the House knows best but
which can not be depicted in black and white for presentation to, and
adjudication by the Courts. For one thing, if this Court assumed the power to
determine whether Osmea conduct constituted disorderly behaviour, it would
thereby have assumed appellate jurisdiction, which the Constitution never
intended to confer upon a coordinate branch of the Government. The theory of
separation of powers fastidiously observed by this Court, demands in such
situation a prudent refusal to interfere. Each department, it has been said, had
exclusive cognizance of matters within its jurisdiction and is supreme within its
own sphere. (Angara vs. Electoral Commission, 63 Phil., 139.)
SEC. 200. Judicial Interference with Legislature. The principle is well
established that the courts will not assume a jurisdiction in any case
amount to an interference by the judicial department with the

legislature since each department is equally independent within the


power conferred upon it by the Constitution. . . . .
The general rule has been applied in other cases to cause the courts
to refuse to intervene in what are exclusively legislative functions.
Thus, where the stated Senate is given the power to example a
member, the court will not review its action or revise even a most
arbitrary or unfair decision. (11 Am. Jur., Const. Law, sec. p. 902.)
[Emphasis Ours.].
The above statement of American law merely abridged the landmark case
of Clifford vs. French.7 In 1905, several senators who had been expelled by the
State Senate of California for having taken a bribe, filed mandamus proceeding
to compel reinstatement, alleging the Senate had given them no hearing, nor a
chance to make defense, besides falsity of the charges of bribery. The
Supreme Court of California declined to interfere , explaining in orthodox
juristic language:
Under our form of government, the judicial department has no power
to revise even the most arbitrary and unfair action of the legislative
department, or of either house thereof, taking in pursuance of the
power committed exclusively to that department by the Constitution.
It has been held by high authority that, even in the absence of an
express provision conferring the power, every legislative body in which
is
vested
the
general
legislative
power
of
the
state
has the implied power to expel a member for any cause which it may
deem sufficient. In Hiss. vs. Barlett, 3 Gray 473, 63 Am. Dec. 768, the
supreme court of Mass. says, in substance, that this power is inherent
in every legislative body; that it is necessary to the to enable the body
'to perform its high functions, and is necessary to the safety of the
state;' 'That it is a power of self-protection, and that the legislative
body must necessarily be the sole judge of the exigency which may
justify and require its exercise. '. . . There is no provision authority
courts to control, direct, supervise, or forbid the exercise by either
house of the power to expel a member. These powers are functions of
the legislative department and therefore, in the exercise of the power
this committed to it, the senate is supreme. An attempt by this court
to direct or control the legislature, or either house thereof, in the
exercise of the power, would be an attempt to exercise legislative
functions, which it is expressly forbidden to do.
We have underscored in the above quotation those lines which in our opinion
emphasize the principles controlling this litigation. Although referring to
expulsion, they may as well be applied to other disciplinary action. Their gist
as applied to the case at bar: the House has exclusive power; the courts have
no jurisdiction to interfere.
Our refusal to intervene might impress some readers as subconscious
hesitation due to discovery of impermissible course of action in the legislative
chamber. Nothing of that sort: we merely refuse to disregard the allocation of
constitutional functions which it is our special duty to maintain. Indeed, in the
interest of comity, we feel bound to state that in a conscientious survey of

governing principles and/or episodic illustrations, we found the House of


Representatives of the United States taking the position upon at least two
occasions, that personal attacks upon the Chief Executive constitute
unparliamentary conduct or breach of orders. 8 And in several instances, it took
action against offenders, even after other business had been considered.9
Petitioner's principal argument against the House's power to suspend is the
Alejandrino precedent. In 1924, Senator Alejandrino was, by resolution of
Senate, suspended from office for 12 months because he had assaulted
another member of the that Body or certain phrases the latter had uttered in
the course of a debate. The Senator applied to this Court for reinstatement,
challenging the validity of the resolution. Although this Court held that in view
of the separation of powers, it had no jurisdiction to compel the Senate to
reinstate petitioner, it nevertheless went on to say the Senate had no power to
adopt the resolution because suspension for 12 months amounted to removal,
and the Jones Law (under which the Senate was then functioning) gave the
Senate no power to remove an appointive member, like Senator Alejandrino.
The Jones Law specifically provided that "each house may punish its members
for disorderly behaviour, and, with the concurrence of two-thirds votes, expel
an elective member (sec. 18). Note particularly the word "elective."
The Jones Law, it mist be observed, empowered the Governor General to
appoint "without consent of the Senate and without restriction as to residence
senators . . . who will, in his opinion, best represent the Twelfth District."
Alejandrino was one appointive Senator.
It is true, the opinion in that case contained an obiter dictum that "suspension
deprives the electoral district of representation without that district being
afforded any means by which to fill that vacancy." But that remark should be
understood to refer particularly to the appointive senator who was then the
affected party and who was by the same Jones Law charged with the duty to
represent the Twelfth District and maybe the view of the Government of the
United States or of the Governor-General, who had appointed him.
It must be observed, however, that at that time the Legislature had only those
power which were granted to it by the Jones Law 10; whereas now the Congress
has the full legislative powers and preprogatives of a sovereign nation, except
as restricted by the Constitution. In other words, in the Alejandrino case, the
Court reached the conclusion that the Jones Law did not give the Senate the
power it then exercisedthe power of suspension for one year. Whereas now,
as we find, the Congress has the inherent legislative prerogative of
suspension11 which the Constitution did not impair. In fact, as already pointed
out, the Philippine Senate suspended a Senator for 12 months in 1949.
The Legislative power of the Philippine Congress is plenary, subject
only to such limitations are found in the Republic's Constitution. So
that any power deemed to be legislative by usage or tradition, is
necessarily possessed by the Philippine Congress, unless the
Constitution provides otherwise. (Vera vs. Avelino, 77 Phil., 192, 212 .)
In any event, petitioner's argument as to the deprivation of the district's
representation can not be more weightly in the matter of suspension than in

the case of imprisonment of a legislator; yet deliberative bodies have the


power in proper cases, to commit one of their members to jail. 12
Now come questions of procedure and jurisdiction. the petition intended to
prevent the Special Committee from acting tin pursuance of House Resolution
No. 59. Because no preliminary injunction had been issued, the Committee
performed its task, reported to the House, and the latter approved the
suspension order. The House had closed it session, and the Committee has
ceased to exist as such. It would seem, therefore, the case should be
dismissed for having become moot or academic. 13 Of course, there is nothing
to prevent petitioner from filing new pleadings to include all members of the
House as respondents, ask for reinstatement and thereby to present a
justiciable cause. Most probable outcome of such reformed suit, however, will
be
a
pronouncement
of
lack
of
jurisdiction,
as
in Vera
vs.
Avelino14 and Alejandrino vs. Qeuaon.15
At any rate, having perceived suitable solutions to the important questions of
political law, the Court thought it proper to express at this time its conclusions
on such issues as were deemed relevant and decisive.
ACCORDINGLY, the petition has to be, and is hereby dismissed. So ordered.

CONCEPCION, J.:
This is a petition for review of a decision of the Auditor General denying a
claim for refund of petitioner Casco Philippine Chemical Co., Inc.
The main facts are not disputed. Pursuant to the provisions of Republic Act No.
2609, otherwise known as the Foreign Exchange Margin Fee Law, the Central
Bank of the Philippines issued on July 1, 1959, its Circular No. 95. fixing a
uniform margin fee of 25% on foreign exchange transactions. To supplement
the circular, the Bank later promulgated a memorandum establishing the
procedure for applications for exemption from the payment of said fee, as
provided in said Republic Act No. 2609. Several times in November and
December 1959, petitioner Casco Philippine Chemical Co., Inc. which is
engaged in the manufacture of synthetic resin glues, used in bonding lumber
and veneer by plywood and hardwood producers bought foreign exchange
for the importation of urea and formaldehyde which are the main raw
materials in the production of said glues and paid therefor the
aforementioned margin fee aggregating P33,765.42. In May, 1960, petitioner
made another purchase of foreign exchange and paid the sum of P6,345.72 as
margin fee therefor.
Prior thereto, petitioner had sought the refund of the first sum of P33,765.42,
relying upon Resolution No. 1529 of the Monetary Board of said Bank, dated
November 3, 1959, declaring that the separate importation of urea and
formaldehyde is exempt from said fee. Soon after the last importation of these
products, petitioner made a similar request for refund of the sum of P6,345.72
paid as margin fee therefor. Although the Central Bank issued the
corresponding margin fee vouchers for the refund of said amounts, the Auditor
of the Bank refused to pass in audit and approve said vouchers, upon the
ground that the exemption granted by the Monetary Board for petitioner's
separate importations of urea and formaldehyde is not in accord with the
provisions of section 2, paragraph XVIII of Republic Act No. 2609. On appeal
taken by petitioner, the Auditor General subsequently affirmed said action of
the Auditor of the Bank. Hence, this petition for review.
The only question for determination in this case is whether or not "urea" and
"formaldehyde" are exempt by law from the payment of the aforesaid margin
fee. The pertinent portion of Section 2 of Republic Act No. 2609 reads:
The margin established by the Monetary Board pursuant to the
provision of section one hereof shall not be imposed upon the sale of
foreign exchange for the importation of the following:.
G.R. No. L-17931

February 28, 1963

CASCO PHILIPPINE CHEMICAL CO., INC., petitioner, vs. HON. PEDRO


GIMENEZ, in his capacity as Auditor General of the Philippines, and
HON. ISMAEL MATHAY, in his capacity as Auditor of the Central
Bank, respondents.

xxx

xxx

xxx

XVIII. Urea formaldehyde for the manufacture of plywood and


hardboard when imported by and for the exclusive use of end-users.
Wherefore, the parties respectfully pray that the foregoing stipulation
of facts be admitted and approved by this Honorable Court, without

prejudice to the parties adducing other evidence to prove their case


not covered by this stipulation of facts. 1wph1.t
Petitioner maintains that the term "urea formaldehyde" appearing in this
provision should be construed as "urea andformaldehyde" (emphasis supplied)
and that respondents herein, the Auditor General and the Auditor of the
Central Bank, have erred in holding otherwise. In this connection, it should be
noted that, whereas "urea" and "formaldehyde" are the principal raw materials
in the manufacture of synthetic resin glues, the National Institute of Science
and Technology has expressed, through its Commissioner, the view that:
Urea formaldehyde is not a chemical solution. It is the synthetic resin
formed as a condensation product from definite proportions of urea
and formaldehyde under certain conditions relating to temperature,
acidity, and time of reaction. This produce when applied in water
solution and extended with inexpensive fillers constitutes a fairly low
cost adhesive for use in the manufacture of plywood.
Hence, "urea formaldehyde" is clearly a finished product, which is patently
distinct and different from urea" and "formaldehyde", as separate articles used
in the manufacture of the synthetic resin known as "urea formaldehyde".
Petitioner contends, however, that the bill approved in Congress contained the
copulative conjunction "and" between the terms "urea" and "formaldehyde",
and that the members of Congress intended to exempt "urea" and
"formaldehyde" separately as essential elements in the manufacture of the
synthetic resin glue called "urea" formaldehyde", not the latter as a finished
product, citing in support of this view the statements made on the floor of the
Senate, during the consideration of the bill before said House, by members
thereof. But, said individual statements do not necessarily reflect the view of
the Senate. Much less do they indicate the intent of the House of
Representatives (see Song Kiat Chocolate Factory vs. Central Bank, 54 Off.
Gaz., 615; Mayon Motors Inc. vs. Acting Commissioner of Internal Revenue, L15000 [March 29, 1961]; Manila Jockey Club, Inc. vs. Games & Amusement
Board, L-12727 [February 29, 1960]). Furthermore, it is well settled that the
enrolled bill which uses the term "urea formaldehyde" instead of "urea and
formaldehyde" is conclusive upon the courts as regards the tenor of the
measure passed by Congress and approved by the President (Primicias vs.
Paredes, 61 Phil. 118, 120; Mabanag vs. Lopez Vito, 78 Phil. 1; Macias vs.
Comm. on Elections, L-18684, September 14, 1961). If there has been any
mistake in the printing ofthe bill before it was certified by the officers of
Congress and approved by the Executive on which we cannot speculate,
without jeopardizing the principle of separation of powers and undermining
one of the cornerstones of our democratic system the remedy is by
amendment or curative legislation, not by judicial decree.
WHEREFORE, the decision appealed from is hereby affirmed, with costs against
the petitioner. It is so ordered.

G.R. No. 169777*

April 20, 2006

SENATE OF THE PHILIPPINES, represented by FRANKLIN M.


DRILON,etal Petitioners,
vs. EDUARDO R. ERMITA, in his capacity as Executive Secretary and
alter-ego of President Gloria Macapagal-Arroyo, and anyone acting in
his
stead
and
in
behalf
of
the
President
of
the
Philippines, Respondents.
CARPIO MORALES, J.:
A transparent government is one of the hallmarks of a truly republican state.
Even in the early history of republican thought, however, it has been
recognized that the head of government may keep certain information
confidential in pursuit of the public interest. Explaining the reason for vesting
executive power in only one magistrate, a distinguished delegate to the U.S.
Constitutional Convention said: "Decision, activity, secrecy, and dispatch will
generally characterize the proceedings of one man, in a much more eminent
degree than the proceedings of any greater number; and in proportion as the
number is increased, these qualities will be diminished." 1
History has been witness, however, to the fact that the power to withhold
information lends itself to abuse, hence, the necessity to guard it zealously.
The present consolidated petitions for certiorari and prohibition proffer that the
President has abused such power by issuing Executive Order No. 464 (E.O.
464) last September 28, 2005. They thus pray for its declaration as null and
void for being unconstitutional.
In resolving the controversy, this Court shall proceed with the recognition that
the issuance under review has come from a co-equal branch of government,
which thus entitles it to a strong presumption of constitutionality. Once the
challenged order is found to be indeed violative of the Constitution, it is dutybound to declare it so. For the Constitution, being the highest expression of the
sovereign will of the Filipino people, must prevail over any issuance of the
government that contravenes its mandates.
In the exercise of its legislative power, the Senate of the Philippines, through
its various Senate Committees, conducts inquiries or investigations in aid of
legislation which call for, inter alia, the attendance of officials and employees
of the executive department, bureaus, and offices including those employed in
Government Owned and Controlled Corporations, the Armed Forces of the
Philippines (AFP), and the Philippine National Police (PNP).
On September 21 to 23, 2005, the Committee of the Senate as a whole issued
invitations to various officials of the Executive Department for them to appear
on September 29, 2005 as resource speakers in a public hearing on the railway
project of the North Luzon Railways Corporation with the China National
Machinery and Equipment Group (hereinafter North Rail Project). The public
hearing was sparked by a privilege speech of Senator Juan Ponce Enrile urging

the Senate to investigate the alleged overpricing and other unlawful provisions
of the contract covering the North Rail Project.
The Senate Committee on National Defense and Security likewise issued
invitations2 dated September 22, 2005 to the following officials of the AFP: the
Commanding General of the Philippine Army, Lt. Gen. Hermogenes C. Esperon;
Inspector General of the AFP Vice Admiral Mateo M. Mayuga; Deputy Chief of
Staff for Intelligence of the AFP Rear Admiral Tirso R. Danga; Chief of the
Intelligence Service of the AFP Brig. Gen. Marlu Q. Quevedo; Assistant
Superintendent of the Philippine Military Academy (PMA) Brig. Gen. Francisco
V. Gudani; and Assistant Commandant, Corps of Cadets of the PMA, Col.
Alexander F. Balutan, for them to attend as resource persons in a public
hearing scheduled on September 28, 2005 on the following: (1) Privilege
Speech of Senator Aquilino Q. Pimentel Jr., delivered on June 6, 2005 entitled
"Bunye has Provided Smoking Gun or has Opened a Can of Worms that Show
Massive Electoral Fraud in the Presidential Election of May 2005"; (2) Privilege
Speech of Senator Jinggoy E. Estrada delivered on July 26, 2005 entitled "The
Philippines as the Wire-Tapping Capital of the World"; (3) Privilege Speech of
Senator Rodolfo Biazon delivered on August 1, 2005 entitled "Clear and
Present Danger"; (4) Senate Resolution No. 285 filed by Senator Maria Ana
Consuelo Madrigal Resolution Directing the Committee on National Defense
and Security to Conduct an Inquiry, in Aid of Legislation, and in the National
Interest, on the Role of the Military in the So-called "Gloriagate Scandal"; and
(5) Senate Resolution No. 295 filed by Senator Biazon Resolution Directing
the Committee on National Defense and Security to Conduct an Inquiry, in Aid
of Legislation, on the Wire-Tapping of the President of the Philippines.
Also invited to the above-said hearing scheduled on September 28 2005 was
the AFP Chief of Staff, General Generoso S. Senga who, by letter 3 dated
September 27, 2005, requested for its postponement "due to a pressing
operational situation that demands [his utmost personal attention" while
"some of the invited AFP officers are currently attending to other urgent
operational matters."
On September 28, 2005, Senate President Franklin M. Drilon received from
Executive Secretary Eduardo R. Ermita a letter 4 dated September 27, 2005
"respectfully request[ing] for the postponement of the hearing [regarding the
NorthRail project] to which various officials of the Executive Department have
been invited" in order to "afford said officials ample time and opportunity to
study and prepare for the various issues so that they may better enlighten the
Senate Committee on its investigation."
Senate President Drilon, however, wrote 5 Executive Secretary Ermita that the
Senators "are unable to accede to [his request]" as it "was sent belatedly" and
"[a]ll preparations and arrangements as well as notices to all resource persons
were completed [the previous] week."
Senate President Drilon likewise received on September 28, 2005 a letter 6 from
the President of the North Luzon Railways Corporation Jose L. Cortes, Jr.
requesting that the hearing on the NorthRail project be postponed or cancelled
until a copy of the report of the UP Law Center on the contract agreements
relative to the project had been secured.

On September 28, 2005, the President issued E.O. 464, "Ensuring Observance
of the Principle of Separation of Powers, Adherence to the Rule on Executive
Privilege and Respect for the Rights of Public Officials Appearing in Legislative
Inquiries in Aid of Legislation Under the Constitution, and For Other
Purposes,"7 which, pursuant to Section 6 thereof, took effect immediately. The
salient provisions of the Order are as follows:
SECTION 1. Appearance by Heads of Departments Before Congress. In
accordance with Article VI, Section 22 of the Constitution and to implement the
Constitutional provisions on the separation of powers between co-equal
branches of the government, all heads of departments of the Executive Branch
of the government shall secure the consent of the President prior to appearing
before either House of Congress.
When the security of the State or the public interest so requires and the
President so states in writing, the appearance shall only be conducted in
executive session.
SECTION. 2. Nature, Scope and Coverage of Executive Privilege.
(a) Nature and Scope. - The rule of confidentiality based on executive privilege
is fundamental to the operation of government and rooted in the separation of
powers under the Constitution (Almonte vs. Vasquez, G.R. No. 95367, 23 May
1995). Further, Republic Act No. 6713 or the Code of Conduct and Ethical
Standards for Public Officials and Employees provides that Public Officials and
Employees shall not use or divulge confidential or classified information
officially known to them by reason of their office and not made available to the
public to prejudice the public interest.
Executive privilege covers all confidential or classified information between the
President and the public officers covered by this executive order, including:
Conversations and correspondence between the President and the public
official covered by this executive order (Almonte vs. Vasquez G.R. No. 95367,
23 May 1995; Chavez v. Public Estates Authority, G.R. No. 133250, 9 July
2002);
Military, diplomatic and other national security matters which in the interest of
national security should not be divulged (Almonte vs. Vasquez, G.R. No. 95367,
23 May 1995; Chavez v. Presidential Commission on Good Government, G.R.
No. 130716, 9 December 1998).
Information between inter-government agencies prior to the conclusion of
treaties and executive agreements (Chavez v. Presidential Commission on
Good Government, G.R. No. 130716, 9 December 1998);
Discussion in close-door Cabinet meetings (Chavez v. Presidential Commission
on Good Government, G.R. No. 130716, 9 December 1998);

Matters affecting national security and public order (Chavez v. Public Estates
Authority, G.R. No. 133250, 9 July 2002).
(b) Who are covered. The following are covered by this executive order:
Senior officials of executive departments who in the judgment of the
department heads are covered by the executive privilege;
Generals and flag officers of the Armed Forces of the Philippines and such
other officers who in the judgment of the Chief of Staff are covered by the
executive privilege;
Philippine National Police (PNP) officers with rank of chief superintendent or
higher and such other officers who in the judgment of the Chief of the PNP are
covered by the executive privilege;
Senior national security officials who in the judgment of the National Security
Adviser are covered by the executive privilege; and
Such other officers as may be determined by the President.

For defying President Arroyos order barring military personnel from testifying
before legislative inquiries without her approval, Brig. Gen. Gudani and Col.
Balutan were relieved from their military posts and were made to face court
martial proceedings.
As to the NorthRail project hearing scheduled on September 29, 2005,
Executive Secretary Ermita, citing E.O. 464, sent letter of regrets, in response
to the invitations sent to the following government officials: Light Railway
Transit Authority Administrator Melquiades Robles, Metro Rail Transit Authority
Administrator Roberto Lastimoso, Department of Justice (DOJ) Chief State
Counsel Ricardo V. Perez, then Presidential Legal Counsel Merceditas Gutierrez,
Department of Transportation and Communication (DOTC) Undersecretary
Guiling Mamonding, DOTC Secretary Leandro Mendoza, Philippine National
Railways General Manager Jose Serase II, Monetary Board Member Juanita
Amatong, Bases Conversion Development Authority Chairperson Gen. Narciso
Abaya and Secretary Romulo L. Neri.10 NorthRail President Cortes sent personal
regrets likewise citing E.O. 464.11
On October 3, 2005, three petitions, docketed as G.R. Nos. 169659, 169660,
and 169667, for certiorari and prohibition, were filed before this Court
challenging the constitutionality of E.O. 464.

Also on September 28, 2005, Senate President Drilon received from Executive
Secretary Ermita a copy of E.O. 464, and another letter 8 informing him "that
officials of the Executive Department invited to appear at the meeting
[regarding the NorthRail project] will not be able to attend the same without
the consent of the President, pursuant to [E.O. 464]" and that "said officials
have not secured the required consent from the President." On even date
which was also the scheduled date of the hearing on the alleged wiretapping,
Gen. Senga sent a letter9 to Senator Biazon, Chairperson of the Committee on
National Defense and Security, informing him "that per instruction of
[President Arroyo], thru the Secretary of National Defense, no officer of the
[AFP] is authorized to appear before any Senate or Congressional hearings
without seeking a written approval from the President" and "that no approval
has been granted by the President to any AFP officer to appear before the
public hearing of the Senate Committee on National Defense and Security
scheduled [on] 28 September 2005."

In G.R. No. 169659, petitioners party-list Bayan Muna, House of


Representatives Members Satur Ocampo, Crispin Beltran, Rafael Mariano, Liza
Maza, Joel Virador and Teodoro Casino, Courage, an organization of
government employees, and Counsels for the Defense of Liberties (CODAL), a
group of lawyers dedicated to the promotion of justice, democracy and peace,
all claiming to have standing to file the suit because of the transcendental
importance of the issues they posed, pray, in their petition that E.O. 464 be
declared null and void for being unconstitutional; that respondent Executive
Secretary Ermita, in his capacity as Executive Secretary and alter-ego of
President Arroyo, be prohibited from imposing, and threatening to impose
sanctions on officials who appear before Congress due to congressional
summons. Additionally, petitioners claim that E.O. 464 infringes on their rights
and impedes them from fulfilling their respective obligations. Thus, Bayan
Muna alleges that E.O. 464 infringes on its right as a political party entitled to
participate in governance; Satur Ocampo, et al. allege that E.O. 464 infringes
on their rights and duties as members of Congress to conduct investigation in
aid of legislation and conduct oversight functions in the implementation of
laws; Courage alleges that the tenure of its members in public office is
predicated on, and threatened by, their submission to the requirements of E.O.
464 should they be summoned by Congress; and CODAL alleges that its
members have a sworn duty to uphold the rule of law, and their rights to
information and to transparent governance are threatened by the imposition of
E.O. 464.

Despite the communications received from Executive Secretary Ermita and


Gen. Senga, the investigation scheduled by the Committee on National
Defense and Security pushed through, with only Col. Balutan and Brig. Gen.
Gudani among all the AFP officials invited attending.

In G.R. No. 169660, petitioner Francisco I. Chavez, claiming that his


constitutional rights as a citizen, taxpayer and law practitioner, are affected by
the enforcement of E.O. 464, prays in his petition that E.O. 464 be declared
null and void for being unconstitutional.

SECTION 3. Appearance of Other Public Officials Before Congress. All public


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

In G.R. No. 169667, petitioner Alternative Law Groups, Inc. 12 (ALG), alleging
that as a coalition of 17 legal resource non-governmental organizations
engaged in developmental lawyering and work with the poor and marginalized
sectors in different parts of the country, and as an organization of citizens of
the Philippines and a part of the general public, it has legal standing to
institute the petition to enforce its constitutional right to information on
matters of public concern, a right which was denied to the public by E.O.
464,13 prays, that said order be declared null and void for being
unconstitutional and that respondent Executive Secretary Ermita be ordered to
cease from implementing it.
On October 11, 2005, Petitioner Senate of the Philippines, alleging that it has a
vital interest in the resolution of the issue of the validity of E.O. 464 for it
stands to suffer imminent and material injury, as it has already sustained the
same with its continued enforcement since it directly interferes with and
impedes the valid exercise of the Senates powers and functions and conceals
information of great public interest and concern, filed its petition for certiorari
and prohibition, docketed as G.R. No. 169777 and prays that E.O. 464 be
declared unconstitutional.
On October 14, 2005, PDP-Laban, a registered political party with members
duly elected into the Philippine Senate and House of Representatives, filed a
similar petition for certiorari and prohibition, docketed as G.R. No. 169834,
alleging that it is affected by the challenged E.O. 464 because it hampers its
legislative agenda to be implemented through its members in Congress,
particularly in the conduct of inquiries in aid of legislation and transcendental
issues need to be resolved to avert a constitutional crisis between the
executive and legislative branches of the government.
Meanwhile, by letter14 dated February 6, 2006, Senator Biazon reiterated his
invitation to Gen. Senga for him and other military officers to attend the
hearing on the alleged wiretapping scheduled on February 10, 2005. Gen.
Senga replied, however, by letter 15 dated February 8, 2006, that "[p]ursuant to
Executive Order No. 464, th[e] Headquarters requested for a clearance from
the President to allow [them] to appear before the public hearing" and that
"they will attend once [their] request is approved by the President." As none of
those invited appeared, the hearing on February 10, 2006 was cancelled. 16
In another investigation conducted jointly by the Senate Committee on
Agriculture and Food and the Blue Ribbon Committee on the alleged
mismanagement and use of the fertilizer fund under the Ginintuang
Masaganang Ani program of the Department of Agriculture (DA), several
Cabinet officials were invited to the hearings scheduled on October 5 and 26,
November 24 and December 12, 2005 but most of them failed to attend, DA
Undersecretary Belinda Gonzales, DA Assistant Secretary Felix Jose Montes,
Fertilizer and Pesticide Authority Executive Director Norlito R. Gicana, 17 and
those from the Department of Budget and Management 18 having invoked E.O.
464.
In the budget hearings set by the Senate on February 8 and 13, 2006, Press
Secretary and Presidential Spokesperson Ignacio R. Bunye, 19 DOJ Secretary
Raul M. Gonzalez20 and Department of Interior and Local Government

Undersecretary Marius P. Corpus 21 communicated their inability to attend due


to lack of appropriate clearance from the President pursuant to E.O. 464.
During the February 13, 2005 budget hearing, however, Secretary Bunye was
allowed to attend by Executive Secretary Ermita.
On February 13, 2006, Jose Anselmo I. Cadiz and the incumbent members of
the Board of Governors of the Integrated Bar of the Philippines, as taxpayers,
and the Integrated Bar of the Philippines as the official organization of all
Philippine lawyers, all invoking their constitutional right to be informed on
matters of public interest, filed their petition for certiorari and prohibition,
docketed as G.R. No. 171246, and pray that E.O. 464 be declared null and void.
All the petitions pray for the issuance of a Temporary Restraining Order
enjoining respondents from implementing, enforcing, and observing E.O. 464.
In the oral arguments on the petitions conducted on February 21, 2006, the
following substantive issues were ventilated: (1) whether respondents
committed grave abuse of discretion in implementing E.O. 464 prior to its
publication in the Official Gazette or in a newspaper of general circulation; and
(2) whether E.O. 464 violates the following provisions of the Constitution: Art.
II, Sec. 28, Art. III, Sec. 4, Art. III, Sec. 7, Art. IV. Sec. 1, Art. VI, Sec. 21, Art. VI,
Sec. 22, Art. XI, Sec. 1, and Art. XIII, Sec. 16. The procedural issue of whether
there is an actual case or controversy that calls for judicial review was not
taken up; instead, the parties were instructed to discuss it in their respective
memoranda.
After the conclusion of the oral arguments, the parties were directed to submit
their respective memoranda, paying particular attention to the following
propositions: (1) that E.O. 464 is, on its face, unconstitutional; and (2)
assuming that it is not, it is unconstitutional as applied in four instances,
namely: (a) the so called Fertilizer scam; (b) the NorthRail investigation (c) the
Wiretapping activity of the ISAFP; and (d) the investigation on the Venable
contract.22
Petitioners in G.R. No. 169660 23 and G.R. No. 169777 24 filed their memoranda
on March 7, 2006, while those in G.R. No. 169667 25 and G.R. No. 16983426 filed
theirs the next day or on March 8, 2006. Petitioners in G.R. No. 171246 did not
file any memorandum.
Petitioners Bayan Muna et al. in G.R. No. 169659, after their motion for
extension to file memorandum27 was granted, subsequently filed a
manifestation28 dated March 14, 2006 that it would no longer file its
memorandum in the interest of having the issues resolved soonest, prompting
this Court to issue a Resolution reprimanding them. 29
Petitioners submit that E.O. 464 violates the following constitutional provisions:
Art. VI, Sec. 2130, Art. VI, Sec. 2231, Art. VI, Sec. 132, Art. XI, Sec. 133,
Art. III, Sec. 734, Art. III, Sec. 435, Art. XIII, Sec. 16 36, Art. II, Sec. 2837

Respondents Executive Secretary Ermita et al., on the other hand, pray in their
consolidated memorandum38 on March 13, 2006 for the dismissal of the
petitions for lack of merit.
The Court synthesizes the issues to be resolved as follows:
1.

Whether E.O. 464 contravenes the power of inquiry vested in Congress;

2.

Whether E.O. 464 violates the right of the people to information on


matters of public concern; and

3.

Whether respondents have committed grave abuse of discretion when


they implemented E.O. 464 prior to its publication in a newspaper of
general circulation.

Essential requisites for judicial review


Before proceeding to resolve the issue of the constitutionality of E.O. 464,
ascertainment of whether the requisites for a valid exercise of the Courts
power of judicial review are present is in order.
Like almost all powers conferred by the Constitution, the power of judicial
review is subject to limitations, to wit: (1) there must be an actual case or
controversy calling for the exercise of judicial power; (2) the person
challenging the act must have standing to challenge the validity of the subject
act or issuance; otherwise stated, he must have a personal and substantial
interest in the case such that he has sustained, or will sustain, direct injury as
a result of its enforcement; (3) the question of constitutionality must be raised
at the earliest opportunity; and (4) the issue of constitutionality must be the
very lis mota of the case.39
Except with respect to the requisites of standing and existence of an actual
case or controversy where the disagreement between the parties lies,
discussion of the rest of the requisites shall be omitted.
Standing
Respondents, through the Solicitor General, assert that the allegations in G.R.
Nos. 169659, 169660 and 169667 make it clear that they, adverting to the
non-appearance of several officials of the executive department in the
investigations called by the different committees of the Senate, were brought
to vindicate the constitutional duty of the Senate or its different committees to
conduct inquiry in aid of legislation or in the exercise of its oversight functions.
They maintain that Representatives Ocampo et al. have not shown any specific
prerogative, power, and privilege of the House of Representatives which had
been effectively impaired by E.O. 464, there being no mention of any
investigation called by the House of Representatives or any of its committees
which was aborted due to the implementation of E.O. 464.

As for Bayan Munas alleged interest as a party-list representing the


marginalized and underrepresented, and that of the other petitioner groups
and individuals who profess to have standing as advocates and defenders of
the Constitution, respondents contend that such interest falls short of that
required to confer standing on them as parties "injured-in-fact." 40
Respecting petitioner Chavez, respondents contend that Chavez may not claim
an interest as a taxpayer for the implementation of E.O. 464 does not involve
the exercise of taxing or spending power. 41
With regard to the petition filed by the Senate, respondents argue that in the
absence of a personal or direct injury by reason of the issuance of E.O. 464,
the Senate and its individual members are not the proper parties to assail the
constitutionality of E.O. 464.
Invoking this Courts ruling in National Economic Protectionism Association v.
Ongpin42 and Valmonte v. Philippine Charity Sweepstakes Office, 43 respondents
assert that to be considered a proper party, one must have a personal and
substantial interest in the case, such that he has sustained or will sustain
direct injury due to the enforcement of E.O. 464. 44
That the Senate of the Philippines has a fundamental right essential not only
for intelligent public decision-making in a democratic system, but more
especially for sound legislation45 is not disputed. E.O. 464, however, allegedly
stifles the ability of the members of Congress to access information that is
crucial to law-making.46 Verily, the Senate, including its individual members,
has a substantial and direct interest over the outcome of the controversy and
is the proper party to assail the constitutionality of E.O. 464. Indeed, legislators
have standing to maintain inviolate the prerogative, powers and privileges
vested by the Constitution in their office and are allowed to sue to question the
validity of any official action which they claim infringes their prerogatives as
legislators.47
In the same vein, party-list representatives Satur Ocampo (Bayan Muna),
Teodoro Casino (Bayan Muna), Joel Virador (Bayan Muna), Crispin Beltran
(Anakpawis), Rafael Mariano (Anakpawis), and Liza Maza (Gabriela) are
allowed to sue to question the constitutionality of E.O. 464, the absence of any
claim that an investigation called by the House of Representatives or any of its
committees was aborted due to the implementation of E.O. 464
notwithstanding, it being sufficient that a claim is made that E.O. 464 infringes
on their constitutional rights and duties as members of Congress to conduct
investigation in aid of legislation and conduct oversight functions in the
implementation of laws.
The national political party, Bayan Muna, likewise meets the standing
requirement as it obtained three seats in the House of Representatives in the
2004 elections and is, therefore, entitled to participate in the legislative
process consonant with the declared policy underlying the party list system of
affording citizens belonging to marginalized and underrepresented sectors,
organizations and parties who lack well-defined political constituencies to
contribute to the formulation and enactment of legislation that will benefit the
nation.48

As Bayan Muna and Representatives Ocampo et al. have the standing to file
their petitions, passing on the standing of their co-petitioners Courage and
Codal is rendered unnecessary.49
In filing their respective petitions, Chavez, the ALG which claims to be an
organization of citizens, and the incumbent members of the IBP Board of
Governors and the IBP in behalf of its lawyer members, 50 invoke their
constitutional right to information on matters of public concern, asserting that
the right to information, curtailed and violated by E.O. 464, is essential to the
effective exercise of other constitutional rights 51 and to the maintenance of the
balance of power among the three branches of the government through the
principle of checks and balances.52
It is well-settled that when suing as a citizen, the interest of the petitioner in
assailing the constitutionality of laws, presidential decrees, orders, and other
regulations, must be direct and personal. In Franciso v. House of
Representatives,53 this Court held that when the proceeding involves the
assertion of a public right, the mere fact that he is a citizen satisfies the
requirement of personal interest.
As for petitioner PDP-Laban, it asseverates that it is clothed with legal standing
in view of the transcendental issues raised in its petition which this Court
needs to resolve in order to avert a constitutional crisis. For it to be accorded
standing on the ground of transcendental importance, however, it must
establish (1) the character of the funds (that it is public) or other assets
involved in the case, (2) the presence of a clear case of disregard of a
constitutional or statutory prohibition by the public respondent agency or
instrumentality of the government, and (3) the lack of any party with a more
direct and specific interest in raising the questions being raised. 54 The first and
last determinants not being present as no public funds or assets are involved
and petitioners in G.R. Nos. 169777 and 169659 have direct and specific
interests in the resolution of the controversy, petitioner PDP-Laban is bereft of
standing to file its petition. Its allegation that E.O. 464 hampers its legislative
agenda is vague and uncertain, and at best is only a "generalized interest"
which it shares with the rest of the political parties. Concrete injury, whether
actual or threatened, is that indispensable element of a dispute which serves
in part to cast it in a form traditionally capable of judicial resolution. 55 In fine,
PDP-Labans alleged interest as a political party does not suffice to clothe it
with legal standing.
Actual Case or Controversy
Petitioners assert that an actual case exists, they citing the absence of the
executive officials invited by the Senate to its hearings after the issuance of
E.O. 464, particularly those on the NorthRail project and the wiretapping
controversy.
Respondents counter that there is no case or controversy, there being no
showing that President Arroyo has actually withheld her consent or prohibited
the appearance of the invited officials. 56 These officials, they claim, merely
communicated to the Senate that they have not yet secured the consent of the
President, not that the President prohibited their attendance. 57 Specifically with

regard to the AFP officers who did not attend the hearing on September 28,
2005, respondents claim that the instruction not to attend without the
Presidents consent was based on its role as Commander-in-Chief of the Armed
Forces, not on E.O. 464.
Respondents thus conclude that the petitions merely rest on an unfounded
apprehension that the President will abuse its power of preventing the
appearance of officials before Congress, and that such apprehension is not
sufficient for challenging the validity of E.O. 464.
The Court finds respondents assertion that the President has not withheld her
consent or prohibited the appearance of the officials concerned immaterial in
determining the existence of an actual case or controversy insofar as E.O. 464
is concerned. For E.O. 464 does not require either a deliberate withholding of
consent or an express prohibition issuing from the President in order to bar
officials from appearing before Congress.
As the implementation of the challenged order has already resulted in the
absence of officials invited to the hearings of petitioner Senate of the
Philippines, it would make no sense to wait for any further event before
considering the present case ripe for adjudication. Indeed, it would be sheer
abandonment of duty if this Court would now refrain from passing on the
constitutionality of E.O. 464.
Constitutionality of E.O. 464
E.O. 464, to the extent that it bars the appearance of executive officials before
Congress, deprives Congress of the information in the possession of these
officials. To resolve the question of whether such withholding of information
violates the Constitution, consideration of the general power of Congress to
obtain information, otherwise known as the power of inquiry, is in order.
The power of inquiry
The Congress power of inquiry is expressly recognized in Section 21 of Article
VI of the Constitution which reads:
SECTION 21. The Senate or the House of Representatives or any of its
respective committees may conduct inquiries in aid of legislation in
accordance with its duly published rules of procedure. The rights of persons
appearing in or affected by such inquiries shall be respected. (Underscoring
supplied)
This provision is worded exactly as Section 8 of Article VIII of the 1973
Constitution except that, in the latter, it vests the power of inquiry in the
unicameral legislature established therein the Batasang Pambansa and its
committees.
The 1935 Constitution did not contain a similar provision. Nonetheless, in
Arnault v. Nazareno,58 a case decided in 1950 under that Constitution, the

Court already recognized that the power of inquiry is inherent in the power to
legislate.
Arnault involved a Senate investigation of the reportedly anomalous purchase
of the Buenavista and Tambobong Estates by the Rural Progress
Administration. Arnault, who was considered a leading witness in the
controversy, was called to testify thereon by the Senate. On account of his
refusal to answer the questions of the senators on an important point, he was,
by resolution of the Senate, detained for contempt. Upholding the Senates
power to punish Arnault for contempt, this Court held:
Although there is no provision in the Constitution expressly investing either
House of Congress with power to make investigations and exact testimony to
the end that it may exercise its legislative functions advisedly and effectively,
such power is so far incidental to the legislative function as to be implied. In
other words, the power of inquiry with process to enforce it is an essential
and appropriate auxiliary to the legislative function. A legislative body cannot
legislate wisely or effectively in the absence of information respecting the
conditions which the legislation is intended to affect or change; and where the
legislative body does not itself possess the requisite information which is not
infrequently true recourse must be had to others who do possess it.
Experience has shown that mere requests for such information are often
unavailing, and also that information which is volunteered is not always
accurate or complete; so some means of compulsion is essential to obtain
what is needed.59 . . . (Emphasis and underscoring supplied)
That this power of inquiry is broad enough to cover officials of the executive
branch may be deduced from the same case. The power of inquiry, the Court
therein ruled, is co-extensive with the power to legislate. 60 The matters which
may be a proper subject of legislation and those which may be a proper
subject of investigation are one. It follows that the operation of government,
being a legitimate subject for legislation, is a proper subject for investigation.
Thus, the Court found that the Senate investigation of the government
transaction involved in Arnault was a proper exercise of the power of inquiry.
Besides being related to the expenditure of public funds of which Congress is
the guardian, the transaction, the Court held, "also involved government
agencies created by Congress and officers whose positions it is within the
power of Congress to regulate or even abolish."
Since Congress has authority to inquire into the operations of the executive
branch, it would be incongruous to hold that the power of inquiry does not
extend to executive officials who are the most familiar with and informed on
executive operations.
As discussed in Arnault, the power of inquiry, "with process to enforce it," is
grounded on the necessity of information in the legislative process. If the
information possessed by executive officials on the operation of their offices is
necessary for wise legislation on that subject, by parity of reasoning, Congress
has the right to that information and the power to compel the disclosure
thereof.

As evidenced by the American experience during the so-called "McCarthy era,"


however, the right of Congress to conduct inquiries in aid of legislation is, in
theory, no less susceptible to abuse than executive or judicial power. It may
thus be subjected to judicial review pursuant to the Courts certiorari powers
under Section 1, Article VIII of the Constitution.
For one, as noted in Bengzon v. Senate Blue Ribbon Committee, 61 the inquiry
itself might not properly be in aid of legislation, and thus beyond the
constitutional power of Congress. Such inquiry could not usurp judicial
functions. Parenthetically, one possible way for Congress to avoid such a result
as occurred in Bengzon is to indicate in its invitations to the public officials
concerned, or to any person for that matter, the possible needed statute which
prompted the need for the inquiry. Given such statement in its invitations,
along with the usual indication of the subject of inquiry and the questions
relative to and in furtherance thereof, there would be less room for speculation
on the part of the person invited on whether the inquiry is in aid of legislation.
Section 21, Article VI likewise establishes crucial safeguards that proscribe the
legislative power of inquiry. The provision requires that the inquiry be done in
accordance with the Senate or Houses duly published rules of procedure,
necessarily implying the constitutional infirmity of an inquiry conducted
without duly published rules of procedure. Section 21 also mandates that the
rights of persons appearing in or affected by such inquiries be respected, an
imposition that obligates Congress to adhere to the guarantees in the Bill of
Rights.
These abuses are, of course, remediable before the courts, upon the proper
suit filed by the persons affected, even if they belong to the executive branch.
Nonetheless, there may be exceptional circumstances, none appearing to
obtain at present, wherein a clear pattern of abuse of the legislative power of
inquiry might be established, resulting in palpable violations of the rights
guaranteed to members of the executive department under the Bill of Rights.
In such instances, depending on the particulars of each case, attempts by the
Executive Branch to forestall these abuses may be accorded judicial sanction.
Even where the inquiry is in aid of legislation, there are still recognized
exemptions to the power of inquiry, which exemptions fall under the rubric of
"executive privilege." Since this term figures prominently in the challenged
order, it being mentioned in its provisions, its preambular clauses, 62 and in its
very title, a discussion of executive privilege is crucial for determining the
constitutionality of E.O. 464.
Executive privilege
The phrase "executive privilege" is not new in this jurisdiction. It has been
used even prior to the promulgation of the 1986 Constitution. 63 Being of
American origin, it is best understood in light of how it has been defined and
used in the legal literature of the United States.
Schwartz defines executive privilege as "the power of the Government to
withhold
information
from
the
public,
the
courts,
and
the

Congress."64 Similarly, Rozell defines it as "the right of the President and highlevel executive branch officers to withhold information from Congress, the
courts, and ultimately the public."65
Executive privilege is, nonetheless, not a clear or unitary concept. 66 It has
encompassed claims of varying kinds. 67Tribe, in fact, comments that while it is
customary to employ the phrase "executive privilege," it may be more
accurate to speak of executive privileges "since presidential refusals to furnish
information may be actuated by any of at least three distinct kinds of
considerations, and may be asserted, with differing degrees of success, in the
context of either judicial or legislative investigations."
One variety of the privilege, Tribe explains, is the state secrets privilege
invoked by U.S. Presidents, beginning with Washington, on the ground that the
information is of such nature that its disclosure would subvert crucial military
or diplomatic objectives. Another variety is the informers privilege, or the
privilege of the Government not to disclose the identity of persons who furnish
information of violations of law to officers charged with the enforcement of
that law. Finally, a generic privilege for internal deliberations has been said to
attach to intragovernmental documents reflecting advisory opinions,
recommendations and deliberations comprising part of a process by which
governmental decisions and policies are formulated. 68
Tribes comment is supported by the ruling in In re Sealed Case, thus:
Since the beginnings of our nation, executive officials have claimed a variety of
privileges to resist disclosure of information the confidentiality of which they
felt was crucial to fulfillment of the unique role and responsibilities of the
executive branch of our government. Courts ruled early that the executive had
a right to withhold documents that might reveal military or state secrets. The
courts have also granted the executive a right to withhold the identity of
government informers in some circumstances and a qualified right to withhold
information related to pending investigations. x x x" 69 (Emphasis and
underscoring supplied)
The entry in Blacks Law Dictionary on "executive privilege" is similarly
instructive regarding the scope of the doctrine.
This privilege, based on the constitutional doctrine of separation of powers,
exempts the executive from disclosure requirements applicable to the ordinary
citizen or organization where such exemption is necessary to the discharge of
highly important executive responsibilities involved in maintaining
governmental operations, and extends not only to military and diplomatic
secrets but also to documents integral to an appropriate exercise of the
executive domestic decisional and policy making functions, that is, those
documents reflecting the frank expression necessary in intra-governmental
advisory and deliberative communications.70 (Emphasis and underscoring
supplied)
That a type of information is recognized as privileged does not, however,
necessarily mean that it would be considered privileged in all instances. For in

determining the validity of a claim of privilege, the question that must be


asked is not only whether the requested information falls within one of the
traditional privileges, but also whether that privilege should be honored in a
given procedural setting.71
The leading case on executive privilege in the United States is U.S. v.
Nixon, 72 decided in 1974. In issue in that case was the validity of President
Nixons claim of executive privilege against a subpoena issued by a district
court requiring the production of certain tapes and documents relating to the
Watergate investigations. The claim of privilege was based on the Presidents
general interest in the confidentiality of his conversations and correspondence.
The U.S. Court held that while there is no explicit reference to a privilege of
confidentiality in the U.S. Constitution, it is constitutionally based to the extent
that it relates to the effective discharge of a Presidents powers. The Court,
nonetheless, rejected the Presidents claim of privilege, ruling that the
privilege must be balanced against the public interest in the fair administration
of criminal justice. Notably, the Court was careful to clarify that it was not
there addressing the issue of claims of privilege in a civil litigation or against
congressional demands for information.
Cases in the U.S. which involve claims of executive privilege against Congress
are rare.73 Despite frequent assertion of the privilege to deny information to
Congress, beginning with President Washingtons refusal to turn over treaty
negotiation records to the House of Representatives, the U.S. Supreme Court
has never adjudicated the issue.74 However, the U.S. Court of Appeals for the
District of Columbia Circuit, in a case decided earlier in the same year as
Nixon, recognized the Presidents privilege over his conversations against a
congressional subpoena.75 Anticipating the balancing approach adopted by the
U.S. Supreme Court in Nixon, the Court of Appeals weighed the public interest
protected by the claim of privilege against the interest that would be served by
disclosure to the Committee. Ruling that the balance favored the President, the
Court declined to enforce the subpoena. 76
In this jurisdiction, the doctrine of executive privilege was recognized by this
Court in Almonte v. Vasquez. 77Almonte used the term in reference to the same
privilege subject of Nixon. It quoted the following portion of the Nixon decision
which explains the basis for the privilege:
"The expectation of a President to the confidentiality of his conversations and
correspondences, like the claim of confidentiality of judicial deliberations, for
example, has all the values to which we accord deference for the privacy of all
citizens and, added to those values, is the necessity for protection of the public
interest in candid, objective, and even blunt or harsh opinions in Presidential
decision-making. A President and those who assist him must be free to explore
alternatives in the process of shaping policies and making decisions and to do
so in a way many would be unwilling to express except privately. These are the
considerations
justifying
a
presumptive
privilege
for
Presidential
communications. The privilege is fundamental to the operation of government
and inextricably rooted in the separation of powers under the Constitution x x
x " (Emphasis and underscoring supplied)

Almonte involved a subpoena duces tecum issued by the Ombudsman against


the therein petitioners. It did not involve, as expressly stated in the decision,
the right of the people to information. 78 Nonetheless, the Court recognized that
there are certain types of information which the government may withhold
from the public, thus acknowledging, in substance if not in name, that
executive privilege may be claimed against citizens demands for information.
In Chavez v. PCGG,79 the Court held that this jurisdiction recognizes the
common law holding that there is a "governmental privilege against public
disclosure with respect to state secrets regarding military, diplomatic and
other national security matters." 80 The same case held that closed-door
Cabinet meetings are also a recognized limitation on the right to information.
Similarly, in Chavez v. Public Estates Authority, 81 the Court ruled that the right
to information does not extend to matters recognized as "privileged
information under the separation of powers," 82 by which the Court meant
Presidential conversations, correspondences, and discussions in closed-door
Cabinet meetings. It also held that information on military and diplomatic
secrets and those affecting national security, and information on investigations
of crimes by law enforcement agencies before the prosecution of the accused
were exempted from the right to information.
From the above discussion on the meaning and scope of executive privilege,
both in the United States and in this jurisdiction, a clear principle emerges.
Executive privilege, whether asserted against Congress, the courts, or the
public, is recognized only in relation to certain types of information of a
sensitive character. While executive privilege is a constitutional concept, a
claim thereof may be valid or not depending on the ground invoked to justify it
and the context in which it is made. Noticeably absent is any recognition that
executive officials are exempt from the duty to disclose information by the
mere fact of being executive officials. Indeed, the extraordinary character of
the exemptions indicates that the presumption inclines heavily against
executive secrecy and in favor of disclosure.
Validity of Section 1
Section 1 is similar to Section 3 in that both require the officials covered by
them to secure the consent of the President prior to appearing before
Congress. There are significant differences between the two provisions,
however, which constrain this Court to discuss the validity of these provisions
separately.
Section 1 specifically applies to department heads. It does not, unlike Section
3, require a prior determination by any official whether they are covered by
E.O. 464. The President herself has, through the challenged order, made the
determination that they are. Further, unlike also Section 3, the coverage of
department heads under Section 1 is not made to depend on the department
heads possession of any information which might be covered by executive
privilege. In fact, in marked contrast to Section 3 vis--vis Section 2, there is no
reference to executive privilege at all. Rather, the required prior consent under
Section 1 is grounded on Article VI, Section 22 of the Constitution on what has
been referred to as the question hour.

SECTION 22. The heads of departments may upon their own initiative, with the
consent of the President, or upon the request of either House, as the rules of
each House shall provide, appear before and be heard by such House on any
matter pertaining to their departments. Written questions shall be submitted
to the President of the Senate or the Speaker of the House of Representatives
at least three days before their scheduled appearance. Interpellations shall not
be limited to written questions, but may cover matters related thereto. When
the security of the State or the public interest so requires and the President so
states in writing, the appearance shall be conducted in executive session.
Determining the validity of Section 1 thus requires an examination of the
meaning of Section 22 of Article VI. Section 22 which provides for the question
hour must be interpreted vis--vis Section 21 which provides for the power of
either House of Congress to "conduct inquiries in aid of legislation." As the
following excerpt of the deliberations of the Constitutional Commission shows,
the framers were aware that these two provisions involved distinct functions of
Congress.
MR. MAAMBONG. x x x When we amended Section 20 [now Section 22 on the
Question Hour] yesterday, I noticed that members of the Cabinet cannot be
compelled anymore to appear before the House of Representatives or before
the Senate. I have a particular problem in this regard, Madam President,
because in our experience in the Regular Batasang Pambansa as the
Gentleman himself has experienced in the interim Batasang Pambansa one
of the most competent inputs that we can put in our committee deliberations,
either in aid of legislation or in congressional investigations, is the testimonies
of Cabinet ministers. We usually invite them, but if they do not come and it is a
congressional investigation, we usually issue subpoenas.
I want to be clarified on a statement made by Commissioner Suarez when he
said that the fact that the Cabinet ministers may refuse to come to the House
of Representatives or the Senate [when requested under Section 22] does not
mean that they need not come when they are invited or subpoenaed by the
committee of either House when it comes to inquiries in aid of legislation or
congressional investigation. According to Commissioner Suarez, that is allowed
and their presence can be had under Section 21. Does the gentleman confirm
this, Madam President?
MR. DAVIDE. We confirm that, Madam President, because Section 20 refers
only to what was originally the Question Hour, whereas, Section 21 would refer
specifically to inquiries in aid of legislation, under which anybody for that
matter, may be summoned and if he refuses, he can be held in contempt of
the House.83 (Emphasis and underscoring supplied)
A distinction was thus made between inquiries in aid of legislation and the
question hour. While attendance was meant to be discretionary in the question
hour, it was compulsory in inquiries in aid of legislation. The reference to
Commissioner Suarez bears noting, he being one of the proponents of the
amendment to make the appearance of department heads discretionary in the
question hour.

So clearly was this distinction conveyed to the members of the Commission


that the Committee on Style, precisely in recognition of this distinction, later
moved the provision on question hour from its original position as Section 20 in
the original draft down to Section 31, far from the provision on inquiries in aid
of legislation. This gave rise to the following exchange during the
deliberations:
MR. GUINGONA. [speaking in his capacity as Chairman of the Committee on
Style] We now go, Mr. Presiding Officer, to the Article on Legislative and may I
request the chairperson of the Legislative Department, Commissioner Davide,
to give his reaction.
THE PRESIDING OFFICER (Mr. Jamir). Commissioner Davide is recognized.|
avvphi|.net
MR. DAVIDE. Thank you, Mr. Presiding Officer. I have only one reaction to the
Question Hour. I propose that instead of putting it as Section 31, it should
follow Legislative Inquiries.
THE PRESIDING OFFICER. What does the committee say?
MR. GUINGONA. I ask Commissioner Maambong to reply, Mr. Presiding Officer.
MR. MAAMBONG. Actually, we considered that previously when we sequenced
this but we reasoned that in Section 21, which is Legislative Inquiry, it is
actually a power of Congress in terms of its own lawmaking; whereas, a
Question Hour is not actually a power in terms of its own lawmaking power
because in Legislative Inquiry, it is in aid of legislation. And so we put Question
Hour as Section 31. I hope Commissioner Davide will consider this.
MR. DAVIDE. The Question Hour is closely related with the legislative power,
and it is precisely as a complement to or a supplement of the Legislative
Inquiry. The appearance of the members of Cabinet would be very, very
essential not only in the application of check and balance but also, in effect, in
aid of legislation.
MR. MAAMBONG. After conferring with the committee, we find merit in the
suggestion of Commissioner Davide. In other words, we are accepting that and
so this Section 31 would now become Section 22. Would it be, Commissioner
Davide?
MR. DAVIDE. Yes.84 (Emphasis and underscoring supplied)
Consistent with their statements earlier in the deliberations, Commissioners
Davide and Maambong proceeded from the same assumption that these
provisions pertained to two different functions of the legislature. Both
Commissioners understood that the power to conduct inquiries in aid of
legislation is different from the power to conduct inquiries during the question
hour. Commissioner Davides only concern was that the two provisions on
these distinct powers be placed closely together, they being complementary to

each other. Neither Commissioner considered them as identical functions of


Congress.
The foregoing opinion was not the two Commissioners alone. From the abovequoted exchange, Commissioner Maambongs committee the Committee on
Style shared the view that the two provisions reflected distinct functions of
Congress. Commissioner Davide, on the other hand, was speaking in his
capacity as Chairman of the Committee on the Legislative Department. His
views may thus be presumed as representing that of his Committee.
In the context of a parliamentary system of government, the "question hour"
has a definite meaning. It is a period of confrontation initiated by Parliament to
hold the Prime Minister and the other ministers accountable for their acts and
the operation of the government, 85 corresponding to what is known in Britain
as the question period. There was a specific provision for a question hour in
the 1973 Constitution86 which made the appearance of ministers mandatory.
The same perfectly conformed to the parliamentary system established by that
Constitution, where the ministers are also members of the legislature and are
directly accountable to it.
An essential feature of the parliamentary system of government is the
immediate accountability of the Prime Minister and the Cabinet to the National
Assembly. They shall be responsible to the National Assembly for the program
of government and shall determine the guidelines of national policy. Unlike in
the presidential system where the tenure of office of all elected officials cannot
be terminated before their term expired, the Prime Minister and the Cabinet
remain in office only as long as they enjoy the confidence of the National
Assembly. The moment this confidence is lost the Prime Minister and the
Cabinet may be changed.87
The framers of the 1987 Constitution removed the mandatory nature of such
appearance during the question hour in the present Constitution so as to
conform more fully to a system of separation of powers. 88 To that extent, the
question hour, as it is presently understood in this jurisdiction, departs from
the question period of the parliamentary system. That department heads may
not be required to appear in a question hour does not, however, mean that the
legislature is rendered powerless to elicit information from them in all
circumstances. In fact, in light of the absence of a mandatory question period,
the need to enforce Congress right to executive information in the
performance of its legislative function becomes more imperative. As Schwartz
observes:
Indeed, if the separation of powers has anything to tell us on the subject under
discussion, it is that the Congress has the right to obtain information from any
source even from officials of departments and agencies in the executive
branch. In the United States there is, unlike the situation which prevails in a
parliamentary system such as that in Britain, a clear separation between the
legislative and executive branches. It is this very separation that makes the
congressional right to obtain information from the executive so essential, if the
functions of the Congress as the elected representatives of the people are
adequately to be carried out. The absence of close rapport between the
legislative and executive branches in this country, comparable to those which

exist under a parliamentary system, and the nonexistence in the Congress of


an institution such as the British question period have perforce made reliance
by the Congress upon its right to obtain information from the executive
essential, if it is intelligently to perform its legislative tasks. Unless the
Congress possesses the right to obtain executive information, its power of
oversight of administration in a system such as ours becomes a power devoid
of most of its practical content, since it depends for its effectiveness solely
upon information parceled out ex gratia by the executive. 89 (Emphasis and
underscoring supplied)
Sections 21 and 22, therefore, while closely related and complementary to
each other, should not be considered as pertaining to the same power of
Congress. One specifically relates to the power to conduct inquiries in aid of
legislation, the aim of which is to elicit information that may be used for
legislation, while the other pertains to the power to conduct a question hour,
the objective of which is to obtain information in pursuit of Congress oversight
function.
When Congress merely seeks to be informed on how department heads are
implementing the statutes which it has issued, its right to such information is
not as imperative as that of the President to whom, as Chief Executive, such
department heads must give a report of their performance as a matter of duty.
In such instances, Section 22, in keeping with the separation of powers, states
that Congress may only request their appearance. Nonetheless, when the
inquiry in which Congress requires their appearance is "in aid of legislation"
under Section 21, the appearance is mandatory for the same reasons stated in
Arnault.90
In fine, the oversight function of Congress may be facilitated by compulsory
process only to the extent that it is performed in pursuit of legislation. This is
consistent with the intent discerned from the deliberations of the
Constitutional Commission.
Ultimately, the power of Congress to compel the appearance of executive
officials under Section 21 and the lack of it under Section 22 find their basis in
the principle of separation of powers. While the executive branch is a co-equal
branch of the legislature, it cannot frustrate the power of Congress to legislate
by refusing to comply with its demands for information.
When Congress exercises its power of inquiry, the only way for department
heads to exempt themselves therefrom is by a valid claim of privilege. They
are not exempt by the mere fact that they are department heads. Only one
executive official may be exempted from this power the President on whom
executive power is vested, hence, beyond the reach of Congress except
through the power of impeachment. It is based on her being the highest official
of the executive branch, and the due respect accorded to a co-equal branch of
government which is sanctioned by a long-standing custom.
By the same token, members of the Supreme Court are also exempt from this
power of inquiry. Unlike the Presidency, judicial power is vested in a collegial
body; hence, each member thereof is exempt on the basis not only of
separation of powers but also on the fiscal autonomy and the constitutional

independence of the judiciary. This point is not in dispute, as even counsel for
the Senate, Sen. Joker Arroyo, admitted it during the oral argument upon
interpellation of the Chief Justice.
Having established the proper interpretation of Section 22, Article VI of the
Constitution, the Court now proceeds to pass on the constitutionality of Section
1 of E.O. 464.
Section 1, in view of its specific reference to Section 22 of Article VI of the
Constitution and the absence of any reference to inquiries in aid of legislation,
must be construed as limited in its application to appearances of department
heads in the question hour contemplated in the provision of said Section 22 of
Article VI. The reading is dictated by the basic rule of construction that
issuances must be interpreted, as much as possible, in a way that will render it
constitutional.
The requirement then to secure presidential consent under Section 1, limited
as it is only to appearances in the question hour, is valid on its face. For under
Section 22, Article VI of the Constitution, the appearance of department heads
in the question hour is discretionary on their part.
Section 1 cannot, however, be applied to appearances of department heads in
inquiries in aid of legislation. Congress is not bound in such instances to
respect the refusal of the department head to appear in such inquiry, unless a
valid claim of privilege is subsequently made, either by the President herself or
by the Executive Secretary.
Validity of Sections 2 and 3
Section 3 of E.O. 464 requires all the public officials enumerated in Section 2(b)
to secure the consent of the President prior to appearing before either house of
Congress. The enumeration is broad. It covers all senior officials of executive
departments, all officers of the AFP and the PNP, and all senior national
security officials who, in the judgment of the heads of offices designated in the
same section (i.e. department heads, Chief of Staff of the AFP, Chief of the
PNP, and the National Security Adviser), are "covered by the executive
privilege."
The enumeration also includes such other officers as may be determined by
the President. Given the title of Section 2 "Nature, Scope and Coverage of
Executive Privilege" , it is evident that under the rule of ejusdem generis, the
determination by the President under this provision is intended to be based on
a similar finding of coverage under executive privilege.
En passant, the Court notes that Section 2(b) of E.O. 464 virtually states that
executive privilege actually covers persons. Such is a misuse of the doctrine.
Executive privilege, as discussed above, is properly invoked in relation to
specific categories of information and not to categories of persons.

In light, however, of Sec 2(a) of E.O. 464 which deals with the nature, scope
and coverage of executive privilege, the reference to persons being "covered
by the executive privilege" may be read as an abbreviated way of saying that
the person is in possession of information which is, in the judgment of the
head of office concerned, privileged as defined in Section 2(a). The Court shall
thus proceed on the assumption that this is the intention of the challenged
order.
Upon a determination by the designated head of office or by the President that
an official is "covered by the executive privilege," such official is subjected to
the requirement that he first secure the consent of the President prior to
appearing before Congress. This requirement effectively bars the appearance
of the official concerned unless the same is permitted by the President. The
proviso allowing the President to give its consent means nothing more than
that the President may reverse a prohibition which already exists by virtue of
E.O. 464.
Thus, underlying this requirement of prior consent is the determination by a
head of office, authorized by the President under E.O. 464, or by the President
herself, that such official is in possession of information that is covered by
executive privilege. This determination then becomes the basis for the
officials not showing up in the legislative investigation.
In view thereof, whenever an official invokes E.O. 464 to justify his failure to be
present, such invocation must be construed as a declaration to Congress that
the President, or a head of office authorized by the President, has determined
that the requested information is privileged, and that the President has not
reversed such determination. Such declaration, however, even without
mentioning the term "executive privilege," amounts to an implied claim that
the information is being withheld by the executive branch, by authority of the
President, on the basis of executive privilege. Verily, there is an implied claim
of privilege.
The letter dated September 28, 2005 of respondent Executive Secretary
Ermita to Senate President Drilon illustrates the implied nature of the claim of
privilege authorized by E.O. 464. It reads:
In connection with the inquiry to be conducted by the Committee of the Whole
regarding the Northrail Project of the North Luzon Railways Corporation on 29
September 2005 at 10:00 a.m., please be informed that officials of the
Executive Department invited to appear at the meeting will not be able to
attend the same without the consent of the President, pursuant to Executive
Order No. 464 (s. 2005), entitled "Ensuring Observance Of The Principle Of
Separation Of Powers, Adherence To The Rule On Executive Privilege And
Respect For The Rights Of Public Officials Appearing In Legislative Inquiries In
Aid Of Legislation Under The Constitution, And For Other Purposes". Said
officials have not secured the required consent from the President.
(Underscoring supplied)
The letter does not explicitly invoke executive privilege or that the matter on
which these officials are being requested to be resource persons falls under
the recognized grounds of the privilege to justify their absence. Nor does it

expressly state that in view of the lack of consent from the President under
E.O. 464, they cannot attend the hearing.
Significant premises in this letter, however, are left unstated, deliberately or
not. The letter assumes that the invited officials are covered by E.O. 464. As
explained earlier, however, to be covered by the order means that a
determination has been made, by the designated head of office or the
President, that the invited official possesses information that is covered by
executive privilege. Thus, although it is not stated in the letter that such
determination has been made, the same must be deemed implied. Respecting
the statement that the invited officials have not secured the consent of the
President, it only means that the President has not reversed the standing
prohibition against their appearance before Congress.
Inevitably, Executive Secretary Ermitas letter leads to the conclusion that the
executive branch, either through the President or the heads of offices
authorized under E.O. 464, has made a determination that the information
required by the Senate is privileged, and that, at the time of writing, there has
been no contrary pronouncement from the President. In fine, an implied claim
of privilege has been made by the executive.
While there is no Philippine case that directly addresses the issue of whether
executive privilege may be invoked against Congress, it is gathered from
Chavez v. PEA that certain information in the possession of the executive may
validly be claimed as privileged even against Congress. Thus, the case holds:
There is no claim by PEA that the information demanded by petitioner is
privileged information rooted in the separation of powers. The information
does not cover Presidential conversations, correspondences, or discussions
during closed-door Cabinet meetings which, like internal-deliberations of the
Supreme Court and other collegiate courts, or executive sessions of either
house of Congress, are recognized as confidential. This kind of information
cannot be pried open by a co-equal branch of government. A frank exchange
of exploratory ideas and assessments, free from the glare of publicity and
pressure by interested parties, is essential to protect the independence of
decision-making of those tasked to exercise Presidential, Legislative and
Judicial power. This is not the situation in the instant case. 91 (Emphasis and
underscoring supplied)
Section 3 of E.O. 464, therefore, cannot be dismissed outright as invalid by the
mere fact that it sanctions claims of executive privilege. This Court must look
further and assess the claim of privilege authorized by the Order to determine
whether it is valid.
While the validity of claims of privilege must be assessed on a case to case
basis, examining the ground invoked therefor and the particular circumstances
surrounding it, there is, in an implied claim of privilege, a defect that renders it
invalid per se. By its very nature, and as demonstrated by the letter of
respondent Executive Secretary quoted above, the implied claim authorized by
Section 3 of E.O. 464 is not accompanied by any specific allegation of the basis
thereof (e.g., whether the information demanded involves military or
diplomatic secrets, closed-door Cabinet meetings, etc.). While Section 2(a)

enumerates the types of information that are covered by the privilege under
the challenged order, Congress is left to speculate as to which among them is
being referred to by the executive. The enumeration is not even intended to be
comprehensive, but a mere statement of what is included in the phrase
"confidential or classified information between the President and the public
officers covered by this executive order."
Certainly, Congress has the right to know why the executive considers the
requested information privileged. It does not suffice to merely declare that the
President, or an authorized head of office, has determined that it is so, and
that the President has not overturned that determination. Such declaration
leaves Congress in the dark on how the requested information could be
classified as privileged. That the message is couched in terms that, on first
impression, do not seem like a claim of privilege only makes it more
pernicious. It threatens to make Congress doubly blind to the question of why
the executive branch is not providing it with the information that it has
requested.
A claim of privilege, being a claim of exemption from an obligation to disclose
information, must, therefore, be clearly asserted. As U.S. v. Reynolds teaches:
The privilege belongs to the government and must be asserted by it; it can
neither be claimed nor waived by a private party. It is not to be lightly invoked.
There must be a formal claim of privilege, lodged by the head of the
department which has control over the matter, after actual personal
consideration by that officer. The court itself must determine whether the
circumstances are appropriate for the claim of privilege, and yet do so without
forcing a disclosure of the very thing the privilege is designed to
protect.92 (Underscoring supplied)
Absent then a statement of the specific basis of a claim of executive privilege,
there is no way of determining whether it falls under one of the traditional
privileges, or whether, given the circumstances in which it is made, it should
be respected.93 These, in substance, were the same criteria in assessing the
claim of privilege asserted against the Ombudsman in Almonte v.
Vasquez94 and, more in point, against a committee of the Senate in Senate
Select Committee on Presidential Campaign Activities v. Nixon. 95
A.O. Smith v. Federal Trade Commission is enlightening:
[T]he lack of specificity renders an assessment of the potential harm resulting
from disclosure impossible, thereby preventing the Court from balancing such
harm against plaintiffs needs to determine whether to override any claims of
privilege.96 (Underscoring supplied)
And so is U.S. v. Article of Drug:97
On the present state of the record, this Court is not called upon to perform this
balancing operation. In stating its objection to claimants interrogatories,
government asserts, and nothing more, that the disclosures sought by
claimant would inhibit the free expression of opinion that non-disclosure is

designed to protect. The government has not shown nor even alleged that
those who evaluated claimants product were involved in internal
policymaking, generally, or in this particular instance. Privilege cannot be set
up by an unsupported claim. The facts upon which the privilege is based must
be established. To find these interrogatories objectionable, this Court would
have to assume that the evaluation and classification of claimants products
was a matter of internal policy formulation, an assumption in which this Court
is unwilling to indulge sua sponte. 98 (Emphasis and underscoring supplied)
Mobil Oil Corp. v. Department of Energy99 similarly emphasizes that "an agency
must provide precise and certain reasons for preserving the confidentiality of
requested information."
Black v. Sheraton Corp. of America100 amplifies, thus:
A formal and proper claim of executive privilege requires a specific designation
and description of the documents within its scope as well as precise and
certain reasons for preserving their confidentiality. Without this specificity, it is
impossible for a court to analyze the claim short of disclosure of the very thing
sought to be protected. As the affidavit now stands, the Court has little more
than its sua sponte speculation with which to weigh the applicability of the
claim. An improperly asserted claim of privilege is no claim of privilege.
Therefore, despite the fact that a claim was made by the proper executive as
Reynolds requires, the Court can not recognize the claim in the instant case
because it is legally insufficient to allow the Court to make a just and
reasonable determination as to its applicability. To recognize such a broad
claim in which the Defendant has given no precise or compelling reasons to
shield these documents from outside scrutiny, would make a farce of the whole
procedure.101 (Emphasis and underscoring supplied)
Due respect for a co-equal branch of government, moreover, demands no less
than a claim of privilege clearly stating the grounds therefor. Apropos is the
following ruling in McPhaul v. U.S:102
We think the Courts decision in United States v. Bryan, 339 U.S. 323, 70 S. Ct.
724, is highly relevant to these questions. For it is as true here as it was there,
that if (petitioner) had legitimate reasons for failing to produce the records of
the association, a decent respect for the House of Representatives, by whose
authority the subpoenas issued, would have required that (he) state (his)
reasons for noncompliance upon the return of the writ. Such a statement
would have given the Subcommittee an opportunity to avoid the blocking of its
inquiry by taking other appropriate steps to obtain the records. To deny the
Committee the opportunity to consider the objection or remedy is in itself a
contempt of its authority and an obstruction of its processes. His failure to
make any such statement was "a patent evasion of the duty of one summoned
to produce papers before a congressional committee[, and] cannot be
condoned." (Emphasis and underscoring supplied; citations omitted)
Upon the other hand, Congress must not require the executive to state the
reasons for the claim with such particularity as to compel disclosure of the
information which the privilege is meant to protect. 103 A useful analogy in

determining the requisite degree of particularity would be the privilege against


self-incrimination. Thus, Hoffman v. U.S.104 declares:
The witness is not exonerated from answering merely because he declares that
in so doing he would incriminate himself his say-so does not of itself establish
the hazard of incrimination. It is for the court to say whether his silence is
justified, and to require him to answer if it clearly appears to the court that he
is mistaken. However, if the witness, upon interposing his claim, were required
to prove the hazard in the sense in which a claim is usually required to be
established in court, he would be compelled to surrender the very protection
which the privilege is designed to guarantee. To sustain the privilege, it need
only be evident from the implications of the question, in the setting in which it
is asked, that a responsive answer to the question or an explanation of why it
cannot be answered might be dangerous because injurious disclosure could
result." x x x (Emphasis and underscoring supplied)
The claim of privilege under Section 3 of E.O. 464 in relation to Section 2(b) is
thus invalid per se. It is not asserted. It is merely implied. Instead of providing
precise and certain reasons for the claim, it merely invokes E.O. 464, coupled
with an announcement that the President has not given her consent. It is
woefully insufficient for Congress to determine whether the withholding of
information is justified under the circumstances of each case. It severely
frustrates the power of inquiry of Congress.
In fine, Section 3 and Section 2(b) of E.O. 464 must be invalidated.
No infirmity, however, can be imputed to Section 2(a) as it merely provides
guidelines, binding only on the heads of office mentioned in Section 2(b), on
what is covered by executive privilege. It does not purport to be conclusive on
the other branches of government. It may thus be construed as a mere
expression of opinion by the President regarding the nature and scope of
executive privilege.
Petitioners, however, assert as another ground for invalidating the challenged
order the alleged unlawful delegation of authority to the heads of offices in
Section 2(b). Petitioner Senate of the Philippines, in particular, cites the case of
the United States where, so it claims, only the President can assert executive
privilege to withhold information from Congress.
Section 2(b) in relation to Section 3 virtually provides that, once the head of
office determines that a certain information is privileged, such determination is
presumed to bear the Presidents authority and has the effect of prohibiting
the official from appearing before Congress, subject only to the express
pronouncement of the President that it is allowing the appearance of such
official. These provisions thus allow the President to authorize claims of
privilege by mere silence.
Such presumptive authorization, however, is contrary to the exceptional nature
of the privilege. Executive privilege, as already discussed, is recognized with
respect to information the confidential nature of which is crucial to the
fulfillment of the unique role and responsibilities of the executive branch, 105 or

in those instances where exemption from disclosure is necessary to the


discharge of highly important executive responsibilities. 106 The doctrine of
executive privilege is thus premised on the fact that certain informations must,
as a matter of necessity, be kept confidential in pursuit of the public interest.
The privilege being, by definition, an exemption from the obligation to disclose
information, in this case to Congress, the necessity must be of such high
degree as to outweigh the public interest in enforcing that obligation in a
particular case.
In light of this highly exceptional nature of the privilege, the Court finds it
essential to limit to the President the power to invoke the privilege. She may of
course authorize the Executive Secretary to invoke the privilege on her behalf,
in which case the Executive Secretary must state that the authority is "By
order of the President," which means that he personally consulted with her.
The privilege being an extraordinary power, it must be wielded only by the
highest official in the executive hierarchy. In other words, the President may
not authorize her subordinates to exercise such power. There is even less
reason to uphold such authorization in the instant case where the
authorization is not explicit but by mere silence. Section 3, in relation to
Section 2(b), is further invalid on this score.
It follows, therefore, that when an official is being summoned by Congress on a
matter which, in his own judgment, might be covered by executive privilege,
he must be afforded reasonable time to inform the President or the Executive
Secretary of the possible need for invoking the privilege. This is necessary in
order to provide the President or the Executive Secretary with fair opportunity
to consider whether the matter indeed calls for a claim of executive privilege.
If, after the lapse of that reasonable time, neither the President nor the
Executive Secretary invokes the privilege, Congress is no longer bound to
respect the failure of the official to appear before Congress and may then opt
to avail of the necessary legal means to compel his appearance.
The Court notes that one of the expressed purposes for requiring officials to
secure the consent of the President under Section 3 of E.O. 464 is to ensure
"respect for the rights of public officials appearing in inquiries in aid of
legislation." That such rights must indeed be respected by Congress is an echo
from Article VI Section 21 of the Constitution mandating that "[t]he rights of
persons appearing in or affected by such inquiries shall be respected."
In light of the above discussion of Section 3, it is clear that it is essentially an
authorization for implied claims of executive privilege, for which reason it must
be invalidated. That such authorization is partly motivated by the need to
ensure respect for such officials does not change the infirm nature of the
authorization itself.
Right to Information
E.O 464 is concerned only with the demands of Congress for the appearance of
executive officials in the hearings conducted by it, and not with the demands
of citizens for information pursuant to their right to information on matters of
public concern. Petitioners are not amiss in claiming, however, that what is

involved in the present controversy is not merely the legislative power of


inquiry, but the right of the people to information.
There are, it bears noting, clear distinctions between the right of Congress to
information which underlies the power of inquiry and the right of the people to
information on matters of public concern. For one, the demand of a citizen for
the production of documents pursuant to his right to information does not have
the same obligatory force as a subpoena duces tecum issued by Congress.
Neither does the right to information grant a citizen the power to exact
testimony from government officials. These powers belong only to Congress
and not to an individual citizen.
Thus, while Congress is composed of representatives elected by the people, it
does not follow, except in a highly qualified sense, that in every exercise of its
power of inquiry, the people are exercising their right to information.

such a law does not affect the public although it unquestionably does not apply
directly to all the people. The subject of such law is a matter of public interest
which any member of the body politic may question in the political forums or,
if he is a proper party, even in courts of justice. 108 (Emphasis and underscoring
supplied)
Although the above statement was made in reference to statutes, logic
dictates that the challenged order must be covered by the publication
requirement. As explained above, E.O. 464 has a direct effect on the right of
the people to information on matters of public concern. It is, therefore, a
matter of public interest which members of the body politic may question
before this Court. Due process thus requires that the people should have been
apprised of this issuance before it was implemented.
Conclusion

To the extent that investigations in aid of legislation are generally conducted in


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

Congress undoubtedly has a right to information from the executive branch


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

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

[w]hat republican theory did accomplishwas to reverse the old presumption


in favor of secrecy, based on the divine right of kings and nobles, and replace
it with a presumption in favor of publicity, based on the doctrine of popular
sovereignty. (Underscoring supplied) 109

The impairment of the right of the people to information as a consequence of


E.O. 464 is, therefore, in the sense explained above, just as direct as its
violation of the legislatures power of inquiry.
Implementation of E.O. 464 prior to its publication
While E.O. 464 applies only to officials of the executive branch, it does not
follow that the same is exempt from the need for publication. On the need for
publishing even those statutes that do not directly apply to people in general,
Taada v. Tuvera states:
The term "laws" should refer to all laws and not only to those of general
application, for strictly speaking all laws relate to the people in general albeit
there are some that do not apply to them directly. An example is a law
granting citizenship to a particular individual, like a relative of President
Marcos who was decreed instant naturalization. It surely cannot be said that

The infirm provisions of E.O. 464, however, allow the executive branch to
evade congressional requests for information without need of clearly asserting
a right to do so and/or proffering its reasons therefor. By the mere expedient of
invoking said provisions, the power of Congress to conduct inquiries in aid of
legislation is frustrated. That is impermissible. For

Resort to any means then by which officials of the executive branch could
refuse to divulge information cannot be presumed valid. Otherwise, we shall
not have merely nullified the power of our legislature to inquire into the
operations of government, but we shall have given up something of much
greater value our right as a people to take part in government.
WHEREFORE, the petitions are PARTLY GRANTED. Sections 2(b) and 3 of
Executive Order No. 464 (series of 2005), "Ensuring Observance of the
Principle of Separation of Powers, Adherence to the Rule on Executive
Privilege and Respect for the Rights of Public Officials Appearing in Legislative
Inquiries in Aid of Legislation Under the Constitution, and For Other Purposes,"
are declared VOID. Sections 1 and 2(a) are, however, VALID.
SO ORDERED.

Antecedents
What has precipitated the controversy?
On September 25, 2013, Sen. Jinggoy Ejercito Estrada delivered a privilege
speech in the Senate of the Philippines to reveal that some Senators, including
himself, had been allotted an additional P50 Million each as "incentive" for
voting in favor of the impeachment of Chief Justice Renato C. Corona.
Responding to Sen. Estradas revelation, Secretary Florencio Abad of the DBM
issued a public statement entitled Abad: Releases to Senators Part of Spending
Acceleration Program,1 explaining that the funds released to the Senators had
been part of the DAP, a program designed by the DBM to ramp up spending to
accelerate economic expansion. He clarified that the funds had been released
to the Senators based on their letters of request for funding; and that it was
not the first time that releases from the DAP had been made because the DAP
had already been instituted in 2011 to ramp up spending after sluggish
disbursements had caused the growth of the gross domestic product (GDP) to
slow down. He explained that the funds under the DAP were usually taken from
(1) unreleased appropriations under Personnel Services; 2 (2) unprogrammed
funds; (3) carry-over appropriations unreleased from the previous year; and (4)
budgets for slow-moving items or projects that had been realigned to support
faster-disbursing projects.

G.R. No. 209287

July 1, 2014

MARIA CAROLINA P. ARAULLO, CHAIRPERSON, BAGONG ALYANSANG


MAKABAYAN, et al Petitioners, vs. BENIGNO SIMEON C. AQUINO III,
PRESIDENT OF THE REPUBLIC OF THE PHILIPPINES;, Respondents.
BERSAMIN, J.:
For resolution are the consolidated petitions assailing the constitutionality of
the Disbursement Acceleration Program(DAP), National Budget Circular (NBC)
No. 541, and related issuances of the Department of Budget and Management
(DBM) implementing the DAP.
At the core of the controversy is Section 29(1) of Article VI of the 1987
Constitution, a provision of the fundamental law that firmly ordains that "[n]o
money shall be paid out of the Treasury except in pursuance of an
appropriation made by law." The tenor and context of the challenges posed by
the petitioners against the DAP indicate that the DAP contravened this
provision by allowing the Executive to allocate public money pooled from
programmed and unprogrammed funds of its various agencies in the guise of
the President exercising his constitutional authority under Section 25(5) of the
1987 Constitution to transfer funds out of savings to augment the
appropriations of offices within the Executive Branch of the Government. But
the challenges are further complicated by the interjection of allegations of
transfer of funds to agencies or offices outside of the Executive.

The DBM soon came out to claim in its website 3 that the DAP releases had
been sourced from savings generated by the Government, and from
unprogrammed funds; and that the savings had been derived from (1) the
pooling
of
unreleased
appropriations,
like
unreleased
Personnel
Services4 appropriations that would lapse at the end of the year, unreleased
appropriations of slow-moving projects and discontinued projects per zero
based budgeting findings;5 and (2) the withdrawal of unobligated allotments
also for slow-moving programs and projects that had been earlier released to
the agencies of the National Government.
The DBM listed the following as the legal bases for the DAPs use of
savings,6 namely: (1) Section 25(5), Article VI of the 1987 Constitution, which
granted to the President the authority to augment an item for his office in the
general appropriations law; (2) Section 49 (Authority to Use Savings for Certain
Purposes) and Section 38 (Suspension of Expenditure Appropriations), Chapter
5, Book VI of Executive Order (EO) No. 292 (Administrative Code of 1987); and
(3) the General Appropriations Acts (GAAs) of 2011, 2012 and 2013,
particularly their provisions on the (a) use of savings; (b) meanings of savings
and augmentation; and (c) priority in the use of savings.
As for the use of unprogrammed funds under the DAP, the DBM cited as legal
bases the special provisions on unprogrammed fund contained in the GAAs of
2011, 2012 and 2013.
The revelation of Sen. Estrada and the reactions of Sec. Abad and the DBM
brought the DAP to the consciousness of the Nation for the first time, and
made this present controversy inevitable. That the issues against the DAP

came at a time when the Nation was still seething in anger over Congressional
pork barrel "an appropriation of government spending meant for localized
projects and secured solely or primarily to bring money to a representatives
district"7 excited the Nation as heatedly as the pork barrel controversy.
Nine petitions assailing the constitutionality of the DAP and the issuances
relating to the DAP were filed within days of each other, as follows: G.R. No.
209135 (Syjuco), on October 7, 2013; G.R. No. 209136 (Luna), on October 7,
2013; G.R. No. 209155 (Villegas), 8 on October 16, 2013; G.R. No. 209164
(PHILCONSA), on October 8, 2013; G.R. No. 209260 (IBP), on October 16, 2013;
G.R. No. 209287 (Araullo), on October 17, 2013; G.R. No. 209442 (Belgica), on
October 29, 2013; G.R. No. 209517 (COURAGE), on November6, 2013; and G.R.
No. 209569 (VACC), on November 8, 2013.
In G.R. No. 209287 (Araullo), the petitioners brought to the Courts attention
NBC No. 541 (Adoption of Operational Efficiency Measure Withdrawal of
Agencies Unobligated Allotments as of June 30, 2012), alleging that NBC No.
541, which was issued to implement the DAP, directed the withdrawal of
unobligated allotments as of June 30, 2012 of government agencies and offices
with low levels of obligations, both for continuing and current allotments.
In due time, the respondents filed their Consolidated Comment through the
Office of the Solicitor General (OSG).

C. Whether or not the DAP, NBC No. 541, and all other executive issuances
allegedly implementing the DAP violate Sec. 25(5), Art. VI of the 1987
Constitution insofar as:
(a) They treat the unreleased appropriations and unobligated allotments
withdrawn from government agencies as "savings" as the term is used
in Sec. 25(5), in relation to the provisions of the GAAs of 2011, 2012
and 2013;
(b) They authorize the disbursement of funds for projects or programs not
provided in the GAAs for the Executive Department; and
(c) They "augment" discretionary lump sum appropriations in the GAAs.
D. Whether or not the DAP violates: (1) the Equal Protection Clause, (2) the
system of checks and balances, and (3) the principle of public accountability
enshrined in the 1987 Constitution considering that it authorizes the release of
funds upon the request of legislators.
E. Whether or not factual and legal justification exists to issue a temporary
restraining order to restrain the implementation of the DAP, NBC No. 541, and
all other executive issuances allegedly implementing the DAP.

Issues

In its Consolidated Comment, the OSG raised the matter of unprogrammed


funds in order to support its argument regarding the Presidents power to
spend. During the oral arguments, the propriety of releasing unprogrammed
funds to support projects under the DAP was considerably discussed. The
petitioners in G.R. No. 209287 (Araullo) and G.R. No. 209442 (Belgica) dwelled
on unprogrammed funds in their respective memoranda. Hence, an additional
issue for the oral arguments is stated as follows:

Under the Advisory issued on November 14, 2013, the presentations of the
parties during the oral arguments were limited to the following, to wit:

F. Whether or not the release of unprogrammed funds under the DAP was in
accord with the GAAs.

Procedural Issue:

During the oral arguments held on November 19, 2013, the Court directed Sec.
Abad to submit a list of savings brought under the DAP that had been sourced
from (a) completed programs; (b) discontinued or abandoned programs; (c)
unpaid appropriations for compensation; (d) a certified copy of the Presidents
directive dated June 27, 2012 referred to in NBC No. 541; and (e) all circulars
or orders issued in relation to the DAP.9

The Court directed the holding of oral arguments on the significant issues
raised and joined.

A. Whether or not certiorari, prohibition, and mandamus are proper remedies


to assail the constitutionality and validity of the Disbursement Acceleration
Program (DAP), National Budget Circular (NBC) No. 541, and all other executive
issuances allegedly implementing the DAP. Subsumed in this issue are whether
there is a controversy ripe for judicial determination, and the standing of
petitioners.
Substantive Issues:
B. Whether or not the DAP violates Sec. 29, Art. VI of the 1987 Constitution,
which provides: "No money shall be paid out of the Treasury except in
pursuance of an appropriation made by law."

In compliance, the OSG submitted several documents, as follows:


(1) A certified copy of the Memorandum for the President dated June 25, 2012
(Omnibus Authority to Consolidate Savings/Unutilized Balances and their
Realignment);10
(2) Circulars and orders, which the respondents identified as related to the
DAP, namely:
a. NBC No. 528 dated January 3, 2011 (Guidelines on the Release of
Funds for FY 2011);
b. NBC No. 535 dated December 29, 2011 (Guidelines on the Release
of Funds for FY 2012);

c.

NBC No. 541 dated July 18, 2012 (Adoption of Operational


Efficiency Measure Withdrawal of Agencies Unobligated
Allotments as of June 30, 2012);
NBC No. 545 dated January 2, 2013 (Guidelines on the Release of
Funds for FY 2013);
DBM Circular Letter No. 2004-2 dated January 26, 2004
(Budgetary Treatment of Commitments/Obligations of the National
Government);
COA-DBM Joint Circular No. 2013-1 dated March 15, 2013 (Revised
Guidelines on the Submission of Quarterly Accountability Reports
on Appropriations, Allotments, Obligations and Disbursements);
NBC No. 440 dated January 30, 1995 (Adoption of a Simplified
Fund Release System in the Government).

(4) Fourth Evidence Packet14 identifying the DAP-related portions of the


Annual Financial Report (AFR) of the Commission on Audit for 2011 and
2012;
(5) Fifth Evidence Packet15 containing a letter of Department of
Transportation and Communications(DOTC) Sec. Joseph Abaya addressed
to Sec. Abad recommending the withdrawal of funds from his agency,
inclusive of annexes; and
(6) Sixth Evidence Packet16 a print-out of the Solicitor Generals visual
presentation for the January 28, 2014 oral arguments.

(3) A breakdown of the sources of savings, including savings from discontinued


projects and unpaid appropriations for compensation from 2011 to 2013

On February 14, 2014, the OSG submitted another set of documents in further
compliance with the Resolution dated January 28, 2014, viz:

On January 28, 2014, the OSG, to comply with the Resolution issued on January
21, 2014 directing the respondents to submit the documents not yet submitted
in compliance with the directives of the Court or its Members, submitted
several evidence packets to aid the Court in understanding the factual bases
of the DAP, to wit:

(1) Certified copies of the certifications issued by the Bureau of Treasury to the
effect that the revenue collections exceeded the original revenue targets for
the years 2011, 2012 and 2013, including collections arising from sources not
considered in the original revenue targets, which certifications were required
for the release of the unprogrammed funds as provided in Special Provision No.
1 of Article XLV, Article XVI, and Article XLV of the 2011, 2012 and 2013 GAAs;
and (2) A report on releases of savings of the Executive Department for the
use of the Constitutional Commissions and other branches of the Government,
as well as the fund releases to the Senate and the Commission on Elections
(COMELEC).

d.
e.
f.
g.

(1) First Evidence Packet11 containing seven memoranda issued by the DBM
through Sec. Abad, inclusive of annexes, listing in detail the 116 DAP
identified projects approved and duly signed by the President, as follows:
a. Memorandum for the President dated October 12, 2011 (FY 2011
Proposed Disbursement Acceleration Program (Projects and
Sources of Funds);
b. Memorandum for the President dated December 12, 2011
(Omnibus Authority to Consolidate Savings/Unutilized Balances
and its Realignment);
c. Memorandum for the President dated June 25, 2012 (Omnibus
Authority to Consolidate Savings/Unutilized Balances and their
Realignment);
d. Memorandum for the President dated September 4, 2012 (Release
of funds for other priority projects and expenditures of the
Government);
e. Memorandum for the President dated December 19, 2012
(Proposed Priority Projects and Expenditures of the Government);
f.
Memorandum for the President dated May 20, 2013 (Omnibus
Authority to Consolidate Savings/Unutilized Balances and their
Realignment to Fund the Quarterly Disbursement Acceleration
Program); and
g. Memorandum for the President dated September 25, 2013
(Funding for the Task Force Pablo Rehabilitation Plan).
(2) Second Evidence Packet12 consisting of 15 applications of the DAP, with
their corresponding Special Allotment Release Orders (SAROs) and
appropriation covers;
(3) Third Evidence Packet13 containing a list and descriptions of 12 projects
under the DAP;

On February 5, 2014,17 the OSG forwarded the Seventh Evidence


Packet,18 which listed the sources of funds brought under the DAP, the uses of
such funds per project or activity pursuant to DAP, and the legal bases thereof.

RULING
I.
Procedural Issue:
a) The petitions under Rule 65 are proper remedies
All the petitions are filed under Rule 65 of the Rules of Court, and include
applications for the issuance of writs of preliminary prohibitory injunction or
temporary restraining orders. More specifically, the nature of the petitions is
individually set forth hereunder, to wit:
G.R. No. 209135 (Syjuco)

Certiorari, Prohibition and Mandamus

G.R. No. 209136 (Luna)

Certiorariand Prohibition

G.R. No. 209155 (Villegas)

Certiorariand Prohibition

G.R. No. 209164 (PHILCONSA)

Certiorariand Prohibition

G.R. No. 209260 (IBP)

Prohibition

G.R. No. 209287 (Araullo)

Certiorariand Prohibition

G.R. No. 209442 (Belgica)

Certiorari

G.R. No. 209517 (COURAGE)

Certiorari and Prohibition

G.R. No. 209569 (VACC)

Certiorari and Prohibition

The respondents submit that there is no actual controversy that is ripe for
adjudication in the absence of adverse claims between the parties; 19 that the
petitioners lacked legal standing to sue because no allegations were made to
the effect that they had suffered any injury as a result of the adoption of the
DAP and issuance of NBC No. 541; that their being taxpayers did not
immediately confer upon the petitioners the legal standing to sue considering
that the adoption and implementation of the DAP and the issuance of NBC No.
541 were not in the exercise of the taxing or spending power of
Congress;20 and that even if the petitioners had suffered injury, there were
plain, speedy and adequate remedies in the ordinary course of law available to
them, like assailing the regularity of the DAP and related issuances before the
Commission on Audit (COA) or in the trial courts. 21
The respondents aver that the special civil actions of certiorari and prohibition
are not proper actions for directly assailing the constitutionality and validity of
the DAP, NBC No. 541, and the other executive issuances implementing the
DAP.22
In their memorandum, the respondents further contend that there is no
authorized proceeding under the Constitution and the Rules of Court for
questioning the validity of any law unless there is an actual case or
controversy the resolution of which requires the determination of the
constitutional question; that the jurisdiction of the Court is largely appellate;
that for a court of law to pass upon the constitutionality of a law or any act of
the Government when there is no case or controversy is for that court to set
itself up as a reviewer of the acts of Congress and of the President in violation
of the principle of separation of powers; and that, in the absence of a pending
case or controversy involving the DAP and NBC No. 541, any decision herein
could amount to a mere advisory opinion that no court can validly render. 23
The respondents argue that it is the application of the DAP to actual situations
that the petitioners can question either in the trial courts or in the COA; that if
the petitioners are dissatisfied with the ruling either of the trial courts or of the
COA, they can appeal the decision of the trial courts by petition for review on
certiorari, or assail the decision or final order of the COA by special civil action
for certiorari under Rule 64 of the Rules of Court. 24
The respondents arguments and submissions on the procedural issue are
bereft of merit.
Section 1, Article VIII of the 1987 Constitution expressly provides:

Section 1. 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, the Constitution vests judicial power in the Court and in such lower
courts as may be established by law. In creating a lower court, Congress
concomitantly determines the jurisdiction of that court, and that court, upon its
creation, becomes by operation of the Constitution one of the repositories of
judicial power.25 However, only the Court is a constitutionally created court, the
rest being created by Congress in its exercise of the legislative power.
The Constitution states that judicial power includes the duty of the courts of
justice not only "to settle actual controversies involving rights which are legally
demandable and enforceable" but also "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." It has thereby
expanded the concept of judicial power, which up to then was confined to its
traditional ambit of settling actual controversies involving rights that were
legally demandable and enforceable.
The background and rationale of the expansion of judicial power under the
1987 Constitution were laid out during the deliberations of the 1986
Constitutional Commission by Commissioner Roberto R. Concepcion (a former
Chief Justice of the Philippines) in his sponsorship of the proposed provisions
on the Judiciary, where he said:
The Supreme Court, like all other courts, has one main function: to settle
actual controversies involving conflicts of rights which are demandable and
enforceable. There are rights which are guaranteed by law but cannot be
enforced by a judicial party. In a decided case, a husband complained that his
wife was unwilling to perform her duties as a wife. The Court said: "We can tell
your wife what her duties as such are and that she is bound to comply with
them, but we cannot force her physically to discharge her main marital duty to
her husband. There are some rights guaranteed by law, but they are so
personal that to enforce them by actual compulsion would be highly
derogatory to human dignity." This is why the first part of the second
paragraph of Section 1 provides that: Judicial power includes the duty of courts
to settle actual controversies involving rights which are legally demandable or
enforceable
The courts, therefore, cannot entertain, much less decide, hypothetical
questions. In a presidential system of government, the Supreme Court has,
also, another important function. The powers of government are generally
considered divided into three branches: the Legislative, the Executive and the
Judiciary. Each one is supreme within its own sphere and independent of the
others. Because of that supremacy power to determine whether a given law is
valid or not is vested in courts of justice.

Briefly stated, courts of justice determine the limits of power of the agencies
and offices of the government as well as those of its officers. In other words,
the judiciary is the final arbiter on the question whether or not a branch of
government or any of its officials has acted without jurisdiction or in excess of
jurisdiction, or so capriciously as to constitute an abuse of discretion
amounting to excess of jurisdiction or lack of jurisdiction. This is not only a
judicial power but a duty to pass judgmenton matters of this nature.
This is the background of paragraph 2 of Section 1, which means that the
courts cannot hereafter evade the duty to settle matters of this nature, by
claiming that such matters constitute a political question. (Bold emphasis
supplied)26

Our previous Constitutions equally recognized the extent of the power of


judicial review and the great responsibility of the Judiciary in maintaining the
allocation of powers among the three great branches of Government. Speaking
for the Court in Angara v. Electoral Commission, 28 Justice Jose P. Laurel intoned:
x x x In times of social disquietude or political excitement, the great landmarks
of the Constitution are apt to be forgotten or marred, if not entirely obliterated.
In cases of conflict, the judicial department is the only constitutional organ
which can be called upon to determine the proper allocation of powers
between the several department and among the integral or constituent units
thereof.
xxxx

Upon interpellation by Commissioner Nolledo, Commissioner Concepcion


clarified the scope of judicial power in the following manner:
MR. NOLLEDO. x x x
The second paragraph of Section 1 states: "Judicial power includes the duty of
courts of justice to settle actual controversies" The term "actual
controversies" according to the Commissioner should refer to questions which
are political in nature and, therefore, the courts should not refuse to decide
those political questions. But do I understand it right that this is restrictive or
only an example? I know there are cases which are not actual yet the court can
assume jurisdiction. An example is the petition for declaratory relief.
May I ask the Commissioners opinion about that?
MR. CONCEPCION. The Supreme Court has no jurisdiction to grant declaratory
judgments.
MR. NOLLEDO. The Gentleman used the term "judicial power" but judicial
power is not vested in the Supreme Court alone but also in other lower courts
as may be created by law.
MR. CONCEPCION. Yes.
MR. NOLLEDO. And so, is this only an example?
MR. CONCEPCION. No, I know this is not. The Gentleman seems to identify
political questions with jurisdictional questions. But there is a difference.
MR. NOLLEDO. Because of the expression "judicial power"?
MR. CONCEPCION. No. Judicial power, as I said, refers to ordinary cases but
where there is a question as to whether the government had authority or had
abused its authority to the extent of lacking jurisdiction or excess of
jurisdiction, that is not a political question. Therefore, the court has the duty to
decide.27

The Constitution is a definition of the powers of government. Who is to


determine the nature, scope and extent of such powers? The Constitution itself
has provided for the instrumentality of the judiciary as the rational way. And
when the judiciary mediates to allocate constitutional boundaries, it does not
assert any superiority over the other department; it does not in reality nullify
or invalidate an act of the legislature, but only asserts the solemn and sacred
obligation assigned to it by the Constitution to determine conflicting claims of
authority under the Constitution and to establish for the parties in an actual
controversy the rights which that instrument secures and guarantees to them.
This is in truth all that is involved in what is termed "judicial supremacy" which
properly is the power of judicial review under the Constitution. x x x 29
What are the remedies by which the grave abuse of discretion amounting to
lack or excess of jurisdiction on the part of any branch or instrumentality of the
Government may be determined under the Constitution?
The present Rules of Court uses two special civil actions for determining and
correcting grave abuse of discretion amounting to lack or excess of
jurisdiction. These are the special civil actions for certiorari and prohibition,
and both are governed by Rule 65. A similar remedy of certiorari exists under
Rule 64, but the remedy is expressly applicable only to the judgments and final
orders or resolutions of the Commission on Elections and the Commission on
Audit.
The ordinary nature and function of the writ of certiorari in our present system
are aptly explained in Delos Santos v. Metropolitan Bank and Trust Company: 30
In the common law, from which the remedy of certiorari evolved, the writ of
certiorari was issued out of Chancery, or the Kings Bench, commanding
agents or officers of the inferior courts to return the record of a cause pending
before them, so as to give the party more sure and speedy justice, for the writ
would enable the superior court to determine from an inspection of the record
whether the inferior courts judgment was rendered without authority. The
errors were of such a nature that, if allowed to stand, they would result in a
substantial injury to the petitioner to whom no other remedy was available. If
the inferior court acted without authority, the record was then revised and
corrected in matters of law. The writ of certiorari was limited to cases in which

the inferior court was said to be exceeding its jurisdiction or was not
proceeding according to essential requirements of law and would lie only to
review judicial or quasi-judicial acts.
The concept of the remedy of certiorari in our judicial system remains much
the same as it has been in the common law. In this jurisdiction, however, the
exercise of the power to issue the writ of certiorari is largely regulated by
laying down the instances or situations in the Rules of Court in which a
superior court may issue the writ of certiorari to an inferior court or officer.
Section 1, Rule 65 of the Rules of Court compellingly provides the
requirements for that purpose, viz:
xxxx
The sole office of the writ of certiorari is the correction of errors of jurisdiction,
which includes the commission of grave abuse of discretion amounting to lack
of jurisdiction. In this regard, mere abuse of discretion is not enough to warrant
the issuance of the writ. The abuse of discretion must be grave, which means
either that the judicial or quasi-judicial power was exercised in an arbitrary or
despotic manner by reason of passion or personal hostility, or that the
respondent judge, tribunal or board evaded a positive duty, or virtually refused
to perform the duty enjoined or to act in contemplation of law, such as when
such judge, tribunal or board exercising judicial or quasi-judicial powers acted
in a capricious or whimsical manner as to be equivalent to lack of jurisdiction. 31
Although similar to prohibition in that it will lie for want or excess of
jurisdiction, certiorari is to be distinguished from prohibition by the fact that it
is a corrective remedy used for the re-examination of some action of an
inferior tribunal, and is directed to the cause or proceeding in the lower court
and not to the court itself, while prohibition is a preventative remedy issuing to
restrain future action, and is directed to the court itself. 32 The Court expounded
on the nature and function of the writ of prohibition in Holy Spirit Homeowners
Association, Inc. v. Defensor: 33
A petition for prohibition is also not the proper remedy to assail an IRR issued
in the exercise of a quasi-legislative function. Prohibition is an extraordinary
writ directed against any tribunal, corporation, board, officer or person,
whether exercising judicial, quasi-judicial or ministerial functions, ordering said
entity or person to desist from further proceedings when said proceedings are
without or in excess of said entitys or persons jurisdiction, or are
accompanied with grave abuse of discretion, and there is no appeal or any
other plain, speedy and adequate remedy in the ordinary course of law.
Prohibition lies against judicial or ministerial functions, but not against
legislative or quasi-legislative functions. Generally, the purpose of a writ of
prohibition is to keep a lower court within the limits of its jurisdiction in order
to maintain the administration of justice in orderly channels. Prohibition is the
proper remedy to afford relief against usurpation of jurisdiction or power by an
inferior court, or when, in the exercise of jurisdiction in handling matters
clearly within its cognizance the inferior court transgresses the bounds
prescribed to it by the law, or where there is no adequate remedy available in
the ordinary course of law by which such relief can be obtained. Where the
principal relief sought is to invalidate an IRR, petitioners remedy is an ordinary

action for its nullification, an action which properly falls under the jurisdiction
of the Regional Trial Court. In any case, petitioners allegation that
"respondents are performing or threatening to perform functions without or in
excess of their jurisdiction" may appropriately be enjoined by the trial court
through a writ of injunction or a temporary restraining order.
With respect to the Court, however, the remedies of certiorari and prohibition
are necessarily broader in scope and reach, and the writ of certiorari or
prohibition may be issued to correct errors of jurisdiction committed not only
by a tribunal, corporation, board or officer exercising judicial, quasi-judicial or
ministerial functions but also to set right, undo and restrain any act of grave
abuse of discretion amounting to lack or excess of jurisdiction by any branch or
instrumentality of the Government, even if the latter does not exercise judicial,
quasi-judicial or ministerial functions. This application is expressly authorized
by the text of the second paragraph of Section 1, supra.
Thus, petitions for certiorari and prohibition are appropriate remedies to raise
constitutional issues and to review and/or prohibit or nullify the acts of
legislative and executive officials. 34
Necessarily, in discharging its duty under Section 1, supra, to set right and
undo any act of grave abuse of discretion amounting to lack or excess of
jurisdiction by any branch or instrumentality of the Government, the Court is
not at all precluded from making the inquiry provided the challenge was
properly brought by interested or affected parties. The Court has been thereby
entrusted expressly or by necessary implication with both the duty and the
obligation of determining, in appropriate cases, the validity of any assailed
legislative or executive action. This entrustment is consistent with the
republican system of checks and balances.35
Following our recent dispositions concerning the congressional pork barrel, the
Court has become more alert to discharge its constitutional duty. We will not
now refrain from exercising our expanded judicial power in order to review and
determine, with authority, the limitations on the Chief Executives spending
power.
b) Requisites for the exercise of the power of judicial review were complied
with
The requisites for the exercise of the power of judicial review are the following,
namely: (1) there must bean actual case or justiciable controversy before the
Court; (2) the question before the Court must be ripe for adjudication; (3) the
person challenging the act must be a proper party; and (4) the issue of
constitutionality must be raised at the earliest opportunity and must be the
very litis mota of the case.36
The first requisite demands that there be an actual case calling for the exercise
of judicial power by the Court. 37 An actual case or controversy, in the words of
Belgica v. Executive Secretary Ochoa:38

x x x is one which involves a conflict of legal rights, an assertion of opposite


legal claims, susceptible of judicial resolution as distinguished from a
hypothetical or abstract difference or dispute. In other words, "[t]here must be
a contrariety of legal rights that can be interpreted and enforced on the basis
of existing law and jurisprudence." Related to the requirement of an actual
case or controversy is the requirement of "ripeness," meaning that the
questions raised for constitutional scrutiny are already ripe for adjudication. "A
question is ripe for adjudication when the act being challenged has had a
direct adverse effect on the individual challenging it. It is a prerequisite that
something had then been accomplished or performed by either branch before
a court may come into the picture, and the petitioner must allege the
existence of an immediate or threatened injury to itself as a result of the
challenged action." "Withal, courts will decline to pass upon constitutional
issues through advisory opinions, bereft as they are of authority to resolve
hypothetical or moot questions."
An actual and justiciable controversy exists in these consolidated cases. The
incompatibility of the perspectives of the parties on the constitutionality of the
DAP and its relevant issuances satisfy the requirement for a conflict between
legal rights. The issues being raised herein meet the requisite ripeness
considering that the challenged executive acts were already being
implemented by the DBM, and there are averments by the petitioners that
such implementation was repugnant to the letter and spirit of the Constitution.
Moreover, the implementation of the DAP entailed the allocation and
expenditure of huge sums of public funds. The fact that public funds have been
allocated, disbursed or utilized by reason or on account of such challenged
executive acts gave rise, therefore, to an actual controversy that is ripe for
adjudication by the Court.
It is true that Sec. Abad manifested during the January 28, 2014 oral
arguments that the DAP as a program had been meanwhile discontinued
because it had fully served its purpose, saying: "In conclusion, Your Honors,
may I inform the Court that because the DAP has already fully served its
purpose, the Administrations economic managers have recommended its
termination to the President. x x x." 39
The Solicitor General then quickly confirmed the termination of the DAP as a
program, and urged that its termination had already mooted the challenges to
the DAPs constitutionality, viz:
DAP as a program, no longer exists, thereby mooting these present cases
brought to challenge its constitutionality. Any constitutional challenge should
no longer be at the level of the program, which is now extinct, but at the level
of its prior applications or the specific disbursements under the now defunct
policy. We challenge the petitioners to pick and choose which among the 116
DAP projects they wish to nullify, the full details we will have provided by
February 5. We urge this Court to be cautious in limiting the constitutional
authority of the President and the Legislature to respond to the dynamic needs
of the country and the evolving demands of governance, lest we end up
straight jacketing our elected representatives in ways not consistent with our
constitutional structure and democratic principles. 40

A moot and academic case is one that ceases to present a justiciable


controversy by virtue of supervening events, so that a declaration thereon
would be of no practical use or value. 41
The Court cannot agree that the termination of the DAP as a program was a
supervening event that effectively mooted these consolidated cases. Verily,
the Court had in the past exercised its power of judicial review despite the
cases being rendered moot and academic by supervening events, like: (1)
when there was a grave violation of the Constitution; (2) when the case
involved a situation of exceptional character and was of paramount public
interest; (3) when the constitutional issue raised required the formulation of
controlling principles to guide the Bench, the Bar and the public; and (4) when
the case was capable of repetition yet evading review.42
Assuming that the petitioners several submissions against the DAP were
ultimately sustained by the Court here, these cases would definitely come
under all the exceptions. Hence, the Court should not abstain from exercising
its power of judicial review.
Did the petitioners have the legal standing to sue?
Legal standing, as a requisite for the exercise of judicial review, refers to "a
right of appearance in a court of justice on a given question." 43 The concept of
legal standing, or locus standi, was particularly discussed in De Castro v.
Judicial and Bar Council,44 where the Court said:
In public or constitutional litigations, the Court is often burdened with the
determination of the locus standi of the petitioners due to the ever-present
need to regulate the invocation of the intervention of the Court to correct any
official action or policy in order to avoid obstructing the efficient functioning of
public officials and offices involved in public service. It is required, therefore,
that the petitioner must have a personal stake in the outcome of the
controversy, for, as indicated in Agan, Jr. v. Philippine International Air
Terminals Co., Inc.:
The question on legal standing is whether such parties have "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."
Accordingly, it has been held that the interest of a person assailing the
constitutionality of a statute must be direct and personal. He must be able to
show, not only that the law or any government act is invalid, but also that he
sustained or is in imminent danger of sustaining some direct injury as a result
of its enforcement, and not merely that he suffers thereby in some indefinite
way. It must appear that the person complaining has been or is about to be
denied some right or privilege to which he is lawfully entitled or that he is
about to be subjected to some burdens or penalties by reason of the statute or
act complained of.
It is true that as early as in 1937, in People v. Vera, the Court adopted the
direct injury test for determining whether a petitioner in a public action had

locus standi. There, the Court held that the person who would assail the
validity of a statute must have "a personal and substantial interest in the case
such that he has sustained, or will sustain direct injury as a result." Vera was
followed in Custodio v. President of the Senate, Manila Race Horse Trainers
Association v. De la Fuente, Anti-Chinese League of the Philippines v. Felix, and
Pascual v. Secretary of Public Works.
Yet, the Court has also held that the requirement of locus standi, being a mere
procedural technicality, can be waived by the Court in the exercise of its
discretion. For instance, in 1949, in Araneta v. Dinglasan, the Court liberalized
the approach when the cases had "transcendental importance." Some notable
controversies whose petitioners did not pass the direct injury test were allowed
to be treated in the same way as in Araneta v. Dinglasan.
In the 1975 decision in Aquino v. Commission on Elections, this Court decided
to resolve the issues raised by the petition due to their "far reaching
implications," even if the petitioner had no personality to file the suit. The
liberal approach of Aquino v. Commission on Elections has been adopted in
several notable cases, permitting ordinary citizens, legislators, and civic
organizations to bring their suits involving the constitutionality or validity of
laws, regulations, and rulings.
However, the assertion of a public right as a predicate for challenging a
supposedly illegal or unconstitutional executive or legislative action rests on
the theory that the petitioner represents the public in general. Although such
petitioner may not be as adversely affected by the action complained against
as are others, it is enough that he sufficiently demonstrates in his petition that
he is entitled to protection or relief from the Court in the vindication of a public
right.
Quite often, as here, the petitioner in a public action sues as a citizen or
taxpayer to gain locus standi. That is not surprising, for even if the issue may
appear to concern only the public in general, such capacities nonetheless
equip the petitioner with adequate interest to sue. In David v. MacapagalArroyo, the Court aptly explains why:
Case law in most jurisdiction snow allows both "citizen" and "taxpayer"
standing in public actions. The distinction was first laid down in Beauchamp v.
Silk, where it was held that the plaintiff in a taxpayers suit is in a different
category from the plaintiff in a citizens suit. In the former, the plaintiff is
affected by the expenditure of public funds, while in the latter, he is but the
mere instrument of the public concern. As held by the New York Supreme Court
in People ex rel Case v. Collins: "In matter of mere public right, howeverthe
people are the real partiesIt is at least the right, if not the duty, of every
citizen to interfere and see that a public offence be properly pursued and
punished, and that a public grievance be remedied." With respect to
taxpayers suits, Terr v. Jordan held that "the right of a citizen and a taxpayer
to maintain an action in courts to restrain the unlawful use of public funds to
his injury cannot be denied."45
The Court has cogently observed in Agan, Jr. v. Philippine International Air
Terminals Co., Inc.46 that "[s]tanding is a peculiar concept in constitutional law

because in some cases, suits are not brought by parties who have been
personally injured by the operation of a law or any other government act but
by concerned citizens, taxpayers or voters who actually sue in the public
interest."
Except for PHILCONSA, a petitioner in G.R. No. 209164, the petitioners have
invoked their capacities as taxpayers who, by averring that the issuance and
implementation of the DAP and its relevant issuances involved the illegal
disbursements of public funds, have an interest in preventing the further
dissipation of public funds. The petitioners in G.R. No. 209287 (Araullo) and
G.R. No. 209442 (Belgica) also assert their right as citizens to sue for the
enforcement and observance of the constitutional limitations on the political
branches of the Government.47
On its part, PHILCONSA simply reminds that the Court has long recognized its
legal standing to bring cases upon constitutional issues. 48 Luna, the petitioner
in G.R. No. 209136, cites his additional capacity as a lawyer. The IBP, the
petitioner in G.R. No. 209260, stands by "its avowed duty to work for the rule
of law and of paramount importance of the question in this action, not to
mention its civic duty as the official association of all lawyers in this country." 49
Under their respective circumstances, each of the petitioners has established
sufficient interest in the outcome of the controversy as to confer locus standi
on each of them.
In addition, considering that the issues center on the extent of the power of
the Chief Executive to disburse and allocate public funds, whether
appropriated by Congress or not, these cases pose issues that are of
transcendental importance to the entire Nation, the petitioners included. As
such, the determination of such important issues call for the Courts exercise
of its broad and wise discretion "to waive the requirement and so remove the
impediment to its addressing and resolving the serious constitutional questions
raised."50
II.
Substantive Issues
1.
Overview of the Budget System
An understanding of the Budget System of the Philippines will aid the Court in
properly appreciating and justly resolving the substantive issues.
a) Origin of the Budget System
The term "budget" originated from the Middle English word bouget that had
derived from the Latin word bulga (which means bag or purse). 51
In the Philippine setting, Commonwealth Act (CA) No. 246 (Budget Act) defined
"budget" as the financial program of the National Government for a designated

fiscal year, consisting of the statements of estimated receipts and


expenditures for the fiscal year for which it was intended to be effective based
on the results of operations during the preceding fiscal years. The term was
given a different meaning under Republic Act No. 992 (Revised Budget Act) by
describing the budget as the delineation of the services and products, or
benefits that would accrue to the public together with the estimated unit cost
of each type of service, product or benefit. 52 For a forthright definition, budget
should simply be identified as the financial plan of the Government, 53 or "the
master plan of government."54
The concept of budgeting has not been the product of recent economies. In
reality, financing public goals and activities was an idea that existed from the
creation of the State.55 To protect the people, the territory and sovereignty of
the State, its government must perform vital functions that required public
expenditures. At the beginning, enormous public expenditures were spent for
war activities, preservation of peace and order, security, administration of
justice, religion, and supply of limited goods and services. 56 In order to finance
those expenditures, the State raised revenues through taxes and
impositions.57 Thus, budgeting became necessary to allocate public revenues
for specific government functions.58 The States budgeting mechanism
eventually developed through the years with the growing functions of its
government and changes in its market economy.
The Philippine Budget System has been greatly influenced by western public
financial institutions. This is because of the countrys past as a colony
successively of Spain and the United States for a long period of time. Many
aspects of the countrys public fiscal administration, including its Budget
System, have been naturally patterned after the practices and experiences of
the western public financial institutions. At any rate, the Philippine Budget
System is presently guided by two principal objectives that are vital to the
development of a progressive democratic government, namely: (1) to carry on
all government activities under a comprehensive fiscal plan developed,
authorized and executed in accordance with the Constitution, prevailing
statutes and the principles of sound public management; and (2) to provide for
the periodic review and disclosure of the budgetary status of the Government
in such detail so that persons entrusted by law with the responsibility as well
as the enlightened citizenry can determine the adequacy of the budget actions
taken, authorized or proposed, as well as the true financial position of the
Government.59
b) Evolution of the Philippine Budget System
The budget process in the Philippines evolved from the early years of the
American Regime up to the passage of the Jones Law in 1916. A Budget Office
was created within the Department of Finance by the Jones Law to discharge
the budgeting function, and was given the responsibility to assist in the
preparation of an executive budget for submission to the Philippine
Legislature.60
As early as under the 1935 Constitution, a budget policy and a budget
procedure were established, and subsequently strengthened through the
enactment of laws and executive acts. 61 EO No. 25, issued by President Manuel

L. Quezon on April 25, 1936, created the Budget Commission to serve as the
agency that carried out the Presidents responsibility of preparing the
budget.62 CA No. 246, the first budget law, went into effect on January 1, 1938
and established the Philippine budget process. The law also provided a lineitem budget as the framework of the Governments budgeting system, 63 with
emphasis on the observance of a "balanced budget" to tie up proposed
expenditures with existing revenues.
CA No. 246 governed the budget process until the passage on June 4, 1954 of
Republic Act (RA) No. 992,whereby Congress introduced performancebudgeting to give importance to functions, projects and activities in terms of
expected results.64 RA No. 992 also enhanced the role of the Budget
Commission as the fiscal arm of the Government. 65
The 1973 Constitution and various presidential decrees directed a series of
budgetary reforms that culminated in the enactment of PD No. 1177 that
President Marcos issued on July30, 1977, and of PD No. 1405, issued on June
11, 1978. The latter decree converted the Budget Commission into the Ministry
of Budget, and gave its head the rank of a Cabinet member.
The Ministry of Budget was later renamed the Office of Budget and
Management (OBM) under EO No. 711. The OBM became the DBM pursuant to
EO No. 292 effective on November 24, 1989.
c) The Philippine Budget Cycle66
Four phases comprise the Philippine budget process, specifically: (1) Budget
Preparation; (2) Budget Legislation; (3) Budget Execution; and (4)
Accountability. Each phase is distinctly separate from the others but they
overlap in the implementation of the budget during the budget year.
c.1.Budget Preparation67
The budget preparation phase is commenced through the issuance of a Budget
Call by the DBM. The Budget Call contains budget parameters earlier set by
the Development Budget Coordination Committee (DBCC) as well as policy
guidelines and procedures to aid government agencies in the preparation and
submission of their budget proposals. The Budget Call is of two kinds, namely:
(1) a National Budget Call, which is addressed to all agencies, including state
universities and colleges; and (2) a Corporate Budget Call, which is addressed
to all government-owned and -controlled corporations (GOCCs) and
government financial institutions (GFIs).
Following the issuance of the Budget Call, the various departments and
agencies submit their respective Agency Budget Proposals to the DBM. To
boost citizen participation, the current administration has tasked the various
departments and agencies to partner with civil society organizations and other
citizen-stakeholders in the preparation of the Agency Budget Proposals, which
proposals are then presented before a technical panel of the DBM in scheduled
budget hearings wherein the various departments and agencies are given the
opportunity to defend their budget proposals. DBM bureaus thereafter review

the Agency Budget Proposals and come up with recommendations for the
Executive Review Board, comprised by the DBM Secretary and the DBMs
senior officials. The discussions of the Executive Review Board cover the
prioritization of programs and their corresponding support vis--vis the priority
agenda of the National Government, and their implementation.
The DBM next consolidates the recommended agency budgets into the
National Expenditure Program (NEP)and a Budget of Expenditures and Sources
of Financing (BESF). The NEP provides the details of spending for each
department and agency by program, activity or project (PAP), and is submitted
in the form of a proposed GAA. The Details of Selected Programs and Projects
is the more detailed disaggregation of key PAPs in the NEP, especially those in
line with the National Governments development plan. The Staffing Summary
provides the staffing complement of each department and agency, including
the number of positions and amounts allocated.
The NEP and BESF are thereafter presented by the DBM and the DBCC to the
President and the Cabinet for further refinements or reprioritization. Once the
NEP and the BESF are approved by the President and the Cabinet, the DBM
prepares the budget documents for submission to Congress. The budget
documents consist of: (1) the Presidents Budget Message, through which the
President explains the policy framework and budget priorities; (2) the BESF,
mandated by Section 22, Article VII of the Constitution, 68 which contains the
macroeconomic assumptions, public sector context, breakdown of the
expenditures and funding sources for the fiscal year and the two previous
years; and (3) the NEP.
Public or government expenditures are generally classified into two categories,
specifically: (1) capital expenditures or outlays; and (2) current operating
expenditures. Capital expenditures are the expenses whose usefulness lasts
for more than one year, and which add to the assets of the Government,
including investments in the capital of government-owned or controlled
corporations and their subsidiaries. 69 Current operating expenditures are the
purchases of goods and services in current consumption the benefit of which
does not extend beyond the fiscal year. 70 The two components of current
expenditures are those for personal services (PS), and those for maintenance
and other operating expenses(MOOE).
Public expenditures are also broadly grouped according to their functions into:
(1) economic development expenditures (i.e., expenditures on agriculture and
natural resources, transportation and communications, commerce and
industry, and other economic development efforts); 71 (2) social services or
social development expenditures (i.e., government outlay on education, public
health and medicare, labor and welfare and others); 72 (3) general government
or general public services expenditures (i.e., expenditures for the general
government, legislative services, the administration of justice, and for
pensions and gratuities);73 (4) national defense expenditures (i.e., sub-divided
into national security expenditures and expenditures for the maintenance of
peace and order);74 and (5) public debt.75
Public expenditures may further be classified according to the nature of funds,
i.e., general fund, special fund or bond fund. 76

On the other hand, public revenues complement public expenditures and cover
all income or receipts of the government treasury used to support government
expenditures.77
Classical economist Adam Smith categorized public revenues based on two
principal sources, stating: "The revenue which must defraythe necessary
expenses of government may be drawn either, first from some fund which
peculiarly belongs to the sovereign or commonwealth, and which is
independent of the revenue of the people, or, secondly, from the revenue of
the people."78 Adam Smiths classification relied on the two aspects of the
nature of the State: first, the State as a juristic person with an artificial
personality, and, second, the State as a sovereign or entity possessing
supreme power. Under the first aspect, the State could hold property and
engage in trade, thereby deriving what is called its quasi private income or
revenues, and which "peculiarly belonged to the sovereign." Under the second
aspect, the State could collect by imposing charges on the revenues of its
subjects in the form of taxes.79
In the Philippines, public revenues are generally derived from the following
sources, to wit: (1) tax revenues(i.e., compulsory contributions to finance
government activities); 80 (2) capital revenues(i.e., proceeds from sales of
fixed capital assets or scrap thereof and public domain, and gains on such
sales like sale of public lands, buildings and other structures, equipment, and
other properties recorded as fixed assets); 81 (3) grants(i.e., voluntary
contributions and aids given to the Government for its operation on specific
purposes in the form of money and/or materials, and do not require any
monetary commitment on the part of the recipient); 82 (4) extraordinary
income(i.e., repayment of loans and advances made by government
corporations and local governments and the receipts and shares in income of
the Banko Sentral ng Pilipinas, and other receipts); 83 and (5) public
borrowings(i.e., proceeds of repayable obligations generally with interest from
domestic and foreign creditors of the Government in general, including the
National Government and its political subdivisions). 84
More specifically, public revenues are classified as follows: 85

General Income
1. Subsidy Income from National
Government
2. Subsidy from Central Office
3. Subsidy from Regional Office/Staff
Bureaus
4. Income from Government Services
5. Income from Government Business
Operations
6. Sales Revenue
7. Rent Income
8. Insurance Income
9. Dividend Income
10. Interest Income

Specific Income
1. Income Taxes
2. Property Taxes
3. Taxes on Goods and Services
4. Taxes on International Trade and
Transactions
5. Other Taxes
6.Fines and Penalties-Tax Revenue
7. Other Specific Income

11. Sale of Confiscated Goods and


Properties
12. Foreign Exchange (FOREX) Gains
13. Miscellaneous Operating and
Service Income
14. Fines and Penalties-Government
Services and Business Operations
15.
Income
from
Grants
and
Donations

c.2. Budget Legislation

86

The Budget Legislation Phase covers the period commencing from the time
Congress receives the Presidents Budget, which is inclusive of the NEPand the
BESF, up to the Presidents approval of the GAA. This phase is also known as
the Budget Authorization Phase, and involves the significant participation of
the Legislative through its deliberations.
Initially, the Presidents Budget is assigned to the House of Representatives
Appropriations Committee on First Reading. The Appropriations Committee and
its various Sub-Committees schedule and conduct budget hearings to examine
the PAPs of the departments and agencies. Thereafter, the House of
Representatives drafts the General Appropriations Bill (GAB). 87
The GABis sponsored, presented and defended by the House of
Representatives Appropriations Committee and Sub-Committees in plenary
session. As with other laws, the GAB is approved on Third Reading before the
House of Representatives version is transmitted to the Senate. 88
After transmission, the Senate conducts its own committee hearings on the
GAB. To expedite proceedings, the Senate may conduct its committee hearings
simultaneously with the House of Representatives deliberations. The Senates
Finance Committee and its Sub-Committees may submit the proposed
amendments to the GAB to the plenary of the Senate only after the House of
Representatives has formally transmitted its version to the Senate. The Senate
version of the GAB is likewise approved on Third Reading. 89
The House of Representatives and the Senate then constitute a panel each to
sit in the Bicameral Conference Committee for the purpose of discussing and
harmonizing the conflicting provisions of their versions of the GAB. The
"harmonized" version of the GAB is next presented to the President for
approval.90 The President reviews the GAB, and prepares the Veto Message
where budget items are subjected to direct veto, 91 or are identified for
conditional implementation.
If, by the end of any fiscal year, the Congress shall have failed to pass the GAB
for the ensuing fiscal year, the GAA for the preceding fiscal year shall be
deemed re-enacted and shall remain in force and effect until the GAB is passed
by the Congress.92

c.3. Budget Execution93


With the GAA now in full force and effect, the next step is the implementation
of the budget. The Budget Execution Phase is primarily the function of the
DBM, which is tasked to perform the following procedures, namely: (1) to issue
the programs and guidelines for the release of funds; (2) to prepare an
Allotment and Cash Release Program; (3) to release allotments; and (4) to
issue disbursement authorities.
The implementation of the GAA is directed by the guidelines issued by the
DBM. Prior to this, the various departments and agencies are required to
submit Budget Execution Documents(BED) to outline their plans and
performance targets by laying down the physical and financial plan, the
monthly cash program, the estimate of monthly income, and the list of
obligations that are not yet due and demandable.
Thereafter, the DBM prepares an Allotment Release Program (ARP)and a Cash
Release Program (CRP).The ARP sets a limit for allotments issued in general
and to a specific agency. The CRP fixes the monthly, quarterly and annual
disbursement levels.
Allotments, which authorize an agency to enter into obligations, are issued by
the DBM. Allotments are lesser in scope than appropriations, in that the latter
embrace the general legislative authority to spend. Allotments may be
released in two forms through a comprehensive Agency Budget Matrix
(ABM),94 or, individually, by SARO.95
Armed with either the ABM or the SARO, agencies become authorized to incur
obligations96 on behalf of the Government in order to implement their PAPs.
Obligations may be incurred in various ways, like hiring of personnel, entering
into contracts for the supply of goods and services, and using utilities.
In order to settle the obligations incurred by the agencies, the DBM issues a
disbursement authority so that cash may be allocated in payment of the
obligations. A cash or disbursement authority that is periodically issued is
referred to as a Notice of Cash Allocation (NCA), 97 which issuance is based
upon an agencys submission of its Monthly Cash Program and other required
documents. The NCA specifies the maximum amount of cash that can be
withdrawn from a government servicing bank for the period indicated. Apart
from the NCA, the DBM may issue a Non-Cash Availment Authority(NCAA) to
authorize non-cash disbursements, or a Cash Disbursement Ceiling(CDC) for
departments with overseas operations to allow the use of income collected by
their foreign posts for their operating requirements.
Actual disbursement or spending of government funds terminates the Budget
Execution Phase and is usually accomplished through the Modified
Disbursement Scheme under which disbursements chargeable against the
National Treasury are coursed through the government servicing banks.
c.4. Accountability98

Accountability is a significant phase of the budget cycle because it ensures


that the government funds have been effectively and efficiently utilized to
achieve the States socio-economic goals. It also allows the DBM to assess the
performance of agencies during the fiscal year for the purpose of
implementing reforms and establishing new policies.
An agencys accountability may be examined and evaluated through (1)
performance targets and outcomes; (2) budget accountability reports; (3)
review of agency performance; and (4) audit conducted by the Commission on
Audit(COA).
2. Nature of the DAP as a fiscal plan
a.

DAP
was
a
promote economic growth

program

designed

to

Policy is always a part of every budget and fiscal decision of any


Administration.99 The national budget the Executive prepares and presents to
Congress represents the Administrations "blueprint for public policy" and
reflects the Governments goals and strategies. 100 As such, the national budget
becomes a tangible representation of the programs of the Government in
monetary terms, specifying therein the PAPs and services for which specific
amounts of public funds are proposed and allocated. 101 Embodied in every
national budget is government spending.102
When he assumed office in the middle of 2010, President Aquino made
efficiency and transparency in government spending a significant focus of his
Administration. Yet, although such focus resulted in an improved fiscal deficit
of 0.5% in the gross domestic product (GDP) from January to July of 2011, it
also unfortunately decelerated government project implementation and
payment schedules.103 The World Bank observed that the Philippines economic
growth could be reduced, and potential growth could be weakened should the
Government continue with its underspending and fail to address the large
deficiencies in infrastructure.104 The economic situation prevailing in the middle
of 2011 thus paved the way for the development and implementation of the
DAP as a stimulus package intended to fast-track public spending and to push
economic growth by investing on high-impact budgetary PAPs to be funded
from the "savings" generated during the year as well as from unprogrammed
funds.105 In that respect, the DAP was the product of "plain executive policymaking" to stimulate the economy by way of accelerated spending. 106 The
Administration would thereby accelerate government spending by: (1)
streamlining the implementation process through the clustering of
infrastructure projects of the Department of Public Works and Highways
(DPWH) and the Department of Education (DepEd),and (2) front loading PPPrelated projects107 due for implementation in the following year. 108
Did the stimulus package work?
The March 2012 report of the World Bank, 109 released after the initial
implementation of the DAP, revealed that the DAP was partially successful. The
disbursements under the DAP contributed 1.3 percentage points to GDP

growth by the fourth quarter of 2011. 110 The continued implementation of the
DAP strengthened growth by 11.8% year on year while infrastructure spending
rebounded from a 29% contraction to a 34% growth as of September 2013. 111
The DAP thus proved to be a demonstration that expenditure was a policy
instrument that the Government could use to direct the economies towards
growth and development.112 The Government, by spending on public
infrastructure, would signify its commitment of ensuring profitability for
prospective investors.113 The PAPs funded under the DAP were chosen for this
reason based on their: (1) multiplier impact on the economy and infrastructure
development; (2) beneficial effect on the poor; and (3) translation into
disbursements.114
b. History of the implementation of the DAP, and sources of funds under the
DAP
How the Administrations economic managers conceptualized and developed
the DAP, and finally presented it to the President remains unknown because
the relevant documents appear to be scarce.
The earliest available document relating to the genesis of the DAP was the
memorandum of October 12,2011 from Sec. Abad seeking the approval of the
President to implement the proposed DAP. The memorandum, which contained
a list of the funding sources for P72.11 billion and of the proposed priority
projects to be funded,115 reads:
MEMORANDUM FOR THE PRESIDENT
xxxx
SUBJECT: FY 2011 PROPOSED DISBURSEMENT ACCELERATION PROGRAM
(PROJECTS AND SOURCES OF FUNDS)
DATE: OCTOBER 12, 2011
Mr. President, this is to formally confirm your approval of the Disbursement
Acceleration Program totaling P72.11 billion. We are already working with all
the agencies concerned for the immediate execution of the projects therein.
A. Fund Sources for the Acceleration Program
B. Projects in the Disbursement Acceleration Program
(Descriptions of projects attached as Annex A)
C. Summary
For His Excellencys Consideration

(Sgd.) FLORENCIO B. ABAD

1.2 to augment additional requirements of on-going


priority projects; and

[/] APPROVED
1.3 to provide for deficiencies under the Special
Purpose Funds, e.g., PDAF, Calamity Fund, Contingent
Fund

[ ] DISAPPROVED
(Sgd.) H.E. BENIGNO S. AQUINO, III
OCT 12, 2011
The memorandum of October 12, 2011 was followed by another memorandum
for the President dated December 12, 2011116 requesting omnibus authority to
consolidate the savings and unutilized balances for fiscal year 2011. Pertinent
portions of the memorandum of December 12, 2011 read:
MEMORANDUM FOR THE PRESIDENT

1.4 to cover for the modifications of the original


allotment class allocation as a result of on-going
priority projects and implementation of new activities
2.0 x x x x
2.1 x x x
2.2 x x x
ON THE UTILIZATION OF POOLED SAVINGS

xxxx
SUBJECT: Omnibus Authority to Consolidate Savings/Unutilized Balances and its
Realignment
DATE: December 12, 2011
This is to respectfully request for the grant of Omnibus Authority to consolidate
savings/unutilized balances in FY 2011 corresponding to completed or
discontinued projects which may be pooled to fund additional projects or
expenditures.
In addition, Mr. President, this measure will allow us to undertake projects even
if their implementation carries over to 2012 without necessarily impacting on
our budget deficit cap next year.

3.0 It may be recalled that the President approved our request


for omnibus authority to pool savings/unutilized balances in
FY 2010 last November 25, 2010.
4.0 It is understood that in the utilization of the pooled
savings, the DBM shall secure the corresponding
approval/confirmation of the President. Furthermore, it is
assured that the proposed realignments shall be within the
authorized Expenditure level.
5.0 Relative thereto, we have identified some expenditure
items that may be sourced from the said pooled
appropriations in FY 2010 that will expire on December 31,
2011 and appropriations in FY 2011 that may be declared as
savings to fund additional expenditures.

BACKGROUND
1.0 The DBM, during the course of performance reviews
conducted on the agencies operations, particularly on the
implementation of their projects/activities, including expenses
incurred in undertaking the same, have identified savings out
of the 2011 General Appropriations Act. Said savings
correspond to completed or discontinued projects under
certain departments/agencies which may be pooled, for the
following:
1.1 to provide for new activities which have not been
anticipated during preparation of the budget;

5.1 The 2010 Continuing Appropriations (pooled


savings) is proposed to be spent for the projects that
we have identified to be immediate actual
disbursements considering that this same fund
source will expire on December 31, 2011.
5.2 With respect to the proposed expenditure items
to be funded from the FY 2011 Unreleased
Appropriations, most of these are the same projects
for which the DBM is directed by the Office of the
President, thru the Executive Secretary, to source
funds.

6.0 Among others, the following are such proposed additional


projects that have been chosen given their multiplier impact
on economy and infrastructure development, their beneficial
effect on the poor, and their translation into disbursements.
Please note that we have classified the list of proposed
projects as follows:
7.0 x x x
FOR THE PRESIDENTS APPROVAL
8.0 Foregoing considered, may we respectfully request for the
Presidents approval for the following:
8.1 Grant of omnibus authority to consolidate FY
2011 savings/unutilized balances and its realignment;
and
8.2 The proposed additional projects identified for
funding.
For His Excellencys consideration and approval.
(Sgd.)
[/] APPROVED
[ ] DISAPPROVED
(Sgd.) H.E. BENIGNO S. AQUINO, III
DEC 21, 2011
Substantially identical requests for authority to pool savings and to fund
proposed projects were contained in various other memoranda from Sec. Abad
dated June 25, 2012,117 September 4, 2012,118 December 19, 2012,119 May 20,
2013,120 and September 25, 2013.121 The President apparently approved all the
requests, withholding approval only of the proposed projects contained in the
June 25, 2012 memorandum, as borne out by his marginal note therein to the
effect that the proposed projects should still be "subject to further
discussions."122
In order to implement the June25, 2012 memorandum, Sec. Abad issued NBC
No. 541 (Adoption of Operational Efficiency Measure Withdrawal of Agencies
Unobligated Allotments as of June 30, 2012),123 reproduced herein as follows:
NATIONAL BUDGET CIRCULAR No. 541

July 18, 2012


TO: All Heads of Departments/Agencies/State Universities and Colleges and
other Offices of the National Government, Budget and Planning Officers; Heads
of Accounting Units and All Others Concerned
SUBJECT : Adoption of Operational Efficiency Measure Withdrawal of
Agencies Unobligated Allotments as of June 30, 2012
1.0 Rationale
The DBM, as mandated by Executive Order (EO) No. 292 (Administrative Code
of 1987), periodically reviews and evaluates the departments/agencies
efficiency and effectiveness in utilizing budgeted funds for the delivery of
services and production of goods, consistent with the government priorities.
In the event that a measure is necessary to further improve the operational
efficiency of the government, the President is authorized to suspend or stop
further use of funds allotted for any agency or expenditure authorized in the
General Appropriations Act. Withdrawal and pooling of unutilized allotment
releases can be effected by DBM based on authority of the President, as
mandated under Sections 38 and 39, Chapter 5, Book VI of EO 292.
For the first five months of 2012, the National Government has not met its
spending targets. In order to accelerate spending and sustain the fiscal targets
during the year, expenditure measures have to be implemented to optimize
the utilization of available resources.
Departments/agencies have registered low spending levels, in terms of
obligations and disbursements per initial review of their 2012 performance. To
enhance agencies performance, the DBM conducts continuous consultation
meetings and/or send call-up letters, requesting them to identify slow-moving
programs/projects and the factors/issues affecting their performance (both
pertaining to internal systems and those which are outside the agencies
spheres of control). Also, they are asked to formulate strategies and
improvement plans for the rest of 2012.
Notwithstanding these initiatives, some departments/agencies have continued
to post low obligation levels as of end of first semester, thus resulting to
substantial unobligated allotments.
In line with this, the President, per directive dated June 27, 2012 authorized
the withdrawal of unobligated allotments of agencies with low levels of
obligations as of June 30, 2012, both for continuing and current allotments.
This measure will allow the maximum utilization of available allotments to fund
and undertake other priority expenditures of the national government.
2.0 Purpose

2.1 To provide the conditions and parameters on the


withdrawal of unobligated allotments of agencies as of June
30,
2012
to
fund
priority
and/or
fast-moving
programs/projects of the national government;

4.2 Fund Sources


4.2.1 Personal Services other than pension benefits;

2.2 To prescribe the reports and documents to be used as


bases on the withdrawal of said unobligated allotments; and

4.2.2 MOOE items earmarked for specific purposes or


subject to realignment conditions per General
Provisions of the GAA:

2.3 To provide guidelines in the utilization or reallocation of


the withdrawn allotments.

Confidential and Intelligence Fund;


Savings from Traveling, Communication,
Transportation and Delivery, Repair and
Maintenance, Supplies and Materials and
Utility which shall be used for the grant of
Collective Negotiation Agreement incentive
benefit;

3.0 Coverage
3.1 These guidelines shall cover the withdrawal of unobligated
allotments as of June 30, 2012 of all national government
agencies (NGAs) charged against FY 2011 Continuing
Appropriation (R.A. No.10147) and FY 2012 Current
Appropriation (R.A. No. 10155), pertaining to:

Savings from mandatory expenditures


which can be realigned only in the last
quarter after taking into consideration the
agencys full year requirements, i.e.,
Petroleum, Oil and Lubricants, Water,
Illumination, Power Services, Telephone,
other Communication Services and Rent.

3.1.1 Capital Outlays (CO);


3.1.2 Maintenance and Other Operating Expenses
(MOOE) related to the implementation of programs
and projects, as well as capitalized MOOE; and

4.2.3 Foreign-Assisted Projects (loan proceeds and


peso counterpart);

3.1.3 Personal Services corresponding to unutilized


pension benefits declared as savings by the agencies
concerned based on their updated/validated list of
pensioners.

4.2.4 Special Purpose Funds such as: E-Government


Fund, International Commitments Fund, PAMANA,
Priority Development Assistance Fund, Calamity Fund,
Budgetary Support to GOCCs and Allocation to LGUs,
among others;

3.2 The withdrawal of unobligated allotments may cover the


identified programs, projects and activities of the
departments/agencies reflected in the DBM list shown as
Annex A or specific programs and projects as may be
identified by the agencies.

4.2.5 Quick Response Funds; and

4.0 Exemption

4.2.6 Automatic Appropriations i.e., Retirement Life


Insurance Premium and Special Accounts in the
General Fund.

These guidelines shall not apply to the following:


4.1 NGAs
4.1.1 Constitutional Offices/Fiscal Autonomy Group,
granted fiscal autonomy under the Philippine
Constitution; and
4.1.2 State Universities and Colleges, adopting the
Normative Funding allocation scheme i.e., distribution
of a predetermined budget ceiling.

5.0 Guidelines
5.1 National government agencies shall continue to undertake
procurement activities notwithstanding the implementation of
the policy of withdrawal of unobligated allotments until the
end of the third quarter, FY 2012. Even without the
allotments, the agency shall proceed in undertaking the
procurement processes (i.e., procurement planning up to the
conduct of bidding but short of awarding of contract) pursuant

to GPPB Circular Nos. 02-2008 and 01-2009 and DBM Circular


Letter No. 2010-9.

highlight the agencies which failed to submit the June 30


reports required under this Circular.

5.2 For the purpose of determining the amount of unobligated


allotments
that
shall
be
withdrawn,
all
departments/agencies/operating units (OUs) shall submit to
DBM not later than July 30, 2012, the following budget
accountability reports as of June 30, 2012;

5.7 The withdrawn allotments may be:


5.7.1 Reissued for the original programs and projects
of the agencies/OUs concerned, from which the
allotments were withdrawn;

Statement of Allotments, Obligations and Balances


(SAOB);

5.7.2 Realigned to cover additional funding for other


existing programs and projects of the agency/OU; or

Financial Report of Operations (FRO); and

5.7.3 Used to augment existing programs and


projects of any agency and to fund priority programs
and projects not considered in the 2012 budget but
expected to be started or implemented during the
current year.

Physical Report of Operations.


5.3 In the absence of the June 30, 2012 reports cited under
item 5.2 of this Circular, the agencys latest report available
shall be used by DBM as basis for withdrawal of allotment.
The DBM shall compute/approximate the agencys obligation
level as of June 30 to derive its unobligated allotments as of
same period. Example: If the March 31 SAOB or FRO reflects
actual obligations of P 800M then the June 30 obligation level
shall approximate to P1,600 M (i.e., P800 M x 2 quarters).
5.4 All released allotments in FY 2011 charged against R.A.
No. 10147 which remained unobligated as of June 30, 2012
shall be immediately considered for withdrawal. This policy is
based on the following considerations:
5.4.1 The departments/agencies approved priority
programs and projects are assumed to be
implementation-ready and doable during the given
fiscal year; and
5.4.2 The practice of having substantial carryover
appropriations may imply that the agency has a
slower-than-programmed implementation capacity or
agency tends to implement projects within a two-year
timeframe.
5.5. Consistent with the Presidents directive, the DBM shall,
based on evaluation of the reports cited above and results of
consultations with the departments/agencies, withdraw the
unobligated allotments as of June 30, 2012 through issuance
of negative Special Allotment Release Orders (SAROs).
5.6 DBM shall prepare and submit to the President, a report
on the magnitude of withdrawn allotments. The report shall

5.8 For items 5.7.1 and 5.7.2 above, agencies/OUs concerned


may submit to DBM a Special Budget Request (SBR),
supported with the following:
5.8.1 Physical and Financial Plan (PFP);
5.8.2 Monthly Cash Program (MCP); and
5.8.3 Proof that the project/activity has started the
procurement processes i.e., Proof of Posting and/or
Advertisement of the Invitation to Bid.
5.9 The deadline for submission of request/s pertaining to
these categories shall be until the end of the third quarter i.e.,
September 30, 2012. After said cut-off date, the withdrawn
allotments shall be pooled and form part of the overall
savings of the national government.
5.10 Utilization of the consolidated withdrawn allotments for
other priority programs and projects as cited under item 5.7.3
of this Circular, shall be subject to approval of the President.
Based on the approval of the President, DBM shall issue the
SARO to cover the approved priority expenditures subject to
submission by the agency/OU concerned of the SBR and
supported with PFP and MCP.
5.11 It is understood that all releases to be made out of the
withdrawn allotments (both 2011 and 2012 unobligated
allotments) shall be within the approved Expenditure Program
level of the national government for the current year. The
SAROs to be issued shall properly disclose the appropriation

source of the release to determine the extent of allotment


validity, as follows:
For charges under R.A. 10147 allotments shall be
valid up to December 31, 2012; and
For charges under R.A. 10155 allotments shall be
valid up to December 31, 2013.
5.12 Timely compliance with the submission of existing BARs
and other reportorial requirements is reiterated for monitoring
purposes.
6.0 Effectivity

for public use, should require an enabling law for its validity. VACC maintains
that the DAP, because it involved huge allocations that were separate and
distinct from the GAAs, circumvented and duplicated the GAAs without
congressional authorization and control.
The petitioners contend in unison that based on how it was developed and
implemented the DAP violated the mandate of Section 29(1), Article VI of the
1987 Constitution that "[n]o money shall be paid out of the Treasury except in
pursuance of an appropriation made by law."
The OSG posits, however, that no law was necessary for the adoption and
implementation of the DAP because of its being neither a fund nor an
appropriation, but a program or an administrative system of prioritizing
spending; and that the adoption of the DAP was by virtue of the authority of
the President as the Chief Executive to ensure that laws were faithfully
executed.

This circular shall take effect immediately.


We agree with the OSGs position.
(Sgd.)
Secretary

FLORENCIO

B.

ABAD

As can be seen, NBC No. 541 specified that the unobligated allotments of all
agencies and departments as of June 30, 2012 that were charged against the
continuing appropriations for fiscal year 2011 and the 2012 GAA (R.A. No.
10155) were subject to withdrawal through the issuance of negative SAROs,
but such allotments could be either: (1) reissued for the original PAPs of the
concerned agencies from which they were withdrawn; or (2) realigned to cover
additional funding for other existing PAPs of the concerned agencies; or (3)
used to augment existing PAPs of any agency and to fund priority PAPs not
considered in the 2012 budget but expected to be started or implemented in
2012. Financing the other priority PAPs was made subject to the approval of
the President. Note here that NBC No. 541 used terminologies like
"realignment" and "augmentation" in the application of the withdrawn
unobligated allotments.
Taken together, all the issuances showed how the DAP was to be implemented
and funded, that is (1) by declaring "savings" coming from the various
departments and agencies derived from pooling unobligated allotments and
withdrawing unreleased appropriations; (2) releasing unprogrammed funds;
and (3) applying the "savings" and unprogrammed funds to augment existing
PAPs or to support other priority PAPs.
c. DAP was not an appropriation measure; hence, no appropriation law was
required to adopt or to implement it
Petitioners Syjuco, Luna, Villegas and PHILCONSA state that Congress did not
enact a law to establish the DAP, or to authorize the disbursement and release
of public funds to implement the DAP. Villegas, PHILCONSA, IBP, Araullo, and
COURAGE observe that the appropriations funded under the DAP were not
included in the 2011, 2012 and 2013 GAAs. To petitioners IBP, Araullo, and
COURAGE, the DAP, being actually an appropriation that set aside public funds

The DAP was a government policy or strategy designed to stimulate the


economy through accelerated spending. In the context of the DAPs adoption
and implementation being a function pertaining to the Executive as the main
actor during the Budget Execution Stage under its constitutional mandate to
faithfully execute the laws, including the GAAs, Congress did not need to
legislate to adopt or to implement the DAP. Congress could appropriate but
would have nothing more to do during the Budget Execution Stage. Indeed,
appropriation was the act by which Congress "designates a particular fund, or
sets apart a specified portion of the public revenue or of the money in the
public treasury, to be applied to some general object of governmental
expenditure, or to some individual purchase or expense." 124 As pointed out in
Gonzales v. Raquiza:125 "In a strict sense, appropriation has been defined as
nothing more than the legislative authorization prescribed by the Constitution
that money may be paid out of the Treasury, while appropriation made by law
refers to the act of the legislature setting apart or assigning to a particular use
a certain sum to be used in the payment of debt or dues from the State to its
creditors."126
On the other hand, the President, in keeping with his duty to faithfully execute
the laws, had sufficient discretion during the execution of the budget to adapt
the budget to changes in the countrys economic situation. 127 He could adopt a
plan like the DAP for the purpose. He could pool the savings and identify the
PAPs to be funded under the DAP. The pooling of savings pursuant to the DAP,
and the identification of the PAPs to be funded under the DAP did not involve
appropriation in the strict sense because the money had been already set
apart from the public treasury by Congress through the GAAs. In such actions,
the Executive did not usurp the power vested in Congress under Section 29(1),
Article VI of the Constitution.
3. Unreleased appropriations and withdrawn unobligated allotments under the
DAP
were not savings, and the use of such

appropriations contravened Section 25(5),


Article VI of the 1987 Constitution.
Notwithstanding our appreciation of the DAP as a plan or strategy validly
adopted by the Executive to ramp up spending to accelerate economic growth,
the challenges posed by the petitioners constrain us to dissect the mechanics
of the actual execution of the DAP. The management and utilization of the
public wealth inevitably demands a most careful scrutiny of whether the
Executives implementation of the DAP was consistent with the Constitution,
the relevant GAAs and other existing laws.
a. Although executive discretion
and flexibility are necessary in
the execution of the budget, any
transfer of appropriated funds
should conform to Section 25(5),
Article VI of the Constitution
We begin this dissection by reiterating that Congress cannot anticipate all
issues and needs that may come into play once the budget reaches its
execution stage. Executive discretion is necessary at that stage to achieve a
sound fiscal administration and assure effective budget implementation. The
heads of offices, particularly the President, require flexibility in their operations
under performance budgeting to enable them to make whatever adjustments
are needed to meet established work goals under changing conditions. 128 In
particular, the power to transfer funds can give the President the flexibility to
meet unforeseen events that may otherwise impede the efficient
implementation of the PAPs set by Congress in the GAA.
Congress has traditionally allowed much flexibility to the President in allocating
funds pursuant to the GAAs, 129particularly when the funds are grouped to form
lump sum accounts.130 It is assumed that the agencies of the Government
enjoy more flexibility when the GAAs provide broader appropriation
items.131 This flexibility comes in the form of policies that the Executive may
adopt during the budget execution phase. The DAP as a strategy to improve
the countrys economic position was one policy that the President decided to
carry out in order to fulfill his mandate under the GAAs.
Denying to the Executive flexibility in the expenditure process would be
counterproductive. In Presidential Spending Power, 132 Prof. Louis Fisher, an
American constitutional scholar whose specialties have included budget policy,
has justified extending discretionary authority to the Executive thusly:
[T]he impulse to deny discretionary authority altogether should be resisted.
There are many number of reasons why obligations and outlays by
administrators may have to differ from appropriations by legislators.
Appropriations are made many months, and sometimes years, in advance of
expenditures. Congress acts with imperfect knowledge in trying to legislate in
fields that are highly technical and constantly undergoing change. New
circumstances will develop to make obsolete and mistaken the decisions
reached by Congress at the appropriation stage. It is not practicable for
Congress to adjust to each new development by passing separate

supplemental appropriation bills. Were Congress to control expenditures by


confining administrators to narrow statutory details, it would perhaps protect
its power of the purse but it would not protect the purse itself. The realities and
complexities of public policy require executive discretion for the sound
management of public funds.
xxxx
x x x The expenditure process, by its very nature, requires substantial
discretion for administrators. They need to exercise judgment and take
responsibility for their actions, but those actions ought to be directed toward
executing congressional, not administrative policy. Let there be discretion, but
channel it and use it to satisfy the programs and priorities established by
Congress.
In contrast, by allowing to the heads of offices some power to transfer funds
within their respective offices, the Constitution itself ensures the fiscal
autonomy of their offices, and at the same time maintains the separation of
powers among the three main branches of the Government. The Court has
recognized this, and emphasized so in Bengzon v. Drilon, 133 viz:
The Judiciary, the Constitutional Commissions, and the Ombudsman must have
the independence and flexibility needed in the discharge of their constitutional
duties. The imposition of restrictions and constraints on the manner the
independent constitutional offices allocate and utilize the funds appropriated
for their operations is anathema to fiscal autonomy and violative not only of
the express mandate of the Constitution but especially as regards the Supreme
Court, of the independence and separation of powers upon which the entire
fabric of our constitutional system is based.
In the case of the President, the power to transfer funds from one item to
another within the Executive has not been the mere offshoot of established
usage, but has emanated from law itself. It has existed since the time of the
American Governors-General.134 Act No. 1902 (An Act authorizing the
Governor-General to direct any unexpended balances of appropriations be
returned to the general fund of the Insular Treasury and to transfer from the
general fund moneys which have been returned thereto), passed on May 18,
1909 by the First Philippine Legislature, 135 was the first enabling law that
granted statutory authority to the President to transfer funds. The authority
was without any limitation, for the Act explicitly empowered the GovernorGeneral to transfer any unexpended balance of appropriations for any bureau
or office to another, and to spend such balance as if it had originally been
appropriated for that bureau or office.
From 1916 until 1920, the appropriations laws set a cap on the amounts of
funds that could be transferred, thereby limiting the power to transfer funds.
Only 10% of the amounts appropriated for contingent or miscellaneous
expenses could be transferred to a bureau or office, and the transferred funds
were to be used to cover deficiencies in the appropriations also for
miscellaneous expenses of said bureau or office.

In 1921, the ceiling on the amounts of funds to be transferred from items


under miscellaneous expenses to any other item of a certain bureau or office
was removed.
During the Commonwealth period, the power of the President to transfer funds
continued to be governed by the GAAs despite the enactment of the
Constitution in 1935. It is notable that the 1935 Constitution did not include a
provision on the power to transfer funds. At any rate, a shift in the extent of
the Presidents power to transfer funds was again experienced during this era,
with the President being given more flexibility in implementing the budget. The
GAAs provided that the power to transfer all or portions of the appropriations
in the Executive Department could be made in the "interest of the public, as
the President may determine."136
In its time, the 1971 Constitutional Convention wanted to curtail the
Presidents seemingly unbounded discretion in transferring funds. 137 Its
Committee on the Budget and Appropriation proposed to prohibit the transfer
of funds among the separate branches of the Government and the
independent constitutional bodies, but to allow instead their respective heads
to augment items of appropriations from savings in their respective budgets
under certain limitations.138 The clear intention of the Convention was to
further restrict, not to liberalize, the power to transfer appropriations. 139 Thus,
the Committee on the Budget and Appropriation initially considered setting
stringent limitations on the power to augment, and suggested that the
augmentation of an item of appropriation could be made "by not more than
ten percent if the original item of appropriation to be augmented does not
exceed one million pesos, or by not more than five percent if the original item
of appropriation to be augmented exceeds one million pesos." 140 But two
members of the Committee objected to the P1,000,000.00 threshold, saying
that the amount was arbitrary and might not be reasonable in the future. The
Committee agreed to eliminate the P1,000,000.00 threshold, and settled on
the ten percent limitation.141

On July 30, 1977, President Marcos issued PD No. 1177, providing in its Section
44 that:
Section 44. Authority to Approve Fund Transfers. The President shall have the
authority to transfer any fund appropriated for the different departments,
bureaus, offices and agencies of the Executive Department which are included
in the General Appropriations Act, to any program, project, or activity of any
department, bureau or office included in the General Appropriations Act or
approved after its enactment.
The President shall, likewise, have the authority to augment any appropriation
of the Executive Department in the General Appropriations Act, from savings in
the appropriations of another department, bureau, office or agency within the
Executive Branch, pursuant to the provisions of Article VIII, Section 16 (5) of
the Constitution.
In Demetria v. Alba, however, the Court struck down the first paragraph of
Section 44 for contravening Section 16(5)of the 1973 Constitution, ruling:
Paragraph 1 of Section 44 of P.D. No. 1177 unduly over-extends the privilege
granted under said Section 16. It empowers the President to indiscriminately
transfer funds from one department, bureau, office or agency of the Executive
Department to any program, project or activity of any department, bureau or
office included in the General Appropriations Act or approved after its
enactment, without regard as to whether or not the funds to be transferred are
actually savings in the item from which the same are to be taken, or whether
or not the transfer is for the purpose of augmenting the item to which said
transfer is to be made. It does not only completely disregard the standards set
in the fundamental law, thereby amounting to an undue delegation of
legislative powers, but likewise goes beyond the tenor thereof. Indeed, such
constitutional infirmities render the provision in question null and void. 143

In the end, the ten percent limitation was discarded during the plenary of the
Convention, which adopted the following final version under Section 16, Article
VIII of the 1973 Constitution, to wit:

It is significant that Demetria was promulgated 25 days after the ratification by


the people of the 1987 Constitution, whose Section 25(5) of Article VI is
identical to Section 16(5), Article VIII of the 1973 Constitution, to wit:

(5) No law shall be passed authorizing any transfer of appropriations; however,


the President, the Prime Minister, the Speaker, the Chief Justice of the Supreme
Court, and the heads of Constitutional Commissions may by law be authorized
to augment any item in the general appropriations law for their respective
offices from savings in other items of their respective appropriations.

Section 25. x x x

The 1973 Constitution explicitly and categorically prohibited the transfer of


funds from one item to another, unless Congress enacted a law authorizing the
President, the Prime Minister, the Speaker, the Chief Justice of the Supreme
Court, and the heads of the Constitutional omissions to transfer funds for the
purpose of augmenting any item from savings in another item in the GAA of
their respective offices. The leeway was limited to augmentation only, and was
further constricted by the condition that the funds to be transferred should
come from savings from another item in the appropriation of the office. 142

xxxx
5) No law shall be passed authorizing any transfer of appropriations; however,
the President, the President of the Senate, the Speaker of the House of
Representatives, the Chief Justice of the Supreme Court, and the heads of
Constitutional Commissions may, by law, be authorized to augment any item
in the general appropriations law for their respective offices from savings in
other items of their respective appropriations.
xxxx

The foregoing history makes it evident that the Constitutional Commission


included Section 25(5), supra, to keep a tight rein on the exercise of the power
to transfer funds appropriated by Congress by the President and the other high
officials of the Government named therein. The Court stated in Nazareth v.
Villar:144
In the funding of current activities, projects, and programs, the general rule
should still be that the budgetary amount contained in the appropriations bill is
the extent Congress will determine as sufficient for the budgetary allocation
for the proponent agency. The only exception is found in Section 25 (5), Article
VI of the Constitution, by which the President, the President of the Senate, the
Speaker of the House of Representatives, the Chief Justice of the Supreme
Court, and the heads of Constitutional Commissions are authorized to transfer
appropriations to augmentany item in the GAA for their respective offices from
the savings in other items of their respective appropriations. The plain
language of the constitutional restriction leaves no room for the petitioners
posture, which we should now dispose of as untenable.
It bears emphasizing that the exception in favor of the high officials named in
Section 25(5), Article VI of the Constitution limiting the authority to transfer
savings only to augment another item in the GAA is strictly but reasonably
construed as exclusive. As the Court has expounded in Lokin, Jr. v. Commission
on Elections:
When the statute itself enumerates the exceptions to the application of the
general rule, the exceptions are strictly but reasonably construed. The
exceptions extend only as far as their language fairly warrants, and all doubts
should be resolved in favor of the general provision rather than the exceptions.
Where the general rule is established by a statute with exceptions, none but
the enacting authority can curtail the former. Not even the courts may add to
the latter by implication, and it is a rule that an express exception excludes all
others, although it is always proper in determining the applicability of the rule
to inquire whether, in a particular case, it accords with reason and justice.
The appropriate and natural office of the exception is to exempt something
from the scope of the general words of a statute, which is otherwise within the
scope and meaning of such general words. Consequently, the existence of an
exception in a statute clarifies the intent that the statute shall apply to all
cases not excepted. Exceptions are subject to the rule of strict construction;
hence, any doubt will be resolved in favor of the general provision and against
the exception. Indeed, the liberal construction of a statute will seem to require
in many circumstances that the exception, by which the operation of the
statute is limited or abridged, should receive a restricted construction.
Accordingly, we should interpret Section 25(5), supra, in the context of a
limitation on the Presidents discretion over the appropriations during the
Budget Execution Phase.
b. Requisites for the valid transfer of
appropriated funds under Section
25(5), Article VI of the 1987
Constitution

The transfer of appropriated funds, to be valid under Section 25(5), supra,


must be made upon a concurrence of the following requisites, namely:
(1) There is a law authorizing the President, the President of the
Senate, the Speaker of the House of Representatives, the Chief Justice
of the Supreme Court, and the heads of the Constitutional
Commissions to transfer funds within their respective offices;
(2) The funds to be transferred are savings generated from the
appropriations for their respective offices; and (3) The purpose of the
transfer is to augment an item in the general appropriations law for
their respective offices.
b.1. First RequisiteGAAs of 2011 and
2012 lacked valid provisions to
authorize transfers of funds under
the DAP; hence, transfers under the
DAP were unconstitutional
Section 25(5), supra, not being a self-executing provision of the Constitution,
must have an implementing law for it to be operative. That law, generally, is
the GAA of a given fiscal year. To comply with the first requisite, the GAAs
should expressly authorize the transfer of funds.
Did the GAAs expressly authorize the transfer of funds?
In the 2011 GAA, the provision that gave the President and the other high
officials the authority to transfer funds was Section 59, as follows:
Section 59. Use of Savings. The President of the Philippines, the Senate
President, the Speaker of the House of Representatives, the Chief Justice of the
Supreme Court, the Heads of Constitutional Commissions enjoying fiscal
autonomy, and the Ombudsman are hereby authorized to augment any item in
this Act from savings in other items of their respective appropriations.
In the 2012 GAA, the empowering provision was Section 53, to wit:
Section 53. Use of Savings. The President of the Philippines, the Senate
President, the Speaker of the House of Representatives, the Chief Justice of the
Supreme Court, the Heads of Constitutional Commissions enjoying fiscal
autonomy, and the Ombudsman are hereby authorized to augment any item in
this Act from savings in other items of their respective appropriations.
In fact, the foregoing provisions of the 2011 and 2012 GAAs were cited by the
DBM as justification for the use of savings under the DAP. 145
A reading shows, however, that the aforequoted provisions of the GAAs of
2011 and 2012 were textually unfaithful to the Constitution for not carrying the
phrase "for their respective offices" contained in Section 25(5), supra. The

impact of the phrase "for their respective offices" was to authorize only
transfers of funds within their offices (i.e., in the case of the President, the
transfer was to an item of appropriation within the Executive). The provisions
carried a different phrase ("to augment any item in this Act"), and the effect
was that the 2011 and 2012 GAAs thereby literally allowed the transfer of
funds from savings to augment any item in the GAAs even if the item belonged
to an office outside the Executive. To that extent did the 2011 and 2012 GAAs
contravene the Constitution. At the very least, the aforequoted provisions
cannot be used to claim authority to transfer appropriations from the Executive
to another branch, or to a constitutional commission.
Apparently realizing the problem, Congress inserted the omitted phrase in the
counterpart provision in the 2013 GAA, to wit:

amount allotted for the appropriation; that the definition of "savings" in the
GAAs set only the parameters for determining when savings occurred; that it
was still the President (as well as the other officers vested by the Constitution
with the authority to augment) who ultimately determined when savings
actually existed because savings could be determined only during the stage of
budget execution; that the President must be given a wide discretion to
accomplish his tasks; and that the withdrawn unobligated allotments were
savings inasmuch as they were clearly "portions or balances of any
programmed appropriationfree from any obligation or encumbrances which
are (i) still available after the completion or final discontinuance or
abandonment of the work, activity or purpose for which the appropriation is
authorized"
We partially find for the petitioners.

Section 52. Use of Savings. The President of the Philippines, the Senate
President, the Speaker of the House of Representatives, the Chief Justice of the
Supreme Court, the Heads of Constitutional Commissions enjoying fiscal
autonomy, and the Ombudsman are hereby authorized to use savings in their
respective appropriations to augment actual deficiencies incurred for the
current year in any item of their respective appropriations.
Even had a valid law authorizing the transfer of funds pursuant to Section
25(5), supra, existed, there still remained two other requisites to be met,
namely: that the source of funds to be transferred were savings from
appropriations within the respective offices; and that the transfer must be for
the purpose of augmenting an item of appropriation within the respective
offices.
b.2. Second Requisite There were
no savings from which funds
could be sourced for the DAP
Were the funds used in the DAP actually savings?
The petitioners claim that the funds used in the DAP the unreleased
appropriations and withdrawn unobligated allotments were not actual
savings within the context of Section 25(5), supra, and the relevant provisions
of the GAAs. Belgica argues that "savings" should be understood to refer to the
excess money after the items that needed to be funded have been funded, or
those that needed to be paid have been paid pursuant to the budget. 146 The
petitioners posit that there could be savings only when the PAPs for which the
funds had been appropriated were actually implemented and completed, or
finally discontinued or abandoned. They insist that savings could not be
realized with certainty in the middle of the fiscal year; and that the funds for
"slow-moving" PAPs could not be considered as savings because such PAPs had
not actually been abandoned or discontinued yet. 147 They stress that NBC No.
541, by allowing the withdrawn funds to be reissued to the "original program
or project from which it was withdrawn," conceded that the PAPs from which
the supposed savings were taken had not been completed, abandoned or
discontinued.148
The OSG represents that "savings" were "appropriations balances," being the
difference between the appropriation authorized by Congress and the actual

In ascertaining the meaning of savings, certain principles should be borne in


mind. The first principle is that Congress wields the power of the purse.
Congress decides how the budget will be spent; what PAPs to fund; and the
amounts of money to be spent for each PAP. The second principle is that the
Executive, as the department of the Government tasked to enforce the laws, is
expected to faithfully execute the GAA and to spend the budget in accordance
with the provisions of the GAA. 149 The Executive is expected to faithfully
implement the PAPs for which Congress allocated funds, and to limit the
expenditures within the allocations, unless exigencies result to deficiencies for
which augmentation is authorized, subject to the conditions provided by law.
The third principle is that in making the Presidents power to augment
operative under the GAA, Congress recognizes the need for flexibility in budget
execution. In so doing, Congress diminishes its own power of the purse, for it
delegates a fraction of its power to the Executive. But Congress does not
thereby allow the Executive to override its authority over the purse as to let
the Executive exceed its delegated authority. And the fourth principle is that
savings should be actual. "Actual" denotes something that is real or
substantial, or something that exists presently in fact, as opposed to
something that is merely theoretical, possible, potential or hypothetical. 150
The foregoing principles caution us to construe savings strictly against
expanding the scope of the power to augment. It is then indubitable that the
power to augment was to be used only when the purpose for which the funds
had been allocated were already satisfied, or the need for such funds had
ceased to exist, for only then could savings be properly realized. This
interpretation prevents the Executive from unduly transgressing Congress
power of the purse.
The definition of "savings" in the GAAs, particularly for 2011, 2012 and 2013,
reflected this interpretation and made it operational, viz:
Savings refer to portions or balances of any programmed appropriation in this
Act free from any obligation or encumbrance which are: (i) still available after
the completion or final discontinuance or abandonment of the work, activity or
purpose for which the appropriation is authorized; (ii) from appropriations
balances arising from unpaid compensation and related costs pertaining to
vacant positions and leaves of absence without pay; and (iii) from

appropriations balances realized from the implementation of measures


resulting in improved systems and efficiencies and thus enabled agencies to
meet and deliver the required or planned targets, programs and services
approved in this Act at a lesser cost.

allocated them. However, if an agency has unfilled positions in its plantilla and
did not receive an allotment and NCA for such vacancies, appropriations for
such positions, although unreleased, may already constitute savings for that
agency under the second instance.

The three instances listed in the GAAs aforequoted definition were a sure
indication that savings could be generated only upon the purpose of the
appropriation being fulfilled, or upon the need for the appropriation being no
longer existent.

Unobligated allotments, on the other hand, were encompassed by the first part
of the definition of "savings" in the GAA, that is, as "portions or balances of
any programmed appropriation in this Act free from any obligation or
encumbrance." But the first part of the definition was further qualified by the
three enumerated instances of when savings would be realized. As such,
unobligated allotments could not be indiscriminately declared as savings
without first determining whether any of the three instances existed. This
signified that the DBMs withdrawal of unobligated allotments had disregarded
the definition of savings under the GAAs.

The phrase "free from any obligation or encumbrance" in the definition of


savings in the GAAs conveyed the notion that the appropriation was at that
stage when the appropriation was already obligated and the appropriation was
already released. This interpretation was reinforced by the enumeration of the
three instances for savings to arise, which showed that the appropriation
referred to had reached the agency level. It could not be otherwise,
considering that only when the appropriation had reached the agency level
could it be determined whether (a) the PAP for which the appropriation had
been authorized was completed, finally discontinued, or abandoned; or (b)
there were vacant positions and leaves of absence without pay; or (c) the
required or planned targets, programs and services were realized at a lesser
cost because of the implementation of measures resulting in improved
systems and efficiencies.
The DBM declares that part of the savings brought under the DAP came from
"pooling of unreleased appropriations such as unreleased Personnel Services
appropriations which will lapse at the end of the year, unreleased
appropriations of slow moving projects and discontinued projects per ZeroBased Budgeting findings."
The declaration of the DBM by itself does not state the clear legal basis for the
treatment of unreleased or unalloted appropriations as savings.
The fact alone that the appropriations are unreleased or unalloted is a mere
description of the status of the items as unalloted or unreleased. They have
not yet ripened into categories of items from which savings can be generated.
Appropriations have been considered "released" if there has already been an
allotment or authorization to incur obligations and disbursement authority. This
means that the DBM has issued either an ABM (for those not needing
clearance), or a SARO (for those needing clearance), and consequently an
NCA, NCAA or CDC, as the case may be. Appropriations remain unreleased, for
instance, because of noncompliance with documentary requirements (like the
Special Budget Request), or simply because of the unavailability of funds. But
the appropriations do not actually reach the agencies to which they were
allocated under the GAAs, and have remained with the DBM technically
speaking. Ergo, unreleased appropriations refer to appropriations with
allotments but without disbursement authority.
For us to consider unreleased appropriations as savings, unless these met the
statutory definition of savings, would seriously undercut the congressional
power of the purse, because such appropriations had not even reached and
been used by the agency concerned vis--vis the PAPs for which Congress had

Justice Carpio has validly observed in his Separate Concurring Opinion that
MOOE appropriations are deemed divided into twelve monthly allocations
within the fiscal year; hence, savings could be generated monthly from the
excess or unused MOOE appropriations other than the Mandatory Expenditures
and Expenditures for Business-type Activities because of the physical
impossibility to obligate and spend such funds as MOOE for a period that
already lapsed. Following this observation, MOOE for future months are not
savings and cannot be transferred.
The DBMs Memorandum for the President dated June 25, 2012 (which became
the basis of NBC No. 541) stated:
ON THE AUTHORITY TO WITHDRAW UNOBLIGATED ALLOTMENTS
5.0 The DBM, during the course of performance reviews conducted on
the agencies operations, particularly on the implementation of their
projects/activities, including expenses incurred in undertaking the
same, have been continuously calling the attention of all National
Government agencies (NGAs) with low levels of obligations as of end
of the first quarter to speedup the implementation of their programs
and projects in the second quarter.
6.0 Said reminders were made in a series of consultation meetings
with the concerned agencies and with call-up letters sent.
7.0 Despite said reminders and the availability of funds at the
departments disposal, the level of financial performance of some
departments registered below program, with the targeted
obligations/disbursements for the first semester still not being met.
8.0 In order to maximize the use of the available allotment, all
unobligated balances as of June 30, 2012, both for continuing and
current allotments shall be withdrawn and pooled to fund fast moving
programs/projects.

9.0 It may be emphasized that the allotments to be withdrawn will be


based on the list of slow moving projects to be identified by the
agencies and their catch up plans to be evaluated by the DBM.

2012, disregarded the 2-year period of availability of the appropriations for


MOOE and capital outlay extended under Section 65, General Provisions of the
2011 GAA, viz:

It is apparent from the foregoing text that the withdrawal of unobligated


allotments would be based on whether the allotments pertained to slowmoving projects, or not. However, NBC No. 541 did not set in clear terms the
criteria for the withdrawal of unobligated allotments, viz:

Section 65. Availability of Appropriations. Appropriations for MOOE and


capital outlays authorized in this Act shall be available for release and
obligation for the purpose specified, and under the same special provisions
applicable thereto, for a period extending to one fiscal year after the end of
the year in which such items were appropriated: PROVIDED, That
appropriations for MOOE and capital outlays under R.A. No. 9970 shall be made
available up to the end of FY 2011: PROVIDED, FURTHER, That a report on
these releases and obligations shall be submitted to the Senate Committee on
Finance and the House Committee on Appropriations.

3.1. These guidelines shall cover the withdrawal of unobligated


allotments as of June 30, 2012 ofall national government agencies
(NGAs) charged against FY 2011 Continuing Appropriation (R.A. No.
10147) and FY 2012 Current Appropriation (R.A. No. 10155), pertaining
to:

and Section 63 General Provisions of the 2012 GAA, viz:


3.1.1 Capital Outlays (CO);
3.1.2 Maintenance and Other Operating Expenses (MOOE)
related to the implementation of programs and projects, as
well as capitalized MOOE; and
3.1.3 Personal Services corresponding to unutilized pension
benefits declared as savings by the agencies concerned
based on their undated/validated list of pensioners.
A perusal of its various provisions reveals that NBC No. 541 targeted the
"withdrawal of unobligated allotments of agencies with low levels of
obligations"151 "to fund priority and/or fast-moving programs/projects." 152 But
the fact that the withdrawn allotments could be "[r]eissued for the original
programs and projects of the agencies/OUs concerned, from which the
allotments were withdrawn"153 supported the conclusion that the PAPs had not
yet been finally discontinued or abandoned. Thus, the purpose for which the
withdrawn funds had been appropriated was not yet fulfilled, or did not yet
cease to exist, rendering the declaration of the funds as savings impossible.

Section 63. Availability of Appropriations. Appropriations for MOOE and


capital outlays authorized in this Act shall be available for release and
obligation for the purpose specified, and under the same special provisions
applicable thereto, for a period extending to one fiscal year after the end of
the year in which such items were appropriated: PROVIDED, That a report on
these releases and obligations shall be submitted to the Senate Committee on
Finance and the House Committee on Appropriations, either in printed form or
by way of electronic document. 154
Thus, another alleged area of constitutional infirmity was that the DAP and its
relevant issuances shortened the period of availability of the appropriations for
MOOE and capital outlays.
Congress provided a one-year period of availability of the funds for all
allotment classes in the 2013 GAA (R.A. No. 10352), to wit:

Worse, NBC No. 541 immediately considered for withdrawal all released
allotments in 2011 charged against the 2011 GAA that had remained
unobligated based on the following considerations, to wit:

Section 63. Availability of Appropriations. All appropriations authorized in this


Act shall be available for release and obligation for the purposes specified, and
under the same special provisions applicable thereto, until the end of FY 2013:
PROVIDED, That a report on these releases and obligations shall be submitted
to the Senate Committee on Finance and House Committee on Appropriations,
either in printed form or by way of electronic document.

5.4.1 The departments/agencies approved priority programs and


projects are assumed to be implementation-ready and doable during
the given fiscal year; and

Yet, in his memorandum for the President dated May 20, 2013, Sec. Abad
sought omnibus authority to consolidate savings and unutilized balances to
fund the DAP on a quarterly basis, viz:

5.4.2 The practice of having substantial carryover appropriations may


imply that the agency has a slower-than-programmed implementation
capacity or agency tends to implement projects within a two-year
timeframe.

7.0 If the level of financial performance of some department will


register below program, even with the availability of funds at their
disposal, the targeted obligations/disbursements for each quarter will
not be met. It is important to note that these funds will lapse at the
end of the fiscal year if these remain unobligated.

Such withdrawals pursuant to NBC No. 541, the circular that affected the
unobligated allotments for continuing and current appropriations as of June 30,

8.0 To maximize the use of the available allotment, all unobligated


balances at the end of every quarter, both for continuing and current
allotments shall be withdrawn and pooled to fund fast moving
programs/projects.

appropriated funds were akin to the impoundment of appropriations that could


be allowed only in case of "unmanageable national government budget deficit"
under the GAAs,157 thus violating the provisions of the GAAs of 2011, 2012 and
2013 prohibiting the retention or deduction of allotments. 158

9.0 It may be emphasized that the allotments to be withdrawn will be


based on the list of slow moving projects to be identified by the
agencies and their catch up plans to be evaluated by the DBM.

In contrast, the respondents emphasize that NBC No. 541 adopted a spending,
not saving, policy as a last-ditch effort of the Executive to push agencies into
actually spending their appropriations; that such policy did not amount to an
impoundment scheme, because impoundment referred to the decision of the
Executive to refuse to spend funds for political or ideological reasons; and that
the withdrawal of allotments under NBC No. 541 was made pursuant to Section
38, Chapter 5, Book VI of the Administrative Code, by which the President was
granted the authority to suspend or otherwise stop further expenditure of
funds allotted to any agency whenever in his judgment the public interest so
required.

The validity period of the affected appropriations, already given the brief Lifes
pan of one year, was further shortened to only a quarter of a year under the
DBMs memorandum dated May 20, 2013.
The petitioners accuse the respondents of forcing the generation of savings in
order to have a larger fund available for discretionary spending. They aver that
the respondents, by withdrawing unobligated allotments in the middle of the
fiscal year, in effect deprived funding for PAPs with existing appropriations
under the GAAs.155
The respondents belie the accusation, insisting that the unobligated allotments
were being withdrawn upon the instance of the implementing agencies based
on their own assessment that they could not obligate those allotments
pursuant to the Presidents directive for them to spend their appropriations as
quickly as they could in order to ramp up the economy. 156
We agree with the petitioners.
Contrary to the respondents insistence, the withdrawals were upon the
initiative of the DBM itself. The text of NBC No. 541 bears this out, to wit:
5.2 For the purpose of determining the amount of unobligated allotments that
shall be withdrawn, all departments/agencies/operating units (OUs) shall
submit to DBM not later than July 30, 2012, the following budget accountability
reports as of June 30, 2012;

Statement of Allotments, Obligation and Balances (SAOB);


Financial Report of Operations (FRO); and
Physical Report of Operations.

5.3 In the absence of the June 30, 2012 reports cited under item 5.2 of this
Circular, the agencys latest report available shall be used by DBM as basis for
withdrawal of allotment. The DBM shall compute/approximate the agencys
obligation level as of June 30 to derive its unobligated allotments as of same
period. Example: If the March 31 SAOB or FRO reflects actual obligations of P
800M then the June 30 obligation level shall approximate to P1,600 M
(i.e., P800 M x 2 quarters).
The petitioners assert that no law had authorized the withdrawal and transfer
of unobligated allotments and the pooling of unreleased appropriations; and
that the unbridled withdrawal of unobligated allotments and the retention of

The assertions of the petitioners are upheld. The withdrawal and transfer of
unobligated allotments and the pooling of unreleased appropriations were
invalid for being bereft of legal support. Nonetheless, such withdrawal of
unobligated allotments and the retention of appropriated funds cannot be
considered as impoundment.
According to Philippine Constitution Association v. Enriquez: 159 "Impoundment
refers to a refusal by the President, for whatever reason, to spend funds made
available by Congress. It is the failure to spend or obligate budget authority of
any type." Impoundment under the GAA is understood to mean the retention
or deduction of appropriations. The 2011 GAA authorized impoundment only in
case of unmanageable National Government budget deficit, to wit:
Section 66. Prohibition Against Impoundment of Appropriations. No
appropriations authorized under this Act shall be impounded through retention
or deduction, unless in accordance with the rules and regulations to be issued
by the DBM: PROVIDED, That all the funds appropriated for the purposes,
programs, projects and activities authorized under this Act, except those
covered under the Unprogrammed Fund, shall be released pursuant to Section
33 (3), Chapter 5, Book VI of E.O. No. 292.
Section 67. Unmanageable National Government Budget Deficit. Retention or
deduction of appropriations authorized in this Act shall be effected only in
cases where there is an unmanageable national government budget deficit.
Unmanageable national government budget deficit as used in this section shall
be construed to mean that (i) the actual national government budget deficit
has exceeded the quarterly budget deficit targets consistent with the full-year
target deficit as indicated in the FY 2011 Budget of
Expenditures and Sources of Financing submitted by the President and
approved by Congress pursuant to Section 22, Article VII of the Constitution, or
(ii) there are clear economic indications of an impending occurrence of such
condition, as determined by the Development Budget Coordinating Committee
and approved by the President.

The 2012 and 2013 GAAs contained similar provisions.


The withdrawal of unobligated allotments under the DAP should not be
regarded as impoundment because it entailed only the transfer of funds, not
the retention or deduction of appropriations.
Nor could Section 68 of the 2011 GAA (and the similar provisions of the 2012
and 2013 GAAs) be applicable. They uniformly stated:
Section 68. Prohibition Against Retention/Deduction of Allotment. Fund
releases from appropriations provided in this Act shall be transmitted intact or
in full to the office or agency concerned. No retention or deduction as reserves
or overhead shall be made, except as authorized by law, or upon direction of
the President of the Philippines. The COA shall ensure compliance with this
provision to the extent that sub-allotments by agencies to their subordinate
offices are in conformity with the release documents issued by the DBM.
The provision obviously pertained to the retention or deduction of allotments
upon their release from the DBM, which was a different matter altogether. The
Court should not expand the meaning of the provision by applying it to the
withdrawal of allotments.
The respondents rely on Section 38, Chapter 5, Book VI of the Administrative
Code of 1987 to justify the withdrawal of unobligated allotments. But the
provision authorized only the suspension or stoppage of further expenditures,
not the withdrawal of unobligated allotments, to wit:
Section 38. Suspension of Expenditure of Appropriations.- Except as otherwise
provided in the General Appropriations Act and whenever in his judgment the
public interest so requires, the President, upon notice to the head of office
concerned, is authorized to suspend or otherwise stop further expenditure of
funds allotted for any agency, or any other expenditure authorized in the
General Appropriations Act, except for personal services appropriations used
for permanent officials and employees.
Moreover, the DBM did not suspend or stop further expenditures in accordance
with Section 38, supra, but instead transferred the funds to other PAPs.
It is relevant to remind at this juncture that the balances of appropriations that
remained unexpended at the end of the fiscal year were to be reverted to the
General Fund.1wphi1 This was the mandate of Section 28, Chapter IV, Book VI
of the Administrative Code, to wit:
Section 28. Reversion of Unexpended Balances of Appropriations, Continuing
Appropriations.- Unexpended balances of appropriations authorized in the
General Appropriation Act shall revert to the unappropriated surplus of the
General Fund at the end of the fiscal year and shall not thereafter be available
for expenditure except by subsequent legislative enactment: Provided, that
appropriations for capital outlays shall remain valid until fully spent or
reverted: provided, further, that continuing appropriations for current

operating expenditures may be specifically recommended and approved as


such in support of projects whose effective implementation calls for multi-year
expenditure commitments: provided, finally, that the President may authorize
the use of savings realized by an agency during given year to meet nonrecurring expenditures in a subsequent year.
The balances of continuing appropriations shall be reviewed as part of the
annual budget preparation process and the preparation process and the
President may approve upon recommendation of the Secretary, the reversion
of funds no longer needed in connection with the activities funded by said
continuing appropriations.
The Executive could not circumvent this provision by declaring unreleased
appropriations and unobligated allotments as savings prior to the end of the
fiscal year.
b.3.
Third
Requisite
savings
could
the
DAP
to
not provided in the GAA

be
augment

No
funds
transferred
deficient

from
under
items

The third requisite for a valid transfer of funds is that the purpose of the
transfer should be "to augment an item in the general appropriations law for
the respective offices." The term "augment" means to enlarge or increase in
size, amount, or degree.160
The GAAs for 2011, 2012 and 2013 set as a condition for augmentation that
the appropriation for the PAP item to be augmented must be deficient, to wit:
x x x Augmentation implies the existence in this Act of a program, activity, or
project with an appropriation, which upon implementation, or subsequent
evaluation of needed resources, is determined to be deficient. In no case shall
a non-existent program, activity, or project, be funded by augmentation from
savings or by the use of appropriations otherwise authorized in this Act.
In other words, an appropriation for any PAP must first be determined to be
deficient before it could be augmented from savings. Note is taken of the fact
that the 2013 GAA already made this quite clear, thus:
Section 52. Use of Savings. The President of the Philippines, the Senate
President, the Speaker of the House of Representatives, the Chief Justice of the
Supreme Court, the Heads of Constitutional Commissions enjoying fiscal
autonomy, and the Ombudsman are hereby authorized to use savings in their
respective appropriations to augment actual deficiencies incurred for the
current year in any item of their respective appropriations.
As of 2013, a total of P144.4 billion worth of PAPs were implemented through
the DAP.161

Of this amount P82.5 billion were released in 2011 and P54.8 billion in
2012.162 Sec. Abad has reported that 9% of the total DAP releases were applied
to the PAPs identified by the legislators.163

Upon careful review of the documents contained in the seven evidence


packets, we conclude that the "savings" pooled under the DAP were allocated
to PAPs that were not covered by any appropriations in the pertinent GAAs.

The petitioners disagree, however, and insist that the DAP supported the
following PAPs that had not been covered with appropriations in the respective
GAAs, namely:

For example the SARO issued on December 22, 2011 for the highly vaunted
Disaster Risk, Exposure, Assessment and Mitigation (DREAM) project under the
Department of Science and Technology (DOST) covered the amount ofP1.6
Billion,169 broken down as follows:

(i) P1.5 billion for the Cordillera Peoples Liberation Army;


the pertinent provision of the 2011 GAA (R.A. No. 10147) showed that
Congress had appropriated only P537,910,000 for MOOE, but nothing for
personnel services and capital outlays, to wit:

(ii) P1.8 billion for the Moro National Liberation Front;


(iii) P700 million for assistance to Quezon Province; 164
(iv) P50 million to P100 (million) each to certain senators;

165

(v) P10 billion for the relocation of families living along dangerous
zones under the National Housing Authority;
(vi) P10 billion and P20 billion equity infusion under the Bangko
Sentral;
(vii) P5.4 billion landowners compensation under the Department of
Agrarian Reform;
(viii) P8.6 billion for the ARMM comprehensive peace and development
program;
(ix) P6.5 billion augmentation of LGU internal revenue allotments
(x) P5 billion for crucial projects like tourism road construction under
the Department of Tourism and the Department of Public Works and
Highways;
(xi) P1.8 billion for the DAR-DPWH Tulay ng Pangulo;
(xii) P1.96 billion for the DOH-DPWH rehabilitation of regional health
units; and
(xiii) P4 billion for the DepEd-PPP school infrastructure projects. 166
In refutation, the OSG argues that a total of 116 DAP-financed PAPs were
implemented, had appropriation covers, and could properly be accounted for
because the funds were released following and pursuant to the standard
practices adopted by the DBM. 167 In support of its argument, the OSG has
submitted seven evidence packets containing memoranda, SAROs, and other
pertinent documents relative to the implementation and fund transfers under
the DAP.168

Aside from this transfer under the DAP to the DREAM project exceeding by
almost 300% the appropriation by Congress for the program Generation of new
knowledge and technologies and research capability building in priority areas
identified as strategic to National Development, the Executive allotted funds
for personnel services and capital outlays. The Executive thereby substituted
its will to that of Congress. Worse, the Executive had not earlier proposed any
amount for personnel services and capital outlays in the NEP that became the
basis of the 2011 GAA.170
It is worth stressing in this connection that the failure of the GAAs to set aside
any amounts for an expense category sufficiently indicated that Congress
purposely did not see fit to fund, much less implement, the PAP concerned.
This indication becomes clearer when even the President himself did not
recommend in the NEP to fund the PAP. The consequence was that any PAP
requiring expenditure that did not receive any appropriation under the GAAs
could only be a new PAP, any funding for which would go beyond the authority
laid down by Congress in enacting the GAAs. That happened in some instances
under the DAP.
In relation to the December 22, 2011 SARO issued to the Philippine Council for
Industry, Energy and Emerging Technology Research and Development (DOSTPCIEETRD)171 for Establishment of the Advanced Failure Analysis Laboratory,
which reads:
the appropriation code and the particulars appearing in the SARO did not
correspond to the program specified in the GAA, whose particulars were
Research and Management Services(inclusive of the following activities: (1)
Technological and Economic Assessment for Industry, Energy and Utilities; (2)
Dissemination of Science and Technology Information; and (3) Management of
PCIERD Information System for Industry, Energy and Utilities. Even assuming
that Development, integration and coordination of the National Research
System for Industry, Energy and Emerging Technology and Related Fields the
particulars stated in the SARO could fall under the broad program description
of Research and Management Services as appearing in the SARO, it would
nonetheless remain a new activity by reason of its not being specifically stated
in the GAA. As such, the DBM, sans legislative authorization, could not validly
fund and implement such PAP under the DAP.

In defending the disbursements, however, the OSG contends that the


Executive enjoyed sound discretion in implementing the budget given the
generality in the language and the broad policy objectives identified under the
GAAs;172 and that the President enjoyed unlimited authority to spend the initial
appropriations under his authority to declare and utilize savings, 173 and in
keeping with his duty to faithfully execute the laws.
Although the OSG rightly contends that the Executive was authorized to spend
in line with its mandate to faithfully execute the laws (which included the
GAAs), such authority did not translate to unfettered discretion that allowed
the President to substitute his own will for that of Congress. He was still
required to remain faithful to the provisions of the GAAs, given that his power
to spend pursuant to the GAAs was but a delegation to him from Congress.
Verily, the power to spend the public wealth resided in Congress, not in the
Executive.174 Moreover, leaving the spending power of the Executive
unrestricted would threaten to undo the principle of separation of powers. 175
Congress acts as the guardian of the public treasury in faithful discharge of its
power of the purse whenever it deliberates and acts on the budget proposal
submitted by the Executive. 176 Its power of the purse is touted as the very
foundation of its institutional strength, 177 and underpins "all other legislative
decisions and regulating the balance of influence between the legislative and
executive branches of government." 178 Such enormous power encompasses
the capacity to generate money for the Government, to appropriate public
funds, and to spend the money. 179Pertinently, when it exercises its power of the
purse, Congress wields control by specifying the PAPs for which public money
should be spent.
It is the President who proposes the budget but it is Congress that has the final
say on matters of appropriations. 180For this purpose, appropriation involves two
governing principles, namely: (1) "a Principle of the Public Fisc, asserting that
all monies received from whatever source by any part of the government are
public funds;" and (2) "a Principle of Appropriations Control, prohibiting
expenditure of any public money without legislative authorization." 181 To
conform with the governing principles, the Executive cannot circumvent the
prohibition by Congress of an expenditure for a PAP by resorting to either
public or private funds. 182 Nor could the Executive transfer appropriated funds
resulting in an increase in the budget for one PAP, for by so doing the
appropriation for another PAP is necessarily decreased. The terms of both
appropriations will thereby be violated.
b.4 Third Requisite Cross-border
augmentations from savings were
prohibited by the Constitution
By providing that the President, the President of the Senate, the Speaker of the
House of Representatives, the Chief Justice of the Supreme Court, and the
Heads of the Constitutional Commissions may be authorized to augment any
item in the GAA "for their respective offices," Section 25(5), supra, has
delineated borders between their offices, such that funds appropriated for one
office are prohibited from crossing over to another office even in the guise of

augmentation of a deficient item or items. Thus, we call such transfers of funds


cross-border transfers or cross-border augmentations.
To be sure, the phrase "respective offices" used in Section 25(5), supra, refers
to the entire Executive, with respect to the President; the Senate, with respect
to the Senate President; the House of Representatives, with respect to the
Speaker; the Judiciary, with respect to the Chief Justice; the Constitutional
Commissions, with respect to their respective Chairpersons.
Did any cross-border transfers or augmentations transpire?
During the oral arguments on January 28, 2014, Sec. Abad admitted making
some cross-border augmentations, to wit:
JUSTICE BERSAMIN:
Alright, the whole time that you have been Secretary of Department of Budget
and Management, did the Executive Department ever redirect any part of
savings of the National Government under your control cross border to another
department?
SECRETARY ABAD:
Well, in the Memos that we submitted to you, such an instance, Your Honor
JUSTICE BERSAMIN:
Can you tell me two instances? I dont recall having read your material.
SECRETARY ABAD:
Well, the first instance had to do with a request from the House of
Representatives. They started building their e-library in 2010 and they had a
budget for about 207 Million but they lack about 43 Million to complete its 250
Million requirements. Prior to that, the COA, in an audit observation informed
the Speaker that they had to continue with that construction otherwise the
whole building, as well as the equipments therein may suffer from serious
deterioration. And at that time, since the budget of the House of
Representatives was not enough to complete 250 Million, they wrote to the
President requesting for an augmentation of that particular item, which was
granted, Your Honor. The second instance in the Memos is a request from the
Commission on Audit. At the time they were pushing very strongly the good
governance programs of the government and therefore, part of that is a
requirement to conduct audits as well as review financial reports of many
agencies. And in the performance of that function, the Commission on Audit
needed information technology equipment as well as hire consultants and
litigators to help them with their audit work and for that they requested funds
from the Executive and the President saw that it was important for the

Commission to be provided with those IT equipments and litigators and


consultants and the request was granted, Your Honor.
JUSTICE BERSAMIN:

The records show, indeed, that funds amounting to P143,700,000.00


and P250,000,000.00 were transferred under the DAP respectively to the
COA184 and the House of Representatives. 185 Those transfers of funds, which
constituted cross-border augmentations for being from the Executive to the
COA and the House of Representatives, are graphed as follows: 186

These cross border examples, cross border augmentations were not supported
by appropriations

They were, we were augmenting existing items within their (interrupted)

The respondents further stated in their memorandum that the President "made
available" to the "Commission on Elections the savings of his department upon
[its] request for funds"187 This was another instance of a cross-border
augmentation.

JUSTICE BERSAMIN:

The respondents justified all the cross-border transfers thusly:

No, appropriations before you augmented because this is a cross border and
the tenor or text of the Constitution is quite clear as far as I am concerned. It
says here, "The power to augment may only be made to increase any item in
the General Appropriations Law for their respective offices." Did you not feel
constricted by this provision?

99. The Constitution does not prevent the President from transferring savings
of his department to another department upon the latters request, provided it
is the recipient department that uses such funds to augment its own
appropriation. In such a case, the President merely gives the other department
access to public funds but he cannot dictate how they shall be applied by that
department whose fiscal autonomy is guaranteed by the Constitution. 188

SECRETARY ABAD:

SECRETARY ABAD:
Well, as the Constitution provides, the prohibition we felt was on the transfer of
appropriations, Your Honor. What we thought we did was to transfer savings
which was needed by the Commission to address deficiency in an existing item
in both the Commission as well as in the House of Representatives; thats how
we saw(interrupted)
JUSTICE BERSAMIN:
So your position as Secretary of Budget is that you could do that?
SECRETARY ABAD:
In an extreme instances because(interrupted)
JUSTICE BERSAMIN:
No, no, in all instances, extreme or not extreme, you could do that, thats your
feeling.
SECRETARY ABAD:
Well, in that particular situation when the request was made by the
Commission and the House of Representatives, we felt that we needed to
respond because we felt(interrupted).183

In the oral arguments held on February 18, 2014, Justice Vicente V. Mendoza,
representing Congress, announced a different characterization of the crossborder transfers of funds as in the nature of "aid" instead of "augmentation,"
viz:
HONORABLE MENDOZA:
The cross-border transfers, if Your Honors please, is not an application of the
DAP. What were these cross-border transfers? They are transfers of savings as
defined in the various General Appropriations Act. So, that makes it similar to
the DAP, the use of savings. There was a cross-border which appears to be in
violation of Section 25, paragraph 5 of Article VI, in the sense that the border
was crossed. But never has it been claimed that the purpose was to augment a
deficient item in another department of the government or agency of the
government. The cross-border transfers, if Your Honors please, were in the
nature of [aid] rather than augmentations. Here is a government entity
separate and independent from the Executive Department solely in need of
public funds. The President is there 24 hours a day, 7 days a week. Hes in
charge of the whole operation although six or seven heads of government
offices are given the power to augment. Only the President stationed there and
in effect in-charge and has the responsibility for the failure of any part of the
government. You have election, for one reason or another, the money is not
enough to hold election. There would be chaos if no money is given as an aid,
not to augment, but as an aid to a department like COA. The President is
responsible in a way that the other heads, given the power to augment, are
not. So, he cannot very well allow this, if Your Honor please. 189
JUSTICE LEONEN:

May I move to another point, maybe just briefly. I am curious that the position
now, I think, of government is that some transfers of savings is now considered
to be, if Im not mistaken, aid not augmentation. Am I correct in my hearing of
your argument?
HONORABLE MENDOZA:
Thats our submission, if Your Honor, please.
JUSTICE LEONEN:
May I know, Justice, where can we situate this in the text of the Constitution?
Where do we actually derive the concepts that transfers of appropriation from
one branch to the other or what happened in DAP can be considered a said?
What particular text in the Constitution can we situate this?
HONORABLE MENDOZA:
There is no particular provision or statutory provision for that matter, if Your
Honor please. It is drawn from the fact that the Executive is the executive incharge of the success of the government.
JUSTICE LEONEN:
So, the residual powers labelled in Marcos v. Manglapus would be the basis for
this theory of the government?
HONORABLE MENDOZA:
Yes, if Your Honor, please.
JUSTICE LEONEN:
A while ago, Justice Carpio mentioned that the remedy is might be to go to
Congress. That there are opportunities and there have been opportunities of
the President to actually go to Congress and ask for supplemental budgets?
HONORABLE MENDOZA:
If there is time to do that, I would say yes.
JUSTICE LEONEN:
So, the theory of aid rather than augmentation applies in extra-ordinary
situation?
HONORABLE MENDOZA:

Very extra-ordinary situations.


JUSTICE LEONEN:
But Counsel, this would be new doctrine, in case?
HONORABLE MENDOZA:
Yes, if Your Honor please.190
Regardless of the variant characterizations of the cross-border transfers of
funds, the plain text of Section 25(5), supra, disallowing cross border transfers
was disobeyed. Cross-border transfers, whether as augmentation, or as aid,
were prohibited under Section 25(5), supra.
4.
Sourcing the DAP from unprogrammed
funds despite the original revenue targets
not having been exceeded was invalid
Funding under the DAP were also sourced from unprogrammed funds provided
in the GAAs for 2011, 2012,and 2013. The respondents stress, however, that
the unprogrammed funds were not brought under the DAP as savings, but as
separate sources of funds; and that, consequently, the release and use of
unprogrammed funds were not subject to the restrictions under Section 25(5),
supra.
The documents contained in the Evidence Packets by the OSG have confirmed
that the unprogrammed funds were treated as separate sources of funds. Even
so, the release and use of the unprogrammed funds were still subject to
restrictions, for, to start with, the GAAs precisely specified the instances when
the unprogrammed funds could be released and the purposes for which they
could be used.
The petitioners point out that a condition for the release of the unprogrammed
funds was that the revenue collections must exceed revenue targets; and that
the release of the unprogrammed funds was illegal because such condition
was not met.191
The respondents disagree, holding that the release and use of the
unprogrammed funds under the DAP were in accordance with the pertinent
provisions of the GAAs. In particular, the DBM avers that the unprogrammed
funds could be availed of when any of the following three instances occur, to
wit: (1) the revenue collections exceeded the original revenue targets
proposed in the BESFs submitted by the President to Congress; (2) new
revenues were collected or realized from sources not originally considered in
the BESFs; or(3) newly-approved loans for foreign assisted projects were
secured, or when conditions were triggered for other sources of funds, such as
perfected loan agreements for foreign-assisted projects. 192 This view of the
DBM was adopted by all the respondents in their Consolidated Comment. 193

The BESFs for 2011, 2012 and 2013 uniformly defined "unprogrammed
appropriations" as appropriations that provided standby authority to incur
additional agency obligations for priority PAPs when revenue collections
exceeded
targets,
and
when
additional
foreign
funds
are
generated.194 Contrary to the DBMs averment that there were three instances
when unprogrammed funds could be released, the BESFs envisioned only two
instances. The third mentioned by the DBM the collection of new revenues
from sources not originally considered in the BESFs was not included. This
meant that the collection of additional revenues from new sources did not
warrant the release of the unprogrammed funds. Hence, even if the revenues
not considered in the BESFs were collected or generated, the basic condition
that the revenue collections should exceed the revenue targets must still be
complied with in order to justify the release of the unprogrammed funds.

may be used to cover releases from appropriations in this Fund" gave the
authority to use such additional revenues for appropriations funded from the
unprogrammed funds. They did not at all waive compliance with the basic
requirement that revenue collections must still exceed the original revenue
targets.

The view that there were only two instances when the unprogrammed funds
could be released was bolstered by the following texts of the Special Provisions
of the 2011 and 2012 GAAs, to wit:

It can be inferred from the foregoing that under these provisions of the GAAs
the additional revenues from sources not considered in the BESFs must be
taken into account in determining if the revenue collections exceeded the
revenue targets. The text of the relevant provision of the 2013 GAA, which was
substantially similar to those of the GAAs for 2011 and 2012, already made
this explicit, thus:

2011 GAA
1. Release of Fund. The amounts authorized herein shall be released only when
the revenue collections exceed the original revenue targets submitted by the
President of the Philippines to Congress pursuant to Section 22, Article VII of
the Constitution, including savings generated from programmed appropriations
for the year: PROVIDED, That collections arising from sources not considered in
the aforesaid original revenue targets may be used to cover releases from
appropriations in this Fund: PROVIDED, FURTHER, That in case of newly
approved loans for foreign-assisted projects, the existence of a perfected loan
agreement for the purpose shall be sufficient basis for the issuance of a SARO
covering the loan proceeds: PROVIDED, FURTHERMORE, That if there are
savings generated from the programmed appropriations for the first two
quarters of the year, the DBM may, subject to the approval of the President,
release the pertinent appropriations under the Unprogrammed Fund
corresponding to only fifty percent (50%) of the said savings net of revenue
shortfall: PROVIDED, FINALLY, That the release of the balance of the total
savings from programmed appropriations for the year shall be subject to fiscal
programming and approval of the President.
2012 GAA
1. Release of the Fund. The amounts authorized herein shall be released only
when the revenue collections exceed the original revenue targets submitted by
the President of the Philippines to Congress pursuant to Section 22, Article VII
of the Constitution: PROVIDED, That collections arising from sources not
considered in the aforesaid original revenue targets may be used to cover
releases from appropriations in this Fund: PROVIDED, FURTHER, That in case of
newly approved loans for foreign-assisted projects, the existence of a
perfected loan agreement for the purpose shall be sufficient basis for the
issuance of a SARO covering the loan proceeds.
As can be noted, the provisos in both provisions to the effect that "collections
arising from sources not considered in the aforesaid original revenue targets

In contrast, the texts of the provisos with regard to additional revenues


generated from newly-approved foreign loans were clear to the effect that the
perfected loan agreement would be in itself "sufficient basis" for the issuance
of a SARO to release the funds but only to the extent of the amount of the
loan. In such instance, the revenue collections need not exceed the revenue
targets to warrant the release of the loan proceeds, and the mere perfection of
the loan agreement would suffice.

1. Release of the Fund. The amounts authorized herein shall be released only
when the revenue collections exceed the original revenue targets submitted by
the President of the Philippines to Congress pursuant to Section 22, Article VII
of the Constitution, including collections arising from sources not considered in
the aforesaid original revenue target, as certified by the BTr: PROVIDED, That
in case of newly approved loans for foreign-assisted projects, the existence of
a perfected loan agreement for the purpose shall be sufficient basis for the
issuance of a SARO covering the loan proceeds.
Consequently, that there were additional revenues from sources not
considered in the revenue target would not be enough. The total revenue
collections must still exceed the original revenue targets to justify the release
of the unprogrammed funds (other than those from newly-approved foreign
loans).
The present controversy on the unprogrammed funds was rooted in the correct
interpretation of the phrase "revenue collections should exceed the original
revenue targets." The petitioners take the phrase to mean that the total
revenue collections must exceed the total revenue target stated in the BESF,
but the respondents understand the phrase to refer only to the collections for
each source of revenue as enumerated in the BESF, with the condition being
deemed complied with once the revenue collections from a particular source
already exceeded the stated target.
The BESF provided for the following sources of revenue, with
corresponding revenue target stated for each source of revenue, to wit:
TAX REVENUES

the

Taxes
on
Net
Income
Taxes
on
Taxes on Domestic Goods and Services
General
Sales,
Selected Excises on Goods

and

Turnover

or

Profits
Property

This is to certify that under the Budget for Expenditures and Sources of
Financing for 2011, the programmed income from dividends from shares of
stock in government-owned and controlled corporations is 5.5 billion.

VAT

This is to certify further that based on the records of the Bureau of Treasury,
the National Government has recorded dividend income amounting to P23.8
billion as of 31 January 2011.196

Selected
Taxes
on
Services
Taxes on the Use of Goods or Property or Permission to Perform
Activities
Other
Taxes
Taxes on International Trade and Transactions
NON-TAX REVENUES
Fees
BTR Income

and

Government
Interest
on
Interest
on
Advances
Income from Investments

to

NG
Government

This is to certify that the actual dividend collections remitted to the National
Government for the period January to March 2012 amounted to P19.419 billion
compared to the full year program of P5.5 billion for 2012.197

Charges

And, finally, for 2013, the OSG presented the certification dated July 3, 2013
issued by National Treasurer Rosalia V. De Leon, to wit:

Services
Deposits
Corporations

This is to certify that the actual dividend collections remitted to the National
Government for the period January to May 2013 amounted to P12.438 billion
compared to the full year program of P10.0198 billion for 2013.
Moreover, the National Government accounted for the sale of the right to build
and operate the NAIA expressway amounting to P11.0 billion in June 2013.199

Interest on Bond Holdings


Guarantee
Gain
on
NG Income Collected by BTr

For 2012, the OSG submitted the certification dated April 26, 2012 issued by
National Treasurer Roberto B. Tan, viz:

Foreign

Fee
Exchange

Dividends
on
Stocks
NG
Share
from
Airport
Terminal
Fee
NG
Share
from
PAGCOR
Income
NG Share from MIAA Profit
Privatization
Foreign Grants
Thus, when the Court required the respondents to submit a certification from
the Bureau of Treasury (BTr) to the effect that the revenue collections had
exceeded the original revenue targets,195 they complied by submitting
certifications from the BTr and Department of Finance (DOF) pertaining to only
one identified source of revenue the dividends from the shares of stock held
by the Government in government-owned and controlled corporations.
To justify the release of the unprogrammed funds for 2011, the OSG presented
the certification dated March 4, 2011 issued by DOF Undersecretary Gil S.
Beltran, as follows:

The certifications reflected that by collecting dividends amounting to P23.8


billion in 2011, P19.419 billion in 2012, and P12.438 billion in 2013 the BTr had
exceeded only the P5.5 billion in target revenues in the form of dividends from
stocks in each of 2011 and 2012, and only the P10 billion in target revenues in
the form of dividends from stocks in 2013.
However, the requirement that revenue collections exceed the original
revenue targets was to be construed in light of the purpose for which the
unprogrammed funds were incorporated in the GAAs as standby appropriations
to support additional expenditures for certain priority PAPs should the revenue
collections exceed the resource targets assumed in the budget or when
additional foreign project loan proceeds were realized. The unprogrammed
funds were included in the GAAs to provide ready cover so as not to delay the
implementation of the PAPs should new or additional revenue sources be
realized during the year.200 Given the tenor of the certifications, the
unprogrammed funds were thus not yet supported by the corresponding
resources.201
The revenue targets stated in the BESF were intended to address the funding
requirements of the proposed programmed appropriations. In contrast, the
unprogrammed funds, as standby appropriations, were to be released only
when there were revenues in excess of what the programmed appropriations
required. As such, the revenue targets should be considered as a whole, not
individually; otherwise, we would be dealing with artificial revenue surpluses.
The requirement that revenue collections must exceed revenue target should

be understood to mean that the revenue collections must exceed the total of
the revenue targets stated in the BESF. Moreover, to release the
unprogrammed funds simply because there was an excess revenue as to one
source of revenue would be an unsound fiscal management measure because
it would disregard the budget plan and foster budget deficits, in contravention
of the Governments surplus budget policy. 202
We cannot, therefore, subscribe to the respondents view.
5.
Equal
protection,
checks
and public accountability challenges

and

balances,

The DAP is further challenged as violative of the Equal Protection Clause, the
system of checks and balances, and the principle of public accountability.
With respect to the challenge against the DAP under the Equal Protection
Clause,203 Luna argues that the implementation of the DAP was "unfair as it
[was] selective" because the funds released under the DAP was not made
available to all the legislators, with some of them refusing to avail themselves
of the DAP funds, and others being unaware of the availability of such funds.
Thus, the DAP practised "undue favoritism" in favor of select legislators in
contravention of the Equal Protection Clause.
Similarly, COURAGE contends that the DAP violated the Equal Protection
Clause because no reasonable classification was used in distributing the funds
under the DAP; and that the Senators who supposedly availed themselves of
said funds were differently treated as to the amounts they respectively
received.
Anent the petitioners theory that the DAP violated the system of checks and
balances, Luna submits that the grant of the funds under the DAP to some
legislators forced their silence about the issues and anomalies surrounding the
DAP. Meanwhile, Belgica stresses that the DAP, by allowing the legislators to
identify PAPs, authorized them to take part in the implementation and
execution of the GAAs, a function that exclusively belonged to the Executive;
that such situation constituted undue and unjustified legislative encroachment
in the functions of the Executive; and that the President arrogated unto himself
the power of appropriation vested in Congress because NBC No. 541
authorized the use of the funds under the DAP for PAPs not considered in the
2012 budget.
Finally, the petitioners insist that the DAP was repugnant to the principle of
public accountability enshrined in the Constitution, 204 because the legislators
relinquished the power of appropriation to the Executive, and exhibited a
reluctance to inquire into the legality of the DAP.
The OSG counters the challenges, stating that the supposed discrimination in
the release of funds under the DAP could be raised only by the affected
Members of Congress themselves, and if the challenge based on the violation
of the Equal Protection Clause was really against the constitutionality of the

DAP, the arguments of the petitioners should be directed to the entitlement of


the legislators to the funds, not to the proposition that all of the legislators
should have been given such entitlement.
The challenge based on the contravention of the Equal Protection Clause,
which focuses on the release of funds under the DAP to legislators, lacks
factual and legal basis. The allegations about Senators and Congressmen
being unaware of the existence and implementation of the DAP, and about
some of them having refused to accept such funds were unsupported with
relevant data. Also, the claim that the Executive discriminated against some
legislators on the ground alone of their receiving less than the others could not
of itself warrant a finding of contravention of the Equal Protection Clause. The
denial of equal protection of any law should be an issue to be raised only by
parties who supposedly suffer it, and, in these cases, such parties would be the
few legislators claimed to have been discriminated against in the releases of
funds under the DAP. The reason for the requirement is that only such affected
legislators could properly and fully bring to the fore when and how the denial
of equal protection occurred, and explain why there was a denial in their
situation. The requirement was not met here. Consequently, the Court was not
put in the position to determine if there was a denial of equal protection. To
have the Court do so despite the inadequacy of the showing of factual and
legal support would be to compel it to speculate, and the outcome would not
do justice to those for whose supposed benefit the claim of denial of equal
protection has been made.
The argument that the release of funds under the DAP effectively stayed the
hands of the legislators from conducting congressional inquiries into the
legality and propriety of the DAP is speculative. That deficiency eliminated any
need to consider and resolve the argument, for it is fundamental that
speculation would not support any proper judicial determination of an issue
simply because nothing concrete can thereby be gained. In order to sustain
their constitutional challenges against official acts of the Government, the
petitioners must discharge the basic burden of proving that the constitutional
infirmities actually existed. 205 Simply put, guesswork and speculation cannot
overcome the presumption of the constitutionality of the assailed executive
act.
We do not need to discuss whether or not the DAP and its implementation
through the various circulars and memoranda of the DBM transgressed the
system of checks and balances in place in our constitutional system. Our
earlier expositions on the DAP and its implementing issuances infringing the
doctrine of separation of powers effectively addressed this particular concern.
Anent the principle of public accountability being transgressed because the
adoption and implementation of the DAP constituted an assumption by the
Executive of Congress power of appropriation, we have already held that the
DAP and its implementing issuances were policies and acts that the Executive
could properly adopt and do in the execution of the GAAs to the extent that
they sought to implement strategies to ramp up or accelerate the economy of
the country.

6.
Doctrine of operative fact was applicable
After declaring the DAP and its implementing issuances constitutionally infirm,
we must now deal with the consequences of the declaration.
Article 7 of the Civil Code provides:
Article 7. Laws are repealed only by subsequent ones, and their violation or
non-observance shall not be excused by disuse, or custom or practice to the
contrary.
When the courts declared a law to be inconsistent with the Constitution, the
former shall be void and the latter shall govern.
Administrative or executive acts, orders and regulations shall be valid only
when they are not contrary to the laws or the Constitution.
A legislative or executive act that is declared void for being unconstitutional
cannot give rise to any right or obligation. 206 However, the generality of the
rule makes us ponder whether rigidly applying the rule may at times be
impracticable or wasteful. Should we not recognize the need to except from
the rigid application of the rule the instances in which the void law or
executive act produced an almost irreversible result?
The need is answered by the doctrine of operative fact. The doctrine, definitely
not a novel one, has been exhaustively explained in De Agbayani v. Philippine
National Bank:207
The decision now on appeal reflects the orthodox view that an unconstitutional
act, for that matter an executive order or a municipal ordinance likewise
suffering from that infirmity, cannot be the source of any legal rights or duties.
Nor can it justify any official act taken under it. Its repugnancy to the
fundamental law once judicially declared results in its being to all intents and
purposes a mere scrap of paper. As the new Civil Code puts it: When the
courts declare a law to be inconsistent with the Constitution, the former shall
be void and the latter shall govern. Administrative or executive acts, orders
and regulations shall be valid only when they are not contrary to the laws of
the Constitution. It is understandable why it should be so, the Constitution
being supreme and paramount. Any legislative or executive act contrary to its
terms cannot survive.
Such a view has support in logic and possesses the merit of simplicity. It may
not however be sufficiently realistic. It does not admit of doubt that prior to the
declaration of nullity such challenged legislative or executive act must have
been in force and had to be complied with. This is so as until after the
judiciary, in an appropriate case, declares its invalidity, it is entitled to
obedience and respect. Parties may have acted under it and may have
changed their positions. What could be more fitting than that in a subsequent
litigation regard be had to what has been done while such legislative or

executive act was in operation and presumed to be valid in all respects. It is


now accepted as a doctrine that prior to its being nullified, its existence as a
fact must be reckoned with. This is merely to reflect awareness that precisely
because the judiciary is the governmental organ which has the final say on
whether or not a legislative or executive measure is valid, a period of time may
have elapsed before it can exercise the power of judicial review that may lead
to a declaration of nullity. It would be to deprive the law of its quality of
fairness and justice then, if there be no recognition of what had transpired
prior to such adjudication.
In the language of an American Supreme Court decision: The actual existence
of a statute, prior to such a determination [of unconstitutionality], is an
operative fact and may have consequences which cannot justly be ignored.
The past cannot always be erased by a new judicial declaration. The effect of
the subsequent ruling as to invalidity may have to be considered in various
aspects, with respect to particular relations, individual and corporate, and
particular conduct, private and official."
The doctrine of operative fact recognizes the existence of the law or executive
act prior to the determination of its unconstitutionality as an operative fact
that produced consequences that cannot always be erased, ignored or
disregarded. In short, it nullifies the void law or executive act but sustains its
effects. It provides an exception to the general rule that a void or
unconstitutional law produces no effect. 208 But its use must be subjected to
great scrutiny and circumspection, and it cannot be invoked to validate an
unconstitutional law or executive act, but is resorted to only as a matter of
equity and fair play. 209 It applies only to cases where extraordinary
circumstances exist, and only when the extraordinary circumstances have met
the stringent conditions that will permit its application.
We find the doctrine of operative fact applicable to the adoption and
implementation of the DAP. Its application to the DAP proceeds from equity and
fair play. The consequences resulting from the DAP and its related issuances
could not be ignored or could no longer be undone.
To be clear, the doctrine of operative fact extends to a void or unconstitutional
executive act. The term executive act is broad enough to include any and all
acts of the Executive, including those that are quasi legislative and quasijudicial in nature. The Court held so in Hacienda Luisita, Inc. v. Presidential
Agrarian Reform Council:210
Nonetheless, the minority is of the persistent view that the applicability of the
operative fact doctrine should be limited to statutes and rules and regulations
issued by the executive department that are accorded the same status as that
of a statute or those which are quasi-legislative in nature. Thus, the minority
concludes that the phrase executive act used in the case of De Agbayani v.
Philippine National Bank refers only to acts, orders, and rules and regulations
that have the force and effect of law. The minority also made mention of the
Concurring Opinion of Justice Enrique Fernando in Municipality of Malabang v.
Benito, where it was supposedly made explicit that the operative fact doctrine
applies to executive acts, which are ultimately quasi-legislative in nature.

We disagree. For one, neither the De Agbayani case nor the Municipality of
Malabang case elaborates what executive act mean. Moreover, while orders,
rules and regulations issued by the President or the executive branch have
fixed definitions and meaning in the Administrative Code and jurisprudence,
the phrase executive act does not have such specific definition under existing
laws. It should be noted that in the cases cited by the minority, nowhere can it
be found that the term executive act is confined to the foregoing. Contrarily,
the term executive act is broad enough to encompass decisions of
administrative bodies and agencies under the executive department which are
subsequently revoked by the agency in question or nullified by the Court.
A case in point is the concurrent appointment of Magdangal B. Elma (Elma) as
Chairman of the Presidential Commission on Good Government (PCGG) and as
Chief Presidential Legal Counsel (CPLC) which was declared unconstitutional by
this Court in Public Interest Center, Inc. v. Elma. In said case, this Court ruled
that the concurrent appointment of Elma to these offices is in violation of
Section 7, par. 2, Article IX-B of the 1987 Constitution, since these are
incompatible offices. Notably, the appointment of Elma as Chairman of the
PCGG and as CPLC is, without a question, an executive act. Prior to the
declaration of unconstitutionality of the said executive act, certain acts or
transactions were made in good faith and in reliance of the appointment of
Elma which cannot just be set aside or invalidated by its subsequent
invalidation.
In Tan v. Barrios, this Court, in applying the operative fact doctrine, held that
despite the invalidity of the jurisdiction of the military courts over civilians,
certain operative facts must be acknowledged to have existed so as not to
trample upon the rights of the accused therein. Relevant thereto, in Olaguer v.
Military Commission No. 34, it was ruled that military tribunals pertain to the
Executive Department of the Government and are simply instrumentalities of
the executive power, provided by the legislature for the President as
Commander-in-Chief to aid him in properly commanding the army and navy
and enforcing discipline therein, and utilized under his orders or those of his
authorized military representatives.
Evidently, the operative fact doctrine is not confined to statutes and rules and
regulations issued by the executive department that are accorded the same
status as that of a statute or those which are quasi-legislative in nature.
Even assuming that De Agbayani initially applied the operative fact doctrine
only to executive issuances like orders and rules and regulations, said principle
can nonetheless be applied, by analogy, to decisions made by the President or
the agencies under the executive department. This doctrine, in the interest of
justice and equity, can be applied liberally and in a broad sense to encompass
said decisions of the executive branch. In keeping with the demands of equity,
the Court can apply the operative fact doctrine to acts and consequences that
resulted from the reliance not only on a law or executive act which is quasilegislative in nature but also on decisions or orders of the executive branch
which were later nullified. This Court is not unmindful that such acts and
consequences must be recognized in the higher interest of justice, equity and
fairness.

Significantly, a decision made by the President or the administrative agencies


has to be complied with because it has the force and effect of law, springing
from the powers of the President under the Constitution and existing laws.
Prior to the nullification or recall of said decision, it may have produced acts
and consequences in conformity to and in reliance of said decision, which must
be respected. It is on this score that the operative fact doctrine should be
applied to acts and consequences that resulted from the implementation of the
PARC Resolution approving the SDP of HLI. (Bold underscoring supplied for
emphasis)
In Commissioner of Internal Revenue v. San Roque Power Corporation, 211 the
Court likewise declared that "for the operative fact doctrine to apply, there
must be a legislative or executive measure, meaning a law or executive
issuance." Thus, the Court opined there that the operative fact doctrine did not
apply to a mere administrative practice of the Bureau of Internal Revenue, viz:
Under Section 246, taxpayers may rely upon a rule or ruling issued by the
Commissioner from the time the rule or ruling is issued up to its reversal by
the Commissioner or this Court. The reversal is not given retroactive effect.
This, in essence, is the doctrine of operative fact. There must, however, be a
rule or ruling issued by the Commissioner that is relied upon by the taxpayer in
good faith. A mere administrative practice, not formalized into a rule or ruling,
will not suffice because such a mere administrative practice may not be
uniformly and consistently applied. An administrative practice, if not
formalized as a rule or ruling, will not be known to the general public and can
be availed of only by those with informal contacts with the government
agency.
It is clear from the foregoing that the adoption and the implementation of the
DAP and its related issuances were executive acts.1avvphi1 The DAP itself, as
a policy, transcended a merely administrative practice especially after the
Executive, through the DBM, implemented it by issuing various memoranda
and circulars. The pooling of savings pursuant to the DAP from the allotments
made available to the different agencies and departments was consistently
applied throughout the entire Executive. With the Executive, through the DBM,
being in charge of the third phase of the budget cycle the budget execution
phase, the President could legitimately adopt a policy like the DAP by virtue of
his primary responsibility as the Chief Executive of directing the national
economy towards growth and development. This is simply because savings
could and should be determined only during the budget execution phase.
As already mentioned, the implementation of the DAP resulted into the use of
savings pooled by the Executive to finance the PAPs that were not covered in
the GAA, or that did not have proper appropriation covers, as well as to
augment items pertaining to other departments of the Government in clear
violation of the Constitution. To declare the implementation of the DAP
unconstitutional without recognizing that its prior implementation constituted
an operative fact that produced consequences in the real as well as juristic
worlds of the Government and the Nation is to be impractical and unfair.
Unless the doctrine is held to apply, the Executive as the disburser and the
offices under it and elsewhere as the recipients could be required to undo
everything that they had implemented in good faith under the DAP. That

scenario would be enormously burdensome for the Government. Equity


alleviates such burden.

SO ORDERED.

The other side of the coin is that it has been adequately shown as to be
beyond debate that the implementation of the DAP yielded undeniably positive
results that enhanced the economic welfare of the country. To count the
positive results may be impossible, but the visible ones, like public
infrastructure, could easily include roads, bridges, homes for the homeless,
hospitals, classrooms and the like. Not to apply the doctrine of operative fact
to the DAP could literally cause the physical undoing of such worthy results by
destruction, and would result in most undesirable wastefulness.
Nonetheless, as Justice Brion has pointed out during the deliberations, the
doctrine of operative fact does not always apply, and is not always the
consequence of every declaration of constitutional invalidity. It can be invoked
only in situations where the nullification of the effects of what used to be a
valid law would result in inequity and injustice; 212but where no such result
would ensue, the general rule that an unconstitutional law is totally ineffective
should apply.
In that context, as Justice Brion has clarified, the doctrine of operative fact can
apply only to the PAPs that can no longer be undone, and whose beneficiaries
relied in good faith on the validity of the DAP, but cannot apply to the authors,
proponents and implementors of the DAP, unless there are concrete findings of
good faith in their favor by the proper tribunals determining their criminal,
civil, administrative and other liabilities.
WHEREFORE, the Court PARTIALLY GRANTS the petitions for certiorari and
prohibition; and DECLARES the following acts and practices under the
Disbursement Acceleration Program, National Budget Circular No. 541 and
related executive issuances UNCONSTITUTIONAL for being in violation of
Section 25(5), Article VI of the 1987 Constitution and the doctrine of separation
of powers, namely:
(a) The withdrawal of unobligated allotments from the implementing
agencies, and the declaration of the withdrawn unobligated allotments
and unreleased appropriations as savings prior to the end of the fiscal
year and without complying with the statutory definition of savings
contained in the General Appropriations Acts;
(b) The cross-border transfers of the savings of the Executive to
augment the appropriations of other offices outside the Executive; and
(c) The funding of projects, activities and programs that were not
covered by any appropriation in the General Appropriations Act.
The Court further DECLARES VOID the use of unprogrammed funds despite the
absence of a certification by the National Treasurer that the revenue
collections exceeded the revenue targets for non-compliance with the
conditions provided in the relevant General Appropriations Acts.

G.R. No. 208566

November 19, 2013

GRECO ANTONIOUS BEDA B. BELGICA JOSE M. VILLEGAS JR. JOSE L.


GONZALEZ REUBEN M. ABANTE and QUINTIN PAREDES SAN
DIEGO, Petitioners,
vs.
HONORABLE EXECUTIVE SECRETARY PAQUITO N. OCHOA JR.
SECRETARY OF BUDGET AND MANAGEMENT FLORENCIO B. ABAD,
NATIONAL TREASURER ROSALIA V. DE LEON SENATE OF THE
PHILIPPINES represented by FRANKLIN M. DRILON m his capacity as
SENATE PRESIDENT and HOUSE OF REPRESENTATIVES represented by
FELICIANO S. BELMONTE, JR. in his capacity as SPEAKER OF THE
HOUSE, Respondents.
PERLAS-BERNABE, J.:
"Experience is the oracle of truth." 1
-James Madison
Before the Court are consolidated petitions2 taken under Rule 65 of the Rules
of Court, all of which assail the constitutionality of the Pork Barrel System. Due
to the complexity of the subject matter, the Court shall heretofore discuss the
systems conceptual underpinnings before detailing the particulars of the
constitutional challenge.
The Facts

I. Pork Barrel: General Concept.


"Pork
Barrel"
is
political
parlance
of
American
-English
origin.3 Historically, its usage may be traced to the degrading ritual of
rolling out a barrel stuffed with pork to a multitude of black slaves who
would cast their famished bodies into the porcine feast to assuage
their hunger with morsels coming from the generosity of their well-fed
master.4 This practice was later compared to the actions of American
legislators in trying to direct federal budgets in favor of their
districts.5 While the advent of refrigeration has made the actual pork
barrel obsolete, it persists in reference to political bills that "bring
home the bacon" to a legislators district and constituents. 6 In a more
technical sense, "Pork Barrel" refers to an appropriation of government
spending meant for localized projects and secured solely or primarily
to bring money to a representative's district. 7Some scholars on the
subject further use it to refer to legislative control of local
appropriations.8
In the Philippines, "Pork Barrel" has been commonly referred to as
lump-sum,
discretionary
funds
of
Members
of
the
Legislature,9 although, as will be later discussed, its usage would
evolve in reference to certain funds of the Executive.
II. History of Congressional Pork Barrel in the Philippines.
A. Pre-Martial Law Era (1922-1972).
Act 3044,10 or the Public Works Act of 1922, is considered 11 as
the earliest form of "Congressional Pork Barrel" in the
Philippines since the utilization of the funds appropriated
therein were subjected to post-enactment legislator approval.
Particularly, in the area of fund release, Section 3 12 provides
that the sums appropriated for certain public works
projects13 "shall be distributed x x x subject to the approval of
a joint committee elected by the Senate and the House of
Representatives. "The committee from each House may also
authorize one of its members to approve the distribution
made
by
the
Secretary
of
Commerce
and
Communications."14 Also, in the area of fund realignment, the
same section provides that the said secretary, "with the
approval of said joint committee, or of the authorized
members thereof, may, for the purposes of said distribution,
transfer unexpended portions of any item of appropriation
under this Act to any other item hereunder."
In 1950, it has been documented15 that post-enactment
legislator participation broadened from the areas of fund
release and realignment to the area of project identification.
During that year, the mechanics of the public works act was
modified to the extent that the discretion of choosing projects
was transferred from the Secretary of Commerce and
Communications to legislators. "For the first time, the law

carried a list of projects selected by Members of Congress,


they being the representatives of the people, either on their
own account or by consultation with local officials or civil
leaders."16 During this period, the pork barrel process
commenced with local government councils, civil groups, and
individuals appealing to Congressmen or Senators for
projects. Petitions that were accommodated formed part of a
legislators allocation, and the amount each legislator would
eventually get is determined in a caucus convened by the
majority. The amount was then integrated into the
administration bill prepared by the Department of Public
Works and Communications. Thereafter, the Senate and the
House of Representatives added their own provisions to the
bill until it was signed into law by the President the Public
Works Act.17 In the 1960s, however, pork barrel legislation
reportedly ceased in view of the stalemate between the
House of Representatives and the Senate.18
B. Martial Law Era (1972-1986).
While the previous" Congressional Pork Barrel" was apparently
discontinued in 1972 after Martial Law was declared, an era
when "one man controlled the legislature," 19 the reprieve was
only temporary. By 1982, the Batasang Pambansa had already
introduced a new item in the General Appropriations Act
(GAA) called the" Support for Local Development Projects"
(SLDP) under the article on "National Aid to Local Government
Units". Based on reports,20 it was under the SLDP that the
practice of giving lump-sum allocations to individual
legislators
began,
with
each
assemblyman
receiving P500,000.00. Thereafter, assemblymen would
communicate their project preferences to the Ministry of
Budget and Management for approval. Then, the said ministry
would release the allocation papers to the Ministry of Local
Governments, which would, in turn, issue the checks to the
city or municipal treasurers in the assemblymans locality. It
has been further reported that "Congressional Pork Barrel"
projects under the SLDP also began to cover not only public
works projects, or so- called "hard projects", but also "soft
projects",21 or non-public works projects such as those which
would fall under the categories of, among others, education,
health and livelihood.22
C. Post-Martial Law Era:
Corazon Cojuangco Aquino Administration (1986-1992).
After the EDSA People Power Revolution in 1986 and the restoration of
Philippine democracy, "Congressional Pork Barrel" was revived in the
form of the "Mindanao Development Fund" and the "Visayas
Development Fund" which were created with lump-sum appropriations
of P480 Million and P240 Million, respectively, for the funding of

development projects in the Mindanao and Visayas areas in 1989. It


has been documented23 that the clamor raised by the Senators and
the Luzon legislators for a similar funding, prompted the creation of
the "Countrywide Development Fund" (CDF) which was integrated into
the 1990 GAA24 with an initial funding ofP2.3 Billion to cover "small
local infrastructure and other priority community projects."
Under the GAAs for the years 1991 and 1992, 25 CDF funds were, with
the approval of the President, to be released directly to the
implementing agencies but "subject to the submission of the required
list of projects and activities."Although the GAAs from 1990 to 1992
were silent as to the amounts of allocations of the individual
legislators, as well as their participation in the identification of
projects, it has been reported 26 that by 1992, Representatives were
receivingP12.5 Million each in CDF funds, while Senators were
receiving P18 Million each, without any limitation or qualification, and
that they could identify any kind of project, from hard or infrastructure
projects such as roads, bridges, and buildings to "soft projects" such
as textbooks, medicines, and scholarships.27
D. Fidel Valdez Ramos (Ramos) Administration (1992-1998).
The following year, or in 1993, 28 the GAA explicitly stated that the
release of CDF funds was to be made upon the submission of the list
of projects and activities identified by, among others, individual
legislators. For the first time, the 1993 CDF Article included an
allocation for the Vice-President. 29 As such, Representatives were
allocated P12.5 Million each in CDF funds, Senators, P18 Million each,
and the Vice-President, P20 Million.
In 1994,30 1995,31 and 1996,32 the GAAs contained the same provisions
on project identification and fund release as found in the 1993 CDF
Article. In addition, however, the Department of Budget and
Management (DBM) was directed to submit reports to the Senate
Committee on Finance and the House Committee on Appropriations on
the releases made from the funds.33
Under the 199734 CDF Article, Members of Congress and the VicePresident, in consultation with the implementing agency concerned,
were directed to submit to the DBM the list of 50% of projects to be
funded from their respective CDF allocations which shall be duly
endorsed by (a) the Senate President and the Chairman of the
Committee on Finance, in the case of the Senate, and (b) the Speaker
of the House of Representatives and the Chairman of the Committee
on Appropriations, in the case of the House of Representatives; while
the list for the remaining 50% was to be submitted within six (6)
months thereafter. The same article also stated that the project list,
which would be published by the DBM, 35 "shall be the basis for the
release of funds" and that "no funds appropriated herein shall be
disbursed for projects not included in the list herein required."

The following year, or in 1998, 36 the foregoing provisions regarding the


required lists and endorsements were reproduced, except that the
publication of the project list was no longer required as the list itself
sufficed for the release of CDF Funds.
The CDF was not, however, the lone form of "Congressional Pork
Barrel" at that time. Other forms of "Congressional Pork Barrel" were
reportedly fashioned and inserted into the GAA (called "Congressional
Insertions" or "CIs") in order to perpetuate the ad ministrations
political agenda.37 It has been articulated that since CIs "formed part
and parcel of the budgets of executive departments, they were not
easily identifiable and were thus harder to monitor." Nonetheless, the
lawmakers themselves as well as the finance and budget officials of
the implementing agencies, as well as the DBM, purportedly knew
about the insertions.38 Examples of these CIs are the Department of
Education (DepEd) School Building Fund, the Congressional Initiative
Allocations, the Public Works Fund, the El Nio Fund, and the Poverty
Alleviation Fund.39 The allocations for the School Building Fund,
particularly, shall be made upon prior consultation with the
representative of the legislative district concerned. 40 Similarly, the
legislators had the power to direct how, where and when these
appropriations were to be spent.41
E. Joseph Ejercito Estrada (Estrada) Administration (1998-2001).
In 1999,42 the CDF was removed in the GAA and replaced by three (3)
separate forms of CIs, namely, the "Food Security Program
Fund,"43 the "Lingap Para Sa Mahihirap Program Fund," 44and the
"Rural/Urban Development Infrastructure Program Fund," 45 all of which
contained a special provision requiring "prior consultation" with the
Member s of Congress for the release of the funds.
It was in the year 200046 that the "Priority Development Assistance
Fund" (PDAF) appeared in the GAA. The requirement of "prior
consultation with the respective Representative of the District" before
PDAF funds were directly released to the implementing agency
concerned was explicitly stated in the 2000 PDAF Article. Moreover,
realignment of funds to any expense category was expressly allowed,
with the sole condition that no amount shall be used to fund personal
services and other personnel benefits. 47 The succeeding PDAF
provisions remained the same in view of the re-enactment 48 of the
2000 GAA for the year 2001.
F. Gloria Macapagal-Arroyo (Arroyo) Administration (2001-2010).
The 200249 PDAF Article was brief and straightforward as it merely
contained a single special provision ordering the release of the funds
directly to the implementing agency or local government unit
concerned, without further qualifications. The following year,
2003,50 the same single provision was present, with simply an
expansion of purpose and express authority to realign. Nevertheless,
the provisions in the 2003 budgets of the Department of Public Works

and Highways51 (DPWH) and the DepEd52 required prior consultation


with Members of Congress on the aspects of implementation
delegation and project list submission, respectively. In 2004, the 2003
GAA was re-enacted.53
In 2005,54 the PDAF Article provided that the PDAF shall be used "to
fund priority programs and projects under the ten point agenda of the
national government and shall be released directly to the
implementing agencies." It also introduced the program menu
concept,55 which is essentially a list of general programs and
implementing agencies from which a particular PDAF project may be
subsequently chosen by the identifying authority. The 2005 GAA was
re-enacted56 in 2006 and hence, operated on the same bases. In
similar regard, the program menu concept was consistently integrated
into the 2007,57 2008,58 2009,59 and 201060 GAAs.
Textually, the PDAF Articles from 2002 to 2010 were silent with respect
to the specific amounts allocated for the individual legislators, as well
as their participation in the proposal and identification of PDAF
projects to be funded. In contrast to the PDAF Articles, however, the
provisions under the DepEd School Building Program and the DPWH
budget, similar to its predecessors, explicitly required prior
consultation with the concerned Member of Congress 61anent certain
aspects of project implementation.
Significantly, it was during this era that provisions which allowed
formal participation of non-governmental organizations (NGO) in the
implementation of government projects were introduced. In the
Supplemental Budget for 2006, with respect to the appropriation for
school buildings, NGOs were, by law, encouraged to participate. For
such purpose, the law stated that "the amount of at least P250 Million
of the P500 Million allotted for the construction and completion of
school buildings shall be made available to NGOs including the
Federation of Filipino-Chinese Chambers of Commerce and Industry,
Inc. for its "Operation Barrio School" program, with capability and
proven track records in the construction of public school buildings x x
x."62 The same allocation was made available to NGOs in the 2007 and
2009 GAAs under the DepEd Budget. 63 Also, it was in 2007 that the
Government Procurement Policy Board 64 (GPPB) issued Resolution No.
12-2007 dated June 29, 2007 (GPPB Resolution 12-2007), amending
the implementing rules and regulations65 of RA 9184,66 the
Government Procurement Reform Act, to include, as a form of
negotiated procurement,67 the procedure whereby the Procuring
Entity68(the implementing agency) may enter into a memorandum of
agreement with an NGO, provided that "an appropriation law or
ordinance earmarks an amount to be specifically contracted out to
NGOs."69

amounts allocated for individual legislators and the Vice-President:


Representatives were given P70 Million each, broken down into P40
Million for "hard projects" and P30 Million for "soft projects";
while P200 Million was given to each Senator as well as the VicePresident, with a P100 Million allocation each for "hard" and "soft
projects." Likewise, a provision on realignment of funds was included,
but with the qualification that it may be allowed only once. The same
provision also allowed the Secretaries of Education, Health, Social
Welfare and Development, Interior and Local Government,
Environment and Natural Resources, Energy, and Public Works and
Highways to realign PDAF Funds, with the further conditions that: (a)
realignment is within the same implementing unit and same project
category as the original project, for infrastructure projects; (b)
allotment released has not yet been obligated for the original scope of
work, and (c) the request for realignment is with the concurrence of
the legislator concerned.71
In the 201272 and 201373 PDAF Articles, it is
"identification of projects and/or designation of
conform to the priority list, standard or design
implementing agency (priority list requirement) x
practiced, it would still be the individual legislator
and identify the project from the said priority list. 74

stated that the


beneficiaries shall
prepared by each
x x." However, as
who would choose

Provisions on legislator allocations75 as well as fund realignment76 were


included in the 2012 and 2013 PDAF Articles; but the allocation for the
Vice-President, which was pegged at P200 Million in the 2011 GAA,
had been deleted. In addition, the 2013 PDAF Article now allowed
LGUs to be identified as implementing agencies if they have the
technical capability to implement the projects. 77 Legislators were also
allowed to identify programs/projects, except for assistance to
indigent patients and scholarships, outside of his legislative district
provided that he secures the written concurrence of the legislator of
the intended outside-district, endorsed by the Speaker of the
House.78 Finally, any realignment of PDAF funds, modification and
revision of project identification, as well as requests for release of
funds, were all required to be favorably endorsed by the House
Committee on Appropriations and the Senate Committee on Finance,
as the case may be.79
III. History of Presidential Pork Barrel in the Philippines.
While the term "Pork Barrel" has been typically associated with lumpsum, discretionary funds of Members of Congress, the present cases
and the recent controversies on the matter have, however, shown that
the terms usage has expanded to include certain funds of the
President such as the Malampaya Funds and the Presidential Social
Fund.

G. Present Administration (2010-Present).


Differing from previous PDAF Articles but similar to the CDF Articles,
the 201170 PDAF Article included an express statement on lump-sum

On the one hand, the Malampaya Funds was created as a special fund
under Section 880 of Presidential Decree No. (PD) 910,81 issued by then
President Ferdinand E. Marcos (Marcos) on March 22, 1976. In enacting

the said law, Marcos recognized the need to set up a special fund to
help intensify, strengthen, and consolidate government efforts relating
to the exploration, exploitation, and development of indigenous
energy resources vital to economic growth. 82 Due to the energyrelated activities of the government in the Malampaya natural gas
field in Palawan, or the "Malampaya Deep Water Gas-to-Power
Project",83 the special fund created under PD 910 has been currently
labeled as Malampaya Funds.
On the other hand the Presidential Social Fund was created under
Section 12, Title IV84 of PD 1869,85 or the Charter of the Philippine
Amusement and Gaming Corporation (PAGCOR). PD 1869 was similarly
issued by Marcos on July 11, 1983. More than two (2) years after, he
amended PD 1869 and accordingly issued PD 1993 on October 31,
1985,86 amending Section 1287 of the former law. As it stands, the
Presidential Social Fund has been described as a special funding
facility managed and administered by the Presidential Management
Staff through which the President provides direct assistance to priority
programs and projects not funded under the regular budget. It is
sourced from the share of the government in the aggregate gross
earnings of PAGCOR.88
IV. Controversies in the Philippines.
Over the decades, "pork" funds in the Philippines have increased
tremendously,89 owing in no small part to previous Presidents who
reportedly used the "Pork Barrel" in order to gain congressional
support.90 It was in 1996 when the first controversy surrounding the
"Pork Barrel" erupted. Former Marikina City Representative Romeo
Candazo (Candazo), then an anonymous source, "blew the lid on the
huge sums of government money that regularly went into the pockets
of legislators in the form of kickbacks." 91 He said that "the kickbacks
were SOP (standard operating procedure) among legislators and
ranged from a low 19 percent to a high 52 percent of the cost of each
project, which could be anything from dredging, rip rapping, sphalting,
concreting, and construction of school buildings." 92 "Other sources of
kickbacks that Candazo identified were public funds intended for
medicines and textbooks. A few days later, the tale of the money trail
became the banner story of the Philippine Daily Inquirer issue of
August 13, 1996, accompanied by an illustration of a roasted
pig."93 "The publication of the stories, including those about
congressional
initiative
allocations
of
certain
lawmakers,
including P3.6 Billion for a Congressman, sparked public outrage." 94
Thereafter, or in 2004, several concerned citizens sought the
nullification of the PDAF as enacted in the 2004 GAA for being
unconstitutional. Unfortunately, for lack of "any pertinent evidentiary
support that illegal misuse of PDAF in the form of kickbacks has
become a common exercise of unscrupulous Members of Congress,"
the petition was dismissed.95

Recently, or in July of the present year, the National Bureau of


Investigation (NBI) began its probe into allegations that "the
government has been defrauded of some P10 Billion over the past 10
years by a syndicate using funds from the pork barrel of lawmakers
and various government agencies for scores of ghost projects." 96 The
investigation was spawned by sworn affidavits of six (6) whistleblowers who declared that JLN Corporation "JLN" standing for Janet
Lim Napoles (Napoles) had swindled billions of pesos from the public
coffers for "ghost projects" using no fewer than 20 dummy NGOs for
an entire decade. While the NGOs were supposedly the ultimate
recipients of PDAF funds, the whistle-blowers declared that the money
was diverted into Napoles private accounts. 97 Thus, after its
investigation on the Napoles controversy, criminal complaints were
filed before the Office of the Ombudsman, charging five (5) lawmakers
for Plunder, and three (3) other lawmakers for Malversation, Direct
Bribery, and Violation of the Anti-Graft and Corrupt Practices Act. Also
recommended to be charged in the complaints are some of the
lawmakers chiefs -of-staff or representatives, the heads and other
officials of three (3) implementing agencies, and the several
presidents of the NGOs set up by Napoles. 98
On August 16, 2013, the Commission on Audit (CoA) released the
results of a three-year audit investigation99covering the use of
legislators' PDAF from 2007 to 2009, or during the last three (3) years
of the Arroyo administration. The purpose of the audit was to
determine the propriety of releases of funds under PDAF and the
Various Infrastructures including Local Projects (VILP) 100 by the DBM,
the application of these funds and the implementation of projects by
the appropriate implementing agencies and several governmentowned-and-controlled corporations (GOCCs). 101 The total releases
covered by the audit amounted to P8.374 Billion in PDAF and P32.664
Billion in VILP, representing 58% and 32%, respectively, of the total
PDAF and VILP releases that were found to have been made
nationwide during the audit period. 102 Accordingly, the Co As findings
contained in its Report No. 2012-03 (CoA Report), entitled "Priority
Development Assistance Fund (PDAF) and Various Infrastructures
including Local Projects (VILP)," were made public, the highlights of
which are as follows:103

Amounts released for projects identified by a


considerable number of legislators significantly
exceeded their respective allocations.
Amounts were released for projects outside of
legislative districts of sponsoring members of the
Lower House.
Total VILP releases for the period exceeded the
total amount appropriated under the 2007 to 2009
GAAs.
Infrastructure projects were constructed on private
lots without these having been turned over to the
government.
Significant amounts were released to implementing
agencies without the latters endorsement and

without considering their mandated functions,


administrative
and
technical
capabilities
to
implement projects.
Implementation of most livelihood projects was not
undertaken
by
the
implementing
agencies
themselves but by NGOs endorsed by the proponent
legislators to which the Funds were transferred.
The funds were transferred to the NGOs in spite of
the absence of any appropriation law or ordinance.
Selection of the NGOs were not compliant with law
and regulations.

Eighty-Two
(82)
NGOs
entrusted
with
implementation of seven hundred seventy two (772)
projects amount to P6.156 Billion were either found
questionable, or submitted questionable/spurious
documents, or failed to liquidate in whole or in part
their utilization of the Funds.
Procurement by the NGOs, as well as some
implementing agencies, of goods and services
reportedly used in the projects were not compliant
with law.

As for the "Presidential Pork Barrel", whistle-blowers alleged that" at


least P900 Million from royalties in the operation of the Malampaya
gas project off Palawan province intended for agrarian reform
beneficiaries has gone into a dummy NGO." 104 According to incumbent
CoA Chairperson Maria Gracia Pulido Tan (CoA Chairperson), the CoA
is, as of this writing, in the process of preparing "one consolidated
report" on the Malampaya Funds.105
V. The Procedural Antecedents.
Spurred in large part by the findings contained in the CoA Report and
the Napoles controversy, several petitions were lodged before the
Court similarly seeking that the "Pork Barrel System" be declared
unconstitutional. To recount, the relevant procedural antecedents in
these cases are as follows:
On August 28, 2013, petitioner Samson S. Alcantara (Alcantara), President of
the Social Justice Society, filed a Petition for Prohibition of even date under
Rule 65 of the Rules of Court (Alcantara Petition), seeking that the "Pork Barrel
System" be declared unconstitutional, and a writ of prohibition be issued
permanently restraining respondents Franklin M. Drilon and Feliciano S.
Belmonte, Jr., in their respective capacities as the incumbent Senate President
and Speaker of the House of Representatives, from further taking any steps to
enact legislation appropriating funds for the "Pork Barrel System," in whatever
form and by whatever name it may be called, and from approving further
releases pursuant thereto.106 The Alcantara Petition was docketed as G.R. No.
208493.

On September 3, 2013, petitioners Greco Antonious Beda B. Belgica, Jose L.


Gonzalez, Reuben M. Abante, Quintin Paredes San Diego (Belgica, et al.), and
Jose M. Villegas, Jr. (Villegas) filed an Urgent Petition For Certiorari and
Prohibition With Prayer For The Immediate Issuance of Temporary Restraining
Order (TRO) and/or Writ of Preliminary Injunction dated August 27, 2013 under
Rule 65 of the Rules of Court (Belgica Petition), seeking that the annual "Pork
Barrel System," presently embodied in the provisions of the GAA of 2013 which
provided for the 2013 PDAF, and the Executives lump-sum, discretionary
funds, such as the Malampaya Funds and the Presidential Social Fund, 107 be
declared unconstitutional and null and void for being acts constituting grave
abuse of discretion. Also, they pray that the Court issue a TRO against
respondents Paquito N. Ochoa, Jr., Florencio B. Abad (Secretary Abad) and
Rosalia V. De Leon, in their respective capacities as the incumbent Executive
Secretary, Secretary of the Department of Budget and Management (DBM),
and National Treasurer, or their agents, for them to immediately cease any
expenditure under the aforesaid funds. Further, they pray that the Court order
the foregoing respondents to release to the CoA and to the public: (a) "the
complete schedule/list of legislators who have availed of their PDAF and VILP
from the years 2003 to 2013, specifying the use of the funds, the project or
activity and the recipient entities or individuals, and all pertinent data thereto";
and (b) "the use of the Executives lump-sum, discretionary funds, including
the proceeds from the x x x Malampaya Funds and remittances from the
PAGCOR x x x from 2003 to 2013, specifying the x x x project or activity and
the recipient entities or individuals, and all pertinent data thereto." 108 Also,
they pray for the "inclusion in budgetary deliberations with the Congress of all
presently off-budget, lump-sum, discretionary funds including, but not limited
to, proceeds from the Malampaya Funds and remittances from the
PAGCOR."109 The Belgica Petition was docketed as G.R. No. 208566.110
Lastly, on September 5, 2013, petitioner Pedrito M. Nepomuceno
(Nepomuceno), filed a Petition dated August 23, 2012 (Nepomuceno Petition),
seeking that the PDAF be declared unconstitutional, and a cease and desist
order be issued restraining President Benigno Simeon S. Aquino III (President
Aquino) and Secretary Abad from releasing such funds to Members of Congress
and, instead, allow their release to fund priority projects identified and
approved by the Local Development Councils in consultation with the
executive departments, such as the DPWH, the Department of Tourism, the
Department of Health, the Department of Transportation, and Communication
and the National Economic Development Authority. 111 The Nepomuceno
Petition was docketed as UDK-14951.112
On September 10, 2013, the Court issued a Resolution of even date (a)
consolidating all cases; (b) requiring public respondents to comment on the
consolidated petitions; (c) issuing a TRO (September 10, 2013 TRO) enjoining
the DBM, National Treasurer, the Executive Secretary, or any of the persons
acting under their authority from releasing (1) the remaining PDAF allocated to
Members of Congress under the GAA of 2013, and (2) Malampaya Funds under
the phrase "for such other purposes as may be hereafter directed by the
President" pursuant to Section 8 of PD 910 but not for the purpose of
"financing energy resource development and exploitation programs and
projects of the government under the same provision; and (d) setting the
consolidated cases for Oral Arguments on October 8, 2013.

On September 23, 2013, the Office of the Solicitor General (OSG) filed a
Consolidated Comment (Comment) of even date before the Court, seeking the
lifting, or in the alternative, the partial lifting with respect to educational and
medical assistance purposes, of the Courts September 10, 2013 TRO, and that
the consolidated petitions be dismissed for lack of merit. 113

Whether or not the 2013 PDAF Article and all other Congressional Pork Barrel
Laws similar thereto are unconstitutional considering that they violate the
principles of/constitutional provisions on (a) separation of powers; (b) nondelegability of legislative power; (c) checks and balances; (d) accountability;
(e) political dynasties; and (f) local autonomy.

On September 24, 2013, the Court issued a Resolution of even date directing
petitioners to reply to the Comment.

III. Substantive Issues on the "Presidential Pork Barrel."

Petitioners, with the exception of Nepomuceno, filed their respective replies to


the Comment: (a) on September 30, 2013, Villegas filed a separate Reply
dated September 27, 2013 (Villegas Reply); (b) on October 1, 2013, Belgica, et
al. filed a Reply dated September 30, 2013 (Belgica Reply); and (c) on October
2, 2013, Alcantara filed a Reply dated October 1, 2013.
On October 1, 2013, the Court issued an Advisory providing for the guidelines
to be observed by the parties for the Oral Arguments scheduled on October 8,
2013. In view of the technicality of the issues material to the present cases,
incumbent Solicitor General Francis H. Jardeleza (Solicitor General) was
directed to bring with him during the Oral Arguments representative/s from the
DBM and Congress who would be able to competently and completely answer
questions related to, among others, the budgeting process and its
implementation. Further, the CoA Chairperson was appointed as amicus curiae
and thereby requested to appear before the Court during the Oral Arguments.
On October 8 and 10, 2013, the Oral Arguments were conducted. Thereafter,
the Court directed the parties to submit their respective memoranda within a
period of seven (7) days, or until October 17, 2013, which the parties
subsequently did.
The Issues Before the Court
Based on the pleadings, and as refined during the Oral Arguments, the
following are the main issues for the Courts resolution:
I. Procedural Issues.
Whether or not (a) the issues raised in the consolidated petitions involve an
actual and justiciable controversy; (b) the issues raised in the consolidated
petitions are matters of policy not subject to judicial review; (c) petitioners
have legal standing to sue; and (d) the Courts Decision dated August 19, 1994
in G.R. Nos. 113105, 113174, 113766, and 113888, entitled "Philippine
Constitution Association v. Enriquez"114 (Philconsa) and Decision dated April 24,
2012 in G.R. No. 164987, entitled "Lawyers Against Monopoly and Poverty v.
Secretary of Budget and Management" 115 (LAMP) bar the re-litigatio n of the
issue of constitutionality of the "Pork Barrel System" under the principles of res
judicata and stare decisis.
II. Substantive Issues on the "Congressional Pork Barrel."

Whether or not the phrases (a) "and for such other purposes as may be
hereafter directed by the President" under Section 8 of PD 910, 116 relating to
the Malampaya Funds, and (b) "to finance the priority infrastructure
development projects and to finance the restoration of damaged or destroyed
facilities due to calamities, as may be directed and authorized by the Office of
the President of the Philippines" under Section 12 of PD 1869, as amended by
PD 1993, relating to the Presidential Social Fund, are unconstitutional insofar
as they constitute undue delegations of legislative power.
These main issues shall be resolved in the order that they have been stated. In
addition, the Court shall also tackle certain ancillary issues as prompted by the
present cases.
The Courts Ruling
The petitions are partly granted.
I. Procedural Issues.
The prevailing rule in constitutional litigation is that no question involving the
constitutionality or validity of a law or governmental act may be heard and
decided by the Court unless there is compliance with the legal requisites for
judicial inquiry,117 namely: (a) there must be an actual case or controversy
calling for the exercise of judicial power; (b) the person challenging the act
must have the standing to question the validity of the subject act or issuance;
(c) the question of constitutionality must be raised at the earliest opportunity ;
and (d) the issue of constitutionality must be the very lis mota of the
case.118 Of these requisites, case law states that the first two are the most
important119and, therefore, shall be discussed forthwith.
A. Existence of an Actual Case or Controversy.
By constitutional fiat, judicial power operates only when there is an actual case
or controversy.120 This is embodied in Section 1, Article VIII of the 1987
Constitution which pertinently states that "judicial power includes the duty of
the courts of justice to settle actual controversies involving rights which are
legally demandable and enforceable x x x." Jurisprudence provides that an
actual case or controversy is one which "involves a conflict of legal rights, an
assertion of opposite legal claims, susceptible of judicial resolution as
distinguished from a hypothetical or abstract difference or dispute. 121 In other
words, "there must be a contrariety of legal rights that can be interpreted and
enforced on the basis of existing law and jurisprudence." 122 Related to the

requirement of an actual case or controversy is the requirement of "ripeness,"


meaning that the questions raised for constitutional scrutiny are already ripe
for adjudication. "A question is ripe for adjudication when the act being
challenged has had a direct adverse effect on the individual challenging it. It is
a prerequisite that something had then been accomplished or performed by
either branch before a court may come into the picture, and the petitioner
must allege the existence of an immediate or threatened injury to itself as a
result of the challenged action." 123 "Withal, courts will decline to pass upon
constitutional issues through advisory opinions, bereft as they are of authority
to resolve hypothetical or moot questions."124
Based on these principles, the Court finds that there exists an actual and
justiciable controversy in these cases.
The requirement of contrariety of legal rights is clearly satisfied by the
antagonistic positions of the parties on the constitutionality of the "Pork Barrel
System." Also, the questions in these consolidated cases are ripe for
adjudication since the challenged funds and the provisions allowing for their
utilization such as the 2013 GAA for the PDAF, PD 910 for the Malampaya
Funds and PD 1869, as amended by PD 1993, for the Presidential Social Fund
are currently existing and operational; hence, there exists an immediate or
threatened injury to petitioners as a result of the unconstitutional use of these
public funds.
As for the PDAF, the Court must dispel the notion that the issues related
thereto had been rendered moot and academic by the reforms undertaken by
respondents. A case becomes moot when there is no more actual controversy
between the parties or no useful purpose can be served in passing upon the
merits.125 Differing from this description, the Court observes that respondents
proposed line-item budgeting scheme would not terminate the controversy nor
diminish the useful purpose for its resolution since said reform is geared
towards the 2014 budget, and not the 2013 PDAF Article which, being a
distinct subject matter, remains legally effective and existing. Neither will the
Presidents declaration that he had already "abolished the PDAF" render the
issues on PDAF moot precisely because the Executive branch of government
has no constitutional authority to nullify or annul its legal existence. By
constitutional design, the annulment or nullification of a law may be done
either by Congress, through the passage of a repealing law, or by the Court,
through a declaration of unconstitutionality. Instructive on this point is the
following exchange between Associate Justice Antonio T. Carpio (Justice Carpio)
and the Solicitor General during the Oral Arguments: 126
Justice Carpio: The President has taken an oath to faithfully execute the
law,127 correct? Solicitor General Jardeleza: Yes, Your Honor.
Justice Carpio: And so the President cannot refuse to implement the General
Appropriations Act, correct?
Solicitor General Jardeleza: Well, that is our answer, Your Honor. In the case, for
example of the PDAF, the President has a duty to execute the laws but in the
face of the outrage over PDAF, the President was saying, "I am not sure that I

will continue the release of the soft projects," and that started, Your Honor.
Now, whether or not that (interrupted)
Justice Carpio: Yeah. I will grant the President if there are anomalies in the
project, he has the power to stop the releases in the meantime, to investigate,
and that is Section 38 of Chapter 5 of Book 6 of the Revised Administrative
Code128 x x x. So at most the President can suspend, now if the President
believes that the PDAF is unconstitutional, can he just refuse to implement it?
Solicitor General Jardeleza: No, Your Honor, as we were trying to say in the
specific case of the PDAF because of the CoA Report, because of the reported
irregularities and this Court can take judicial notice, even outside, outside of
the COA Report, you have the report of the whistle-blowers, the President was
just exercising precisely the duty .
xxxx
Justice Carpio: Yes, and that is correct. Youve seen the CoA Report, there are
anomalies, you stop and investigate, and prosecute, he has done that. But,
does that mean that PDAF has been repealed?
Solicitor General Jardeleza: No, Your Honor x x x.
xxxx
Justice Carpio: So that PDAF can be legally abolished only in two (2) cases.
Congress passes a law to repeal it, or this Court declares it unconstitutional,
correct?
Solictor General Jardeleza: Yes, Your Honor.
Justice Carpio: The President has no power to legally abolish PDAF. (Emphases
supplied)
Even on the assumption of mootness, jurisprudence, nevertheless, dictates
that "the moot and academic principle is not a magical formula that can
automatically dissuade the Court in resolving a case." The Court will decide
cases, otherwise moot, if: first, there is a grave violation of the Constitution;
second, the exceptional character of the situation and the paramount public
interest is involved; third, when the constitutional issue raised requires
formulation of controlling principles to guide the bench, the bar, and the
public; and fourth, the case is capable of repetition yet evading review. 129
The applicability of the first exception is clear from the fundamental posture of
petitioners they essentially allege grave violations of the Constitution with
respect to, inter alia, the principles of separation of powers, non-delegability of
legislative power, checks and balances, accountability and local autonomy.

The applicability of the second exception is also apparent from the nature of
the interests involved

importantly, so that the government may be guided on how public funds


should be utilized in accordance with constitutional principles.

the constitutionality of the very system within which significant amounts of


public funds have been and continue to be utilized and expended undoubtedly
presents a situation of exceptional character as well as a matter of paramount
public interest. The present petitions, in fact, have been lodged at a time when
the systems flaws have never before been magnified. To the Courts mind, the
coalescence of the CoA Report, the accounts of numerous whistle-blowers, and
the governments own recognition that reforms are needed "to address the
reported abuses of the PDAF" 130 demonstrates a prima facie pattern of abuse
which only underscores the importance of the matter. It is also by this finding
that the Court finds petitioners claims as not merely theorized, speculative or
hypothetical. Of note is the weight accorded by the Court to the findings made
by the CoA which is the constitutionally-mandated audit arm of the
government. In Delos Santos v. CoA, 131 a recent case wherein the Court upheld
the CoAs disallowance of irregularly disbursed PDAF funds, it was emphasized
that:

Finally, the application of the fourth exception is called for by the recognition
that the preparation and passage of the national budget is, by constitutional
imprimatur, an affair of annual occurrence. 133 The relevance of the issues
before the Court does not cease with the passage of a "PDAF -free budget for
2014."134 The evolution of the "Pork Barrel System," by its multifarious
iterations throughout the course of history, lends a semblance of truth to
petitioners claim that "the same dog will just resurface wearing a different
collar."135 In Sanlakas v. Executive Secretary, 136 the government had already
backtracked on a previous course of action yet the Court used the "capable of
repetition but evading review" exception in order "to prevent similar questions
from re- emerging."137 The situation similarly holds true to these cases. Indeed,
the myriad of issues underlying the manner in which certain public funds are
spent, if not resolved at this most opportune time, are capable of repetition
and hence, must not evade judicial review.
B. Matters of Policy: the Political Question Doctrine.

The COA is endowed with enough latitude to determine, prevent, and disallow
irregular, unnecessary, excessive, extravagant or unconscionable expenditures
of government funds. It is tasked to be vigilant and conscientious in
safeguarding the proper use of the government's, and ultimately the people's,
property. The exercise of its general audit power is among the constitutional
mechanisms that gives life to the check and balance system inherent in our
form of government.
It is the general policy of the Court to sustain the decisions of administrative
authorities, especially one which is constitutionally-created, such as the CoA,
not only on the basis of the doctrine of separation of powers but also for their
presumed expertise in the laws they are entrusted to enforce. Findings of
administrative agencies are accorded not only respect but also finality when
the decision and order are not tainted with unfairness or arbitrariness that
would amount to grave abuse of discretion. It is only when the CoA has acted
without or in excess of jurisdiction, or with grave abuse of discretion
amounting to lack or excess of jurisdiction, that this Court entertains a petition
questioning its rulings. x x x. (Emphases supplied)
Thus, if only for the purpose of validating the existence of an actual and
justiciable controversy in these cases, the Court deems the findings under the
CoA Report to be sufficient.
The Court also finds the third exception to be applicable largely due to the
practical need for a definitive ruling on the systems constitutionality. As
disclosed during the Oral Arguments, the CoA Chairperson estimates that
thousands of notices of disallowances will be issued by her office in connection
with the findings made in the CoA Report. In this relation, Associate Justice
Marvic Mario Victor F. Leonen (Justice Leonen) pointed out that all of these
would eventually find their way to the courts. 132 Accordingly, there is a
compelling need to formulate controlling principles relative to the issues raised
herein in order to guide the bench, the bar, and the public, not just for the
expeditious resolution of the anticipated disallowance cases, but more

The "limitation on the power of judicial review to actual cases and


controversies carries the assurance that "the courts will not intrude into areas
committed to the other branches of government." 138 Essentially, the foregoing
limitation is a restatement of the political question doctrine which, under the
classic formulation of Baker v. Carr, 139applies when there is found, among
others, "a textually demonstrable constitutional commitment of the issue to a
coordinate political department," "a lack of judicially discoverable and
manageable standards for resolving it" or "the impossibility of deciding without
an initial policy determination of a kind clearly for non- judicial discretion."
Cast against this light, respondents submit that the "the political branches are
in the best position not only to perform budget-related reforms but also to do
them in response to the specific demands of their constituents" and, as such,
"urge the Court not to impose a solution at this stage." 140
The Court must deny respondents submission.
Suffice it to state that the issues raised before the Court do not present
political but legal questions which are within its province to resolve. A political
question refers to "those questions which, under the Constitution, are to be
decided by the people in their sovereign capacity, or in regard to which full
discretionary authority has been delegated to the Legislature or executive
branch of the Government. It is concerned with issues dependent upon the
wisdom, not legality, of a particular measure."141 The intrinsic constitutionality
of the "Pork Barrel System" is not an issue dependent upon the wisdom of the
political branches of government but rather a legal one which the Constitution
itself has commanded the Court to act upon. Scrutinizing the contours of the
system along constitutional lines is a task that the political branches of
government are incapable of rendering precisely because it is an exercise of
judicial power. More importantly, the present Constitution has not only vested
the Judiciary the right to exercise judicial power but essentially makes it a duty
to proceed therewith. Section 1, Article VIII of the 1987 Constitution cannot be
any clearer: "The judicial power shall be vested in one Supreme Court and in

such lower courts as may be established by law. It 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." In Estrada v.
Desierto,142 the expanded concept of judicial power under the 1987
Constitution and its effect on the political question doctrine was explained as
follows:143
To a great degree, the 1987 Constitution has narrowed the reach of the
political question doctrine when it expanded the power of judicial review of this
court not only to settle actual controversies involving rights which are legally
demandable and enforceable but also 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 government. Heretofore, the
judiciary has focused on the "thou shalt not's" of the Constitution directed
against the exercise of its jurisdiction. With the new provision, however, courts
are given a greater prerogative to determine what it can do to prevent grave
abuse of discretion amounting to lack or excess of jurisdiction on the part of
any branch or instrumentality of government. Clearly, the new provision did
not just grant the Court power of doing nothing. x x x (Emphases supplied)
It must also be borne in mind that when the judiciary mediates to allocate
constitutional boundaries, it does not assert any superiority over the other
departments; does not in reality nullify or invalidate an act of the legislature or
the executive, but only asserts the solemn and sacred obligation assigned to it
by the Constitution."144 To a great extent, the Court is laudably cognizant of the
reforms undertaken by its co-equal branches of government. But it is by
constitutional force that the Court must faithfully perform its duty. Ultimately,
it is the Courts avowed intention that a resolution of these cases would not
arrest or in any manner impede the endeavors of the two other branches but,
in fact, help ensure that the pillars of change are erected on firm constitutional
grounds. After all, it is in the best interest of the people that each great branch
of government, within its own sphere, contributes its share towards achieving
a holistic and genuine solution to the problems of society. For all these
reasons, the Court cannot heed respondents plea for judicial restraint.
C. Locus Standi.
"The gist of the question of standing is whether a party alleges such personal
stake in the outcome of the controversy as to assure that concrete
adverseness which sharpens the presentation of issues upon which the court
depends for illumination of difficult constitutional questions. Unless a person is
injuriously affected in any of his constitutional rights by the operation of
statute or ordinance, he has no standing."145
Petitioners have come before the Court in their respective capacities as citizentaxpayers and accordingly, assert that they "dutifully contribute to the coffers
of the National Treasury."146 Clearly, as taxpayers, they possess the requisite
standing to question the validity of the existing "Pork Barrel System" under
which the taxes they pay have been and continue to be utilized. It is
undeniable that petitioners, as taxpayers, are bound to suffer from the

unconstitutional usage of public funds, if the Court so rules. Invariably,


taxpayers have been allowed to sue where there is a claim that public funds
are illegally disbursed or that public money is being deflected to any improper
purpose, or that public funds are wasted through the enforcement of an invalid
or unconstitutional law,147 as in these cases.
Moreover, as citizens, petitioners have equally fulfilled the standing
requirement given that the issues they have raised may be classified as
matters "of transcendental importance, of overreaching significance to society,
or of paramount public interest." 148 The CoA Chairpersons statement during
the Oral Arguments that the present controversy involves "not merely a
systems failure" but a "complete breakdown of controls" 149 amplifies, in
addition to the matters above-discussed, the seriousness of the issues
involved herein. Indeed, of greater import than the damage caused by the
illegal expenditure of public funds is the mortal wound inflicted upon the
fundamental law by the enforcement of an invalid statute. 150 All told,
petitioners have sufficient locus standi to file the instant cases.
D. Res Judicata and Stare Decisis.
Res judicata (which means a "matter adjudged") and stare decisis non quieta
et movere (or simply, stare decisis which means "follow past precedents and
do not disturb what has been settled") are general procedural law principles
which both deal with the effects of previous but factually similar dispositions to
subsequent cases. For the cases at bar, the Court examines the applicability of
these principles in relation to its prior rulings in Philconsa and LAMP.
The focal point of res judicata is the judgment. The principle states that a
judgment on the merits in a previous case rendered by a court of competent
jurisdiction would bind a subsequent case if, between the first and second
actions, there exists an identity of parties, of subject matter, and of causes of
action.151 This required identity is not, however, attendant hereto since
Philconsa and LAMP, respectively involved constitutional challenges against
the 1994 CDF Article and 2004 PDAF Article, whereas the cases at bar call for a
broader constitutional scrutiny of the entire "Pork Barrel System." Also, the
ruling in LAMP is essentially a dismissal based on a procedural technicality
and, thus, hardly a judgment on the merits in that petitioners therein failed
to present any "convincing proof x x x showing that, indeed, there were direct
releases of funds to the Members of Congress, who actually spend them
according to their sole discretion" or "pertinent evidentiary support to
demonstrate the illegal misuse of PDAF in the form of kickbacks and has
become a common exercise of unscrupulous Members of Congress." As such,
the Court up held, in view of the presumption of constitutionality accorded to
every law, the 2004 PDAF Article, and saw "no need to review or reverse the
standing pronouncements in the said case." Hence, for the foregoing reasons,
the res judicata principle, insofar as the Philconsa and LAMP cases are
concerned, cannot apply.
On the other hand, the focal point of stare decisis is the doctrine created. The
principle, entrenched under Article 8 152 of the Civil Code, evokes the general
rule that, for the sake of certainty, a conclusion reached in one case should be
doctrinally applied to those that follow if the facts are substantially the same,

even though the parties may be different. It proceeds from the first principle of
justice that, absent any powerful countervailing considerations, like cases
ought to be decided alike. Thus, where the same questions relating to the
same event have been put forward by the parties similarly situated as in a
previous case litigated and decided by a competent court, the rule of stare
decisis is a bar to any attempt to re-litigate the same issue. 153
Philconsa was the first case where a constitutional challenge against a Pork
Barrel provision, i.e., the 1994 CDF Article, was resolved by the Court. To
properly understand its context, petitioners posturing was that "the power
given to the Members of Congress to propose and identify projects and
activities to be funded by the CDF is an encroachment by the legislature on
executive power, since said power in an appropriation act is in implementation
of the law" and that "the proposal and identification of the projects do not
involve the making of laws or the repeal and amendment thereof, the only
function given to the Congress by the Constitution." 154 In deference to the
foregoing submissions, the Court reached the following main conclusions: one,
under the Constitution, the power of appropriation, or the "power of the
purse," belongs to Congress; two, the power of appropriation carries with it the
power to specify the project or activity to be funded under the appropriation
law and it can be detailed and as broad as Congress wants it to be; and, three,
the proposals and identifications made by Members of Congress are merely
recommendatory. At once, it is apparent that the Philconsa resolution was a
limited response to a separation of powers problem, specifically on the
propriety of conferring post-enactment identification authority to Members of
Congress. On the contrary, the present cases call for a more holistic
examination of (a) the inter-relation between the CDF and PDAF Articles with
each other, formative as they are of the entire "Pork Barrel System" as well as
(b) the intra-relation of post-enactment measures contained within a particular
CDF or PDAF Article, including not only those related to the area of project
identification but also to the areas of fund release and realignment. The
complexity of the issues and the broader legal analyses herein warranted may
be, therefore, considered as a powerful countervailing reason against a
wholesale application of the stare decisis principle.
In addition, the Court observes that the Philconsa ruling was actually riddled
with inherent constitutional inconsistencies which similarly countervail against
a full resort to stare decisis. As may be deduced from the main conclusions of
the case, Philconsas fundamental premise in allowing Members of Congress to
propose and identify of projects would be that the said identification authority
is but an aspect of the power of appropriation which has been constitutionally
lodged in Congress. From this premise, the contradictions may be easily seen.
If the authority to identify projects is an aspect of appropriation and the power
of appropriation is a form of legislative power thereby lodged in Congress, then
it follows that: (a) it is Congress which should exercise such authority, and not
its individual Members; (b) such authority must be exercised within the
prescribed procedure of law passage and, hence, should not be exercised after
the GAA has already been passed; and (c) such authority, as embodied in the
GAA, has the force of law and, hence, cannot be merely recommendatory.
Justice Vitugs Concurring Opinion in the same case sums up the Philconsa
quandary in this wise: "Neither would it be objectionable for Congress, by law,
to appropriate funds for such specific projects as it may be minded; to give
that authority, however, to the individual members of Congress in whatever

guise, I am afraid, would be constitutionally impermissible." As the Court now


largely benefits from hindsight and current findings on the matter, among
others, the CoA Report, the Court must partially abandon its previous ruling in
Philconsa insofar as it validated the post-enactment identification authority of
Members of Congress on the guise that the same was merely recommendatory.
This postulate raises serious constitutional inconsistencies which cannot be
simply excused on the ground that such mechanism is "imaginative as it is
innovative." Moreover, it must be pointed out that the recent case of Abakada
Guro Party List v. Purisima 155(Abakada) has effectively overturned Philconsas
allowance of post-enactment legislator participation in view of the separation
of powers principle. These constitutional inconsistencies and the Abakada rule
will be discussed in greater detail in the ensuing section of this Decision.
As for LAMP, suffice it to restate that the said case was dismissed on a
procedural technicality and, hence, has not set any controlling doctrine
susceptible of current application to the substantive issues in these cases. In
fine, stare decisis would not apply.
II. Substantive Issues.
A. Definition of Terms.
Before the Court proceeds to resolve the substantive issues of these cases, it
must first define the terms "Pork Barrel System," "Congressional Pork Barrel,"
and "Presidential Pork Barrel" as they are essential to the ensuing discourse.
Petitioners define the term "Pork Barrel System" as the "collusion between the
Legislative and Executive branches of government to accumulate lump-sum
public funds in their offices with unchecked discretionary powers to determine
its distribution as political largesse." 156 They assert that the following elements
make up the Pork Barrel System: (a) lump-sum funds are allocated through the
appropriations process to an individual officer; (b) the officer is given sole and
broad discretion in determining how the funds will be used or expended; (c)
the guidelines on how to spend or use the funds in the appropriation are either
vague, overbroad or inexistent; and (d) projects funded are intended to benefit
a definite constituency in a particular part of the country and to help the
political careers of the disbursing official by yielding rich patronage
benefits.157 They further state that the Pork Barrel System is comprised of two
(2) kinds of discretionary public funds: first, the Congressional (or Legislative)
Pork Barrel, currently known as the PDAF; 158 and, second, the Presidential (or
Executive) Pork Barrel, specifically, the Malampaya Funds under PD 910 and
the Presidential Social Fund under PD 1869, as amended by PD 1993. 159
Considering petitioners submission and in reference to its local concept and
legal history, the Court defines the Pork Barrel System as the collective body of
rules and practices that govern the manner by which lump-sum, discretionary
funds, primarily intended for local projects, are utilized through the respective
participations of the Legislative and Executive branches of government,
including its members. The Pork Barrel System involves two (2) kinds of lumpsum discretionary funds:

First, there is the Congressional Pork Barrel which is herein defined as a kind of
lump-sum, discretionary fund wherein legislators, either individually or
collectively organized into committees, are able to effectively control certain
aspects of the funds utilization through various post-enactment measures
and/or practices. In particular, petitioners consider the PDAF, as it appears
under the 2013 GAA, as Congressional Pork Barrel since it is, inter alia, a postenactment measure that allows individual legislators to wield a collective
power;160 and
Second, there is the Presidential Pork Barrel which is herein defined as a kind
of lump-sum, discretionary fund which allows the President to determine the
manner of its utilization. For reasons earlier stated, 161 the Court shall delimit
the use of such term to refer only to the Malampaya Funds and the Presidential
Social Fund.
With these definitions in mind, the Court shall now proceed to discuss the
substantive issues of these cases.
B. Substantive Issues on the Congressional Pork Barrel.
1. Separation of Powers.
a. Statement of Principle.
The principle of separation of powers refers to the constitutional demarcation
of the three fundamental powers of government. In the celebrated words of
Justice Laurel in Angara v. Electoral Commission, 162 it means that the
"Constitution has blocked out with deft strokes and in bold lines, allotment of
power to the executive, the legislative and the judicial departments of the
government."163 To
the
legislative
branch of
government,
through
Congress,164belongs the power to make laws; to the executive branch of
government, through the President, 165 belongs the power to enforce laws; and
to the judicial branch of government, through the Court, 166 belongs the power
to interpret laws. Because the three great powers have been, by constitutional
design, ordained in this respect, "each department of the government has
exclusive cognizance of matters within its jurisdiction, and is supreme within
its own sphere."167 Thus, "the legislature has no authority to execute or
construe the law, the executive has no authority to make or construe the law,
and the judiciary has no power to make or execute the law." 168 The principle of
separation of powers and its concepts of autonomy and independence stem
from the notion that the powers of government must be divided to avoid
concentration of these powers in any one branch; the division, it is hoped,
would avoid any single branch from lording its power over the other branches
or the citizenry.169 To achieve this purpose, the divided power must be wielded
by co-equal branches of government that are equally capable of independent
action in exercising their respective mandates. Lack of independence would
result in the inability of one branch of government to check the arbitrary or
self-interest assertions of another or others.170
Broadly speaking, there is a violation of the separation of powers principle
when one branch of government unduly encroaches on the domain of another.

US Supreme Court decisions instruct that the principle of separation of powers


may be violated in two (2) ways: firstly, "one branch may interfere
impermissibly with the others performance of its constitutionally assigned
function";171 and "alternatively, the doctrine may be violated when one branch
assumes a function that more properly is entrusted to another." 172 In other
words, there is a violation of the principle when there is impermissible (a)
interference with and/or (b) assumption of another departments functions.
The enforcement of the national budget, as primarily contained in the GAA, is
indisputably a function both constitutionally assigned and properly entrusted
to the Executive branch of government. In Guingona, Jr. v. Hon.
Carague173 (Guingona, Jr.), the Court explained that the phase of budget
execution "covers the various operational aspects of budgeting" and
accordingly includes "the evaluation of work and financial plans for individual
activities," the "regulation and release of funds" as well as all "other related
activities" that comprise the budget execution cycle. 174 This is rooted in the
principle that the allocation of power in the three principal branches of
government is a grant of all powers inherent in them. 175 Thus, unless the
Constitution provides otherwise, the Executive department should exclusively
exercise all roles and prerogatives which go into the implementation of the
national budget as provided under the GAA as well as any other appropriation
law.
In view of the foregoing, the Legislative branch of government, much more any
of its members, should not cross over the field of implementing the national
budget since, as earlier stated, the same is properly the domain of the
Executive. Again, in Guingona, Jr., the Court stated that "Congress enters the
picture when it deliberates or acts on the budget proposals of the President.
Thereafter, Congress, "in the exercise of its own judgment and wisdom,
formulates an appropriation act precisely following the process established by
the Constitution, which specifies that no money may be paid from the Treasury
except in accordance with an appropriation made by law." Upon approval and
passage of the GAA, Congress law -making role necessarily comes to an end
and from there the Executives role of implementing the national budget
begins. So as not to blur the constitutional boundaries between them,
Congress must "not concern it self with details for implementation by the
Executive."176
The foregoing cardinal postulates were definitively enunciated in Abakada
where the Court held that "from the moment the law becomes effective, any
provision of law that empowers Congress or any of its members to play any
role in the implementation or enforcement of the law violates the principle of
separation of powers and is thus unconstitutional." 177 It must be clarified,
however, that since the restriction only pertains to "any role in the
implementation or enforcement of the law," Congress may still exercise its
oversight function which is a mechanism of checks and balances that the
Constitution itself allows. But it must be made clear that Congress role must
be confined to mere oversight. Any post-enactment-measure allowing
legislator participation beyond oversight is bereft of any constitutional basis
and hence, tantamount to impermissible interference and/or assumption of
executive functions. As the Court ruled in Abakada: 178

Any post-enactment congressional measure x x x should be limited to scrutiny


and investigation.1wphi1 In particular, congressional oversight must be
confined to the following:
(1) scrutiny based primarily on Congress power of appropriation and
the budget hearings conducted in connection with it, its power to ask
heads of departments to appear before and be heard by either of its
Houses on any matter pertaining to their departments and its power of
confirmation; and
(2) investigation and monitoring of the implementation of laws
pursuant to the power of Congress to conduct inquiries in aid of
legislation.
Any action or step beyond that will undermine the separation of powers
guaranteed by the Constitution. (Emphases supplied)
b. Application.
In these cases, petitioners submit that the Congressional Pork Barrel among
others, the 2013 PDAF Article "wrecks the assignment of responsibilities
between the political branches" as it is designed to allow individual legislators
to interfere "way past the time it should have ceased" or, particularly, "after
the GAA is passed."179 They state that the findings and recommendations in
the CoA Report provide "an illustration of how absolute and definitive the
power of legislators wield over project implementation in complete violation of
the constitutional principle of separation of powers." 180 Further, they point out
that the Court in the Philconsa case only allowed the CDF to exist on the
condition that individual legislators limited their role to recommending projects
and not if they actually dictate their implementation. 181
For their part, respondents counter that the separations of powers principle
has not been violated since the President maintains "ultimate authority to
control the execution of the GAA and that he "retains the final discretion to
reject" the legislators proposals. 182 They maintain that the Court, in Philconsa,
"upheld the constitutionality of the power of members of Congress to propose
and identify projects so long as such proposal and identification are
recommendatory."183 As such, they claim that "everything in the Special
Provisions [of the 2013 PDAF Article follows the Philconsa framework, and
hence, remains constitutional."184
The Court rules in favor of petitioners.
As may be observed from its legal history, the defining feature of all forms of
Congressional Pork Barrel would be the authority of legislators to participate in
the post-enactment phases of project implementation.
At its core, legislators may it be through project lists, 185 prior
consultations186 or program menus187 have been consistently accorded postenactment authority to identify the projects they desire to be funded through

various Congressional Pork Barrel allocations. Under the 2013 PDAF Article, the
statutory authority of legislators to identify projects post-GAA may be
construed from the import of Special Provisions 1 to 3 as well as the second
paragraph of Special Provision 4. To elucidate, Special Provision 1 embodies
the program menu feature which, as evinced from past PDAF Articles, allows
individual legislators to identify PDAF projects for as long as the identified
project falls under a general program listed in the said menu. Relatedly,
Special Provision 2 provides that the implementing agencies shall, within 90
days from the GAA is passed, submit to Congress a more detailed priority list,
standard or design prepared and submitted by implementing agencies from
which the legislator may make his choice. The same provision further
authorizes legislators to identify PDAF projects outside his district for as long
as the representative of the district concerned concurs in writing. Meanwhile,
Special Provision 3 clarifies that PDAF projects refer to "projects to be identified
by legislators"188 and thereunder provides the allocation limit for the total
amount of projects identified by each legislator. Finally, paragraph 2 of Special
Provision 4 requires that any modification and revision of the project
identification "shall be submitted to the House Committee on Appropriations
and the Senate Committee on Finance for favorable endorsement to the DBM
or the implementing agency, as the case may be." From the foregoing special
provisions, it cannot be seriously doubted that legislators have been accorded
post-enactment authority to identify PDAF projects.
Aside from the area of project identification, legislators have also been
accorded post-enactment authority in the areas of fund release and
realignment. Under the 2013 PDAF Article, the statutory authority of legislators
to participate in the area of fund release through congressional committees is
contained in Special Provision 5 which explicitly states that "all request for
release of funds shall be supported by the documents prescribed under Special
Provision No. 1 and favorably endorsed by House Committee on Appropriations
and the Senate Committee on Finance, as the case may be"; while their
statutory authority to participate in the area of fund realignment is contained
in: first , paragraph 2, Special Provision 4 189 which explicitly state s, among
others, that "any realignment of funds shall be submitted to the House
Committee on Appropriations and the Senate Committee on Finance for
favorable endorsement to the DBM or the implementing agency, as the case
may be ; and, second , paragraph 1, also of Special Provision 4 which
authorizes the "Secretaries of Agriculture, Education, Energy, Interior and Local
Government, Labor and Employment, Public Works and Highways, Social
Welfare and Development and Trade and Industry 190 x x x to approve
realignment from one project/scope to another within the allotment received
from this Fund, subject to among others (iii) the request is with the
concurrence of the legislator concerned."
Clearly, these post-enactment measures which govern the areas of project
identification, fund release and fund realignment are not related to functions of
congressional oversight and, hence, allow legislators to intervene and/or
assume duties that properly belong to the sphere of budget execution. Indeed,
by virtue of the foregoing, legislators have been, in one form or another,
authorized to participate in as Guingona, Jr. puts it "the various operational
aspects of budgeting," including "the evaluation of work and financial plans for
individual activities" and the "regulation and release of funds" in violation of
the separation of powers principle. The fundamental rule, as categorically

articulated in Abakada, cannot be overstated from the moment the law


becomes effective, any provision of law that empowers Congress or any of its
members to play any role in the implementation or enforcement of the law
violates
the
principle
of
separation
of
powers
and
is
thus
unconstitutional.191 That the
said
authority
is
treated
as
merely
recommendatory in nature does not alter its unconstitutional tenor since the
prohibition, to repeat, covers any role in the implementation or enforcement of
the law. Towards this end, the Court must therefore abandon its ruling in
Philconsa which sanctioned the conduct of legislator identification on the guise
that the same is merely recommendatory and, as such, respondents reliance
on the same falters altogether.
Besides, it must be pointed out that respondents have nonetheless failed to
substantiate their position that the identification authority of legislators is only
of recommendatory import. Quite the contrary, respondents through the
statements of the Solicitor General during the Oral Arguments have admitted
that the identification of the legislator constitutes a mandatory requirement
before his PDAF can be tapped as a funding source, thereby highlighting the
indispensability of the said act to the entire budget execution process: 192
Justice Bernabe: Now, without the individual legislators identification of the
project, can the PDAF of the legislator be utilized?
Solicitor General Jardeleza: No, Your Honor.

implement, there is a need for a SARO and the NCA. And the SARO and the
NCA are triggered by an identification from the legislator.
xxxx
Solictor General Jardeleza: What we mean by mandatory, Your Honor, is we
were replying to a question, "How can a legislator make sure that he is able to
get PDAF Funds?" It is mandatory in the sense that he must identify, in that
sense, Your Honor. Otherwise, if he does not identify, he cannot avail of the
PDAF Funds and his district would not be able to have PDAF Funds, only in that
sense, Your Honor. (Emphases supplied)
Thus, for all the foregoing reasons, the Court hereby declares the 2013 PDAF
Article as well as all other provisions of law which similarly allow legislators to
wield any form of post-enactment authority in the implementation or
enforcement of the budget, unrelated to congressional oversight, as violative
of the separation of powers principle and thus unconstitutional. Corollary
thereto, informal practices, through which legislators have effectively intruded
into the proper phases of budget execution, must be deemed as acts of grave
abuse of discretion amounting to lack or excess of jurisdiction and, hence,
accorded the same unconstitutional treatment. That such informal practices do
exist and have, in fact, been constantly observed throughout the years has not
been substantially disputed here. As pointed out by Chief Justice Maria Lourdes
P.A. Sereno (Chief Justice Sereno) during the Oral Arguments of these cases: 193
Chief Justice Sereno:

Justice Bernabe: It cannot?


Solicitor General Jardeleza: It cannot (interrupted)
Justice Bernabe: So meaning you should have the identification of the project
by the individual legislator?
Solicitor General Jardeleza: Yes, Your Honor.
xxxx
Justice Bernabe: In short, the act of identification is mandatory?

Now, from the responses of the representative of both, the DBM and two (2)
Houses of Congress, if we enforces the initial thought that I have, after I had
seen the extent of this research made by my staff, that neither the Executive
nor Congress frontally faced the question of constitutional compatibility of how
they were engineering the budget process. In fact, the words you have been
using, as the three lawyers of the DBM, and both Houses of Congress has also
been using is surprise; surprised that all of these things are now surfacing. In
fact, I thought that what the 2013 PDAF provisions did was to codify in one
section all the past practice that had been done since 1991. In a certain sense,
we should be thankful that they are all now in the PDAF Special Provisions. x x
x (Emphasis and underscoring supplied)

Solictor General Jardeleza: Yes, Your Honor. In the sense that if it is not done
and then there is no identification.

Ultimately, legislators cannot exercise powers which they do not have, whether
through formal measures written into the law or informal practices
institutionalized in government agencies, else the Executive department be
deprived of what the Constitution has vested as its own.

xxxx

2. Non-delegability of Legislative Power.

Justice Bernabe: Now, would you know of specific instances when a project was
implemented without the identification by the individual legislator?

a. Statement of Principle.

Solicitor General Jardeleza: I do not know, Your Honor; I do not think so but I
have no specific examples. I would doubt very much, Your Honor, because to

As an adjunct to the separation of powers principle, 194 legislative power shall


be exclusively exercised by the body to which the Constitution has conferred
the same. In particular, Section 1, Article VI of the 1987 Constitution states
that such power shall be vested in the Congress of the Philippines which shall

consist of a Senate and a House of Representatives, except to the extent


reserved to the people by the provision on initiative and referendum. 195 Based
on this provision, it is clear that only Congress, acting as a bicameral body, and
the people, through the process of initiative and referendum, may
constitutionally wield legislative power and no other. This premise embodies
the principle of non-delegability of legislative power, and the only recognized
exceptions thereto would be: (a) delegated legislative power to local
governments which, by immemorial practice, are allowed to legislate on purely
local matters;196 and (b) constitutionally-grafted exceptions such as the
authority of the President to, by law, exercise powers necessary and proper to
carry out a declared national policy in times of war or other national
emergency,197or fix within specified limits, and subject to such limitations and
restrictions as Congress may impose, tariff rates, import and export quotas,
tonnage and wharfage dues, and other duties or imposts within the framework
of the national development program of the Government. 198

Justice and Insular Auditor 202 (Bengzon), held that the power of appropriation
involves (a) the setting apart by law of a certain sum from the public revenue
for (b) a specified purpose. Essentially, under the 2013 PDAF Article, individual
legislators are given a personal lump-sum fund from which they are able to
dictate (a) how much from such fund would go to (b) a specific project or
beneficiary that they themselves also determine. As these two (2) acts
comprise the exercise of the power of appropriation as described in Bengzon,
and given that the 2013 PDAF Article authorizes individual legislators to
perform the same, undoubtedly, said legislators have been conferred the
power to legislate which the Constitution does not, however, allow. Thus,
keeping with the principle of non-delegability of legislative power, the Court
hereby declares the 2013 PDAF Article, as well as all other forms of
Congressional Pork Barrel which contain the similar legislative identification
feature as herein discussed, as unconstitutional.
3. Checks and Balances.

Notably, the principle of non-delegability should not be confused as a


restriction to delegate rule-making authority to implementing agencies for the
limited purpose of either filling up the details of the law for its enforcement
(supplementary rule-making) or ascertaining facts to bring the law into actual
operation (contingent rule-making).199The conceptual treatment and limitations
of delegated rule-making were explained in the case of People v. Maceren 200 as
follows:
The grant of the rule-making power to administrative agencies is a relaxation
of the principle of separation of powers and is an exception to the
nondelegation of legislative powers. Administrative regulations or "subordinate
legislation" calculated to promote the public interest are necessary because of
"the growing complexity of modern life, the multiplication of the subjects of
governmental regulations, and the increased difficulty of administering the
law."

a. Statement of Principle; Item-Veto Power.


The fact that the three great powers of government are intended to be kept
separate and distinct does not mean that they are absolutely unrestrained and
independent of each other. The Constitution has also provided for an elaborate
system of checks and balances to secure coordination in the workings of the
various departments of the government. 203
A prime example of a constitutional check and balance would be the
Presidents power to veto an item written into an appropriation, revenue or
tariff bill submitted to him by Congress for approval through a process known
as "bill presentment." The Presidents item-veto power is found in Section
27(2), Article VI of the 1987 Constitution which reads as follows:

xxxx

Sec. 27. x x x.

Nevertheless, it must be emphasized that the rule-making power must be


confined to details for regulating the mode or proceeding to carry into effect
the law as it has been enacted. The power cannot be extended to amending or
expanding the statutory requirements or to embrace matters not covered by
the statute. Rules that subvert the statute cannot be sanctioned. (Emphases
supplied)

xxxx

b. Application.
In the cases at bar, the Court observes that the 2013 PDAF Article, insofar as it
confers post-enactment identification authority to individual legislators,
violates the principle of non-delegability since said legislators are effectively
allowed to individually exercise the power of appropriation, which as settled
in Philconsa is lodged in Congress. 201 That the power to appropriate must be
exercised only through legislation is clear from Section 29(1), Article VI of the
1987 Constitution which states that: "No money shall be paid out of the
Treasury except in pursuance of an appropriation made by law." To understand
what constitutes an act of appropriation, the Court, in Bengzon v. Secretary of

(2) The President shall have the power to veto any particular item or items in
an appropriation, revenue, or tariff bill, but the veto shall not affect the item or
items to which he does not object.
The presentment of appropriation, revenue or tariff bills to the President,
wherein he may exercise his power of item-veto, forms part of the "single,
finely wrought and exhaustively considered, procedures" for law-passage as
specified under the Constitution.204 As stated in Abakada, the final step in the
law-making process is the "submission of the bill to the President for approval.
Once approved, it takes effect as law after the required publication." 205
Elaborating on the Presidents item-veto power and its relevance as a check on
the legislature, the Court, in Bengzon, explained that: 206

The former Organic Act and the present Constitution of the Philippines make
the Chief Executive an integral part of the law-making power. His disapproval
of a bill, commonly known as a veto, is essentially a legislative act. The
questions presented to the mind of the Chief Executive are precisely the same
as those the legislature must determine in passing a bill, except that his will be
a broader point of view.
The Constitution is a limitation upon the power of the legislative department of
the government, but in this respect it is a grant of power to the executive
department. The Legislature has the affirmative power to enact laws; the Chief
Executive has the negative power by the constitutional exercise of which he
may defeat the will of the Legislature. It follows that the Chief Executive must
find his authority in the Constitution. But in exercising that authority he may
not be confined to rules of strict construction or hampered by the unwise
interference of the judiciary. The courts will indulge every intendment in favor
of the constitutionality of a veto in the same manner as they will presume the
constitutionality of an act as originally passed by the Legislature. (Emphases
supplied)
The justification for the Presidents item-veto power rests on a variety of policy
goals such as to prevent log-rolling legislation, 207 impose fiscal restrictions on
the legislature, as well as to fortify the executive branchs role in the
budgetary process.208 In Immigration and Naturalization Service v. Chadha, the
US Supreme Court characterized the Presidents item-power as "a salutary
check upon the legislative body, calculated to guard the community against
the effects of factions, precipitancy, or of any impulse unfriendly to the public
good, which may happen to influence a majority of that body"; phrased
differently, it is meant to "increase the chances in favor of the community
against the passing of bad laws, through haste, inadvertence, or design." 209
For the President to exercise his item-veto power, it necessarily follows that
there exists a proper "item" which may be the object of the veto. An item, as
defined in the field of appropriations, pertains to "the particulars, the details,
the distinct and severable parts of the appropriation or of the bill." In the case
of Bengzon v. Secretary of Justice of the Philippine Islands, 210 the US Supreme
Court characterized an item of appropriation as follows:
An item of an appropriation bill obviously means an item which, in itself, is a
specific appropriation of money, not some general provision of law which
happens to be put into an appropriation bill. (Emphases supplied)
On this premise, it may be concluded that an appropriation bill, to ensure that
the President may be able to exercise his power of item veto, must contain
"specific appropriations of money" and not only "general provisions" which
provide for parameters of appropriation.
Further, it is significant to point out that an item of appropriation must be an
item characterized by singular correspondence meaning an allocation of a
specified singular amount for a specified singular purpose, otherwise known as
a "line-item."211 This treatment not only allows the item to be consistent with
its definition as a "specific appropriation of money" but also ensures that the
President may discernibly veto the same. Based on the foregoing formulation,

the existing Calamity Fund, Contingent Fund and the Intelligence Fund, being
appropriations which state a specified amount for a specific purpose, would
then be considered as "line- item" appropriations which are rightfully subject to
item veto. Likewise, it must be observed that an appropriation may be validly
apportioned into component percentages or values; however, it is crucial that
each percentage or value must be allocated for its own corresponding purpose
for such component to be considered as a proper line-item. Moreover, as
Justice Carpio correctly pointed out, a valid appropriation may even have
several related purposes that are by accounting and budgeting practice
considered as one purpose, e.g., MOOE (maintenance and other operating
expenses), in which case the related purposes shall be deemed sufficiently
specific for the exercise of the Presidents item veto power. Finally, special
purpose funds and discretionary funds would equally square with the
constitutional mechanism of item-veto for as long as they follow the rule on
singular correspondence as herein discussed. Anent special purpose funds, it
must be added that Section 25(4), Article VI of the 1987 Constitution requires
that the "special appropriations bill shall specify the purpose for which it is
intended, and shall be supported by funds actually available as certified by the
National Treasurer, or t o be raised by a corresponding revenue proposal
therein." Meanwhile, with respect to discretionary funds, Section 2 5(6), Article
VI of the 1987 Constitution requires that said funds "shall be disbursed only for
public purposes to be supported by appropriate vouchers and subject to such
guidelines as may be prescribed by law."
In contrast, what beckons constitutional infirmity are appropriations which
merely provide for a singular lump-sum amount to be tapped as a source of
funding for multiple purposes. Since such appropriation type necessitates the
further determination of both the actual amount to be expended and the
actual purpose of the appropriation which must still be chosen from the
multiple purposes stated in the law, it cannot be said that the appropriation
law already indicates a "specific appropriation of money and hence, without a
proper line-item which the President may veto. As a practical result, the
President would then be faced with the predicament of either vetoing the
entire appropriation if he finds some of its purposes wasteful or undesirable, or
approving the entire appropriation so as not to hinder some of its legitimate
purposes. Finally, it may not be amiss to state that such arrangement also
raises non-delegability issues considering that the implementing authority
would still have to determine, again, both the actual amount to be expended
and the actual purpose of the appropriation. Since the foregoing
determinations constitute the integral aspects of the power to appropriate, the
implementing authority would, in effect, be exercising legislative prerogatives
in violation of the principle of non-delegability.
b. Application.
In these cases, petitioners claim that "in the current x x x system where the
PDAF is a lump-sum appropriation, the legislators identification of the projects
after the passage of the GAA denies the President the chance to veto that item
later on."212 Accordingly, they submit that the "item veto power of the
President mandates that appropriations bills adopt line-item budgeting" and
that "Congress cannot choose a mode of budgeting which effectively renders
the constitutionally-given power of the President useless." 213

On the other hand, respondents maintain that the text of the Constitution
envisions a process which is intended to meet the demands of a modernizing
economy and, as such, lump-sum appropriations are essential to financially
address situations which are barely foreseen when a GAA is enacted. They
argue that the decision of the Congress to create some lump-sum
appropriations is constitutionally allowed and textually-grounded. 214
The Court agrees with petitioners.
Under the 2013 PDAF Article, the amount of P24.79 Billion only appears as a
collective allocation limit since the said amount would be further divided
among individual legislators who would then receive personal lump-sum
allocations and could, after the GAA is passed, effectively appropriate PDAF
funds based on their own discretion. As these intermediate appropriations are
made by legislators only after the GAA is passed and hence, outside of the law,
it necessarily means that the actual items of PDAF appropriation would not
have been written into the General Appropriations Bill and thus effectuated
without veto consideration. This kind of lump-sum/post-enactment legislative
identification budgeting system fosters the creation of a budget within a
budget" which subverts the prescribed procedure of presentment and
consequently impairs the Presidents power of item veto. As petitioners aptly
point out, the above-described system forces the President to decide between
(a) accepting the entire P24.79 Billion PDAF allocation without knowing the
specific projects of the legislators, which may or may not be consistent with his
national agenda and (b) rejecting the whole PDAF to the detriment of all other
legislators with legitimate projects.215
Moreover, even without its post-enactment legislative identification feature,
the 2013 PDAF Article would remain constitutionally flawed since it would then
operate as a prohibited form of lump-sum appropriation above-characterized.
In particular, the lump-sum amount of P24.79 Billion would be treated as a
mere funding source allotted for multiple purposes of spending, i.e.,
scholarships, medical missions, assistance to indigents, preservation of
historical materials, construction of roads, flood control, etc. This setup
connotes that the appropriation law leaves the actual amounts and purposes
of the appropriation for further determination and, therefore, does not readily
indicate a discernible item which may be subject to the Presidents power of
item veto.
In fact, on the accountability side, the same lump-sum budgeting scheme has,
as the CoA Chairperson relays, "limited state auditors from obtaining relevant
data and information that would aid in more stringently auditing the utilization
of said Funds."216 Accordingly, she recommends the adoption of a "line by line
budget or amount per proposed program, activity or project, and per
implementing agency."217
Hence, in view of the reasons above-stated, the Court finds the 2013 PDAF
Article, as well as all Congressional Pork Barrel Laws of similar operation, to be
unconstitutional. That such budgeting system provides for a greater degree of
flexibility to account for future contingencies cannot be an excuse to defeat
what the Constitution requires. Clearly, the first and essential truth of the

matter is that unconstitutional means do not justify even commendable


ends.218
c. Accountability.
Petitioners further relate that the system under which various forms of
Congressional Pork Barrel operate defies public accountability as it renders
Congress incapable of checking itself or its Members. In particular, they point
out that the Congressional Pork Barrel "gives each legislator a direct, financial
interest in the smooth, speedy passing of the yearly budget" which turns them
"from fiscalizers" into "financially-interested partners." 219 They also claim that
the system has an effect on re- election as "the PDAF excels in selfperpetuation of elective officials." Finally, they add that the "PDAF impairs the
power of impeachment" as such "funds are indeed quite useful, to well,
accelerate the decisions of senators." 220
The Court agrees in part.
The aphorism forged under Section 1, Article XI of the 1987 Constitution, which
states that "public office is a public trust," is an overarching reminder that
every instrumentality of government should exercise their official functions
only in accordance with the principles of the Constitution which embodies the
parameters of the peoples trust. The notion of a public trust connotes
accountability,221 hence, the various mechanisms in the Constitution which are
designed to exact accountability from public officers.
Among others, an accountability mechanism with which the proper
expenditure of public funds may be checked is the power of congressional
oversight. As mentioned in Abakada, 222 congressional oversight may be
performed either through: (a) scrutiny based primarily on Congress power of
appropriation and the budget hearings conducted in connection with it, its
power to ask heads of departments to appear before and be heard by either of
its Houses on any matter pertaining to their departments and its power of
confirmation;223 or (b) investigation and monitoring of the implementation of
laws pursuant to the power of Congress to conduct inquiries in aid of
legislation.224
The Court agrees with petitioners that certain features embedded in some
forms of Congressional Pork Barrel, among others the 2013 PDAF Article, has
an effect on congressional oversight. The fact that individual legislators are
given post-enactment roles in the implementation of the budget makes it
difficult for them to become disinterested "observers" when scrutinizing,
investigating or monitoring the implementation of the appropriation law. To a
certain extent, the conduct of oversight would be tainted as said legislators,
who are vested with post-enactment authority, would, in effect, be checking on
activities in which they themselves participate. Also, it must be pointed out
that this very same concept of post-enactment authorization runs afoul of
Section 14, Article VI of the 1987 Constitution which provides that:
Sec. 14. No Senator or Member of the House of Representatives may
personally appear as counsel before any court of justice or before the Electoral

Tribunals, or quasi-judicial and other administrative bodies. Neither shall he,


directly or indirectly, be interested financially in any contract with, or in any
franchise or special privilege granted by the Government, or any subdivision,
agency, or instrumentality thereof, including any government-owned or
controlled corporation, or its subsidiary, during his term of office. He shall not
intervene in any matter before any office of the Government for his pecuniary
benefit or where he may be called upon to act on account of his office.
(Emphasis supplied)
Clearly, allowing legislators to intervene in the various phases of project
implementation a matter before another office of government renders them
susceptible to taking undue advantage of their own office.

In any event, the Court finds the above-stated argument on this score to be
largely speculative since it has not been properly demonstrated how the Pork
Barrel System would be able to propagate political dynasties.
5. Local Autonomy.
The States policy on local autonomy is principally stated in Section 25, Article
II and Sections 2 and 3, Article X of the 1987 Constitution which read as
follows:
ARTICLE II

The Court, however, cannot completely agree that the same post-enactment
authority and/or the individual legislators control of his PDAF per se would
allow him to perpetuate himself in office. Indeed, while the Congressional Pork
Barrel and a legislators use thereof may be linked to this area of interest, the
use of his PDAF for re-election purposes is a matter which must be analyzed
based on particular facts and on a case-to-case basis.

Sec. 25. The State shall ensure the autonomy of local governments.

Finally, while the Court accounts for the possibility that the close operational
proximity between legislators and the Executive department, through the
formers post-enactment participation, may affect the process of
impeachment, this matter largely borders on the domain of politics and does
not strictly concern the Pork Barrel Systems intrinsic constitutionality. As such,
it is an improper subject of judicial assessment.

Sec. 3. The Congress shall enact a local government code which shall provide
for a more responsive and accountable local government structure instituted
through a system of decentralization with effective mechanisms of recall,
initiative, and referendum, allocate among the different local government units
their powers, responsibilities, and resources, and provide for the qualifications,
election, appointment and removal, term, salaries, powers and functions and
duties of local officials, and all other matters relating to the organization and
operation of the local units.

In sum, insofar as its post-enactment features dilute congressional oversight


and violate Section 14, Article VI of the 1987 Constitution, thus impairing
public accountability, the 2013 PDAF Article and other forms of Congressional
Pork Barrel of similar nature are deemed as unconstitutional.
4. Political Dynasties.
One of the petitioners submits that the Pork Barrel System enables politicians
who are members of political dynasties to accumulate funds to perpetuate
themselves in power, in contravention of Section 26, Article II of the 1987
Constitution225 which states that:
Sec. 26. The State shall guarantee equal access to opportunities for public
service, and prohibit political dynasties as may be defined by law. (Emphasis
and underscoring supplied)
At the outset, suffice it to state that the foregoing provision is considered as
not self-executing due to the qualifying phrase "as may be defined by law." In
this respect, said provision does not, by and of itself, provide a judicially
enforceable constitutional right but merely specifies guideline for legislative or
executive action.226 Therefore, since there appears to be no standing law which
crystallizes the policy on political dynasties for enforcement, the Court must
defer from ruling on this issue.

ARTICLE X
Sec. 2. The territorial and political subdivisions shall enjoy local autonomy.

Pursuant thereto, Congress enacted RA 7160, 227 otherwise known as the "Local
Government Code of 1991" (LGC), wherein the policy on local autonomy had
been more specifically explicated as follows:
Sec. 2. Declaration of Policy. (a) It is hereby declared the policy of the State
that the territorial and political subdivisions of the State shall enjoy genuine
and meaningful local autonomy to enable them to attain their fullest
development as self-reliant communities and make them more effective
partners in the attainment of national goals. Toward this end, the State shall
provide for a more responsive and accountable local government structure
instituted through a system of decentralization whereby local government
units shall be given more powers, authority, responsibilities, and resources.
The process of decentralization shall proceed from the National Government to
the local government units.
xxxx
(c) It is likewise the policy of the State to require all national agencies and
offices to conduct periodic consultations with appropriate local government
units, nongovernmental and peoples organizations, and other concerned
sectors of the community before any project or program is implemented in
their respective jurisdictions. (Emphases and underscoring supplied)

The above-quoted provisions of the Constitution and the LGC reveal the policy
of the State to empower local government units (LGUs) to develop and
ultimately, become self-sustaining and effective contributors to the national
economy. As explained by the Court in Philippine Gamefowl Commission v.
Intermediate Appellate Court:228
This is as good an occasion as any to stress the commitment of the
Constitution to the policy of local autonomy which is intended to provide the
needed impetus and encouragement to the development of our local political
subdivisions as "self - reliant communities." In the words of Jefferson,
"Municipal corporations are the small republics from which the great one
derives its strength." The vitalization of local governments will enable their
inhabitants to fully exploit their resources and more important, imbue them
with a deepened sense of involvement in public affairs as members of the
body politic. This objective could be blunted by undue interference by the
national government in purely local affairs which are best resolved by the
officials and inhabitants of such political units. The decision we reach today
conforms not only to the letter of the pertinent laws but also to the spirit of the
Constitution.229 (Emphases and underscoring supplied)
In the cases at bar, petitioners contend that the Congressional Pork Barrel goes
against the constitutional principles on local autonomy since it allows district
representatives, who are national officers, to substitute their judgments in
utilizing public funds for local development. 230 The Court agrees with
petitioners.
Philconsa described the 1994 CDF as an attempt "to make equal the unequal"
and that "it is also a recognition that individual members of Congress, far more
than the President and their congressional colleagues, are likely to be
knowledgeable about the needs of their respective constituents and the
priority to be given each project." 231 Drawing strength from this
pronouncement, previous legislators justified its existence by stating that "the
relatively small projects implemented under the Congressional Pork Barrel
complement and link the national development goals to the countryside and
grassroots as well as to depressed areas which are overlooked by central
agencies which are preoccupied with mega-projects. 232 Similarly, in his August
23, 2013 speech on the "abolition" of PDAF and budgetary reforms, President
Aquino mentioned that the Congressional Pork Barrel was originally established
for a worthy goal, which is to enable the representatives to identify projects for
communities that the LGU concerned cannot afford. 233
Notwithstanding these declarations, the Court, however, finds an inherent
defect in the system which actually belies the avowed intention of "making
equal the unequal." In particular, the Court observes that the gauge of PDAF
and CDF allocation/division is based solely on the fact of office, without taking
into account the specific interests and peculiarities of the district the legislator
represents. In this regard, the allocation/division limits are clearly not based on
genuine parameters of equality, wherein economic or geographic indicators
have been taken into consideration. As a result, a district representative of a
highly-urbanized metropolis gets the same amount of funding as a district
representative of a far-flung rural province which would be relatively
"underdeveloped" compared to the former. To add, what rouses graver scrutiny

is that even Senators and Party-List Representatives and in some years, even
the Vice-President who do not represent any locality, receive funding from
the Congressional Pork Barrel as well. These certainly are anathema to the
Congressional Pork Barrels original intent which is "to make equal the
unequal." Ultimately, the PDAF and CDF had become personal funds under the
effective control of each legislator and given unto them on the sole account of
their office.
The Court also observes that this concept of legislator control underlying the
CDF and PDAF conflicts with the functions of the various Local Development
Councils (LDCs) which are already legally mandated to "assist the
corresponding sanggunian in setting the direction of economic and social
development, and coordinating development efforts within its territorial
jurisdiction."234 Considering that LDCs are instrumentalities whose functions
are essentially geared towards managing local affairs, 235 their programs,
policies and resolutions should not be overridden nor duplicated by individual
legislators, who are national officers that have no law-making authority except
only when acting as a body. The undermining effect on local autonomy caused
by the post-enactment authority conferred to the latter was succinctly put by
petitioners in the following wise:236
With PDAF, a Congressman can simply bypass the local development council
and initiate projects on his own, and even take sole credit for its execution.
Indeed, this type of personality-driven project identification has not only
contributed little to the overall development of the district, but has even
contributed to "further weakening infrastructure planning and coordination
efforts of the government."
Thus, insofar as individual legislators are authorized to intervene in purely
local matters and thereby subvert genuine local autonomy, the 2013 PDAF
Article as well as all other similar forms of Congressional Pork Barrel is deemed
unconstitutional.
With this final issue on the Congressional Pork Barrel resolved, the Court now
turns to the substantive issues involving the Presidential Pork Barrel.
C. Substantive Issues on the Presidential Pork Barrel.
1. Validity of Appropriation.
Petitioners preliminarily assail Section 8 of PD 910 and Section 12 of PD1869
(now, amended by PD 1993), which respectively provide for the Malampaya
Funds and the Presidential Social Fund, as invalid appropriations laws since
they do not have the "primary and specific" purpose of authorizing the release
of public funds from the National Treasury. Petitioners submit that Section 8 of
PD 910 is not an appropriation law since the "primary and specific purpose of
PD 910 is the creation of an Energy Development Board and Section 8 thereof
only created a Special Fund incidental thereto. 237 In similar regard, petitioners
argue that Section 12 of PD 1869 is neither a valid appropriations law since the
allocation of the Presidential Social Fund is merely incidental to the "primary
and specific" purpose of PD 1869 which is the amendment of the Franchise and

Powers of PAGCOR.238 In view of the foregoing, petitioners suppose that such


funds are being used without any valid law allowing for their proper
appropriation in violation of Section 29(1), Article VI of the 1987 Constitution
which states that: "No money shall be paid out of the Treasury except in
pursuance of an appropriation made by law."239

same for a particular public purpose, then the legislative intent to appropriate
becomes apparent and, hence, already sufficient to satisfy the requirement of
an "appropriation made by law" under contemplation of the Constitution.

The Court disagrees.

Section 8. Appropriations. x x x

"An appropriation made by law under the contemplation of Section 29(1),


Article VI of the 1987 Constitution exists when a provision of law (a) sets apart
a determinate or determinable240 amount of money and (b) allocates the same
for a particular public purpose. These two minimum designations of amount
and purpose stem from the very definition of the word "appropriation," which
means "to allot, assign, set apart or apply to a particular use or purpose," and
hence, if written into the law, demonstrate that the legislative intent to
appropriate exists. As the Constitution "does not provide or prescribe any
particular form of words or religious recitals in which an authorization or
appropriation by Congress shall be made, except that it be made by law," an
appropriation law may according to Philconsa be "detailed and as broad as
Congress wants it to be" for as long as the intent to appropriate may be
gleaned from the same. As held in the case of Guingona, Jr.: 241

All fees, revenues and receipts of the Board from any and all sources including
receipts from service contracts and agreements such as application and
processing fees, signature bonus, discovery bonus, production bonus; all
money collected from concessionaires, representing unspent work obligations,
fines and penalties under the Petroleum Act of 1949; as well as the
government share representing royalties, rentals, production share on service
contracts and similar payments on the exploration, development and
exploitation of energy resources, shall form part of a Special Fund to be used
to finance energy resource development and exploitation programs and
projects of the government and for such other purposes as may be hereafter
directed by the President. (Emphases supplied)

There is no provision in our Constitution that provides or prescribes any


particular form of words or religious recitals in which an authorization or
appropriation by Congress shall be made, except that it be "made by law,"
such as precisely the authorization or appropriation under the questioned
presidential decrees. In other words, in terms of time horizons, an
appropriation may be made impliedly (as by past but subsisting legislations) as
well as expressly for the current fiscal year (as by enactment of laws by the
present Congress), just as said appropriation may be made in general as well
as in specific terms. The Congressional authorization may be embodied in
annual laws, such as a general appropriations act or in special provisions of
laws of general or special application which appropriate public funds for
specific public purposes, such as the questioned decrees. An appropriation
measure is sufficient if the legislative intention clearly and certainly appears
from the language employed (In re Continuing Appropriations, 32 P. 272),
whether in the past or in the present. (Emphases and underscoring supplied)
Likewise, as ruled by the US Supreme Court in State of Nevada v. La Grave: 242
To constitute an appropriation there must be money placed in a fund
applicable to the designated purpose. The word appropriate means to allot,
assign, set apart or apply to a particular use or purpose. An appropriation in
the sense of the constitution means the setting apart a portion of the public
funds for a public purpose. No particular form of words is necessary for the
purpose, if the intention to appropriate is plainly manifested. (Emphases
supplied)
Thus, based on the foregoing, the Court cannot sustain the argument that the
appropriation must be the "primary and specific" purpose of the law in order
for a valid appropriation law to exist. To reiterate, if a legal provision
designates a determinate or determinable amount of money and allocates the

Section 8 of PD 910 pertinently provides:

Whereas Section 12 of PD 1869, as amended by PD 1993, reads:


Sec. 12. Special Condition of Franchise. After deducting five (5%) percent as
Franchise Tax, the Fifty (50%) percent share of the Government in the
aggregate gross earnings of the Corporation from this Franchise, or 60% if the
aggregate gross earnings be less than P150,000,000.00 shall be set aside and
shall accrue to the General Fund to finance the priority infrastructure
development projects and to finance the restoration of damaged or destroyed
facilities due to calamities, as may be directed and authorized by the Office of
the President of the Philippines. (Emphases supplied)
Analyzing the legal text vis--vis the above-mentioned principles, it may then
be concluded that (a) Section 8 of PD 910, which creates a Special Fund
comprised of "all fees, revenues, and receipts of the Energy Development
Board from any and all sources" (a determinable amount) "to be used to
finance energy resource development and exploitation programs and projects
of the government and for such other purposes as may be hereafter directed
by the President" (a specified public purpose), and (b) Section 12 of PD 1869,
as amended by PD 1993, which similarly sets aside, "after deducting five (5%)
percent as Franchise Tax, the Fifty (50%) percent share of the Government in
the aggregate gross earnings of PAGCOR, or 60%, if the aggregate gross
earnings be less than P150,000,000.00" (also a determinable amount) "to
finance the priority infrastructure development projects and x x x the
restoration of damaged or destroyed facilities due to calamities, as may be
directed and authorized by the Office of the President of the Philippines" (also
a specified public purpose), are legal appropriations under Section 29(1),
Article VI of the 1987 Constitution.
In this relation, it is apropos to note that the 2013 PDAF Article cannot be
properly deemed as a legal appropriation under the said constitutional
provision precisely because, as earlier stated, it contains post-enactment

measures which effectively create a system of intermediate appropriations.


These intermediate appropriations are the actual appropriations meant for
enforcement and since they are made by individual legislators after the GAA is
passed, they occur outside the law. As such, the Court observes that the real
appropriation made under the 2013 PDAF Article is not the P24.79 Billion
allocated for the entire PDAF, but rather the post-enactment determinations
made by the individual legislators which are, to repeat, occurrences outside of
the law. Irrefragably, the 2013 PDAF Article does not constitute an
"appropriation made by law" since it, in its truest sense, only authorizes
individual legislators to appropriate in violation of the non-delegability principle
as afore-discussed.
2. Undue Delegation.
On a related matter, petitioners contend that Section 8 of PD 910 constitutes
an undue delegation of legislative power since the phrase "and for such other
purposes as may be hereafter directed by the President" gives the President
"unbridled discretion to determine for what purpose the funds will be
used."243 Respondents, on the other hand, urged the Court to apply the
principle of ejusdem generis to the same section and thus, construe the phrase
"and for such other purposes as may be hereafter directed by the President" to
refer only to other purposes related "to energy resource development and
exploitation programs and projects of the government." 244
The Court agrees with petitioners submissions.
While the designation of a determinate or determinable amount for a particular
public purpose is sufficient for a legal appropriation to exist, the appropriation
law must contain adequate legislative guidelines if the same law delegates
rule-making authority to the Executive245 either for the purpose of (a) filling up
the details of the law for its enforcement, known as supplementary rulemaking, or (b) ascertaining facts to bring the law into actual operation,
referred to as contingent rule-making.246 There are two (2) fundamental tests
to ensure that the legislative guidelines for delegated rule-making are indeed
adequate. The first test is called the "completeness test." Case law states that
a law is complete when it sets forth therein the policy to be executed, carried
out, or implemented by the delegate. On the other hand, the second test is
called the "sufficient standard test." Jurisprudence holds that a law lays down a
sufficient standard when it provides adequate guidelines or limitations in the
law to map out the boundaries of the delegates authority and prevent the
delegation from running riot. 247 To be sufficient, the standard must specify the
limits of the delegates authority, announce the legislative policy, and identify
the conditions under which it is to be implemented. 248
In view of the foregoing, the Court agrees with petitioners that the phrase "and
for such other purposes as may be hereafter directed by the President" under
Section 8 of PD 910 constitutes an undue delegation of legislative power
insofar as it does not lay down a sufficient standard to adequately determine
the limits of the Presidents authority with respect to the purpose for which the
Malampaya Funds may be used. As it reads, the said phrase gives the
President wide latitude to use the Malampaya Funds for any other purpose he
may direct and, in effect, allows him to unilaterally appropriate public funds

beyond the purview of the law. That the subject phrase may be confined only
to "energy resource development and exploitation programs and projects of
the government" under the principle of ejusdem generis, meaning that the
general word or phrase is to be construed to include or be restricted to
things akin to, resembling, or of the same kind or class as those specifically
mentioned,249 is belied by three (3) reasons: first, the phrase "energy resource
development and exploitation programs and projects of the government"
states a singular and general class and hence, cannot be treated as a statutory
reference of specific things from which the general phrase "for such other
purposes" may be limited; second, the said phrase also exhausts the class it
represents, namely energy development programs of the government; 250 and,
third, the Executive department has, in fact, used the Malampaya Funds for
non-energy related purposes under the subject phrase, thereby contradicting
respondents own position that it is limited only to "energy resource
development
and
exploitation
programs
and
projects
of
the
government."251 Thus, while Section 8 of PD 910 may have passed the
completeness test since the policy of energy development is clearly deducible
from its text, the phrase "and for such other purposes as may be hereafter
directed by the President" under the same provision of law should nonetheless
be stricken down as unconstitutional as it lies independently unfettered by any
sufficient standard of the delegating law. This notwithstanding, it must be
underscored that the rest of Section 8, insofar as it allows for the use of the
Malampaya Funds "to finance energy resource development and exploitation
programs and projects of the government," remains legally effective and
subsisting. Truth be told, the declared unconstitutionality of the
aforementioned phrase is but an assurance that the Malampaya Funds would
be used as it should be used only in accordance with the avowed purpose
and intention of PD 910.
As for the Presidential Social Fund, the Court takes judicial notice of the fact
that Section 12 of PD 1869 has already been amended by PD 1993 which thus
moots the parties submissions on the same. 252 Nevertheless, since the
amendatory provision may be readily examined under the current parameters
of discussion, the Court proceeds to resolve its constitutionality.
Primarily, Section 12 of PD 1869, as amended by PD 1993, indicates that the
Presidential Social Fund may be used "to first, finance the priority
infrastructure development projects and second, to finance the restoration of
damaged or destroyed facilities due to calamities, as may be directed and
authorized by the Office of the President of the Philippines." The Court finds
that while the second indicated purpose adequately curtails the authority of
the President to spend the Presidential Social Fund only for restoration
purposes which arise from calamities, the first indicated purpose, however,
gives him carte blanche authority to use the same fund for any infrastructure
project he may so determine as a "priority". Verily, the law does not supply a
definition of "priority in frastructure development projects" and hence, leaves
the President without any guideline to construe the same. To note, the
delimitation of a project as one of "infrastructure" is too broad of a
classification since the said term could pertain to any kind of facility. This may
be deduced from its lexicographic definition as follows: "the underlying
framework of a system, especially public services and facilities (such as
highways, schools, bridges, sewers, and water-systems) needed to support
commerce as well as economic and residential development." 253 In fine, the

phrase "to finance the priority infrastructure development projects" must be


stricken down as unconstitutional since similar to the above-assailed
provision under Section 8 of PD 910 it lies independently unfettered by any
sufficient standard of the delegating law. As they are severable, all other
provisions of Section 12 of PD 1869, as amended by PD 1993, remains legally
effective and subsisting.
D. Ancillary Prayers. 1.

be made contingent upon the discretion of such agencies. Otherwise, the


enjoyment of the constitutional right may be rendered nugatory by any
whimsical exercise of agency discretion. The constitutional duty, not being
discretionary, its performance may be compelled by a writ of mandamus in a
proper case.
But what is a proper case for Mandamus to issue? In the case before Us, the
public right to be enforced and the concomitant duty of the State are
unequivocably set forth in the Constitution.

Petitioners Prayer to be Furnished Lists and Detailed Reports.


Aside from seeking the Court to declare the Pork Barrel System
unconstitutional as the Court did so in the context of its pronouncements
made in this Decision petitioners equally pray that the Executive Secretary
and/or the DBM be ordered to release to the CoA and to the public: (a) "the
complete schedule/list of legislators who have availed of their PDAF and VILP
from the years 2003 to 2013, specifying the use of the funds, the project or
activity and the recipient entities or individuals, and all pertinent data thereto"
(PDAF Use Schedule/List); 254 and (b) "the use of the Executives lump-sum,
discretionary funds, including the proceeds from the x x x Malampaya Funds
and remittances from the PAGCOR x x x from 2003 to 2013, specifying the x x
x project or activity and the recipient entities or individuals, and all pertinent
data thereto"255 (Presidential Pork Use Report). Petitioners prayer is grounded
on Section 28, Article II and Section 7, Article III of the 1987 Constitution which
read as follows:
ARTICLE II
Sec. 28. Subject to reasonable conditions prescribed by law, the State adopts
and implements a policy of full public disclosure of all its transactions involving
public interest.
ARTICLE III 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.
The Court denies petitioners submission.
Case law instructs that the proper remedy to invoke the right to information is
to file a petition for mandamus. As explained in the case of Legaspi v. Civil
Service Commission:256
While the manner of examining public records may be subject to reasonable
regulation by the government agency in custody thereof, the duty to disclose
the information of public concern, and to afford access to public records cannot
be discretionary on the part of said agencies. Certainly, its performance cannot

The decisive question on the propriety of the issuance of the writ of mandamus
in this case is, whether the information sought by the petitioner is within the
ambit of the constitutional guarantee. (Emphases supplied)
Corollarily, in the case of Valmonte v. Belmonte Jr. 257 (Valmonte), it has been
clarified that the right to information does not include the right to compel the
preparation of "lists, abstracts, summaries and the like." In the same case, it
was stressed that it is essential that the "applicant has a well -defined, clear
and certain legal right to the thing demanded and that it is the imperative duty
of defendant to perform the act required." Hence, without the foregoing
substantiations, the Court cannot grant a particular request for information.
The pertinent portions of Valmonte are hereunder quoted: 258
Although citizens are afforded the right to information and, pursuant thereto,
are entitled to "access to official records," the Constitution does not accord
them a right to compel custodians of official records to prepare lists, abstracts,
summaries and the like in their desire to acquire information on matters of
public concern.
It must be stressed that it is essential for a writ of mandamus to issue that the
applicant has a well-defined, clear and certain legal right to the thing
demanded and that it is the imperative duty of defendant to perform the act
required. The corresponding duty of the respondent to perform the required
act must be clear and specific Lemi v. Valencia, G.R. No. L-20768, November
29,1968,126 SCRA 203; Ocampo v. Subido, G.R. No. L-28344, August 27, 1976,
72 SCRA 443.
The request of the petitioners fails to meet this standard, there being no duty
on the part of respondent to prepare the list requested. (Emphases supplied)
In these cases, aside from the fact that none of the petitions are in the nature
of mandamus actions, the Court finds that petitioners have failed to establish a
"a well-defined, clear and certain legal right" to be furnished by the Executive
Secretary and/or the DBM of their requested PDAF Use Schedule/List and
Presidential Pork Use Report. Neither did petitioners assert any law or
administrative issuance which would form the bases of the latters duty to
furnish them with the documents requested. While petitioners pray that said
information be equally released to the CoA, it must be pointed out that the
CoA has not been impleaded as a party to these cases nor has it filed any
petition before the Court to be allowed access to or to compel the release of
any official document relevant to the conduct of its audit investigations. While

the Court recognizes that the information requested is a matter of significant


public concern, however, if only to ensure that the parameters of disclosure
are properly foisted and so as not to unduly hamper the equally important
interests of the government, it is constrained to deny petitioners prayer on
this score, without prejudice to a proper mandamus case which they, or even
the CoA, may choose to pursue through a separate petition.
It bears clarification that the Courts denial herein should only cover
petitioners plea to be furnished with such schedule/list and report and not in
any way deny them, or the general public, access to official documents which
are already existing and of public record. Subject to reasonable regulation and
absent any valid statutory prohibition, access to these documents should not
be proscribed. Thus, in Valmonte, while the Court denied the application for
mandamus towards the preparation of the list requested by petitioners therein,
it nonetheless allowed access to the documents sought for by the latter,
subject, however, to the custodians reasonable regulations,viz.: 259
In fine, petitioners are entitled to access to the documents evidencing loans
granted by the GSIS, subject to reasonable regulations that the latter may
promulgate relating to the manner and hours of examination, to the end that
damage to or loss of the records may be avoided, that undue interference with
the duties of the custodian of the records may be prevented and that the right
of other persons entitled to inspect the records may be insured Legaspi v. Civil
Service Commission, supra at p. 538, quoting Subido v. Ozaeta, 80 Phil. 383,
387. The petition, as to the second and third alternative acts sought to be
done by petitioners, is meritorious.
However, the same cannot be said with regard to the first act sought by
petitioners, i.e.,
"to furnish petitioners the list of the names of the Batasang Pambansa
members belonging to the UNIDO and PDP-Laban who were able to secure
clean loans immediately before the February 7 election thru the
intercession/marginal note of the then First Lady Imelda Marcos."
The Court, therefore, applies the same treatment here.
2. Petitioners Prayer to Include Matters in Congressional Deliberations.
Petitioners further seek that the Court "order the inclusion in budgetary
deliberations with the Congress of all presently, off-budget, lump sum,
discretionary funds including but not limited to, proceeds from the x x x
Malampaya Fund, remittances from the PAGCOR and the PCSO or the
Executives Social Funds."260
Suffice it to state that the above-stated relief sought by petitioners covers a
matter which is generally left to the prerogative of the political branches of
government. Hence, lest the Court itself overreach, it must equally deny their
prayer on this score.

3. Respondents Prayer to Lift TRO; Consequential Effects of Decision.


The final issue to be resolved stems from the interpretation accorded by the
DBM to the concept of released funds. In response to the Courts September
10, 2013 TRO that enjoined the release of the remaining PDAF allocated for the
year 2013, the DBM issued Circular Letter No. 2013-8 dated September 27,
2013 (DBM Circular 2013-8) which pertinently reads as follows:
3.0 Nonetheless, PDAF projects funded under the FY 2013 GAA, where a
Special Allotment Release Order (SARO) has been issued by the DBM and such
SARO has been obligated by the implementing agencies prior to the issuance
of the TRO, may continually be implemented and disbursements thereto
effected by the agencies concerned.
Based on the text of the foregoing, the DBM
implementation and disbursement of PDAF funds
covered by a SARO; and, second, that said SARO
implementing agency concerned prior to the
September 10, 2013 TRO.

authorized the continued


as long as they are: first,
had been obligated by the
issuance of the Courts

Petitioners take issue with the foregoing circular, arguing that "the issuance of
the SARO does not yet involve the release of funds under the PDAF, as release
is only triggered by the issuance of a Notice of Cash Allocation [(NCA)]." 261 As
such, PDAF disbursements, even if covered by an obligated SARO, should
remain enjoined.
For their part, respondents espouse that the subject TRO only covers
"unreleased and unobligated allotments." They explain that once a SARO has
been issued and obligated by the implementing agency concerned, the PDAF
funds covered by the same are already "beyond the reach of the TRO because
they cannot be considered as remaining PDAF." They conclude that this is a
reasonable interpretation of the TRO by the DBM.262
The Court agrees with petitioners in part.
At the outset, it must be observed that the issue of whether or not the Courts
September 10, 2013 TRO should be lifted is a matter rendered moot by the
present Decision. The unconstitutionality of the 2013 PDAF Article as declared
herein has the consequential effect of converting the temporary injunction into
a permanent one. Hence, from the promulgation of this Decision, the release of
the remaining PDAF funds for 2013, among others, is now permanently
enjoined.
The propriety of the DBMs interpretation of the concept of "release" must,
nevertheless, be resolved as it has a practical impact on the execution of the
current Decision. In particular, the Court must resolve the issue of whether or
not PDAF funds covered by obligated SAROs, at the time this Decision is
promulgated, may still be disbursed following the DBMs interpretation in DBM
Circular 2013-8.

On this score, the Court agrees with petitioners posturing for the fundamental
reason that funds covered by an obligated SARO are yet to be "released"
under legal contemplation. A SARO, as defined by the DBM itself in its website,
is "aspecific authority issued to identified agencies to incur obligations not
exceeding a given amount during a specified period for the purpose indicated.
It shall cover expenditures the release of which is subject to compliance with
specific laws or regulations, or is subject to separate approval or clearance by
competent authority."263
Based on this definition, it may be gleaned that a SARO only evinces the
existence of an obligation and not the directive to pay. Practically speaking,
the SARO does not have the direct and immediate effect of placing public
funds beyond the control of the disbursing authority. In fact, a SARO may even
be withdrawn under certain circumstances which will prevent the actual
release of funds. On the other hand, the actual release of funds is brought
about by the issuance of the NCA, 264 which is subsequent to the issuance of a
SARO. As may be determined from the statements of the DBM representative
during the Oral Arguments:265
Justice Bernabe: Is the notice of allocation issued simultaneously with the
SARO?

This same pronouncement must be equally applied to (a) the Malampaya


Funds which have been obligated but not released meaning, those merely
covered by a SARO under the phrase "and for such other purposes as may be
hereafter directed by the President" pursuant to Section 8 of PD 910; and (b)
funds sourced from the Presidential Social Fund under the phrase "to finance
the priority infrastructure development projects" pursuant to Section 12 of PD
1869, as amended by PD 1993, which were altogether declared by the Court
as unconstitutional. However, these funds should not be reverted to the
general fund as afore-stated but instead, respectively remain under the
Malampaya Funds and the Presidential Social Fund to be utilized for their
corresponding special purposes not otherwise declared as unconstitutional.
E. Consequential Effects of Decision.
As a final point, it must be stressed that the Courts pronouncement anent the
unconstitutionality of (a) the 2013 PDAF Article and its Special Provisions, (b)
all other Congressional Pork Barrel provisions similar thereto, and (c) the
phrases (1) "and for such other purposes as may be hereafter directed by the
President" under Section 8 of PD 910, and (2) "to finance the priority
infrastructure development projects" under Section 12 of PD 1869, as
amended by PD 1993, must only be treated as prospective in effect in view of
the operative fact doctrine.

xxxx
Atty. Ruiz: It comes after. The SARO, Your Honor, is only the go signal for the
agencies to obligate or to enter into commitments. The NCA, Your Honor, is
already the go signal to the treasury for us to be able to pay or to liquidate the
amounts obligated in the SARO; so it comes after. x x x The NCA, Your Honor, is
the go signal for the MDS for the authorized government-disbursing banks to,
therefore, pay the payees depending on the projects or projects covered by
the SARO and the NCA.
Justice Bernabe: Are there instances that SAROs are cancelled or revoked?
Atty. Ruiz: Your Honor, I would like to instead submit that there are instances
that the SAROs issued are withdrawn by the DBM.
Justice Bernabe: They are withdrawn?
Atty. Ruiz: Yes, Your Honor x x x. (Emphases and underscoring supplied)
Thus, unless an NCA has been issued, public funds should not be treated as
funds which have been "released." In this respect, therefore, the disbursement
of 2013 PDAF funds which are only covered by obligated SAROs, and without
any corresponding NCAs issued, must, at the time of this Decisions
promulgation, be enjoined and consequently reverted to the unappropriated
surplus of the general fund. Verily, in view of the declared unconstitutionality
of the 2013 PDAF Article, the funds appropriated pursuant thereto cannot be
disbursed even though already obligated, else the Court sanctions the dealing
of funds coming from an unconstitutional source.

To explain, the operative fact doctrine exhorts the recognition that until the
judiciary, in an appropriate case, declares the invalidity of a certain legislative
or executive act, such act is presumed constitutional and thus, entitled to
obedience and respect and should be properly enforced and complied with. As
explained in the recent case of Commissioner of Internal Revenue v. San Roque
Power Corporation,266 the doctrine merely "reflects awareness that precisely
because the judiciary is the governmental organ which has the final say on
whether or not a legislative or executive measure is valid, a period of time may
have elapsed before it can exercise the power of judicial review that may lead
to a declaration of nullity. It would be to deprive the law of its quality of
fairness and justice then, if there be no recognition of what had transpired
prior to such adjudication."267 "In the language of an American Supreme Court
decision: The actual existence of a statute, prior to such a determination of
unconstitutionality, is an operative fact and may have consequences which
cannot justly be ignored."268
For these reasons, this Decision should be heretofore applied prospectively.
Conclusion
The Court renders this Decision to rectify an error which has persisted in the
chronicles of our history. In the final analysis, the Court must strike down the
Pork Barrel System as unconstitutional in view of the inherent defects in the
rules within which it operates. To recount, insofar as it has allowed legislators
to wield, in varying gradations, non-oversight, post-enactment authority in
vital areas of budget execution, the system has violated the principle of
separation of powers; insofar as it has conferred unto legislators the power of
appropriation by giving them personal, discretionary funds from which they are
able to fund specific projects which they themselves determine, it has similarly

violated the principle of non-delegability of legislative power ; insofar as it has


created a system of budgeting wherein items are not textualized into the
appropriations bill, it has flouted the prescribed procedure of presentment and,
in the process, denied the President the power to veto items ; insofar as it has
diluted the effectiveness of congressional oversight by giving legislators a
stake in the affairs of budget execution, an aspect of governance which they
may be called to monitor and scrutinize, the system has equally impaired
public accountability ; insofar as it has authorized legislators, who are national
officers, to intervene in affairs of purely local nature, despite the existence of
capable local institutions, it has likewise subverted genuine local autonomy ;
and again, insofar as it has conferred to the President the power to appropriate
funds intended by law for energy-related purposes only to other purposes he
may deem fit as well as other public funds under the broad classification of
"priority infrastructure development projects," it has once more transgressed
the principle of non-delegability.
For as long as this nation adheres to the rule of law, any of the multifarious
unconstitutional methods and mechanisms the Court has herein pointed out
should never again be adopted in any system of governance, by any name or
form, by any semblance or similarity, by any influence or effect. Disconcerting
as it is to think that a system so constitutionally unsound has monumentally
endured, the Court urges the people and its co-stewards in government to look
forward with the optimism of change and the awareness of the past. At a time
of great civic unrest and vociferous public debate, the Court fervently hopes
that its Decision today, while it may not purge all the wrongs of society nor
bring back what has been lost, guides this nation to the path forged by the
Constitution so that no one may heretofore detract from its cause nor stray
from its course. After all, this is the Courts bounden duty and no others.
WHEREFORE, the petitions are PARTLY GRANTED. In view of the constitutional
violations discussed in this Decision, the Court hereby declares as
UNCONSTITUTIONAL: (a) the entire 2013 PDAF Article; (b) all legal provisions of
past and present Congressional Pork Barrel Laws, such as the previous PDAF
and CDF Articles and the various Congressional Insertions, which authorize/d
legislators whether individually or collectively organized into committees to
intervene, assume or participate in any of the various post-enactment stages
of the budget execution, such as but not limited to the areas of project
identification, modification and revision of project identification, fund release
and/or fund realignment, unrelated to the power of congressional oversight; (c)
all legal provisions of past and present Congressional Pork Barrel Laws, such as
the previous PDAF and CDF Articles and the various Congressional Insertions,
which confer/red personal, lump-sum allocations to legislators from which they
are able to fund specific projects which they themselves determine; (d) all
informal practices of similar import and effect, which the Court similarly deems
to be acts of grave abuse of discretion amounting to lack or excess of
jurisdiction; and (e) the phrases (1) "and for such other purposes as may be
hereafter directed by the President" under Section 8 of Presidential Decree No.
910 and (2) "to finance the priority infrastructure development projects" under
Section 12 of Presidential Decree No. 1869, as amended by Presidential Decree
No. 1993, for both failing the sufficient standard test in violation of the
principle of non-delegability of legislative power.

Accordingly, the Courts temporary injunction dated September 10, 2013 is


hereby declared to be PERMANENT. Thus, the disbursement/release of the
remaining PDAF funds allocated for the year 2013, as well as for all previous
years, and the funds sourced from (1) the Malampaya Funds under the phrase
"and for such other purposes as may be hereafter directed by the President"
pursuant to Section 8 of Presidential Decree No. 910, and (2) the Presidential
Social Fund under the phrase "to finance the priority infrastructure
development projects" pursuant to Section 12 of Presidential Decree No. 1869,
as amended by Presidential Decree No. 1993, which are, at the time this
Decision is promulgated, not covered by Notice of Cash Allocations (NCAs) but
only by Special Allotment Release Orders (SAROs), whether obligated or not,
are hereby ENJOINED. The remaining PDAF funds covered by this permanent
injunction shall not be disbursed/released but instead reverted to the
unappropriated surplus of the general fund, while the funds under the
Malampaya Funds and the Presidential Social Fund shall remain therein to be
utilized for their respective special purposes not otherwise declared as
unconstitutional.
On the other hand, due to improper recourse and lack of proper substantiation,
the Court hereby DENIES petitioners prayer seeking that the Executive
Secretary and/or the Department of Budget and Management be ordered to
provide the public and the Commission on Audit complete lists/schedules or
detailed reports related to the availments and utilization of the funds subject
of these cases. Petitioners access to official documents already available and
of public record which are related to these funds must, however, not be
prohibited but merely subjected to the custodians reasonable regulations or
any valid statutory prohibition on the same. This denial is without prejudice to
a proper mandamus case which they or the Commission on Audit may choose
to pursue through a separate petition.
The Court also DENIES petitioners prayer to order the inclusion of the funds
subject of these cases in the budgetary deliberations of Congress as the same
is a matter left to the prerogative of the political branches of government.
Finally, the Court hereby DIRECTS all prosecutorial organs of the government
to, within the bounds of reasonable dispatch, investigate and accordingly
prosecute all government officials and/or private individuals for possible
criminal offenses related to the irregular, improper and/or unlawful
disbursement/utilization of all funds under the Pork Barrel System.
This Decision is immediately executory but prospective in effect.
SO ORDERED.

G.R. No. 115455 October 30, 1995


ARTURO M. TOLENTINO, petitioner, vs. THE SECRETARY OF FINANCE and
THE COMMISSIONER OF INTERNAL REVENUE, respondents.
MENDOZA, J.:
These are motions seeking reconsideration of our decision dismissing the
petitions filed in these cases for the declaration of unconstitutionality of R.A.
No. 7716, otherwise known as the Expanded Value-Added Tax Law. The
motions, of which there are 10 in all, have been filed by the several petitioners
in these cases, with the exception of the Philippine Educational Publishers
Association, Inc. and the Association of Philippine Booksellers, petitioners in
G.R. No. 115931.
The Solicitor General, representing the respondents, filed a consolidated
comment, to which the Philippine Airlines, Inc., petitioner in G.R. No. 115852,
and the Philippine Press Institute, Inc., petitioner in G.R. No. 115544, and Juan
T. David, petitioner in G.R. No. 115525, each filed a reply. In turn the Solicitor
General filed on June 1, 1995 a rejoinder to the PPI's reply.
On June 27, 1995 the matter was submitted for resolution.
I. Power of the Senate to propose amendments to revenue bills. Some of the
petitioners (Tolentino, Kilosbayan, Inc., Philippine Airlines (PAL), Roco, and
Chamber of Real Estate and Builders Association (CREBA)) reiterate previous
claims made by them that R.A. No. 7716 did not "originate exclusively" in the
House of Representatives as required by Art. VI, 24 of the Constitution.
Although they admit that H. No. 11197 was filed in the House of
Representatives where it passed three readings and that afterward it was sent
to the Senate where after first reading it was referred to the Senate Ways and
Means Committee, they complain that the Senate did not pass it on second
and third readings. Instead what the Senate did was to pass its own version (S.
No. 1630) which it approved on May 24, 1994. Petitioner Tolentino adds that
what the Senate committee should have done was to amend H. No. 11197 by
striking out the text of the bill and substituting it with the text of S. No. 1630.
That way, it is said, "the bill remains a House bill and the Senate version just
becomes the text (only the text) of the House bill."
The contention has no merit.
The enactment of S. No. 1630 is not the only instance in which the Senate
proposed an amendment to a House revenue bill by enacting its own version of
a revenue bill. On at least two occasions during the Eighth Congress, the
Senate passed its own version of revenue bills, which, in consolidation with
House bills earlier passed, became the enrolled bills. These were:
R.A. No. 7369 (AN ACT TO AMEND THE OMNIBUS INVESTMENTS CODE OF 1987
BY EXTENDING FROM FIVE (5) YEARS TO TEN YEARS THE PERIOD FOR TAX AND
DUTY EXEMPTION AND TAX CREDIT ON CAPITAL EQUIPMENT) which was

approved by the President on April 10, 1992. This Act is actually a


consolidation of H. No. 34254, which was approved by the House on January
29, 1992, and S. No. 1920, which was approved by the Senate on February 3,
1992.
R.A. No. 7549 (AN ACT GRANTING TAX EXEMPTIONS TO WHOEVER SHALL GIVE
REWARD TO ANY FILIPINO ATHLETE WINNING A MEDAL IN OLYMPIC GAMES)
which was approved by the President on May 22, 1992. This Act is a
consolidation of H. No. 22232, which was approved by the House of
Representatives on August 2, 1989, and S. No. 807, which was approved by
the Senate on October 21, 1991.
On the other hand, the Ninth Congress passed revenue laws which were also
the result of the consolidation of House and Senate bills. These are the
following, with indications of the dates on which the laws were approved by
the President and dates the separate bills of the two chambers of Congress
were respectively passed:

Senate Bill No. 35, November 19, 1992


4. R.A. NO. 7649
AN ACT REQUIRING THE GOVERNMENT OR ANY OF ITS POLITICAL
SUBDIVISIONS, INSTRUMENTALITIES OR AGENCIES INCLUDING
GOVERNMENT-OWNED OR CONTROLLED CORPORATIONS (GOCCS) TO
DEDUCT AND WITHHOLD THE VALUE-ADDED TAX DUE AT THE RATE OF
THREE PERCENT (3%) ON GROSS PAYMENT FOR THE PURCHASE OF
GOODS AND SIX PERCENT (6%) ON GROSS RECEIPTS FOR SERVICES
RENDERED BY CONTRACTORS (April 6, 1993)
House Bill No. 5260, January 26, 1993
Senate Bill No. 1141, March 30, 1993
5. R.A. NO. 7656

1. R.A. NO. 7642


AN ACT INCREASING THE PENALTIES FOR TAX EVASION, AMENDING
FOR THIS PURPOSE THE PERTINENT SECTIONS OF THE NATIONAL
INTERNAL REVENUE CODE (December 28, 1992).

AN ACT REQUIRING GOVERNMENT-OWNED OR CONTROLLED


CORPORATIONS
TO
DECLARE
DIVIDENDS
UNDER
CERTAIN
CONDITIONS TO THE NATIONAL GOVERNMENT, AND FOR OTHER
PURPOSES (November 9, 1993)

House Bill No. 2165, October 5, 1992

House Bill No. 11024, November 3, 1993

Senate Bill No. 32, December 7, 1992

Senate Bill No. 1168, November 3, 1993

2. R.A. NO. 7643

6. R.A. NO. 7660

AN ACT TO EMPOWER THE COMMISSIONER OF INTERNAL REVENUE TO


REQUIRE THE PAYMENT OF THE VALUE-ADDED TAX EVERY MONTH AND
TO ALLOW LOCAL GOVERNMENT UNITS TO SHARE IN VAT REVENUE,
AMENDING FOR THIS PURPOSE CERTAIN SECTIONS OF THE NATIONAL
INTERNAL REVENUE CODE (December 28, 1992)

AN
ACT
RATIONALIZING
FURTHER
THE
STRUCTURE
AND
ADMINISTRATION OF THE DOCUMENTARY STAMP TAX, AMENDING FOR
THE PURPOSE CERTAIN PROVISIONS OF THE NATIONAL INTERNAL
REVENUE CODE, AS AMENDED, ALLOCATING FUNDS FOR SPECIFIC
PROGRAMS, AND FOR OTHER PURPOSES (December 23, 1993)

House Bill No. 1503, September 3, 1992

House Bill No. 7789, May 31, 1993

Senate Bill No. 968, December 7, 1992

Senate Bill No. 1330, November 18, 1993

3. R.A. NO. 7646

7. R.A. NO. 7717

AN ACT AUTHORIZING THE COMMISSIONER OF INTERNAL REVENUE TO


PRESCRIBE THE PLACE FOR PAYMENT OF INTERNAL REVENUE TAXES
BY LARGE TAXPAYERS, AMENDING FOR THIS PURPOSE CERTAIN
PROVISIONS OF THE NATIONAL INTERNAL REVENUE CODE, AS
AMENDED (February 24, 1993)

AN ACT IMPOSING A TAX ON THE SALE, BARTER OR EXCHANGE OF


SHARES OF STOCK LISTED AND TRADED THROUGH THE LOCAL STOCK
EXCHANGE OR THROUGH INITIAL PUBLIC OFFERING, AMENDING FOR
THE PURPOSE THE NATIONAL INTERNAL REVENUE CODE, AS
AMENDED, BY INSERTING A NEW SECTION AND REPEALING CERTAIN
SUBSECTIONS THEREOF (May 5, 1994)

House Bill No. 1470, October 20, 1992

House Bill No. 9187, November 3, 1993


Senate Bill No. 1127, March 23, 1994
Thus, the enactment of S. No. 1630 is not the only instance in which the
Senate, in the exercise of its power to propose amendments to bills required to
originate in the House, passed its own version of a House revenue measure. It
is noteworthy that, in the particular case of S. No. 1630, petitioners Tolentino
and Roco, as members of the Senate, voted to approve it on second and third
readings.
On the other hand, amendment by substitution, in the manner urged by
petitioner Tolentino, concerns a mere matter of form. Petitioner has not shown
what substantial difference it would make if, as the Senate actually did in this
case, a separate bill like S. No. 1630 is instead enacted as a substitute
measure, "taking into Consideration . . . H.B.11197."
Indeed, so far as pertinent, the Rules of the Senate only provide:
RULE XXIX
AMENDMENTS
xxx xxx xxx
68. Not more than one amendment to the original amendment shall
be considered.
No amendment by substitution shall be entertained unless the text
thereof is submitted in writing.
Any of said amendments may be withdrawn before a vote is taken
thereon.
69. No amendment which seeks the inclusion of a legislative
provision foreign to the subject matter of a bill (rider) shall be
entertained.
xxx xxx xxx
70-A. A bill or resolution shall not be amended by substituting it with
another which covers a subject distinct from that proposed in the
original bill or resolution. (emphasis added).
Nor is there merit in petitioners' contention that, with regard to revenue bills,
the Philippine Senate possesses less power than the U.S. Senate because of
textual differences between constitutional provisions giving them the power to
propose or concur with amendments.

Art. I, 7, cl. 1 of the U.S. Constitution reads:


All Bills for raising Revenue shall originate in the House of
Representatives; but the Senate may propose or concur with
amendments as on other Bills.
Art. VI, 24 of our Constitution reads:
All appropriation, revenue or tariff bills, bills authorizing increase of
the public debt, bills of local application, and private bills shall
originate exclusively in the House of Representatives, but the Senate
may propose or concur with amendments.
The addition of the word "exclusively" in the Philippine Constitution and the
decision to drop the phrase "as on other Bills" in the American version,
according to petitioners, shows the intention of the framers of our Constitution
to restrict the Senate's power to propose amendments to revenue bills.
Petitioner Tolentino contends that the word "exclusively" was inserted to
modify "originate" and "the words 'as in any other bills' (sic) were eliminated
so as to show that these bills were not to be like other bills but must be treated
as a special kind."
The history of this provision does not support this contention. The
supposed indicia of constitutional intent are nothing but the relics of an
unsuccessful attempt to limit the power of the Senate. It will be recalled that
the 1935 Constitution originally provided for a unicameral National Assembly.
When it was decided in 1939 to change to a bicameral legislature, it became
necessary to provide for the procedure for lawmaking by the Senate and the
House of Representatives. The work of proposing amendments to the
Constitution was done by the National Assembly, acting as a constituent
assembly, some of whose members, jealous of preserving the Assembly's
lawmaking powers, sought to curtail the powers of the proposed Senate.
Accordingly they proposed the following provision:
All bills appropriating public funds, revenue or tariff bills, bills of local
application, and private bills shall originate exclusively in the
Assembly, but the Senate may propose or concur with amendments.
In case of disapproval by the Senate of any such bills, the Assembly
may repass the same by a two-thirds vote of all its members, and
thereupon, the bill so repassed shall be deemed enacted and may be
submitted to the President for corresponding action. In the event that
the Senate should fail to finally act on any such bills, the Assembly
may, after thirty days from the opening of the next regular session of
the same legislative term, reapprove the same with a vote of twothirds of all the members of the Assembly. And upon such reapproval,
the bill shall be deemed enacted and may be submitted to the
President for corresponding action.
The special committee on the revision of laws of the Second National Assembly
vetoed the proposal. It deleted everything after the first sentence. As
rewritten, the proposal was approved by the National Assembly and embodied

in Resolution No. 38, as amended by Resolution No. 73. (J. ARUEGO, KNOW
YOUR CONSTITUTION 65-66 (1950)). The proposed amendment was submitted
to the people and ratified by them in the elections held on June 18, 1940.
This is the history of Art. VI, 18 (2) of the 1935 Constitution, from which Art.
VI, 24 of the present Constitution was derived. It explains why the word
"exclusively" was added to the American text from which the framers of the
Philippine Constitution borrowed and why the phrase "as on other Bills" was
not copied. Considering the defeat of the proposal, the power of the Senate to
propose amendments must be understood to be full, plenary and complete "as
on other Bills." Thus, because revenue bills are required to originate
exclusively in the House of Representatives, the Senate cannot enact revenue
measures of its own without such bills. After a revenue bill is passed and sent
over to it by the House, however, the Senate certainly can pass its own version
on the same subject matter. This follows from the coequality of the two
chambers of Congress.
That this is also the understanding of book authors of the scope of the
Senate's power to concur is clear from the following commentaries:
The power of the Senate to propose or concur with amendments is
apparently without restriction. It would seem that by virtue of this
power, the Senate can practically re-write a bill required to come from
the House and leave only a trace of the original bill. For example, a
general revenue bill passed by the lower house of the United States
Congress contained provisions for the imposition of an inheritance
tax . This was changed by the Senate into a corporation tax. The
amending authority of the Senate was declared by the United States
Supreme Court to be sufficiently broad to enable it to make the
alteration. [Flint v. Stone Tracy Company, 220 U.S. 107, 55 L. ed. 389].
(L. TAADA AND F. CARREON, POLITICAL LAW OF THE PHILIPPINES 247
(1961))
The above-mentioned bills are supposed to be initiated by the House
of Representatives because it is more numerous in membership and
therefore also more representative of the people. Moreover, its
members are presumed to be more familiar with the needs of the
country in regard to the enactment of the legislation involved.
The Senate is, however, allowed much leeway in the exercise of its
power to propose or concur with amendments to the bills initiated by
the House of Representatives. Thus, in one case, a bill introduced in
the U.S. House of Representatives was changed by the Senate to
make a proposed inheritance tax a corporation tax. It is also accepted
practice for the Senate to introduce what is known as an amendment
by substitution, which may entirely replace the bill initiated in the
House of Representatives.
(I. CRUZ, PHILIPPINE POLITICAL LAW 144-145 (1993)).

In sum, while Art. VI, 24 provides that all appropriation, revenue or tariff bills,
bills authorizing increase of the public debt, bills of local application, and
private bills must "originate exclusively in the House of Representatives," it
also adds, "but the Senate may propose or concur with amendments." In the
exercise of this power, the Senate may propose an entirely new bill as a
substitute measure. As petitioner Tolentino states in a high school text, a
committee to which a bill is referred may do any of the following:
(1) to endorse the bill without changes; (2) to make changes in the bill
omitting or adding sections or altering its language; (3) to make and
endorse an entirely new bill as a substitute, in which case it will be
known as a committee bill; or (4) to make no report at all.
(A. TOLENTINO, THE GOVERNMENT OF THE PHILIPPINES 258 (1950))
To except from this procedure the amendment of bills which are required to
originate in the House by prescribing that the number of the House bill and its
other parts up to the enacting clause must be preserved although the text of
the Senate amendment may be incorporated in place of the original body of
the bill is to insist on a mere technicality. At any rate there is no rule
prescribing this form. S. No. 1630, as a substitute measure, is therefore as
much an amendment of H. No. 11197 as any which the Senate could have
made.
II. S. No. 1630 a mere amendment of H. No. 11197. Petitioners' basic error is
that they assume that S. No. 1630 is an independent and distinct bill. Hence
their repeated references to its certification that it was passed by the Senate
"in substitution of S.B. No. 1129, taking into consideration P.S. Res. No. 734
and H.B. No. 11197," implying that there is something substantially different
between the reference to S. No. 1129 and the reference to H. No. 11197. From
this premise, they conclude that R.A. No. 7716 originated both in the House
and in the Senate and that it is the product of two "half-baked bills because
neither H. No. 11197 nor S. No. 1630 was passed by both houses of Congress."
In point of fact, in several instances the provisions of S. No. 1630, clearly
appear to be mere amendments of the corresponding provisions of H. No.
11197. The very tabular comparison of the provisions of H. No. 11197 and S.
No. 1630 attached as Supplement A to the basic petition of petitioner
Tolentino, while showing differences between the two bills, at the same time
indicates that the provisions of the Senate bill were precisely intended to be
amendments to the House bill.
Without H. No. 11197, the Senate could not have enacted S. No. 1630.
Because the Senate bill was a mere amendment of the House bill, H. No.
11197 in its original form did not have to pass the Senate on second and three
readings. It was enough that after it was passed on first reading it was referred
to the Senate Committee on Ways and Means. Neither was it required that S.
No. 1630 be passed by the House of Representatives before the two bills could
be referred to the Conference Committee.

There is legislative precedent for what was done in the case of H. No. 11197
and S. No. 1630. When the House bill and Senate bill, which became R.A. No.
1405 (Act prohibiting the disclosure of bank deposits), were referred to a
conference committee, the question was raised whether the two bills could be
the subject of such conference, considering that the bill from one house had
not been passed by the other and vice versa. As Congressman Duran put the
question:
MR. DURAN. Therefore, I raise this question of order as to procedure: If
a House bill is passed by the House but not passed by the Senate, and
a Senate bill of a similar nature is passed in the Senate but never
passed in the House, can the two bills be the subject of a conference,
and can a law be enacted from these two bills? I understand that the
Senate bill in this particular instance does not refer to investments in
government securities, whereas the bill in the House, which was
introduced by the Speaker, covers two subject matters: not only
investigation of deposits in banks but also investigation of
investments in government securities. Now, since the two bills differ in
their subject matter, I believe that no law can be enacted.
Ruling on the point of order raised, the chair (Speaker Jose B. Laurel, Jr.) said:
THE SPEAKER. The report of the conference committee is in order. It is
precisely in cases like this where a conference should be had. If the
House bill had been approved by the Senate, there would have been
no need of a conference; but precisely because the Senate passed
another bill on the same subject matter, the conference committee
had to be created, and we are now considering the report of that
committee.
(2 CONG. REC. NO. 13, July 27, 1955, pp. 3841-42 (emphasis added))
III. The President's certification. The fallacy in thinking that H. No. 11197 and S.
No. 1630 are distinct and unrelated measures also accounts for the petitioners'
(Kilosbayan's and PAL's) contention that because the President separately
certified to the need for the immediate enactment of these measures, his
certification was ineffectual and void. The certification had to be made of the
version of the same revenue bill which at the moment was being considered.
Otherwise, to follow petitioners' theory, it would be necessary for the President
to certify as many bills as are presented in a house of Congress even though
the bills are merely versions of the bill he has already certified. It is enough
that he certifies the bill which, at the time he makes the certification, is under
consideration. Since on March 22, 1994 the Senate was considering S. No.
1630, it was that bill which had to be certified. For that matter on June 1, 1993
the President had earlier certified H. No. 9210 for immediate enactment
because it was the one which at that time was being considered by the House.
This bill was later substituted, together with other bills, by H. No. 11197.
As to what Presidential certification can accomplish, we have already explained
in the main decision that the phrase "except when the President certifies to
the necessity of its immediate enactment, etc." in Art. VI, 26 (2) qualifies not
only the requirement that "printed copies [of a bill] in its final form [must be]

distributed to the members three days before its passage" but also the
requirement that before a bill can become a law it must have passed "three
readings on separate days." There is not only textual support for such
construction but historical basis as well.
Art. VI, 21 (2) of the 1935 Constitution originally provided:
(2) No bill shall be passed by either House unless it shall have been
printed and copies thereof in its final form furnished its Members at
least three calendar days prior to its passage, except when the
President shall have certified to the necessity of its immediate
enactment. Upon the last reading of a bill, no amendment thereof
shall be allowed and the question upon its passage shall be taken
immediately thereafter, and the yeas and nays entered on the Journal.
When the 1973 Constitution was adopted, it was provided in Art. VIII, 19 (2):
(2) No bill shall become a law unless it has passed three readings on
separate days, and printed copies thereof in its final form have been
distributed to the Members three days before its passage, except
when the Prime Minister certifies to the necessity of its immediate
enactment to meet a public calamity or emergency. Upon the last
reading of a bill, no amendment thereto shall be allowed, and the vote
thereon
shall
be
taken
immediately
thereafter,
and
the yeas and nays entered in the Journal.
This provision of the 1973 document, with slight modification, was adopted in
Art. VI, 26 (2) of the present Constitution, thus:
(2) No bill passed by either House shall become a law unless it has
passed three readings on separate days, and printed copies thereof in
its final form have been distributed to its Members three days before
its passage, except when the President certifies to the necessity of its
immediate enactment to meet a public calamity or emergency. Upon
the last reading of a bill, no amendment thereto shall be allowed, and
the vote thereon shall be taken immediately thereafter, and
the yeas and nays entered in the Journal.
The exception is based on the prudential consideration that if in all cases three
readings on separate days are required and a bill has to be printed in final form
before it can be passed, the need for a law may be rendered academic by the
occurrence of the very emergency or public calamity which it is meant to
address.
Petitioners further contend that a "growing budget deficit" is not an
emergency, especially in a country like the Philippines where budget deficit is
a chronic condition. Even if this were the case, an enormous budget deficit
does not make the need for R.A. No. 7716 any less urgent or the situation
calling for its enactment any less an emergency.

Apparently, the members of the Senate (including some of the petitioners in


these cases) believed that there was an urgent need for consideration of S. No.
1630, because they responded to the call of the President by voting on the bill
on second and third readings on the same day. While the judicial department is
not bound by the Senate's acceptance of the President's certification, the
respect due coequal departments of the government in matters committed to
them by the Constitution and the absence of a clear showing of grave abuse of
discretion caution a stay of the judicial hand.

the changes in or other amendments." These changes are shown in the bill
attached to the Conference Committee Report. The members of both houses
could thus ascertain what changes had been made in the original bills without
the need of a statement detailing the changes.

At any rate, we are satisfied that S. No. 1630 received thorough consideration
in the Senate where it was discussed for six days. Only its distribution in
advance in its final printed form was actually dispensed with by holding the
voting on second and third readings on the same day (March 24, 1994).
Otherwise, sufficient time between the submission of the bill on February 8,
1994 on second reading and its approval on March 24, 1994 elapsed before it
was finally voted on by the Senate on third reading.

MR. BENGZON. My point of order is that it is out of order to consider


the report of the conference committee regarding House Bill No.
2557 by reason of the provision of Section 11, Article XII, of the Rules
of this House which provides specifically that the conference report
must be accompanied by a detailed statement of the effects of the
amendment on the bill of the House. This conference committee
report is not accompanied by that detailed statement, Mr. Speaker.
Therefore it is out of order to consider it.

The purpose for which three readings on separate days is required is said to be
two-fold: (1) to inform the members of Congress of what they must vote on
and (2) to give them notice that a measure is progressing through the enacting
process, thus enabling them and others interested in the measure to prepare
their positions with reference to it. (1 J. G. SUTHERLAND, STATUTES AND
STATUTORY CONSTRUCTION 10.04, p. 282 (1972)). These purposes were
substantially achieved in the case of R.A. No. 7716.
IV. Power of Conference Committee. It is contended (principally by Kilosbayan,
Inc. and the Movement of Attorneys for Brotherhood, Integrity and Nationalism,
Inc. (MABINI)) that in violation of the constitutional policy of full public
disclosure and the people's right to know (Art. II, 28 and Art. III, 7) the
Conference Committee met for two days in executive session with only the
conferees present.
As pointed out in our main decision, even in the United States it was
customary to hold such sessions with only the conferees and their staffs in
attendance and it was only in 1975 when a new rule was adopted requiring
open sessions. Unlike its American counterpart, the Philippine Congress has
not adopted a rule prescribing open hearings for conference committees.
It is nevertheless claimed that in the United States, before the adoption of the
rule in 1975, at least staff members were present. These were staff members
of the Senators and Congressmen, however, who may be presumed to be their
confidential men, not stenographers as in this case who on the last two days of
the conference were excluded. There is no showing that the conferees
themselves did not take notes of their proceedings so as to give petitioner
Kilosbayan basis for claiming that even in secret diplomatic negotiations
involving state interests, conferees keep notes of their meetings. Above all, the
public's right to know was fully served because the Conference Committee in
this case submitted a report showing the changes made on the differing
versions of the House and the Senate.
Petitioners cite the rules of both houses which provide that conference
committee reports must contain "a detailed, sufficiently explicit statement of

The same question now presented was raised when the bill which became R.A.
No. 1400 (Land Reform Act of 1955) was reported by the Conference
Committee. Congressman Bengzon raised a point of order. He said:

Petitioner Tolentino, then the Majority Floor Leader, answered:


MR. TOLENTINO. Mr. Speaker, I should just like to say a few words in
connection with the point of order raised by the gentleman from
Pangasinan.
There is no question about the provision of the Rule cited by the
gentleman from Pangasinan, but this provision applies to those cases
where only portions of the bill have been amended. In this case before
us an entire bill is presented; therefore, it can be easily seen from the
reading of the bill what the provisions are. Besides, this procedure has
been an established practice.
After some interruption, he continued:
MR. TOLENTINO. As I was saying, Mr. Speaker, we have to look into the
reason for the provisions of the Rules, and the reason for the
requirement in the provision cited by the gentleman from Pangasinan
is when there are only certain words or phrases inserted in or deleted
from the provisions of the bill included in the conference report, and
we cannot understand what those words and phrases mean and their
relation to the bill. In that case, it is necessary to make a detailed
statement on how those words and phrases will affect the bill as a
whole; but when the entire bill itself is copied verbatim in the
conference report, that is not necessary. So when the reason for the
Rule does not exist, the Rule does not exist.
(2 CONG. REC. NO. 2, p. 4056. (emphasis added))
Congressman Tolentino was sustained by the chair. The record shows that
when the ruling was appealed, it was upheld by viva voce and when a division

of the House was called, it was sustained by a vote of 48 to 5. ( Id.,


p. 4058)
Nor is there any doubt about the power of a conference committee to insert
new provisions as long as these are germane to the subject of the conference.
As this Court held in Philippine Judges Association v. Prado, 227 SCRA 703
(1993), in an opinion written by then Justice Cruz, the jurisdiction of the
conference committee is not limited to resolving differences between the
Senate and the House. It may propose an entirely new provision. What is
important is that its report is subsequently approved by the respective houses
of Congress. This Court ruled that it would not entertain allegations that,
because new provisions had been added by the conference committee, there
was thereby a violation of the constitutional injunction that "upon the last
reading of a bill, no amendment thereto shall be allowed."
Applying these principles, we shall decline to look into the petitioners'
charges that an amendment was made upon the last reading of the
bill that eventually became R.A. No. 7354 and that copies thereof in its
final form were not distributed among the members of each House.
Both the enrolled bill and the legislative journals certify that the
measure was duly enacted i.e., in accordance with Article VI, Sec. 26
(2) of the Constitution. We are bound by such official assurances from
a coordinate department of the government, to which we owe, at the
very least, a becoming courtesy.
(Id. at 710. (emphasis added))
It is interesting to note the following description of conference committees in
the Philippines in a 1979 study:
Conference committees may be of two types: free or instructed. These
committees may be given instructions by their parent bodies or they
may be left without instructions. Normally the conference committees
are without instructions, and this is why they are often critically
referred to as "the little legislatures." Once bills have been sent to
them, the conferees have almost unlimited authority to change the
clauses of the bills and in fact sometimes introduce new measures
that were not in the original legislation. No minutes are kept, and
members' activities on conference committees are difficult to
determine. One congressman known for his idealism put it this way: "I
killed a bill on export incentives for my interest group [copra] in the
conference committee but I could not have done so anywhere else."
The conference committee submits a report to both houses, and
usually it is accepted. If the report is not accepted, then the
committee is discharged and new members are appointed.
(R. Jackson, Committees in the Philippine Congress, in COMMITTEES
AND LEGISLATURES: A COMPARATIVE ANALYSIS 163 (J. D. LEES AND M.
SHAW, eds.)).

In citing this study, we pass no judgment on the methods of conference


committees. We cite it only to say that conference committees here are no
different from their counterparts in the United States whose vast powers we
noted in Philippine Judges Association v. Prado, supra. At all events, under Art.
VI, 16(3) each house has the power "to determine the rules of its
proceedings," including those of its committees. Any meaningful change in the
method and procedures of Congress or its committees must therefore be
sought in that body itself.
V. The titles of S. No. 1630 and H. No. 11197. PAL maintains that R.A. No. 7716
violates Art. VI, 26 (1) of the Constitution which provides that "Every bill
passed by Congress shall embrace only one subject which shall be expressed
in the title thereof." PAL contends that the amendment of its franchise by the
withdrawal of its exemption from the VAT is not expressed in the title of the
law.
Pursuant to 13 of P.D. No. 1590, PAL pays a franchise tax of 2% on its gross
revenue "in lieu of all other taxes, duties, royalties, registration, license and
other fees and charges of any kind, nature, or description, imposed, levied,
established, assessed or collected by any municipal, city, provincial or national
authority or government agency, now or in the future."
PAL was exempted from the payment of the VAT along with other entities by
103 of the National Internal Revenue Code, which provides as follows:
103. Exempt transactions. The following shall be exempt from the
value-added tax:
xxx xxx xxx
(q) Transactions which are exempt under special laws or international
agreements to which the Philippines is a signatory.
R.A. No. 7716 seeks to withdraw certain exemptions, including that granted to
PAL, by amending 103, as follows:
103. Exempt transactions. The following shall be exempt from the
value-added tax:
xxx xxx xxx
(q) Transactions which are exempt under special laws, except those
granted under Presidential Decree Nos. 66, 529, 972, 1491, 1590. . . .
The amendment of 103 is expressed in the title of R.A. No. 7716 which reads:
AN ACT RESTRUCTURING THE VALUE-ADDED TAX (VAT) SYSTEM,
WIDENING ITS TAX BASE AND ENHANCING ITS ADMINISTRATION, AND
FOR THESE PURPOSES AMENDING AND REPEALING THE RELEVANT

PROVISIONS OF THE NATIONAL INTERNAL REVENUE CODE, AS


AMENDED, AND FOR OTHER PURPOSES.
By stating that R.A. No. 7716 seeks to "[RESTRUCTURE] THE VALUE-ADDED
TAX (VAT) SYSTEM [BY] WIDENING ITS TAX BASE AND ENHANCING ITS
ADMINISTRATION, AND FOR THESE PURPOSES AMENDING AND REPEALING THE
RELEVANT PROVISIONS OF THE NATIONAL INTERNAL REVENUE CODE, AS
AMENDED AND FOR OTHER PURPOSES," Congress thereby clearly expresses its
intention to amend any provision of the NIRC which stands in the way of
accomplishing the purpose of the law.
PAL asserts that the amendment of its franchise must be reflected in the title
of the law by specific reference to P.D. No. 1590. It is unnecessary to do this in
order to comply with the constitutional requirement, since it is already stated
in the title that the law seeks to amend the pertinent provisions of the NIRC,
among which is 103(q), in order to widen the base of the VAT. Actually, it is
the bill which becomes a law that is required to express in its title the subject
of legislation. The titles of H. No. 11197 and S. No. 1630 in fact specifically
referred to 103 of the NIRC as among the provisions sought to be amended.
We are satisfied that sufficient notice had been given of the pendency of these
bills in Congress before they were enacted into what is now R.A.
No. 7716.
In Philippine Judges Association v. Prado, supra, a similar argument as that
now made by PAL was rejected. R.A. No. 7354 is entitled AN ACT CREATING
THE PHILIPPINE POSTAL CORPORATION, DEFINING ITS POWERS, FUNCTIONS
AND RESPONSIBILITIES, PROVIDING FOR REGULATION OF THE INDUSTRY AND
FOR OTHER PURPOSES CONNECTED THEREWITH. It contained a provision
repealing all franking privileges. It was contended that the withdrawal of
franking privileges was not expressed in the title of the law. In holding that
there was sufficient description of the subject of the law in its title, including
the repeal of franking privileges, this Court held:
To require every end and means necessary for the accomplishment of
the general objectives of the statute to be expressed in its title would
not only be unreasonable but would actually render legislation
impossible. [Cooley, Constitutional Limitations, 8th Ed., p. 297] As has
been correctly explained:
The details of a legislative act need not be
specifically stated in its title, but matter germane to
the subject as expressed in the title, and adopted to
the accomplishment of the object in view, may
properly be included in the act. Thus, it is proper to
create in the same act the machinery by which the
act is to be enforced, to prescribe the penalties for its
infraction, and to remove obstacles in the way of its
execution. If such matters are properly connected
with the subject as expressed in the title, it is
unnecessary that they should also have special
mention in the title. (Southern Pac. Co. v. Bartine, 170
Fed. 725)

(227 SCRA at 707-708)


VI. Claims of press freedom and religious liberty. We have held that, as a
general proposition, the press is not exempt from the taxing power of the State
and that what the constitutional guarantee of free press prohibits are laws
which single out the press or target a group belonging to the press for special
treatment or which in any way discriminate against the press on the basis of
the content of the publication, and R.A. No. 7716 is none of these.
Now it is contended by the PPI that by removing the exemption of the press
from the VAT while maintaining those granted to others, the law discriminates
against the press. At any rate, it is averred, "even nondiscriminatory taxation
of constitutionally guaranteed freedom is unconstitutional."
With respect to the first contention, it would suffice to say that since the law
granted the press a privilege, the law could take back the privilege anytime
without offense to the Constitution. The reason is simple: by granting
exemptions, the State does not forever waive the exercise of its sovereign
prerogative.
Indeed, in withdrawing the exemption, the law merely subjects the press to the
same tax burden to which other businesses have long ago been subject. It is
thus different from the tax involved in the cases invoked by the PPI. The
license tax in Grosjean v. American Press Co., 297 U.S. 233, 80 L. Ed. 660
(1936) was found to be discriminatory because it was laid on the gross
advertising receipts only of newspapers whose weekly circulation was over
20,000, with the result that the tax applied only to 13 out of 124 publishers in
Louisiana. These large papers were critical of Senator Huey Long who
controlled the state legislature which enacted the license tax. The censorial
motivation for the law was thus evident.
On the other hand, in Minneapolis Star & Tribune Co. v. Minnesota Comm'r of
Revenue, 460 U.S. 575, 75 L. Ed. 2d 295 (1983), the tax was found to be
discriminatory because although it could have been made liable for the sales
tax or, in lieu thereof, for the use tax on the privilege of using, storing or
consuming tangible goods, the press was not. Instead, the press was
exempted from both taxes. It was, however, later made to pay a special use
tax on the cost of paper and ink which made these items "the only items
subject to the use tax that were component of goods to be sold at retail." The
U.S. Supreme Court held that the differential treatment of the press "suggests
that the goal of regulation is not related to suppression of expression, and such
goal is presumptively unconstitutional." It would therefore appear that even a
law that favors the press is constitutionally suspect. (See the dissent of
Rehnquist, J. in that case)
Nor is it true that only two exemptions previously granted by E.O. No. 273 are
withdrawn "absolutely and unqualifiedly" by R.A. No. 7716. Other exemptions
from the VAT, such as those previously granted to PAL, petroleum
concessionaires, enterprises registered with the Export Processing Zone
Authority, and many more are likewise totally withdrawn, in addition to
exemptions which are partially withdrawn, in an effort to broaden the base of
the tax.

The PPI says that the discriminatory treatment of the press is highlighted by
the fact that transactions, which are profit oriented, continue to enjoy
exemption under R.A. No. 7716. An enumeration of some of these transactions
will suffice to show that by and large this is not so and that the exemptions are
granted for a purpose. As the Solicitor General says, such exemptions are
granted, in some cases, to encourage agricultural production and, in other
cases, for the personal benefit of the end-user rather than for profit. The
exempt transactions are:

The fact that the ordinance is "nondiscriminatory" is immaterial. The


protection afforded by the First Amendment is not so restricted. A
license tax certainly does not acquire constitutional validity because it
classifies the privileges protected by the First Amendment along with
the wares and merchandise of hucksters and peddlers and treats them
all alike. Such equality in treatment does not save the ordinance.
Freedom of press, freedom of speech, freedom of religion are in
preferred position.

(a) Goods for consumption or use which are in their original state
(agricultural, marine and forest products, cotton seeds in their original
state, fertilizers, seeds, seedlings, fingerlings, fish, prawn livestock
and poultry feeds) and goods or services to enhance agriculture
(milling of palay, corn, sugar cane and raw sugar, livestock, poultry
feeds, fertilizer, ingredients used for the manufacture of feeds).

The Court was speaking in that case of a license tax, which, unlike an ordinary
tax, is mainly for regulation. Its imposition on the press is unconstitutional
because it lays a prior restraint on the exercise of its right. Hence, although its
application to others, such those selling goods, is valid, its application to the
press or to religious groups, such as the Jehovah's Witnesses, in connection
with the latter's sale of religious books and pamphlets, is unconstitutional. As
the U.S. Supreme Court put it, "it is one thing to impose a tax on income or
property of a preacher. It is quite another thing to exact a tax on him for
delivering a sermon."

(b) Goods used for personal consumption or use (household and


personal effects of citizens returning to the Philippines) or for
professional use, like professional instruments and implements, by
persons coming to the Philippines to settle here.
(c) Goods subject to excise tax such as petroleum products or to be
used for manufacture of petroleum products subject to excise tax and
services subject to percentage tax.
(d) Educational services, medical, dental, hospital and veterinary
services,
and
services
rendered
under
employer-employee
relationship.
(e) Works of art and similar creations sold by the artist himself.
(f) Transactions exempted under special laws, or international
agreements.
(g) Export-sales by persons not VAT-registered.
(h) Goods or services with gross annual sale or receipt not
exceeding P500,000.00.
(Respondents' Consolidated
Reconsideration, pp. 58-60)

Comment

on

the

Motions

for

The PPI asserts that it does not really matter that the law does not discriminate
against the press because "even nondiscriminatory taxation on constitutionally
guaranteed freedom is unconstitutional." PPI cites in support of this assertion
the following statement in Murdock v. Pennsylvania, 319 U.S. 105, 87 L. Ed.
1292 (1943):

A similar ruling was made by this Court in American Bible Society v. City of
Manila, 101 Phil. 386 (1957) which invalidated a city ordinance requiring a
business license fee on those engaged in the sale of general merchandise. It
was held that the tax could not be imposed on the sale of bibles by the
American Bible Society without restraining the free exercise of its right to
propagate.
The VAT is, however, different. It is not a license tax. It is not a tax on the
exercise of a privilege, much less a constitutional right. It is imposed on the
sale, barter, lease or exchange of goods or properties or the sale or exchange
of services and the lease of properties purely for revenue purposes. To subject
the press to its payment is not to burden the exercise of its right any more
than to make the press pay income tax or subject it to general regulation is not
to violate its freedom under the Constitution.
Additionally, the Philippine Bible Society, Inc. claims that although it sells
bibles, the proceeds derived from the sales are used to subsidize the cost of
printing copies which are given free to those who cannot afford to pay so that
to tax the sales would be to increase the price, while reducing the volume of
sale. Granting that to be the case, the resulting burden on the exercise of
religious freedom is so incidental as to make it difficult to differentiate it from
any other economic imposition that might make the right to disseminate
religious doctrines costly. Otherwise, to follow the petitioner's argument, to
increase the tax on the sale of vestments would be to lay an impermissible
burden on the right of the preacher to make a sermon.
On the other hand the registration fee of P1,000.00 imposed by 107 of the
NIRC, as amended by 7 of R.A. No. 7716, although fixed in amount, is really
just to pay for the expenses of registration and enforcement of provisions such
as those relating to accounting in 108 of the NIRC. That the PBS distributes
free bibles and therefore is not liable to pay the VAT does not excuse it from
the payment of this fee because it also sells some copies. At any rate whether

the PBS is liable for the VAT must be decided in concrete cases, in the event it
is assessed this tax by the Commissioner of Internal Revenue.
VII. Alleged violations of the due process, equal protection and contract
clauses and the rule on taxation. CREBA asserts that R.A. No. 7716 (1) impairs
the obligations of contracts, (2) classifies transactions as covered or exempt
without reasonable basis and (3) violates the rule that taxes should be uniform
and equitable and that Congress shall "evolve a progressive system of
taxation."
With respect to the first contention, it is claimed that the application of the tax
to existing contracts of the sale of real property by installment or on deferred
payment basis would result in substantial increases in the monthly
amortizations to be paid because of the 10% VAT. The additional amount, it is
pointed out, is something that the buyer did not anticipate at the time he
entered into the contract.
The short answer to this is the one given by this Court in an early case:
"Authorities from numerous sources are cited by the plaintiffs, but none of
them show that a lawful tax on a new subject, or an increased tax on an old
one, interferes with a contract or impairs its obligation, within the meaning of
the Constitution. Even though such taxation may affect particular contracts, as
it may increase the debt of one person and lessen the security of another, or
may impose additional burdens upon one class and release the burdens of
another, still the tax must be paid unless prohibited by the Constitution, nor
can it be said that it impairs the obligation of any existing contract in its true
legal sense." (La Insular v. Machuca Go-Tauco and Nubla Co-Siong, 39 Phil. 567,
574 (1919)). Indeed not only existing laws but also "the reservation of the
essential attributes of sovereignty, is . . . read into contracts as a postulate of
the legal order." (Philippine-American Life Ins. Co. v. Auditor General, 22 SCRA
135, 147 (1968)) Contracts must be understood as having been made in
reference to the possible exercise of the rightful authority of the government
and no obligation of contract can extend to the defeat of that authority.
(Norman v. Baltimore and Ohio R.R., 79 L. Ed. 885 (1935)).
It is next pointed out that while 4 of R.A. No. 7716 exempts such transactions
as the sale of agricultural products, food items, petroleum, and medical and
veterinary services, it grants no exemption on the sale of real property which is
equally essential. The sale of real property for socialized and low-cost housing
is exempted from the tax, but CREBA claims that real estate transactions of
"the less poor," i.e., the middle class, who are equally homeless, should
likewise be exempted.
The sale of food items, petroleum, medical and veterinary services, etc., which
are essential goods and services was already exempt under 103, pars. (b) (d)
(1) of the NIRC before the enactment of R.A. No. 7716. Petitioner is in error in
claiming that R.A. No. 7716 granted exemption to these transactions, while
subjecting those of petitioner to the payment of the VAT. Moreover, there is a
difference between the "homeless poor" and the "homeless less poor" in the
example given by petitioner, because the second group or middle class can
afford to rent houses in the meantime that they cannot yet buy their own
homes. The two social classes are thus differently situated in life. "It is inherent

in the power to tax that the State be free to select the subjects of taxation,
and it has been repeatedly held that 'inequalities which result from a singling
out of one particular class for taxation, or exemption infringe no constitutional
limitation.'" (Lutz v. Araneta, 98 Phil. 148, 153 (1955). Accord, City of Baguio v.
De Leon, 134 Phil. 912 (1968); Sison, Jr. v. Ancheta, 130 SCRA 654, 663 (1984);
Kapatiran ng mga Naglilingkod sa Pamahalaan ng Pilipinas, Inc. v. Tan, 163
SCRA 371 (1988)).
Finally, it is contended, for the reasons already noted, that R.A. No. 7716 also
violates Art. VI, 28(1) which provides that "The rule of taxation shall be
uniform and equitable. The Congress shall evolve a progressive system of
taxation."
Equality and uniformity of taxation means that all taxable articles or kinds of
property of the same class be taxed at the same rate. The taxing power has
the authority to make reasonable and natural classifications for purposes of
taxation. To satisfy this requirement it is enough that the statute or ordinance
applies equally to all persons, forms and corporations placed in similar
situation. (City of Baguio v. De Leon, supra; Sison, Jr. v. Ancheta, supra)
Indeed, the VAT was already provided in E.O. No. 273 long before R.A. No. 7716
was enacted. R.A. No. 7716 merely expands the base of the tax. The validity of
the original VAT Law was questioned in Kapatiran ng Naglilingkod sa
Pamahalaan ng Pilipinas, Inc. v. Tan, 163 SCRA 383 (1988) on grounds similar
to those made in these cases, namely, that the law was "oppressive,
discriminatory, unjust and regressive in violation of Art. VI, 28(1) of the
Constitution." (At 382) Rejecting the challenge to the law, this Court held:
As the Court sees it, EO 273 satisfies all the requirements of a valid
tax. It is uniform. . . .
The sales tax adopted in EO 273 is applied similarly on all goods and
services sold to the public, which are not exempt, at the constant rate
of 0% or 10%.
The disputed sales tax is also equitable. It is imposed only on sales of
goods or services by persons engaged in business with an aggregate
gross annual sales exceeding P200,000.00. Small corner sari-sari
stores are consequently exempt from its application. Likewise exempt
from the tax are sales of farm and marine products, so that the costs
of basic food and other necessities, spared as they are from the
incidence of the VAT, are expected to be relatively lower and within
the reach of the general public.
(At 382-383)
The CREBA claims that the VAT is regressive. A similar claim is made by the
Cooperative Union of the Philippines, Inc. (CUP), while petitioner Juan T. David
argues that the law contravenes the mandate of Congress to provide for a
progressive system of taxation because the law imposes a flat rate of 10% and

thus places the tax burden on all taxpayers without regard to their ability to
pay.
The Constitution does not really prohibit the imposition of indirect taxes which,
like the VAT, are regressive. What it simply provides is that Congress shall
"evolve a progressive system of taxation." The constitutional provision has
been interpreted to mean simply that "direct taxes are . . . to be preferred
[and] as much as possible, indirect taxes should be minimized." (E.
FERNANDO, THE CONSTITUTION OF THE PHILIPPINES 221 (Second ed. (1977)).
Indeed, the mandate to Congress is not to prescribe, but to evolve, a
progressive tax system. Otherwise, sales taxes, which perhaps are the oldest
form of indirect taxes, would have been prohibited with the proclamation of
Art. VIII, 17(1) of the 1973 Constitution from which the present Art. VI, 28(1)
was taken. Sales taxes are also regressive.
Resort to indirect taxes should be minimized but not avoided entirely because
it is difficult, if not impossible, to avoid them by imposing such taxes according
to the taxpayers' ability to pay. In the case of the VAT, the law minimizes the
regressive effects of this imposition by providing for zero rating of certain
transactions (R.A. No. 7716, 3, amending 102 (b) of the NIRC), while
granting exemptions to other transactions. (R.A. No. 7716, 4, amending 103
of the NIRC).
Thus, the following transactions involving basic and essential goods and
services are exempted from the VAT:
(a) Goods for consumption or use which are in their original state
(agricultural, marine and forest products, cotton seeds in their original
state, fertilizers, seeds, seedlings, fingerlings, fish, prawn livestock
and poultry feeds) and goods or services to enhance agriculture
(milling of palay, corn sugar cane and raw sugar, livestock, poultry
feeds, fertilizer, ingredients used for the manufacture of feeds).
(b) Goods used for personal consumption or use (household and
personal effects of citizens returning to the Philippines) and or
professional use, like professional instruments and implements, by
persons coming to the Philippines to settle here.
(c) Goods subject to excise tax such as petroleum products or to be
used for manufacture of petroleum products subject to excise tax and
services subject to percentage tax.
(d) Educational services, medical, dental, hospital and veterinary
services,
and
services
rendered
under
employer-employee
relationship.
(e) Works of art and similar creations sold by the artist himself.
(f) Transactions exempted under special laws, or international
agreements.

(g) Export-sales by persons not VAT-registered.


(h) Goods or services with gross annual sale or receipt not
exceeding P500,000.00.
(Respondents' Consolidated
Reconsideration, pp. 58-60)

Comment

on

the

Motions

for

On the other hand, the transactions which are subject to the VAT are those
which involve goods and services which are used or availed of mainly by
higher income groups. These include real properties held primarily for sale to
customers or for lease in the ordinary course of trade or business, the right or
privilege to use patent, copyright, and other similar property or right, the right
or privilege to use industrial, commercial or scientific equipment, motion
picture films, tapes and discs, radio, television, satellite transmission and cable
television time, hotels, restaurants and similar places, securities, lending
investments, taxicabs, utility cars for rent, tourist buses, and other common
carriers, services of franchise grantees of telephone and telegraph.
The problem with CREBA's petition is that it presents broad claims of
constitutional violations by tendering issues not at retail but at wholesale and
in the abstract. There is no fully developed record which can impart to
adjudication the impact of actuality. There is no factual foundation to show in
the concrete the application of the law to actual contracts and exemplify its
effect on property rights. For the fact is that petitioner's members have not
even been assessed the VAT. Petitioner's case is not made concrete by a series
of hypothetical questions asked which are no different from those dealt with in
advisory opinions.
The difficulty confronting petitioner is thus apparent. He alleges
arbitrariness. A mere allegation, as here, does not suffice. There must
be a factual foundation of such unconstitutional taint. Considering that
petitioner here would condemn such a provision as void on its face, he
has not made out a case. This is merely to adhere to the authoritative
doctrine that where the due process and equal protection clauses are
invoked, considering that they are not fixed rules but rather broad
standards, there is a need for proof of such persuasive character as
would lead to such a conclusion. Absent such a showing, the
presumption of validity must prevail.
(Sison, Jr. v. Ancheta, 130 SCRA at 661)
Adjudication of these broad claims must await the development of a concrete
case. It may be that postponement of adjudication would result in a multiplicity
of suits. This need not be the case, however. Enforcement of the law may give
rise to such a case. A test case, provided it is an actual case and not an
abstract or hypothetical one, may thus be presented.
Nor is hardship to taxpayers alone an adequate justification for adjudicating
abstract issues. Otherwise, adjudication would be no different from the giving
of advisory opinion that does not really settle legal issues.

We are told that it is our duty under Art. VIII, 1, 2 to decide whenever a claim
is made that "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." This duty can only arise if an actual case or controversy is before
us. Under Art . VIII, 5 our jurisdiction is defined in terms of "cases" and all that
Art. VIII, 1, 2 can plausibly mean is that in the exercise of that jurisdiction we
have the judicial power to determine questions of grave abuse of discretion by
any branch or instrumentality of the government.

markets. However, the State shall protect Filipino enterprises against


unfair foreign competition and trade practices.

Put in another way, what is granted in Art. VIII, 1, 2 is "judicial power," which
is "the power of a court to hear and decide cases pending between parties who
have the right to sue and be sued in the courts of law and equity" (Lamb v.
Phipps, 22 Phil. 456, 559 (1912)), as distinguished from legislative and
executive power. This power cannot be directly appropriated until it is
apportioned among several courts either by the Constitution, as in the case of
Art. VIII, 5, or by statute, as in the case of the Judiciary Act of 1948 (R.A. No.
296) and the Judiciary Reorganization Act of 1980 (B.P. Blg. 129). The power
thus apportioned constitutes the court's "jurisdiction," defined as "the power
conferred by law upon a court or judge to take cognizance of a case, to the
exclusion of all others." (United States v. Arceo, 6 Phil. 29 (1906)) Without an
actual case coming within its jurisdiction, this Court cannot inquire into any
allegation of grave abuse of discretion by the other departments of the
government.

15. The Congress shall create an agency to promote the viability and
growth of cooperatives as instruments for social justice and economic
development.

VIII. Alleged violation of policy towards cooperatives. On the other hand, the
Cooperative Union of the Philippines (CUP), after briefly surveying the course
of legislation, argues that it was to adopt a definite policy of granting tax
exemption to cooperatives that the present Constitution embodies provisions
on cooperatives. To subject cooperatives to the VAT would therefore be to
infringe a constitutional policy. Petitioner claims that in 1973, P.D. No. 175 was
promulgated exempting cooperatives from the payment of income taxes and
sales taxes but in 1984, because of the crisis which menaced the national
economy, this exemption was withdrawn by P.D. No. 1955; that in 1986, P.D.
No. 2008 again granted cooperatives exemption from income and sales taxes
until December 31, 1991, but, in the same year, E.O. No. 93 revoked the
exemption; and that finally in 1987 the framers of the Constitution "repudiated
the previous actions of the government adverse to the interests of the
cooperatives, that is, the repeated revocation of the tax exemption to
cooperatives and instead upheld the policy of strengthening the
cooperatives by way of the grant of tax exemptions," by providing the
following in Art. XII:
1. The goals of the national economy are a more equitable
distribution of opportunities, income, and wealth; a sustained increase
in the amount of goods and services produced by the nation for the
benefit of the people; and an expanding productivity as the key to
raising the quality of life for all, especially the underprivileged.
The State shall promote industrialization and full employment based
on sound agricultural development and agrarian reform, through
industries that make full and efficient use of human and natural
resources, and which are competitive in both domestic and foreign

In the pursuit of these goals, all sectors of the economy and all regions
of the country shall be given optimum opportunity to develop. Private
enterprises, including corporations, cooperatives, and similar
collective organizations, shall be encouraged to broaden the base of
their ownership.

Petitioner's contention has no merit. In the first place, it is not true that P.D.
No. 1955 singled out cooperatives by withdrawing their exemption from
income and sales taxes under P.D. No. 175, 5. What P.D. No. 1955, 1 did was
to withdraw the exemptions and preferential treatments theretofore granted
to private business enterprises in general, in view of the economic crisis which
then beset the nation. It is true that after P.D. No. 2008, 2 had restored the
tax exemptions of cooperatives in 1986, the exemption was again repealed by
E.O. No. 93, 1, but then again cooperatives were not the only ones whose
exemptions were withdrawn. The withdrawal of tax incentives applied to all,
including government and private entities. In the second place, the
Constitution does not really require that cooperatives be granted tax
exemptions in order to promote their growth and viability. Hence, there is no
basis for petitioner's assertion that the government's policy toward
cooperatives had been one of vacillation, as far as the grant of tax privileges
was concerned, and that it was to put an end to this indecision that the
constitutional provisions cited were adopted. Perhaps as a matter of policy
cooperatives should be granted tax exemptions, but that is left to the
discretion of Congress. If Congress does not grant exemption and there is no
discrimination to cooperatives, no violation of any constitutional policy can be
charged.
Indeed, petitioner's theory amounts to saying that under the Constitution
cooperatives are exempt from taxation. Such theory is contrary to the
Constitution under which only the following are exempt from taxation:
charitable institutions, churches and parsonages, by reason of Art. VI, 28 (3),
and non-stock, non-profit educational institutions by reason of Art. XIV, 4 (3).
CUP's further ground for seeking the invalidation of R.A. No. 7716 is that it
denies cooperatives the equal protection of the law because electric
cooperatives are exempted from the VAT. The classification between electric
and other cooperatives (farmers cooperatives, producers cooperatives,
marketing cooperatives, etc.) apparently rests on a congressional
determination that there is greater need to provide cheaper electric power to
as many people as possible, especially those living in the rural areas, than
there is to provide them with other necessities in life. We cannot say that such
classification is unreasonable.
We have carefully read the various arguments raised against the constitutional
validity of R.A. No. 7716. We have in fact taken the extraordinary step of

enjoining its enforcement pending resolution of these cases. We have now


come to the conclusion that the law suffers from none of the infirmities
attributed to it by petitioners and that its enactment by the other branches of
the government does not constitute a grave abuse of discretion. Any question
as to its necessity, desirability or expediency must be addressed to Congress
as the body which is electorally responsible, remembering that, as Justice
Holmes has said, "legislators are the ultimate guardians of the liberties and
welfare of the people in quite as great a degree as are the courts." (Missouri,
Kansas & Texas Ry. Co. v. May, 194 U.S. 267, 270, 48 L. Ed. 971, 973 (1904)). It
is not right, as petitioner in G.R. No. 115543 does in arguing that we should
enforce the public accountability of legislators, that those who took part in
passing the law in question by voting for it in Congress should later thrust to
the courts the burden of reviewing measures in the flush of enactment. This
Court does not sit as a third branch of the legislature, much less exercise a
veto power over legislation.
WHEREFORE, the motions for reconsideration are denied with finality and the
temporary restraining order previously issued is hereby lifted.
SO ORDERED.

G.R. No. 88211 September 15, 1989


FERDINAND E. MARCOS, IMELDA R. MARCOS,,etal petitioners, vs.
HONORABLE RAUL MANGLAPUS, CATALINO MACARAIG, SEDFREY
ORDOEZ, MIRIAM DEFENSOR SANTIAGO, FIDEL RAMOS, RENATO DE
VILLA, in their capacity as Secretary of Foreign Affairs, Executive
Secretary, Secretary of Justice, Immigration Commissioner, Secretary
of National Defense and Chief of Staff, respectively, respondents.
CORTES, J.:
Before the Court is a contreversy of grave national importance. While
ostensibly only legal issues are involved, the Court's decision in this case
would undeniably have a profound effect on the political, economic and other
aspects of national life.
We recall that in February 1986, Ferdinand E. Marcos was deposed from the
presidency via the non-violent "people power" revolution and forced into exile.
In his stead, Corazon C. Aquino was declared President of the Republic under a
revolutionary government. Her ascension to and consilidation of power have
not been unchallenged. The failed Manila Hotel coup in 1986 led by political
leaders of Mr. Marcos, the takeover of television station Channel 7 by rebel
troops led by Col. Canlas with the support of "Marcos loyalists" and the
unseccessful plot of the Marcos spouses to surreptitiously return from Hawii
with mercenaries aboard an aircraft chartered by a Lebanese arms dealer
[Manila Bulletin, January 30, 1987] awakened the nation to the capacity of the

Marcoses to stir trouble even from afar and to the fanaticism and blind loyalty
of their followers in the country. The ratification of the 1987 Constitution
enshrined the victory of "people power" and also clearly reinforced the
constitutional moorings of Mrs. Aquino's presidency. This did not, however,
stop bloody challenges to the government. On August 28, 1987, Col. Gregorio
Honasan, one of the major players in the February Revolution, led a failed coup
that left scores of people, both combatants and civilians, dead. There were
several other armed sorties of lesser significance, but the message they
conveyed was the same a split in the ranks of the military establishment
that thraetened civilian supremacy over military and brought to the fore the
realization that civilian government could be at the mercy of a fractious
military.

Th issue is basically one of power: whether or not, in the exercise of the


powers granted by the Constitution, the President may prohibit the Marcoses
from returning to the Philippines.

But the armed threats to the Government were not only found in misguided
elements and among rabid followers of Mr. Marcos. There are also the
communist insurgency and the seccessionist movement in Mindanao which
gained ground during the rule of Mr. Marcos, to the extent that the communists
have set up a parallel government of their own on the areas they effectively
control while the separatist are virtually free to move about in armed bands.
There has been no let up on this groups' determination to wrest power from
the govermnent. Not only through resort to arms but also to through the use of
propaganda have they been successful in dreating chaos and destabilizing the
country.

2)

According to the petitioners, the resolution of the case would depend on the
resolution of the following issues:
1)

Does the President have the power to bar the return of former President
Marcos and family to the Philippines?
a)

Assuming that the President has the power to bar former President Marcos
and his family from returning to the Philippines, in the interest of "national
security, public safety or public health
a)

Has the President made a finding that the return of former President
Marcos and his family to the Philippines is a clear and present danger
to national security, public safety or public health?

b)

Assuming that she has made that finding

Nor are the woes of the Republic purely political. The accumulated foreign debt
and the plunder of the nation attributed to Mr. Marcos and his cronies left the
economy devastated. The efforts at economic recovery, three years after Mrs.
Aquino assumed office, have yet to show concrete results in alleviating the
poverty of the masses, while the recovery of the ill-gotten wealth of the
Marcoses has remained elusive.

Have the requirements of due process been complied with in


making such finding?

ii)

Has there been prior notice to petitioners?

iv) Assuming that notice and hearing may be dispensed with, has the
President's decision, including the grounds upon which it was
based, been made known to petitioners so that they may
controvert the same?
c)

Is the President's determination that the return of former President


Marcos and his family to the Philippines is a clear and present danger
to national security, public safety, or public health a political question?

d)

Assuming that the Court may inquire as to whether the return of


former President Marcos and his family is a clear and present danger
to national security, public safety, or public health, have respondents
established such fact?

The Petition
This case is unique. It should not create a precedent, for the case of a dictator
forced out of office and into exile after causing twenty years of political,
economic and social havoc in the country and who within the short space of
three years seeks to return, is in a class by itself.

The Issue

i)

iii) Has there been a hearing?

Now, Mr. Marcos, in his deathbed, has signified his wish to return to the
Philipppines to die. But Mrs. Aquino, considering the dire consequences to the
nation of his return at a time when the stability of government is threatened
from various directions and the economy is just beginning to rise and move
forward, has stood firmly on the decision to bar the return of Mr. Marcos and
his family.

This petition for mandamus and prohibition asks the Courts to order the
respondents to issue travel documents to Mr. Marcos and the immediate
members of his family and to enjoin the implementation of the President's
decision to bar their return to the Philippines.

Is this a political question?

3)

Have the respondents, therefore, in implementing the President's decision


to bar the return of former President Marcos and his family, acted and
would be acting without jurisdiction, or in excess of jurisdiction, or with
grave abuse of discretion, in performing any act which would effectively
bar the return of former President Marcos and his family to the Philippines?
[Memorandum for Petitioners, pp. 5-7; Rollo, pp. 234-236.1

The case for petitioners is founded on the assertion that the right of the
Marcoses to return to the Philippines is guaranteed under the following
provisions of the Bill of Rights, to wit:
Section 1. No person shall be deprived of life, liberty, or property
without due process of law, nor shall any person be denied the equal
protection of the laws.
xxx xxx xxx
Section 6. The liberty of abode and of changing the same within the
limits prescribed by law shall not be impaired except upon lawful order
of the court. Neither shall the right to travel be impaired except in the
interest of national security, public safety, or public health, as may be
provided by law.
The petitioners contend that the President is without power to impair the
liberty of abode of the Marcoses because only a court may do so "within the
limits prescribed by law." Nor may the President impair their right to travel
because no law has authorized her to do so. They advance the view that
before the right to travel may be impaired by any authority or agency of the
government, there must be legislation to that effect.
The petitioners further assert that under international law, the right of Mr.
Marcos and his family to return to the Philippines is guaranteed.
The Universal Declaration of Human Rights provides:
Article 13. (1) Everyone has the right to freedom of movement and
residence within the borders of each state.
(2) Everyone has the right to leave any country, including his own, and
to return to his country.
Likewise, the International Covenant on Civil and Political Rights, which had
been ratified by the Philippines, provides:
Article 12
1) Everyone lawfully within the territory of a State shall, within that
territory, have the right to liberty of movement and freedom to choose
his residence.
2) Everyone shall be free to leave any country, including his own.
3) The above-mentioned rights shall not be subject to any restrictions
except those which are provided by law, are necessary to protect
national security, public order (order public), public health or morals or

the rights and freedoms of others, and are consistent with the other
rights recognized in the present Covenant.
4) No one shall be arbitrarily deprived of the right to enter his own
country.
On the other hand, the respondents' principal argument is that the issue in this
case involves a political question which is non-justiciable. According to the
Solicitor General:
As petitioners couch it, the question involved is simply whether or not
petitioners Ferdinand E. Marcos and his family have the right to travel
and liberty of abode. Petitioners invoke these constitutional rightsin
vacuo without reference to attendant circumstances.
Respondents submit that in its proper formulation, the issue is
whether or not petitioners Ferdinand E. Marcos and family have the
right to return to the Philippines and reside here at this time in the
face of the determination by the President that such return and
residence will endanger national security and public safety.
It may be conceded that as formulated by petitioners, the question is
not a political question as it involves merely a determination of what
the law provides on the matter and application thereof to petitioners
Ferdinand E. Marcos and family. But when the question is whether the
two rights claimed by petitioners Ferdinand E. Marcos and family
impinge on or collide with the more primordial and transcendental
right of the State to security and safety of its nationals, the question
becomes political and this Honorable Court can not consider it.
There are thus gradations to the question, to wit:
Do petitioners Ferdinand E. Marcos and family have the right to return
to the Philippines and reestablish their residence here? This is clearly a
justiciable question which this Honorable Court can decide.
Do petitioners Ferdinand E. Marcos and family have their right to
return to the Philippines and reestablish their residence here even if
their return and residence here will endanger national security and
public safety? this is still a justiciable question which this Honorable
Court can decide.
Is there danger to national security and public safety if petitioners
Ferdinand E. Marcos and family shall return to the Philippines and
establish their residence here? This is now a political question which
this Honorable Court can not decide for it falls within the exclusive
authority and competence of the President of the Philippines.
[Memorandum for Respondents, pp. 9-11; Rollo, pp. 297-299.]

Respondents argue for the primacy of the right of the State to national security
over individual rights. In support thereof, they cite Article II of the Constitution,
to wit:
Section 4. The prime duty of the Government is to serve and protect
the people. The Government may call upon the people to defend the
State and, in the fulfillment thereof, all citizens may be required,
under conditions provided by law, to render personal, military, or civil
service.
Section 5. The maintenance of peace and order, the protection of life,
liberty, and property, and the promotion of the general welfare are
essential for the enjoyment by all the people of the blessings of
democracy.
Respondents also point out that the decision to ban Mr. Marcos and family from
returning to the Philippines for reasons of national security and public safety
has international precedents. Rafael Trujillo of the Dominican Republic,
Anastacio Somoza Jr. of Nicaragua, Jorge Ubico of Guatemala, Fulgencio batista
of Cuba, King Farouk of Egypt, Maximiliano Hernandez Martinez of El Salvador,
and Marcos Perez Jimenez of Venezuela were among the deposed dictators
whose return to their homelands was prevented by their governments. [See
Statement of Foreign Affairs Secretary Raul S. Manglapus, quoted in
Memorandum for Respondents, pp. 26-32; Rollo, pp. 314-319.]
The parties are in agreement that the underlying issue is one of the scope of
presidential power and its limits. We, however, view this issue in a different
light. Although we give due weight to the parties' formulation of the issues, we
are not bound by its narrow confines in arriving at a solution to the
controversy.
At the outset, we must state that it would not do to view the case within the
confines of the right to travel and the import of the decisions of the U.S.
Supreme Court in the leading cases of Kent v. Dulles [357 U.S. 116, 78 SCt
1113, 2 L Ed. 2d 1204] and Haig v. Agee [453 U.S. 280, 101 SCt 2766, 69 L Ed.
2d 640) which affirmed the right to travel and recognized exceptions to the
exercise thereof, respectively.
It must be emphasized that the individual right involved is not the right to
travel from the Philippines to other countries or within the Philippines. These
are what the right to travel would normally connote. Essentially, the right
involved is the right to return to one's country, a totally distinct right under
international law, independent from although related to the right to travel.
Thus, the Universal Declaration of Humans Rights and the International
Covenant on Civil and Political Rights treat the right to freedom of movement
and abode within the territory of a state, the right to leave a country, and the
right to enter one's country as separate and distinct rights. The Declaration
speaks of the "right to freedom of movement and residence within the borders
of each state" [Art. 13(l)] separately from the "right to leave any country,
including his own, and to return to his country." [Art. 13(2).] On the other hand,
the Covenant guarantees the "right to liberty of movement and freedom to
choose his residence" [Art. 12(l)] and the right to "be free to leave any

country, including his own." [Art. 12(2)] which rights may be restricted by such
laws as "are necessary to protect national security, public order, public health
or morals or enter qqqs own country" of which one cannot be "arbitrarily
deprived." [Art. 12(4).] It would therefore be inappropriate to construe the
limitations to the right to return to one's country in the same context as those
pertaining to the liberty of abode and the right to travel.
The right to return to one's country is not among the rights specifically
guaranteed in the Bill of Rights, which treats only of the liberty of abode and
the right to travel, but it is our well-considered view that the right to return
may be considered, as a generally accepted principle of international law and,
under our Constitution, is part of the law of the land [Art. II, Sec. 2 of the
Constitution.] However, it is distinct and separate from the right to travel and
enjoys a different protection under the International Covenant of Civil and
Political Rights, i.e., against being "arbitrarily deprived" thereof [Art. 12 (4).]
Thus, the rulings in the cases Kent and Haig which refer to the issuance of
passports for the purpose of effectively exercising the right to travel are not
determinative of this case and are only tangentially material insofar as they
relate to a conflict between executive action and the exercise of a protected
right. The issue before the Court is novel and without precedent in Philippine,
and even in American jurisprudence.
Consequently, resolution by the Court of the well-debated issue of whether or
not there can be limitations on the right to travel in the absence of legislation
to that effect is rendered unnecessary. An appropriate case for its resolution
will have to be awaited.
Having clarified the substance of the legal issue, we find now a need to explain
the methodology for its resolution. Our resolution of the issue will involve a
two-tiered approach. We shall first resolve whether or not the President has the
power under the Constitution, to bar the Marcoses from returning to the
Philippines. Then, we shall determine, pursuant to the express power of the
Court under the Constitution in Article VIII, Section 1, whether or not the
President acted arbitrarily or with grave abuse of discretion amounting to lack
or excess of jurisdiction when she determined that the return of the Marcose's
to the Philippines poses a serious threat to national interest and welfare and
decided to bar their return.
Executive Power
The 1987 Constitution has fully restored the separation of powers of the three
great branches of government. To recall the words of Justice Laurel in Angara
v. Electoral Commission [63 Phil. 139 (1936)], "the Constitution has blocked
but with deft strokes and in bold lines, allotment of power to the executive, the
legislative and the judicial departments of the government." [At 157.1 Thus,
the 1987 Constitution explicitly provides that "[the legislative power shall be
vested in the Congress of the Philippines" Art VI, Sec. 11, "[t]he executive
power shall bevested in the President of the Philippines" [Art. VII, Sec. 11, and
"[te judicial power shall be vested in one Supreme Court and in such lower
courts as may be established by law" [Art. VIII, Sec. 1.] These provisions not
only establish a separation of powers by actual division [Angara v. Electoral

Commission, supra] but also confer plenary legislative, executive and judicial
powers subject only to limitations provided in the Constitution. For as the
Supreme Court in Ocampo v. Cabangis [15 Phil. 626 (1910)] pointed out "a
grant of the legislative power means a grant of all legislative power; and a
grant of the judicial power means a grant of all the judicial power which may
be exercised under the government." [At 631-632.1 If this can be said of the
legislative power which is exercised by two chambers with a combined
membership of more than two hundred members and of the judicial power
which is vested in a hierarchy of courts, it can equally be said of the executive
power which is vested in one official the President.
As stated above, the Constitution provides that "[t]he executive power shall be
vested in the President of the Philippines." [Art. VII, Sec. 1]. However, it does
not define what is meant by executive power" although in the same article it
touches on the exercise of certain powers by the President, i.e., the power of
control over all executive departments, bureaus and offices, the power to
execute the laws, the appointing power, the powers under the commander-inchief clause, the power to grant reprieves, commutations and pardons, the
power to grant amnesty with the concurrence of Congress, the power to
contract or guarantee foreign loans, the power to enter into treaties or
international agreements, the power to submit the budget to Congress, and
the power to address Congress [Art. VII, Sec. 14-23].
The inevitable question then arises: by enumerating certain powers of the
President did the framers of the Constitution intend that the President shall
exercise those specific powers and no other? Are these se enumerated powers
the breadth and scope of "executive power"? Petitioners advance the view that
the President's powers are limited to those specifically enumerated in the 1987
Constitution. Thus, they assert: "The President has enumerated powers, and
what is not enumerated is impliedly denied to her. Inclusion unius est exclusio
alterius[Memorandum for Petitioners, p. 4- Rollo p. 233.1 This argument brings
to mind the institution of the U.S. Presidency after which ours is legally
patterned.**
Corwin, in his monumental volume on the President of the United States
grappled with the same problem. He said:
Article II is the most loosely drawn chapter of the Constitution. To
those who think that a constitution ought to settle everything
beforehand it should be a nightmare; by the same token, to those who
think that constitution makers ought to leave considerable leeway for
the future play of political forces, it should be a vision realized.
We encounter this characteristic of Article 11 in its opening words:
"The executive power shall be vested in a President of the United
States of America." . . .. [The President: Office and Powers, 17871957,
pp. 3-4.]
Reviewing how the powers of the U.S. President were exercised by the different
persons who held the office from Washington to the early 1900's, and the
swing from the presidency by commission to Lincoln's dictatorship, he

concluded that "what the presidency is at any particular moment depends in


important measure on who is President." [At 30.]
This view is shared by Schlesinger who wrote in The Imperial Presidency:
For the American Presidency was a peculiarly personal institution. it
remained of course, an agency of government subject to unvarying
demands and duties no remained, of cas President. But, more than
most agencies of government, it changed shape, intensity and ethos
according to the man in charge. Each President's distinctive
temperament and character, his values, standards, style, his habits,
expectations, Idiosyncrasies, compulsions, phobias recast the
WhiteHouse and pervaded the entire government. The executive
branch, said Clark Clifford, was a chameleon, taking its color from the
character and personality of the President. The thrust of the office, its
impact on the constitutional order, therefore altered from President to
President. Above all, the way each President understood it as his
personal obligation to inform and involve the Congress, to earn and
hold the confidence of the electorate and to render an accounting to
the nation and posterity determined whether he strengthened or
weakened the constitutional order. [At 212- 213.]
We do not say that the presidency is what Mrs. Aquino says it is or what she
does but, rather, that the consideration of tradition and the development of
presidential power under the different constitutions are essential for a
complete understanding of the extent of and limitations to the President's
powers under the 1987 Constitution. The 1935 Constitution created a strong
President with explicitly broader powers than the U.S. President. The 1973
Constitution attempted to modify the system of government into the
parliamentary type, with the President as a mere figurehead, but through
numerous amendments, the President became even more powerful, to the
point that he was also the de facto Legislature. The 1987 Constitution,
however, brought back the presidential system of government and restored
the separation of legislative, executive and judicial powers by their actual
distribution among three distinct branches of government with provision for
checks and balances.
It would not be accurate, however, to state that "executive power" is the
power to enforce the laws, for the President is head of state as well as head of
government and whatever powers inhere in such positions pertain to the office
unless the Constitution itself withholds it. Furthermore, the Constitution itself
provides that the execution of the laws is only one of the powers of the
President. It also grants the President other powers that do not involve the
execution of any provision of law, e.g., his power over the country's foreign
relations.
On these premises, we hold the view that although the 1987 Constitution
imposes limitations on the exercise ofspecific powers of the President, it
maintains intact what is traditionally considered as within the scope of
"executive power." Corollarily, the powers of the President cannot be said to be
limited only to the specific powers enumerated in the Constitution. In other

words, executive power is more than the sum of specific powers so


enumerated,
It has been advanced that whatever power inherent in the government that is
neither legislative nor judicial has to be executive. Thus, in the landmark
decision of Springer v. Government of the Philippine Islands, 277 U.S. 189
(1928), on the issue of who between the Governor-General of the Philippines
and the Legislature may vote the shares of stock held by the Government to
elect directors in the National Coal Company and the Philippine National Bank,
the U.S. Supreme Court, in upholding the power of the Governor-General to do
so, said:
...Here the members of the legislature who constitute a majority of the
"board" and "committee" respectively, are not charged with the
performance of any legislative functions or with the doing of anything
which is in aid of performance of any such functions by the legislature.
Putting aside for the moment the question whether the duties
devolved upon these members are vested by the Organic Act in the
Governor-General, it is clear that they are not legislative in character,
and still more clear that they are not judicial. The fact that they do not
fall within the authority of either of these two constitutes logical
ground for concluding that they do fall within that of the remaining
one among which the powers of government are divided ....[At 202203; Emphasis supplied.]
We are not unmindful of Justice Holmes' strong dissent. But in his enduring
words of dissent we find reinforcement for the view that it would indeed be a
folly to construe the powers of a branch of government to embrace only what
are specifically mentioned in the Constitution:
The great ordinances of the Constitution do not establish and divide
fields of black and white. Even the more specific of them are found to
terminate in a penumbra shading gradually from one extreme to the
other. ....
It does not seem to need argument to show that however we may
disguise it by veiling words we do not and cannot carry out the
distinction
between
legislative
and
executive
action
with
mathematical precision and divide the branches into watertight
compartments, were it ever so desirable to do so, which I am far from
believing that it is, or that the Constitution requires. [At 210- 211.]
The Power Involved
The Constitution declares among the guiding principles that "[t]he prime duty
of theGovernment is to serve and protect the people" and that "[t]he
maintenance of peace and order,the protection of life, liberty, and property,
and the promotion of the general welfare are essential for the enjoyment by all
the people of the blessings of democracy." [Art. II, Secs. 4 and 5.]

Admittedly, service and protection of the people, the maintenance of peace


and order, the protection of life, liberty and property, and the promotion of the
general welfare are essentially ideals to guide governmental action. But such
does not mean that they are empty words. Thus, in the exercise of presidential
functions, in drawing a plan of government, and in directing implementing
action for these plans, or from another point of view, in making any decision as
President of the Republic, the President has to consider these principles,
among other things, and adhere to them.
Faced with the problem of whether or not the time is right to allow the
Marcoses to return to the Philippines, the President is, under the Constitution,
constrained to consider these basic principles in arriving at a decision. More
than that, having sworn to defend and uphold the Constitution, the President
has the obligation under the Constitution to protect the people, promote their
welfare and advance the national interest. It must be borne in mind that the
Constitution, aside from being an allocation of power is also a social contract
whereby the people have surrendered their sovereign powers to the State for
the common good. Hence, lest the officers of the Government exercising the
powers delegated by the people forget and the servants of the people become
rulers, the Constitution reminds everyone that "[s]overeignty resides in the
people and all government authority emanates from them." [Art. II, Sec. 1.]
The resolution of the problem is made difficult because the persons who seek
to return to the country are the deposed dictator and his family at whose door
the travails of the country are laid and from whom billions of dollars believed
to be ill-gotten wealth are sought to be recovered. The constitutional
guarantees they invoke are neither absolute nor inflexible. For the exercise of
even the preferred freedoms of speech and ofexpression, although couched in
absolute terms, admits of limits and must be adjusted to the requirements of
equally important public interests [Zaldivar v. Sandiganbayan, G.R. Nos.
79690-707, October 7, 1981.]
To the President, the problem is one of balancing the general welfare and the
common good against the exercise of rights of certain individuals. The power
involved is the President's residual power to protect the general welfare of the
people. It is founded on the duty of the President, as steward of the people. To
paraphrase Theodore Roosevelt, it is not only the power of the President but
also his duty to do anything not forbidden by the Constitution or the laws that
the needs of the nation demand [See Corwin, supra, at 153]. It is a power
borne by the President's duty to preserve and defend the Constitution. It also
may be viewed as a power implicit in the President's duty to take care that the
laws are faithfully executed [see Hyman, The American President, where the
author advances the view that an allowance of discretionary power is
unavoidable in any government and is best lodged in the President].
More particularly, this case calls for the exercise of the President's powers as
protector of the peace. Rossiter The American Presidency].The power of the
President to keep the peace is not limited merely to exercising the
commander-in-chief powers in times of emergency or to leading the State
against external and internal threats to its existence. The President is not only
clothed with extraordinary powers in times of emergency, but is also tasked
with attending to the day-to-day problems of maintaining peace and order and

ensuring domestic tranquility in times when no foreign foe appears on the


horizon. Wide discretion, within the bounds of law, in fulfilling presidential
duties in times of peace is not in any way diminished by the relative want of an
emergency specified in the commander-in-chief provision. For in making the
President commander-in-chief the enumeration of powers that follow cannot be
said to exclude the President's exercising as Commander-in- Chief powers
short of the calling of the armed forces, or suspending the privilege of the writ
of habeas corpus or declaring martial law, in order to keep the peace, and
maintain public order and security.
That the President has the power under the Constitution to bar the Marcose's
from returning has been recognized by memembers of the Legislature, and is
manifested by the Resolution proposed in the House of Representatives and
signed by 103 of its members urging the President to allow Mr. Marcos to
return to the Philippines "as a genuine unselfish gesture for true national
reconciliation and as irrevocable proof of our collective adherence to
uncompromising respect for human rights under the Constitution and our
laws." [House Resolution No. 1342, Rollo, p. 321.1 The Resolution does not
question the President's power to bar the Marcoses from returning to the
Philippines, rather, it appeals to the President's sense of compassion to allow a
man to come home to die in his country.
What we are saying in effect is that the request or demand of the Marcoses to
be allowed to return to the Philippines cannot be considered in the light solely
of the constitutional provisions guaranteeing liberty of abode and the right to
travel, subject to certain exceptions, or of case law which clearly never
contemplated situations even remotely similar to the present one. It must be
treated as a matter that is appropriately addressed to those residual unstated
powers of the President which are implicit in and correlative to the paramount
duty residing in that office to safeguard and protect general welfare. In that
context, such request or demand should submit to the exercise of a broader
discretion on the part of the President to determine whether it must be granted
or denied.
The Extent of Review
Under the Constitution, judicial power includes the duty 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."
[Art. VIII, Sec. 1] Given this wording, we cannot agree with the Solicitor General
that the issue constitutes a political question which is beyond the jurisdiction
of the Court to decide.
The present Constitution limits resort to the political question doctrine and
broadens the scope of judicial inquiry into areas which the Court, under
previous constitutions, would have normally left to the political departments to
decide. But nonetheless there remain issues beyond the Court's jurisdiction the
determination of which is exclusively for the President, for Congress or for the
people themselves through a plebiscite or referendum. We cannot, for
example, question the President's recognition of a foreign government, no
matter how premature or improvident such action may appear. We cannot set
aside a presidential pardon though it may appear to us that the beneficiary is

totally undeserving of the grant. Nor can we amend the Constitution under the
guise of resolving a dispute brought before us because the power is reserved
to the people.
There is nothing in the case before us that precludes our determination thereof
on the political question doctrine. The deliberations of the Constitutional
Commission cited by petitioners show that the framers intended to widen the
scope of judicial review but they did not intend courts of justice to settle all
actual controversies before them. When political questions are involved, the
Constitution limits the determination to whether or not there has been a grave
abuse of discretion amounting to lack or excess of jurisdiction on the part of
the official whose action is being questioned. If grave abuse is not established,
the Court will not substitute its judgment for that of the official concerned and
decide a matter which by its nature or by law is for the latter alone to decide.
In this light, it would appear clear that the second paragraph of Article VIII,
Section 1 of the Constitution, defining "judicial power," which specifically
empowers the courts to determine whether or not there has been a grave
abuse of discretion on the part of any branch or instrumentality of the
government, incorporates in the fundamental law the ruling in Lansang v.
Garcia [G.R. No. L-33964, December 11, 1971, 42 SCRA 4481 that:]
Article VII of the [1935] Constitution vests in the Executive the power
to suspend the privilege of the writ of habeas corpus under specified
conditions. Pursuant to the principle of separation of powers
underlying our system of government, the Executive is supreme within
his own sphere. However, the separation of powers, under the
Constitution, is not absolute. What is more, it goes hand in hand with
the system of checks and balances, under which the Executive is
supreme, as regards the suspension of the privilege, but only if and
when he acts within the sphere alloted to him by the Basic Law, and
the authority to determine whether or not he has so acted is vested in
the Judicial Department, which, in this respect, is, in turn,
constitutionally supreme. In the exercise of such authority, the
function of the Court is merely to check not to supplant the
Executive, or to ascertain merely whether he has gone beyond the
constitutional limits of his jurisdiction, not to exercise the power
vested in him or to determine the wisdom of his act [At 479-480.]
Accordingly, the question for the Court to determine is whether or not there
exist factual bases for the President to conclude that it was in the national
interest to bar the return of the Marcoses to the Philippines. If such postulates
do exist, it cannot be said that she has acted, or acts, arbitrarily or that she
has gravely abused her discretion in deciding to bar their return.
We find that from the pleadings filed by the parties, from their oral arguments,
and the facts revealed during the briefing in chambers by the Chief of Staff of
the Armed Forces of the Philippines and the National Security Adviser, wherein
petitioners and respondents were represented, there exist factual bases for the
President's decision..
The Court cannot close its eyes to present realities and pretend that the
country is not besieged from within by a well-organized communist insurgency,

a separatist movement in Mindanao, rightist conspiracies to grab power, urban


terrorism, the murder with impunity of military men, police officers and civilian
officials, to mention only a few. The documented history of the efforts of the
Marcose's and their followers to destabilize the country, as earlier narrated in
this ponencia bolsters the conclusion that the return of the Marcoses at this
time would only exacerbate and intensify the violence directed against the
State and instigate more chaos.

and in prohibiting their return to the Philippines, the instant petition is hereby
DISMISSED.
SO ORDERED.

As divergent and discordant forces, the enemies of the State may be


contained. The military establishment has given assurances that it could
handle the threats posed by particular groups. But it is the catalytic effect of
the return of the Marcoses that may prove to be the proverbial final straw that
would break the camel's back. With these before her, the President cannot be
said to have acted arbitrarily and capriciously and whimsically in determining
that the return of the Marcoses poses a serious threat to the national interest
and welfare and in prohibiting their return.
It will not do to argue that if the return of the Marcoses to the Philippines will
cause the escalation of violence against the State, that would be the time for
the President to step in and exercise the commander-in-chief powers granted
her by the Constitution to suppress or stamp out such violence. The State,
acting through the Government, is not precluded from taking pre- emptive
action against threats to its existence if, though still nascent they are
perceived as apt to become serious and direct. Protection of the people is the
essence of the duty of government. The preservation of the State the fruition
of the people's sovereignty is an obligation in the highest order. The President,
sworn to preserve and defend the Constitution and to see the faithful
execution the laws, cannot shirk from that responsibility.
We cannot also lose sight of the fact that the country is only now beginning to
recover from the hardships brought about by the plunder of the economy
attributed to the Marcoses and their close associates and relatives, many of
whom are still here in the Philippines in a position to destabilize the country,
while the Government has barely scratched the surface, so to speak, in its
efforts to recover the enormous wealth stashed away by the Marcoses in
foreign jurisdictions. Then, We cannot ignore the continually increasing burden
imposed on the economy by the excessive foreign borrowing during the
Marcos regime, which stifles and stagnates development and is one of the root
causes of widespread poverty and all its attendant ills. The resulting precarious
state of our economy is of common knowledge and is easily within the ambit of
judicial notice.
The President has determined that the destabilization caused by the return of
the Marcoses would wipe away the gains achieved during the past few years
and lead to total economic collapse. Given what is within our individual and
common knowledge of the state of the economy, we cannot argue with that
determination.
WHEREFORE, and it being our well-considered opinion that the President did
not act arbitrarily or with grave abuse of discretion in determining that the
return of former President Marcos and his family at the present time and under
present circumstances poses a serious threat to national interest and welfare

G.R. No. 88211 October 27, 1989


FERDINAND E. MARCOS, IMELDA R. MARCOS, FERDINAND R. MARCOS.
JR., IRENE M. ARANETA, IMEE M. MANOTOC, TOMAS MANOTOC,
GREGORIO ARANETA, PACIFICO E. MARCOS, NICANOR YIGUEZ and
PHILIPPINE CONSTITUTION ASSOCIATION (PHILCONSA), represented
by
its
President,
CONRADO
F.
ESTRELLA, petitioners,
vs.
HONORABLE RAUL MANGLAPUS, CATALINO MACARAIG, SEDFREY
ORDOEZ, MIRIAM DEFENSOR SANTIAGO, FIDEL RAMOS, RENATO DE
VILLA, in their capacity as Secretary of Foreign Affairs, Executive
Secretary, Secretary of Justice, Immigration Commissioner, Secretary
of National Defense and Chief of Staff, respectively, respondents.
EN BANC:
In its decision dated September 15,1989, the Court, by a vote of eight (8) to
seven (7), dismissed the petition, after finding that the President did not act
arbitrarily or with grave abuse of discretion in determining that the return of
former President Marcos and his family at the present time and under present
circumstances pose a threat to national interest and welfare and in prohibiting
their return to the Philippines. On September 28, 1989, former President
Marcos died in Honolulu, Hawaii. In a statement, President Aquino said:
In the interest of the safety of those who will take the death of
Mr. Marcos in widely and passionately conflicting ways, and
for the tranquility of the state and order of society, the
remains of Ferdinand E. Marcos will not be allowed to be
brought to our country until such time as the government, be
it under this administration or the succeeding one, shall
otherwise decide. [Motion for Reconsideration, p. 1; Rollo, p,
443.]

On October 2, 1989, a Motion for Reconsideration was filed by petitioners,


raising the following major arguments:
1. to bar former President Marcos and his family from returning to the
Philippines is to deny them not only the inherent right of citizens to return to
their country of birth but also the protection of the Constitution and all of the
rights guaranteed to Filipinos under the Constitution;
2. the President has no power to bar a Filipino from his own country; if she has,
she had exercised it arbitrarily; and
3. there is no basis for barring the return of the family of former President
Marcos. Thus, petitioners prayed that the Court reconsider its decision, order
respondents to issue the necessary travel documents to enable Mrs. Imelda R.
Marcos, Ferdinand R. Marcos, Jr., Irene M. Araneta, Imee M. Manotoc, Tommy
Manotoc and Gregorio Araneta to return to the Philippines, and enjoin
respondents from implementing President Aquino's decision to bar the return
of the remains of Mr. Marcos, and the other petitioners, to the Philippines.
Commenting on the motion for reconsideration, the Solicitor General argued
that the motion for reconsideration is moot and academic as to the deceased
Mr. Marcos. Moreover, he asserts that "the 'formal' rights being invoked by the
Marcoses under the label 'right to return', including the label 'return of Marcos'
remains, is in reality or substance a 'right' to destabilize the country, a 'right'
to hide the Marcoses' incessant shadowy orchestrated efforts at
destabilization." [Comment, p. 29.] Thus, he prays that the Motion for
Reconsideration be denied for lack of merit.
We deny the motion for reconsideration.
1. It must be emphasized that as in all motions for reconsideration, the burden
is upon the movants, petitioner herein, to show that there are compelling
reasons to reconsider the decision of the Court.
2. After a thorough consideration of the matters raised in the motion for
reconsideration, the Court is of the view that no compelling reasons have been
established by petitioners to warrant a reconsideration of the Court's decision.
The death of Mr. Marcos, although it may be viewed as a supervening event,
has not changed the factual scenario under which the Court's decision was
rendered. The threats to the government, to which the return of the Marcoses
has been viewed to provide a catalytic effect, have not been shown to have
ceased. On the contrary, instead of erasing fears as to the destabilization that
will be caused by the return of the Marcoses, Mrs. Marcos reinforced the basis
for the decision to bar their return when she called President Aquino "illegal,"
claiming that it is Mr. Marcos, not Mrs. Aquino, who is the "legal" President of
the Philippines, and declared that the matter "should be brought to all the
courts of the world." [Comment, p. 1; Philippine Star, October 4, 1989.]

3. Contrary to petitioners' view, it cannot be denied that the President, upon


whom executive power is vested, has unstated residual powers which are
implied from the grant of executive power and which are necessary for her to
comply with her duties under the Constitution. The powers of the President are
not limited to what are expressly enumerated in the article on the Executive
Department and in scattered provisions of the Constitution. This is so,
notwithstanding the avowed intent of the members of the Constitutional
Commission of 1986 to limit the powers of the President as a reaction to the
abuses under the regime of Mr. Marcos, for the result was a limitation of
specific power of the President, particularly those relating to the commanderin-chief clause, but not a diminution of the general grant of executive power.
That the President has powers other than those expressly stated in the
Constitution is nothing new. This is recognized under the U.S. Constitution from
which we have patterned the distribution of governmental powers among
three (3) separate branches.
Article II, [section] 1, provides that "The Executive Power shall
be vested in a President of the United States of America." In
Alexander Hamilton's widely accepted view, this statement
cannot be read as mere shorthand for the specific executive
authorizations that follow it in [sections] 2 and 3. Hamilton
stressed the difference between the sweeping language of
article II, section 1, and the conditional language of article I,
[section] 1: "All legislative Powers herein granted shall be
vested in a Congress of the United States . . ." Hamilton
submitted that "[t]he [article III enumeration [in sections 2
and 31 ought therefore to be considered, as intended merely
to specify the principal articles implied in the definition of
execution power; leaving the rest to flow from the general
grant of that power, interpreted in confomity with other parts
of the Constitution...
In Myers v. United States, the Supreme Court accepted
Hamilton's proposition, concluding that the federal executive,
unlike the Congress, could exercise power from sources not
enumerated, so long as not forbidden by the constitutional
text: the executive power was given in general terms,
strengthened by specific terms where emphasis was regarded
as appropriate, and was limited by direct expressions where
limitation was needed. . ." The language of Chief Justice Taft in
Myers makes clear that the constitutional concept of inherent
power is not a synonym for power without limit; rather, the
concept suggests only that not all powers granted in the
Constitution
are
themselves
exhausted
by
internal
enumeration, so that, within a sphere properly regarded as
one of "executive' power, authority is implied unless there or
elsewhere
expressly
limited.
[TRIBE,
AMERICAN
CONSTITUTIONAL LAW 158-159 (1978).]
And neither can we subscribe to the view that a recognition of the President's
implied or residual powers is tantamount to setting the stage for another

dictatorship. Despite petitioners' strained analogy, the residual powers of the


President under the Constitution should not be confused with the power of the
President under the 1973 Constitution to legislate pursuant to Amendment No.
6 which provides:
Whenever in the judgment of the President (Prime Minister),
there exists a grave emergency or a threat or imminence
thereof, or whenever the interim Batasang Pambansa or the
regular National Assembly fails or is unable to act adequately
on any matter for any reason that in his judgment requires
immediate action, he may, in order to meet the exigency,
issue the necessary decrees, orders, or letters of instruction,
which shall form part of the law of the land,
There is no similarity between the residual powers of the President under the
1987 Constitution and the power of the President under the 1973 Constitution
pursuant to Amendment No. 6. First of all, Amendment No. 6 refers to an
express grant of power. It is not implied. Then, Amendment No. 6 refers to a
grant to the President of the specific power of legislation.
4. Among the duties of the President under the Constitution, in compliance
with his (or her) oath of office, is to protect and promote the interest and
welfare of the people. Her decision to bar the return of the Marcoses and
subsequently, the remains of Mr. Marcos at the present time and under present
circumstances is in compliance with this bounden duty. In the absence of a
clear showing that she had acted with arbitrariness or with grave abuse of
discretion in arriving at this decision, the Court will not enjoin the
implementation of this decision.
ACCORDINGLY, the Court resolved to DENY the Motion for Reconsideration for
lack of merit."

G.R. No. 79974 December 17, 1987


ULPIANO P. SARMIENTO III AND JUANITO G. ARCILLA, petitioners, vs.
SALVADOR MISON, in his capacity as COMMISSIONER OF THE BUREAU
OF CUSTOMS, AND GUILLERMO CARAGUE, in his capacity as
SECRETARY OF THE DEPARTMENT OF BUDGET, respondents,
COMMISSION ON APPOINTMENTS, intervenor.
PADILLA, J.:
Once more the Court is called upon to delineate constitutional boundaries. In
this petition for prohibition, the petitioners, who are taxpayers, lawyers,
members of the Integrated Bar of the Philippines and professors of
Constitutional Law, seek to enjoin the respondent Salvador Mison from
performing the functions of the Office of Commissioner of the Bureau of
Customs and the respondent Guillermo Carague, as Secretary of the

Department of Budget, from effecting disbursements in payment of Mison's


salaries and emoluments, on the ground that Mison's appointment as
Commissioner of the Bureau of Customs is unconstitutional by reason of its not
having been confirmed by the Commission on Appointments. The respondents,
on the other hand, maintain the constitutionality of respondent Mison's
appointment without the confirmation of the Commission on Appointments.
Because of the demands of public interest, including the need for stability in
the public service, the Court resolved to give due course to the petition and
decide, setting aside the finer procedural questions of whether prohibition is
the proper remedy to test respondent Mison's right to the Office of
Commissioner of the Bureau of Customs and of whether the petitioners have a
standing to bring this suit.
By the same token, and for the same purpose, the Court allowed the
Commission on Appointments to intervene and file a petition in intervention.
Comment was required of respondents on said petition. The comment was
filed, followed by intervenor's reply thereto. The parties were also heard in oral
argument on 8 December 1987.
This case assumes added significance because, at bottom line, it involves a
conflict between two (2) great departments of government, the Executive and
Legislative Departments. It also occurs early in the life of the 1987
Constitution.
The task of the Court is rendered lighter by the existence of relatively clear
provisions in the Constitution. In cases like this, we follow what the Court,
speaking through Mr. Justice (later, Chief Justice) Jose Abad Santos stated
inGold Creek Mining Corp. vs. Rodriguez, 1 that:
The fundamental principle of constitutional construction is to give
effect to the intent of the framers of the organic law and of the people
adopting it. The intention to which force is to be given is that which is
embodied and expressed in the constitutional provisions themselves.
The Court will thus construe the applicable constitutional provisions, not in
accordance with how the executive or the legislative department may want
them construed, but in accordance with what they say and provide.
Section 16, Article VII of the 1987 Constitution says:
The President shall nominate and, with the consent of the Commission
on Appointments, appoint the heads of the executive departments,
ambassadors, other public ministers and consuls, or officers of the
armed forces from the rank of colonel or naval captain, and other
officers whose appointments are vested in him in this Constitution. He
shall also appoint all other officers of the Government whose
appointments are not otherwise provided for by law, and those whom
he may be authorized by law to appoint. The Congress may, by law,
vest the appointment of other officers lower in rank in the President

alone, in the courts, or in the heads of the departments, agencies,


commissions or boards.
The President shall have the power to make appointments during the
recess of the Congress, whether voluntary or compulsory, but such
appointments shall be effective only until disapproval by the
Commission on Appointments or until the next adjournment of the
Congress.
It is readily apparent that under the provisions of the 1987 Constitution, just
quoted, there are four (4) groups of officers whom the President shall appoint.
These four (4) groups, to which we will hereafter refer from time to time, are:
First, the heads of the executive departments, ambassadors, other
public ministers and consuls, officers of the armed forces from the
rank of colonel or naval captain, and other officers whose
appointments are vested in him in this Constitution; 2
Second, all other officers of the Government whose appointments are
not otherwise provided for by law; 3
Third, those whom the President may be authorized by law to appoint;
Fourth, officers lower in rank 4 whose appointments the Congress may
by law vest in the President alone.
The first group of officers is clearly appointed with the consent of the
Commission on Appointments. Appointments of such officers are initiated by
nomination and, if the nomination is confirmed by the Commission on
Appointments, the President appoints. 5
The second, third and fourth groups of officers are the present bone of
contention. Should they be appointed by the President with or without the
consent (confirmation) of the Commission on Appointments? By following the
accepted rule in constitutional and statutory construction that an express
enumeration of subjects excludes others not enumerated, it would follow that
only those appointments to positions expressly stated in the first group require
the consent (confirmation) of the Commission on Appointments. But we need
not rely solely on this basic rule of constitutional construction. We can refer to
historical background as well as to the records of the 1986 Constitutional
Commission to determine, with more accuracy, if not precision, the intention of
the framers of the 1987 Constitution and the people adopting it, on whether
the appointments by the President, under the second, third and fourth groups,
require the consent (confirmation) of the Commission on Appointments. Again,
in this task, the following advice of Mr. Chief Justice J. Abad Santos in Gold
Creek is apropos:
In deciding this point, it should be borne in mind that a constitutional
provision must be presumed to have been framed and adopted in the
light and understanding of prior and existing laws and with reference

to them. "Courts are bound to presume that the people adopting a


constitution are familiar with the previous and existing laws upon the
subjects to which its provisions relate, and upon which they express
their judgment and opinion in its adoption." (Barry vs. Truax 13 N.D.,
131; 99 N.W., 769,65 L. R. A., 762.) 6
It will be recalled that, under Sec. 10, Article VII of the 1935 Constitution, it is
provided that
xxx xxx xxx
(3) The President shall nominate and with the consent of the
Commission on Appointments, shall appoint the heads of the
executive departments and bureaus, officers of the army from the
rank of colonel, of the Navy and Air Forces from the rank of captain or
commander, and all other officers of the Government whose
appointments are not herein otherwise provided for, and those whom
he may be authorized by law to appoint; but the Congress may by law
vest the appointment of inferior officers, in the President alone, in the
courts, or in the heads of departments.
(4) The President shall havethe power to make appointments during
the recess of the Congress, but such appointments shall be effective
only until disapproval by the Commission on Appointments or until the
next adjournment of the Congress.
xxx xxx xxx
(7) ..., and with the consent of the Commission on Appointments, shall
appoint ambassadors, other public ministers and consuls ...
Upon the other hand, the 1973 Constitution provides thatSection 10. The President shall appoint the heads of bureaus and
offices, the officers of the Armed Forces of the Philippines from the
rank of Brigadier General or Commodore, and all other officers of The
government whose appointments are not herein otherwise provided
for, and those whom he may be authorized by law to appoint.
However, the Batasang Pambansa may by law vest in the Prime
Minister, members of the Cabinet, the Executive Committee, Courts,
Heads of Agencies, Commissions, and Boards the power to appoint
inferior officers in their respective offices.
Thus, in the 1935 Constitution, almost all presidential appointments required
the consent (confirmation) of the Commission on Appointments. It is now a sad
part of our political history that the power of confirmation by the Commission
on Appointments, under the 1935 Constitution, transformed that commission,
many times, into a venue of "horse-trading" and similar malpractices.

On the other hand, the 1973 Constitution, consistent with the authoritarian
pattern in which it was molded and remolded by successive amendments,
placed the absolute power of appointment in the President with hardly any
check on the part of the legislature.
Given the above two (2) extremes, one, in the 1935 Constitution and the other,
in the 1973 Constitution, it is not difficult for the Court to state that the
framers of the 1987 Constitution and the people adopting it, struck a "middle
ground" by requiring the consent (confirmation) of the Commission on
Appointments for the first group of appointments and leaving to the President,
without such confirmation, the appointment of other officers, i.e., those in the
second and third groups as well as those in the fourth group, i.e., officers of
lower rank.
The proceedings in the 1986 Constitutional Commission support this
conclusion. The original text of Section 16, Article VII, as proposed by the
Committee on the Executive of the 1986 Constitutional Commission, read as
follows:
Section 16. The president shall nominate and, with the consent of a
Commission on Appointment, shall appoint the heads of the executive
departments and bureaus, ambassadors, other public ministers and
consuls, or officers of the armed forces from the rank of colonel or
naval captain and all other officers of the Government whose
appointments are not otherwise provided for by law, and those whom
he may be authorized by law to appoint. The Congress may by law
vest the appointment of inferior officers in the President alone, in the
courts, or in the heads of departments 7 [Emphasis supplied].
The above text is almost a verbatim copy of its counterpart provision in the
1935 Constitution. When the frames discussed on the floor of the Commission
the proposed text of Section 16, Article VII, a feeling was manifestly expressed
to make the power of the Commission on Appointments over presidential
appointments more limited than that held by the Commission in the 1935
Constitution. ThusMr. Rama: ... May I ask that Commissioner Monsod be
recognized
The President: We will call Commissioner Davide later.
Mr. Monsod: With the Chair's indulgence, I just want to take a
few minutes of our time to lay the basis for some of the
amendments that I would like to propose to the Committee
this morning.
xxx xxx xxx
On Section 16, I would like to suggest that the power of the
Commission on Appointments be limited to the department heads,

ambassadors, generals and so on but not to the levels of bureau


heads and colonels.
xxx xxx xxx

(Emphasis supplied.)

In the course of the debates on the text of Section 16, there were two (2)
major changes proposed and approved by the Commission. These were (1) the
exclusion of the appointments of heads of bureaus from the requirement of
confirmation by the Commission on Appointments; and (2) the exclusion of
appointments made under the second sentence 9 of the section from the same
requirement. The records of the deliberations of the Constitutional Commission
show the following:

MR. MAAMBONG: May I direct a question to Commissioner Foz? The


Commissioner proposed an amendment to delete 'and bureaus on
Section 16. Who will then appoint the bureau directors if it is not the
President?
MR. FOZ: It is still the President who will appoint them but their
appointment shall no longer be subject to confirmation by the
Commission on Appointments.
MR. MAAMBONG: In other words, it is in line with the same answer of
Commissioner de Castro?
MR. FOZ: Yes.

MR. ROMULO: I ask that Commissioner Foz be recognized


MR. MAAMBONG: Thank you.
THE PRESIDENT: Commissioner Foz is recognized
MR. FOZ: Madam President, my proposed amendment is on page 7,
Section 16, line 26 which is to delete the words "and bureaus," and on
line 28 of the same page, to change the phrase 'colonel or naval
captain to MAJOR GENERAL OR REAR ADMIRAL. This last amendment
which is co-authored by Commissioner de Castro is to put a period (.)
after the word ADMIRAL, and on line 29 of the same page, start a new
sentence with: HE SHALL ALSO APPOINT, et cetera.
MR. REGALADO: May we have the amendments one by one. The first
proposed amendment is to delete the words "and bureaus" on line 26.
MR. FOZ: That is correct.
MR. REGALADO: For the benefit of the other Commissioners, what
would be the justification of the proponent for such a deletion?
MR. FOZ: The position of bureau director is actually quite low in the
executive department, and to require further confirmation of
presidential appointment of heads of bureaus would subject them to
political influence.
MR. REGALADO: The Commissioner's proposed amendment by
deletion also includes regional directors as distinguished from merely
staff directors, because the regional directors have quite a plenitude
of powers within the regions as distinguished from staff directors who
only stay in the office.
MR. FOZ: Yes, but the regional directors are under the supervisiopn of
the staff bureau directors.
xxx xxx xxx

THE PRESIDENT: Is this clear now? What is the reaction of the


Committee?
xxx xxx xxx
MR. REGALADO: Madam President, the Committee feels that this
matter should be submitted to the body for a vote.
MR. DE CASTRO: Thank you.
MR. REGALADO: We will take the amendments one by one. We will
first vote on the deletion of the phrase 'and bureaus on line 26, such
that appointments of bureau directors no longer need confirmation by
the Commission on Appointment.
Section 16, therefore, would read: 'The President shall nominate, and with the
consent of a Commission on Appointments, shall appoint the heads of the
executive departments, ambassadors. . . .
THE PRESIDENT: Is there any objection to delete the phrase
'and bureaus' on page 7, line 26? (Silence) The Chair hears
none; the amendments is approved.
xxx xxx xxx
MR. ROMULO: Madam President.
THE PRESIDENT: The Acting Floor Leader is recognized.
THE PRESIDENT: Commissioner Foz is recognized

MR. FOZ: Madam President, this is the third proposed


amendment on page 7, line 28. 1 propose to put a period (.)
after 'captain' and on line 29, delete 'and all' and substitute it
with HE SHALL ALSO APPOINT ANY.

FR. BERNAS: That will clarify things.


THE PRESIDENT: Does the Committee accept?
MR. REGALADO: Just for the record, of course, that excludes
those officers which the Constitution does not require
confirmation by the Commission on Appointments, like the
members of the judiciary and the Ombudsman.

MR. REGALADO: Madam President, the Committee accepts


the proposed amendment because it makes it clear that
those other officers mentioned therein do not have to be
confirmed by the Commission on Appointments.

MR. DAVIDE: That is correct. That is very clear from the


modification made by Commissioner Bernas.

MR. DAVIDE: Madam President.


THE PRESIDENT: Commissioner Davide is recognized.

THE PRESIDENT: So we have now this proposed amendment


of Commissioners Foz and Davide.

xxx xxx xxx


xxx xxx xxx
MR. DAVIDE: So would the proponent accept an amendment
to his amendment, so that after "captain" we insert the
following
words:
AND
OTHER
OFFICERS
WHOSE
APPOINTMENTS ARE VESTED IN HIM IN THIS CONSTITUTION?
FR. BERNAS: It is a little vague.
MR. DAVIDE: In other words, there are positions provided for in
the Constitution whose appointments are vested in the
President, as a matter of fact like those of the different
constitutional commissions.
FR. BERNAS: That is correct. This list of officials found in
Section 16 is not an exclusive list of those appointments
which constitutionally require confirmation of the Commission
on Appointments,
MR. DAVIDE: That is the reason I seek the incorporation of the
words I proposed.
FR. BERNAS: Will Commissioner Davide restate his proposed
amendment?
MR. DAVIDE: After 'captain,' add the following: AND OTHER
OFFICERS WHOSE APPOINTMENTS ARE VESTED IN HIM IN THIS
CONSTITUTION.
FR. BERNAS: How about:"AND OTHER OFFICERS WHOSE
APPOINTMENTS REQUIRE CONFIRMATION UNDER THIS
CONSTITUTION"?
MR. DAVIDE: Yes, Madam President, that is modified by the
Committee.

THE PRESIDENT: Is there any objection to this proposed


amendment of Commissioners Foz and Davide as accepted by
the Committee? (Silence) The Chair hears none; the
amendment,
as
amended,
is
approved 10 (Emphasis
supplied).
It is, therefore, clear that appointments to the second and third groups of
officers can be made by the President without the consent (confirmation) of
the Commission on Appointments.
It is contended by amicus curiae, Senator Neptali Gonzales, that the second
sentence of Sec. 16, Article VII readingHe (the President) shall also appoint all other officers of the Government
whose appointments are not otherwise provided for by law and those whom he
may be authorized by law to appoint . . . . (Emphasis supplied)
with particular reference to the word "also," implies that the President shall "in
like manner" appoint the officers mentioned in said second sentence. In other
words, the President shall appoint the officers mentioned in said second
sentence in the same manner as he appoints officers mentioned in the first
sentence, that is, by nomination and with the consent (confirmation) of the
Commission on Appointments.
Amicus curiae's reliance on the word "also" in said second sentence is not
necessarily supportive of the conclusion he arrives at. For, as the Solicitor
General argues, the word "also" could mean "in addition; as well; besides, too"
(Webster's International Dictionary, p. 62, 1981 edition) which meanings could,
on the contrary, stress that the word "also" in said second sentence means
that the President, in addition to nominating and, with the consent of the
Commission on Appointments, appointing the officers enumerated in the first

sentence, can appoint (without such consent (confirmation) the officers


mentioned in the second sentenceRather than limit the area of consideration to the possible meanings of the
word "also" as used in the context of said second sentence, the Court has
chosen to derive significance from the fact that the first sentence speaks of
nomination by the President and appointment by the President with the
consent of the Commission on Appointments, whereas, the second sentence
speaks only of appointment by the President. And, this use of different
language in two (2) sentences proximate to each other underscores a
difference in message conveyed and perceptions established, in line with
Judge Learned Hand's observation that "words are not pebbles in alien
juxtaposition" but, more so, because the recorded proceedings of the 1986
Constitutional Commission clearly and expressly justify such differences.
As a result of the innovations introduced in Sec. 16, Article VII of the 1987
Constitution, there are officers whose appointments require no confirmation of
the Commission on Appointments, even if such officers may be higher in rank,
compared to some officers whose appointments have to be confirmed by the
Commission on Appointments under the first sentence of the same Sec. 16,
Art. VII. Thus, to illustrate, the appointment of the Central Bank Governor
requires no confirmation by the Commission on Appointments, even if he is
higher in rank than a colonel in the Armed Forces of the Philippines or a consul
in the Consular Service.
But these contrasts, while initially impressive, merely underscore the
purposive intention and deliberate judgment of the framers of the 1987
Constitution that, except as to those officers whose appointments require the
consent of the Commission on Appointments by express mandate of the first
sentence in Sec. 16, Art. VII, appointments of other officers are left to the
President without need of confirmation by the Commission on Appointments.
This conclusion is inevitable, if we are to presume, as we must, that the
framers of the 1987 Constitution were knowledgeable of what they were doing
and of the foreseable effects thereof.
Besides, the power to appoint is fundamentally executive or presidential in
character. Limitations on or qualifications of such power should be strictly
construed against them. Such limitations or qualifications must be clearly
stated in order to be recognized. But, it is only in the first sentence of Sec. 16,
Art. VII where it is clearly stated that appointments by the President to the
positions therein enumerated require the consent of the Commission on
Appointments.
As to the fourth group of officers whom the President can appoint, the
intervenor Commission on Appointments underscores the third sentence in
Sec. 16, Article VII of the 1987 Constitution, which reads:
The Congress may, by law, vest the appointment of other officers
lower in rank in the President alone, in the courts, or in the heads of
departments, agencies, commissions, or boards. [Emphasis supplied].

and argues that, since a law is needed to vest the appointment of lower-ranked
officers in the President alone, this implies that, in the absence of such a law,
lower-ranked officers have to be appointed by the President subject to
confirmation by the Commission on Appointments; and, if this is so, as to
lower-ranked officers, it follows that higher-ranked officers should be appointed
by the President, subject also to confirmation by the Commission on
Appointments.
The respondents, on the other hand, submit that the third sentence of Sec. 16,
Article VII, abovequoted, merely declares that, as to lower-ranked officers, the
Congress may by law vest their appointment in the President, in the courts, or
in the heads of the various departments, agencies, commissions, or boards in
the government. No reason however is submitted for the use of the word
"alone" in said third sentence.
The Court is not impressed by both arguments. It is of the considered opinion,
after a careful study of the deliberations of the 1986 Constitutional
Commission, that the use of the word alone" after the word "President" in said
third sentence of Sec. 16, Article VII is, more than anything else, a slip
or lapsus in draftmanship. It will be recalled that, in the 1935 Constitution, the
following provision appears at the end of par. 3, section 1 0, Article VII thereof

...; but the Congress may by law vest the appointment of inferior
officers, in the President alone, in the courts, or in the heads of
departments. [Emphasis supplied].
The above provision in the 1935 Constitution appears immediately after the
provision which makes practically all presidential appointments subject to
confirmation by the Commission on Appointments, thus3. The President shall nominate and with the consent of the
Commission on Appointments, shall appoint the heads of the
executive departments and bureaus, officers of the Army from
the rank of colonel, of the Navy and Air Forces from the rank
of captain or commander, and all other officers of the
Government whose appointments are not herein provided for,
and those whom he may be authorized by law to appoint; ...
In other words, since the 1935 Constitution subjects, as a general rule,
presidential appointments to confirmation by the Commission on
Appointments, the same 1935 Constitution saw fit, by way of an exception to
such rule, to provide that Congress may, however, by law vest the
appointment of inferior officers (equivalent to 11 officers lower in rank"
referred to in the 1987 Constitution) in the President alone, in the courts, or in
the heads of departments,
In the 1987 Constitution, however, as already pointed out, the clear and
expressed intent of its framers was to exclude presidential appointments from
confirmation by the Commission on Appointments, except appointments to
offices expressly mentioned in the first sentence of Sec. 16, Article VII.

Consequently, there was no reason to use in the third sentence of Sec. 16,
Article VII the word "alone" after the word "President" in providing that
Congress may by law vest the appointment of lower-ranked officers in the
President alone, or in the courts, or in the heads of departments, because the
power to appoint officers whom he (the President) may be authorized by law to
appoint is already vested in the President, without need of confirmation by the
Commission on Appointments, in the second sentence of the same Sec. 16,
Article VII.
Therefore, the third sentence of Sec. 16, Article VII could have stated merely
that, in the case of lower-ranked officers, the Congress may by law vest their
appointment in the President, in the courts, or in the heads of various
departments of the government. In short, the word "alone" in the third
sentence of Sec. 16, Article VII of the 1987 Constitution, as a literal import
from the last part of par. 3, section 10, Article VII of the 1935 Constitution,
appears to be redundant in the light of the second sentence of Sec. 16, Article
VII. And, this redundancy cannot prevail over the clear and positive intent of
the framers of the 1987 Constitution that presidential appointments, except
those mentioned in the first sentence of Sec. 16, Article VII, are not subject to
confirmation by the Commission on Appointments.
Coming now to the immediate question before the Court, it is evident that the
position of Commissioner of the Bureau of Customs (a bureau head) is not one
of those within the first group of appointments where the consent of the
Commission on Appointments is required. As a matter of fact, as already
pointed out, while the 1935 Constitution includes "heads of bureaus" among
those officers whose appointments need the consent of the Commission on
Appointments, the 1987 Constitution on the other hand, deliberately excluded
the position of "heads of bureaus" from appointments that need the consent
(confirmation) of the Commission on Appointments.

known respectively as the Commissioner (hereinafter known


as Commissioner) and Deputy Commissioner of Customs, who
shall each receive an annual compensation in accordance
with the rates prescribed by existing law. The Commissioner
and the Deputy Commissioner of Customs shall be appointed
by the President of the Philippines (Emphasis supplied.)
Of course, these laws (Rep. Act No. 1937 and PD No. 34) were approved during
the effectivity of the 1935 Constitution, under which the President may
nominate and, with the consent of the Commission on Appointments, appoint
the heads of bureaus, like the Commissioner of the Bureau of Customs.
After the effectivity of the 1987 Constitution, however, Rep. Act No. 1937 and
PD No. 34 have to be read in harmony with Sec. 16, Art. VII, with the result
that, while the appointment of the Commissioner of the Bureau of Customs is
one that devolves on the President, as an appointment he is authorizedby law
to make, such appointment, however, no longer needs the confirmation of the
Commission on Appointments.
Consequently, we rule that the President of the Philippines acted within her
constitutional authority and power in appointing respondent Salvador Mison,
Commissioner of the Bureau of Customs, without submitting his nomination to
the Commission on Appointments for confirmation. He is thus entitled to
exercise the full authority and functions of the office and to receive all the
salaries and emoluments pertaining thereto.
WHEREFORE, the petition and petition in intervention should be, as they are,
hereby DISMISSED. Without costs.
SO ORDERED.

Moreover, the President is expressly authorized by law to appoint the


Commissioner of the Bureau of Customs. The original text of Sec. 601 of
Republic Act No. 1937, otherwise known as the Tariff and Customs Code of the
Philippines, which was enacted by the Congress of the Philippines on 22 June
1957, reads as follows:
601. Chief Officials of the Bureau.-The Bureau of Customs
shall have one chief and one assistant chief, to be known
respectively as the Commissioner (hereinafter known as the
'Commissioner') and Assistant Commissioner of Customs, who
shall each receive an annual compensation in accordance
with the rates prescribed by existing laws. The Assistant
Commissioner of Customs shall be appointed by the proper
department head.
Sec. 601 of Republic Act No. 1937, was amended on 27 October 1972 by
Presidential Decree No. 34, amending the Tariff and Customs Code of the
Philippines. Sec. 601, as thus amended, now reads as follows:
Sec. 601. Chief Officials of the Bureau of Customs.-The Bureau
of Customs shall have one chief and one assistant chief, to be

BERSAMIN, J.:
On March 17, 2010, the Court promulgated its decision, holding:
WHEREFORE, the Court:
1.

Dismisses the petitions for certiorari and mandamus in G.R. No. 191002
and G.R. No. 191149, and the petition for mandamus in G.R. No. 191057
for being premature;

2.

Dismisses the petitions for prohibition in G.R. No. 191032 and G.R. No.
191342 for lack of merit; and

3.

Grants the petition in A.M. No. 10-2-5-SC and, accordingly, directs the
Judicial and Bar Council:
a.

To resume its proceedings for the nomination of candidates to fill


the vacancy to be created by the compulsory retirement of Chief
Justice Reynato S. Puno by May 17, 2010;

b.

To prepare the short list of nominees for the position of Chief


Justice;

c.

To submit to the incumbent President the short list of nominees for


the position of Chief Justice on or before May 17, 2010; and

d.

To continue its proceedings for the nomination of candidates to fill


other vacancies in the Judiciary and submit to the President the
short list of nominees corresponding thereto in accordance with
this decision.

SO ORDERED.
Motions for Reconsideration

G.R. No. 191002

April 20, 2010

ARTURO M. DE CASTRO, Petitioner, vs.JUDICIAL AND BAR COUNCIL (JBC)


and PRESIDENT GLORIA MACAPAGAL - ARROYO, Respondents.

Petitioners Jaime N. Soriano (G.R. No. 191032), Amador Z. Tolentino and Roland
B. Inting (G.R. No. 191342), and Philippine Bar Association (G.R. No. 191420),
as well as intervenors Integrated Bar of the Philippines-Davao del Sur (IBPDavao del Sur, et al.); Christian Robert S. Lim; Peter Irving Corvera; Bagong
Alyansang Bayan and others (BAYAN, et al.); Alfonso V. Tan, Jr.; the Women Trial
Lawyers Organization of the Philippines (WTLOP); Marlou B. Ubano; Mitchell
John L. Boiser; and Walden F. Bello and Loretta Ann P. Rosales (Bello, et al.),
filed their respective motions for reconsideration. Also filing a motion for
reconsideration was Senator Aquilino Q. Pimentel, Jr., whose belated
intervention was allowed.
We summarize the arguments and submissions of the various motions for
reconsideration, in the aforegiven order:

Soriano

2.

Considering that Section 15, Article VII is clear and straightforward, the
only duty of the Court is to apply it. The provision expressly and clearly
provides a general limitation on the appointing power of the President in
prohibiting the appointment of any person to any position in the
Government without any qualification and distinction.

1.

The Court has not squarely ruled upon or addressed the issue of whether
or not the power to designate the Chief Justice belonged to the Supreme
Court en banc.

2.

The Mendoza petition should have been dismissed, because it sought a


mere declaratory judgment and did not involve a justiciable controversy.

3.

The Court gravely erred in unilaterally ignoring the constitutional


safeguard against midnight appointments.

3.

All Justices of the Court should participate in the next deliberations. The
mere fact that the Chief Justice sits as ex officio head of the JBC should not
prevail over the more compelling state interest for him to participate as a
Member of the Court.

4.

The Constitution has installed two constitutional safeguards:- the


prohibition against midnight appointments, and the creation of the JBC. It
is not within the authority of the Court to prefer one over the other, for the
Courts duty is to apply the safeguards as they are, not as the Court likes
them to be.

5.

The Court has erred in failing to apply the basic principles of statutory
construction in interpreting the Constitution.

6.

The Court has erred in relying heavily on the title, chapter or section
headings, despite precedents on statutory construction holding that such
headings carried very little weight.

7.

The Constitution has provided a general rule on midnight appointments,


and the only exception is that on temporary appointments to executive
positions.

8.

The Court has erred in directing the JBC to resume the proceedings for the
nomination of the candidates to fill the vacancy to be created by the
compulsory retirement of Chief Justice Puno with a view to submitting the
list of nominees for Chief Justice to President Arroyo on or before May 17,
2010. The Constitution grants the Court only the power of supervision over
the JBC; hence, the Court cannot tell the JBC what to do, how to do it, or
when to do it, especially in the absence of a real and justiciable case
assailing any specific action or inaction of the JBC.

9.

The Court has engaged in rendering an advisory opinion and has indulged
in speculations.

Tolentino and Inting


1.

2.

A plain reading of Section 15, Article VII does not lead to an interpretation
that exempts judicial appointments from the express ban on midnight
appointments.
In excluding the Judiciary from the ban, the Court has made distinctions
and has created exemptions when none exists.

3.

The ban on midnight appointments is placed in Article VII, not in Article


VIII, because it limits an executive, not a judicial, power.

4.

Resort to the deliberations of the Constitutional Commission


superfluous, and is powerless to vary the terms of the clear prohibition.

5.

The Court has given too much credit to the position taken by Justice
Regalado. Thereby, the Court has raised the Constitution to the level of a
venerated text whose intent can only be divined by its framers as to be
outside the realm of understanding by the sovereign people that ratified it.

6.

Valenzuela should not be reversed.

7.

The petitioners, as taxpayers and lawyers, have the clear legal standing to
question the illegal composition of the JBC.

is

Philippine Bar Association


1.

The Courts strained interpretation of the Constitution violates the basic


principle that the Court should not formulate a rule of constitutional law
broader than what is required by the precise facts of the case.

10. The constitutional ban on appointments being already in effect, the Courts
directing the JBC to comply with the decision constitutes a culpable
violation of the Constitution and the commission of an election offense.
11. The Court cannot reverse on the basis of a secondary authority a doctrine
unanimously formulated by the Court en banc.
12. The practice has been for the most senior Justice to act as Chief Justice
whenever the incumbent is indisposed. Thus, the appointment of the
successor Chief Justice is not urgently necessary.

13. The principal purpose for the ban on midnight appointments is to arrest
any attempt to prolong the outgoing Presidents powers by means of
proxies. The attempt of the incumbent President to appoint the next Chief
Justice is undeniably intended to perpetuate her power beyond her term of
office.

3.

A plain reading is preferred to a contorted and strained interpretation


based on compartmentalization and physical arrangement, especially
considering that the Constitution must be interpreted as a whole.

4.

Resort to the deliberations or to the personal interpretation of the framers


of the Constitution should yield to the plain and unequivocal language of
the Constitution.

5.

There is no sufficient reason for reversing Valenzuela, a ruling that is


reasonable and in accord with the Constitution.

IBP-Davao del Sur, et al.


1.

Its language being unambiguous, Section 15, Article VII of the Constitution
applies to appointments to the Judiciary. Hence, no cogent reason exists to
warrant the reversal of the Valenzuela pronouncement.

2.

Section 16, Article VII of the Constitution provides for presidential


appointments to the Constitutional Commissions and the JBC with the
consent of the Commission on Appointments. Its phrase "other officers
whose appointments are vested in him in this Constitution" is enough
proof that the limitation on the appointing power of the President extends
to appointments to the Judiciary. Thus, Section 14, Section 15, and Section
16 of Article VII apply to all presidential appointments in the Executive and
Judicial Branches of the Government.

BAYAN, et al.

3.

There is no evidence that the framers of the Constitution abhorred the


idea of an Acting Chief Justice in all cases.

1.

The Court erred in granting the petition in A.M. No. 10-2-5-SC, because the
petition did not present a justiciable controversy. The issues it raised were
not yet ripe for adjudication, considering that the office of the Chief Justice
was not yet vacant and that the JBC itself has yet to decide whether or not
to submit a list of nominees to the President.

2.

The collective wisdom of Valenzuela Court is more important and


compelling than the opinion of Justice Regalado.

3.

In ruling that Section 15, Article VII is in conflict with Section 4(1), Article
VIII, the Court has violated the principle of ut magis valeat quam pereat
(which mandates that the Constitution should be interpreted as a whole,
such that any conflicting provisions are to be harmonized as to fully give
effect to all). There is no conflict between the provisions; they complement
each other.

4.

The form and structure of the Constitutions titles, chapters, sections, and
draftsmanship carry little weight in statutory construction. The clear and
plain language of Section 15, Article VII precludes interpretation.

Lim
1.

There is no justiciable controversy that warrants the Courts exercise of


judicial review.

2.

The election ban under Section 15, Article VII applies to appointments to
fill a vacancy in the Court and to other appointments to the Judiciary.

3.

The creation of the JBC does not justify the removal of the safeguard under
Section 15 of Article VII against midnight appointments in the Judiciary.

Corvera
1.

The Courts exclusion of appointments to the Judiciary from the


Constitutional ban on midnight appointments is based on an interpretation
beyond the plain and unequivocal language of the Constitution.

2.

The intent of the ban on midnight appointments is to cover appointments


in both the Executive and Judicial Departments. The application of the
principle of verba legis (ordinary meaning) would have obviated dwelling
on the organization and arrangement of the provisions of the Constitution.
If there is any ambiguity in Section 15, Article VII, the intent behind the
provision, which is to prevent political partisanship in all branches of the
Government, should have controlled.

Tan, Jr.
1.

The factual antecedents do not present an actual case or controversy. The


clash of legal rights and interests in the present case are merely
anticipated. Even if it is anticipated with certainty, no actual vacancy in
the position of the Chief Justice has yet occurred.

2.

The ruling that Section 15, Article VII does not apply to a vacancy in the
Court and the Judiciary runs in conflict with long standing principles and
doctrines of statutory construction. The provision admits only one
exception, temporary appointments in the Executive Department. Thus,
the Court should not distinguish, because the law itself makes no
distinction.

3.

4.

5.

Valenzuela was erroneously reversed. The framers of the Constitution


clearly intended the ban on midnight appointments to cover the members
of the Judiciary. Hence, giving more weight to the opinion of Justice
Regalado to reverse the en banc decision in Valenzuela was unwarranted.
Section 15, Article VII is not incompatible with Section 4(1), Article VIII. The
90-day mandate to fill any vacancy lasts until August 15, 2010, or a month
and a half after the end of the ban. The next President has roughly the
same time of 45 days as the incumbent President (i.e., 44 days) within
which to scrutinize and study the qualifications of the next Chief Justice.
Thus, the JBC has more than enough opportunity to examine the nominees
without haste and political uncertainty.1avvphi1
When the constitutional ban is in place, the 90-day period under Section
4(1), Article VIII is suspended.

6.

There is no basis to direct the JBC to submit the list of nominees on or


before May 17, 2010. The directive to the JBC sanctions a culpable
violation of the Constitution and constitutes an election offense.

7.

There is no pressing necessity for the appointment of a Chief Justice,


because the Court sits en banc, even when it acts as the sole judge of all
contests relative to the election, returns and qualifications of the President
and Vice-President. Fourteen other Members of the Court can validly
comprise the Presidential Electoral Tribunal.

WTLOP
1.

The Court exceeded its jurisdiction in ordering the JBC to submit the list of
nominees for Chief Justice to the President on or before May 17, 2010,
and to continue its proceedings for the nomination of the candidates,
because it granted a relief not prayed for; imposed on the JBC a deadline
not provided by law or the Constitution; exercised control instead of mere
supervision over the JBC; and lacked sufficient votes to reverse
Valenzuela.

2.

In interpreting Section 15, Article VII, the Court has ignored the basic
principle of statutory construction to the effect that the literal meaning of
the law must be applied when it is clear and unambiguous; and that we
should not distinguish where the law does not distinguish.

3.

There is no urgency to appoint the next Chief Justice, considering that the
Judiciary Act of 1948 already provides that the power and duties of the
office devolve on the most senior Associate Justice in case of a vacancy in
the office of the Chief Justice.

Ubano
1.

The language of Section 15, Article VII, being clear and unequivocal, needs
no interpretation

2.

The Constitution must be construed in its entirety, not by resort to the


organization and arrangement of its provisions.

3.

The opinion of Justice Regalado is irrelevant, because Section 15, Article


VII and the pertinent records of the Constitutional Commission are clear
and unambiguous.

4.

The Court has erred in ordering the JBC to submit the list of nominees to
the President by May 17, 2010 at the latest, because no specific law
requires the JBC to submit the list of nominees even before the vacancy
has occurred.

Boiser
1.

Under Section 15, Article VII, the only exemption from the ban on midnight
appointments is the temporary appointment to an executive position. The
limitation is in keeping with the clear intent of the framers of the
Constitution to place a restriction on the power of the outgoing Chief
Executive to make appointments.

2.

To exempt the appointment of the next Chief Justice from the ban on
midnight appointments makes the appointee beholden to the outgoing
Chief Executive, and compromises the independence of the Chief Justice by
having the outgoing President be continually influential.

3.

The Courts reversal of Valenzuela without stating the sufficient reason


violates the principle of stare decisis.

Bello, et al.
1.

Section 15, Article VII does not distinguish as to the type of appointments
an outgoing President is prohibited from making within the prescribed
period. Plain textual reading and the records of the Constitutional
Commission support the view that the ban on midnight appointments
extends to judicial appointments.

2.

Supervision of the JBC by the Court involves oversight. The subordinate


subject to oversight must first act not in accord with prescribed rules
before the act can be redone to conform to the prescribed rules.

3.

The Court erred in granting the petition in A.M. No. 10-2-5-SC, because the
petition did not present a justiciable controversy.

Pimentel
1.

Any constitutional interpretative changes must be reasonable, rational,


and conformable to the general intent of the Constitution as a limitation
to the powers of Government and as a bastion for the protection of the
rights of the people. Thus, in harmonizing seemingly conflicting provisions

of the Constitution, the interpretation should always be one that protects


the citizenry from an ever expanding grant of authority to its
representatives.
2.

The decision expands the constitutional powers of the President in a


manner totally repugnant to republican constitutional democracy, and is
tantamount to a judicial amendment of the Constitution without proper
authority.

For his part, petitioner Estelito P. Mendoza (A.M. No. 10-2-5-SC) submits his
comment even if the OSG and the JBC were the only ones the Court has
required to do so. He states that the motions for reconsideration were directed
at the administrative matter he initiated and which the Court resolved. His
comment asserts:
1. The grounds of the motions for reconsideration were already
resolved by the decision and the separate opinion.

Comments

2. The administrative matter he brought invoked the Courts power of


supervision over the JBC as provided by Section 8(1), Article VIII of the
Constitution, as distinguished from the Courts adjudicatory power
under Section 1, Article VIII. In the former, the requisites for judicial
review are not required, which was whyValenzuela was docketed as an
administrative matter. Considering that the JBC itself has yet to take a
position on when to submit the short list to the proper appointing
authority, it has effectively solicited the exercise by the Court of its
power of supervision over the JBC.

The Office of the Solicitor General (OSG) and the JBC separately represent in
their respective comments, thus:
OSG
1.

The JBC may be compelled to submit to the President a short list of its
nominees for the position of Chief Justice.

2.

The incumbent President has the power to appoint the next Chief Justice.

3.

Section 15, Article VII does not apply to the Judiciary.

4.

The principles of constitutional construction favor the exemption of the


Judiciary from the ban on midnight appointments.1awph!1

5.

The Court has the duty to consider and resolve all issues raised by the
parties as well as other related matters.

3. To apply Section 15, Article VII to Section 4(1) and Section 9, Article
VIII is to amend the Constitution.
4. The portions of the deliberations of the Constitutional Commission
quoted in the dissent of Justice Carpio Morales, as well as in some of
the motions for reconsideration do not refer to either Section 15,
Article VII or Section 4(1), Article VIII, but to Section 13, Article VII (on
nepotism).
Ruling
We deny the motions for reconsideration for lack of merit, for all the matters
being thereby raised and argued, not being new, have all been resolved by the
decision of March 17, 2010.

JBC
1. The consolidated petitions should have been dismissed for
prematurity, because the JBC has not yet decided at the time the
petitions were filed whether the incumbent President has the power to
appoint the new Chief Justice, and because the JBC, having yet to
interview the candidates, has not submitted a short list to the
President.
2. The statement in the decision that there is a doubt on whether a
JBC short list is necessary for the President to appoint a Chief Justice
should be struck down as bereft of constitutional and legal basis. The
statement undermines the independence of the JBC.
3. The JBC will abide by the final decision of the Court, but in accord
with its constitutional mandate and its implementing rules and
regulations.

Nonetheless, the Court opts to dwell on some matters only for the purpose of
clarification and emphasis.
First: Most of the movants contend that the principle of stare decisis is
controlling, and accordingly insist that the Court has erred in disobeying or
abandoning Valenzuela.1
The contention has no basis.
Stare decisis derives its name from the Latin maxim stare decisis et non quieta
movere, i.e., to adhere to precedent and not to unsettle things that are settled.
It simply means that a principle underlying the decision in one case is deemed
of imperative authority, controlling the decisions of like cases in the same
court and in lower courts within the same jurisdiction, unless and until the
decision in question is reversed or overruled by a court of competent authority.
The decisions relied upon as precedents are commonly those of appellate

courts, because the decisions of the trial courts may be appealed to higher
courts and for that reason are probably not the best evidence of the rules of
law laid down. 2
Judicial decisions assume the same authority as a statute itself and, until
authoritatively abandoned, necessarily become, to the extent that they are
applicable, the criteria that must control the actuations, not only of those
called upon to abide by them, but also of those duty-bound to enforce
obedience to them.3 In a hierarchical judicial system like ours, the decisions of
the higher courts bind the lower courts, but the courts of co-ordinate authority
do not bind each other. The one highest court does not bind itself, being
invested with the innate authority to rule according to its best lights. 4
The Court, as the highest court of the land, may be guided but is not controlled
by precedent. Thus, the Court, especially with a new membership, is not
obliged to follow blindly a particular decision that it determines, after reexamination, to call for a rectification. 5 The adherence to precedents is strict
and rigid in a common-law setting like the United Kingdom, where judges make
law as binding as an Act of Parliament. 6 But ours is not a common-law system;
hence, judicial precedents are not always strictly and rigidly followed. A judicial
pronouncement in an earlier decision may be followed as a precedent in a
subsequent case only when its reasoning and justification are relevant, and the
court in the latter case accepts such reasoning and justification to be
applicable to the case. The application of the precedent is for the sake of
convenience and stability.
For the intervenors to insist that Valenzuela ought not to be disobeyed, or
abandoned, or reversed, and that its wisdom should guide, if not control, the
Court in this case is, therefore, devoid of rationality and foundation. They seem
to conveniently forget that the Constitution itself recognizes the innate
authority of the Court en banc to modify or reverse a doctrine or principle of
law laid down in any decision rendered en banc or in division. 7
Second: Some intervenors are grossly misleading the public by their insistence
that the Constitutional Commission extended to the Judiciary the ban on
presidential appointments during the period stated in Section 15, Article VII.
The deliberations that the dissent of Justice Carpio Morales quoted from the
records of the Constitutional Commission did not concern either Section 15,
Article VII or Section 4(1), Article VIII, but only Section 13, Article VII, a
provision on nepotism. The records of the Constitutional Commission show that
Commissioner Hilario G. Davide, Jr. had proposed to include judges and justices
related to the President within the fourth civil degree of consanguinity or
affinity among the persons whom the President might not appoint during his or
her tenure. In the end, however, Commissioner Davide, Jr. withdrew the
proposal to include the Judiciary in Section 13, Article VII "(t)o avoid any
further complication,"8 such that the final version of the second paragraph of
Section 13, Article VII even completely omits any reference to the Judiciary, to
wit:
Section 13. xxx

The spouse and relatives by consanguinity or affinity within the fourth civil
degree of the President shall not during his tenure be appointed as Members of
the Constitutional Commissions, or the Office of the Ombudsman, or as
Secretaries, Undersecretaries, chairmen or heads of bureaus or offices,
including government-owned or controlled corporations and their subsidiaries.
Last: The movants take the majority to task for holding that Section 15, Article
VII does not apply to appointments in the Judiciary. They aver that the Court
either ignored or refused to apply many principles of statutory construction.
The movants gravely err in their posture, and are themselves apparently
contravening their avowed reliance on the principles of statutory construction.
For one, the movants, disregarding the absence from Section 15, Article VII of
the express extension of the ban on appointments to the Judiciary, insist that
the ban applied to the Judiciary under the principle of verba legis. That is selfcontradiction at its worst.
Another instance is the movants unhesitating willingness to read into Section
4(1) and Section 9, both of Article VIII, the express applicability of the ban
under Section 15, Article VII during the period provided therein, despite the
silence of said provisions thereon. Yet, construction cannot supply the
omission, for doing so would generally constitute an encroachment upon the
field of the Constitutional Commission. Rather, Section 4(1) and Section 9
should be left as they are, given that their meaning is clear and explicit, and
no words can be interpolated in them. 9Interpolation of words is unnecessary,
because the law is more than likely to fail to express the legislative intent with
the interpolation. In other words, the addition of new words may alter the
thought intended to be conveyed. And, even where the meaning of the law is
clear and sensible, either with or without the omitted word or words,
interpolation is improper, because the primary source of the legislative intent
is in the language of the law itself. 10
Thus, the decision of March 17, 2010 has fittingly observed:
Had the framers intended to extend the prohibition contained in Section 15,
Article VII to the appointment of Members of the Supreme Court, they could
have explicitly done so. They could not have ignored the meticulous ordering
of the provisions. They would have easily and surely written the prohibition
made explicit in Section 15, Article VII as being equally applicable to the
appointment of Members of the Supreme Court in Article VIII itself, most likely
in Section 4 (1), Article VIII. That such specification was not done only reveals
that the prohibition against the President or Acting President making
appointments within two months before the next presidential elections and up
to the end of the Presidents or Acting Presidents term does not refer to the
Members of the Supreme Court.
We cannot permit the meaning of the Constitution to be stretched to any
unintended point in order to suit the purposes of any quarter.
Final Word

It has been insinuated as part of the polemics attendant to the controversy we


are resolving that because all the Members of the present Court were
appointed by the incumbent President, a majority of them are now granting to
her the authority to appoint the successor of the retiring Chief Justice.
The insinuation is misguided and utterly unfair.
The Members of the Court vote on the sole basis of their conscience and the
merits of the issues. Any claim to the contrary proceeds from malice and
condescension. Neither the outgoing President nor the present Members of the
Court had arranged the current situation to happen and to evolve as it has.
None of the Members of the Court could have prevented the Members
composing the Court when she assumed the Presidency about a decade ago
from retiring during her prolonged term and tenure, for their retirements were
mandatory. Yet, she is now left with an imperative duty under the Constitution
to fill up the vacancies created by such inexorable retirements within 90 days
from their occurrence. Her official duty she must comply with. So must we ours
who are tasked by the Constitution to settle the controversy.
ACCORDINGLY, the motions for reconsideration are denied with finality.
SO ORDERED.

G.R. No. 171396

May 3, 2006

PROF. RANDOLF S. DAVID, LORENZO TAADA III, RONALD LLAMAS, H.


HARRY L. ROQUE, JR., JOEL RUIZ BUTUYAN, ROGER R. RAYEL, GARY S.
MALLARI,
ROMEL
REGALADO
BAGARES,
CHRISTOPHER
F.C.
BOLASTIG, Petitioners,
vs.
GLORIA MACAPAGAL-ARROYO, AS PRESIDENT AND COMMANDER-INCHIEF, EXECUTIVE SECRETARY EDUARDO ERMITA, HON. AVELINO CRUZ
II, SECRETARY OF NATIONAL DEFENSE, GENERAL GENEROSO SENGA,
CHIEF OF STAFF, ARMED FORCES OF THE PHILIPPINES, DIRECTOR
GENERAL
ARTURO
LOMIBAO,
CHIEF,
PHILIPPINE
NATIONAL
POLICE, Respondents.
SANDOVAL-GUTIERREZ, J.:
All powers need some restraint; practical adjustments rather than rigid formula
are necessary.1 Superior strength the use of force cannot make wrongs into
rights. In this regard, the courts should be vigilant in safeguarding the
constitutional rights of the citizens, specifically their liberty.
Chief Justice Artemio V. Panganibans philosophy of liberty is thus most
relevant. He said: "In cases involving liberty, the scales of justice should
weigh heavily against government and in favor of the poor, the
oppressed, the marginalized, the dispossessed and the weak." Laws
and actions that restrict fundamental rights come to the courts "with a heavy
presumption against their constitutional validity." 2
These seven (7) consolidated petitions for certiorari and prohibition allege that
in issuing Presidential Proclamation No. 1017 (PP 1017) and General Order No.
5 (G.O. No. 5), President Gloria Macapagal-Arroyo committed grave abuse of
discretion. Petitioners contend that respondent officials of the Government, in
their professed efforts to defend and preserve democratic institutions, are
actually trampling upon the very freedom guaranteed and protected by the
Constitution. Hence, such issuances are void for being unconstitutional.
Once again, the Court is faced with an age-old but persistently modern
problem. How does the Constitution of a free people combine the degree
of liberty, without which, law becomes tyranny, with the degree of law,
without which, liberty becomes license?3

On February 24, 2006, as the nation celebrated the 20th Anniversary of


the Edsa People Power I, President Arroyo issued PP 1017 declaring a state of
national emergency, thus:

WHEREAS, the activities above-described, their consequences, ramifications


and collateral effects constitute aclear and present danger to the safety
and the integrity of the Philippine State and of the Filipino people;

NOW, THEREFORE, I, Gloria Macapagal-Arroyo, President of the Republic of


the Philippines and Commander-in-Chief of the Armed Forces of the Philippines,
by virtue of the powers vested upon me by Section 18, Article 7 of the
Philippine Constitution which states that: "The President. . . whenever it
becomes necessary, . . . may call out (the) armed forces to prevent or
suppress. . .rebellion. . .," and in my capacity as their Commander-in-Chief, do
hereby command the Armed Forces of the Philippines, to maintain law
and order throughout the Philippines, prevent or suppress all forms
of lawless violence as well as any act of insurrection or rebellion and
to enforce obedience to all the laws and to all decrees, orders and
regulations promulgated by me personally or upon my direction;
and as provided in Section 17, Article 12 of the Constitution do hereby
declare a State of National Emergency.

On the same day, the President issued G. O. No. 5 implementing PP 1017, thus:

She cited the following facts as bases:

WHEREAS, the claims of these elements have been recklessly magnified by


certain segments of the national media;

WHEREAS, over these past months, elements in the political opposition


have conspired with authoritarians of the extreme Left represented
by the NDF-CPP-NPA and the extreme Right, represented by military
adventurists the historical enemies of the democratic Philippine
State who are now in a tactical alliance and engaged in a concerted and
systematic conspiracy, over a broad front, to bring down the duly constituted
Government elected in May 2004;
WHEREAS, these conspirators have repeatedly tried to bring down the
President;
WHEREAS, the claims of these elements have been
magnified by certain segments of the national media;

WHEREAS, over these past months, elements in the political opposition have
conspired with authoritarians of the extreme Left, represented by the NDF-CPPNPA and the extreme Right, represented by military adventurists - the
historical enemies of the democratic Philippine State and who are now in a
tactical alliance and engaged in a concerted and systematic conspiracy, over a
broad front, to bring down the duly-constituted Government elected in May
2004;
WHEREAS, these conspirators have repeatedly tried to bring down our
republican government;

WHEREAS, these series of actions is hurting the Philippine State by


obstructing governance, including hindering the growth of the economy and
sabotaging the peoples confidence in the government and their faith in the
future of this country;
WHEREAS, these actions are adversely affecting the economy;
WHEREAS, these activities give totalitarian forces; of both the extreme Left
and extreme Right the opening to intensify their avowed aims to bring down
the democratic Philippine State;

recklessly

WHEREAS, this series of actions is hurting the Philippine State by


obstructing governance including hindering the growth of the economy
and sabotaging the peoples confidence in government and their faith
in the future of this country;

WHEREAS, Article 2, Section 4 of our Constitution makes the defense and


preservation of the democratic institutions and the State the primary duty of
Government;
WHEREAS, the activities above-described, their consequences, ramifications
and collateral effects constitute a clear and present danger to the safety and
the integrity of the Philippine State and of the Filipino people;

WHEREAS, these actions are adversely affecting the economy;


WHEREAS, these activities give totalitarian forces of both the extreme
Left and extreme Right the opening to intensify their avowed aims to
bring down the democratic Philippine State;
WHEREAS, Article 2, Section 4 of the our Constitution makes the defense and
preservation of the democratic institutions and the State the primary duty of
Government;

WHEREAS, Proclamation 1017 date February 24, 2006 has been issued
declaring a State of National Emergency;
NOW, THEREFORE, I GLORIA MACAPAGAL-ARROYO, by virtue of the
powers vested in me under the Constitution as President of the Republic of the
Philippines, and Commander-in-Chief of the Republic of the Philippines, and
pursuant to Proclamation No. 1017 dated February 24, 2006, do hereby call
upon the Armed Forces of the Philippines (AFP) and the Philippine National
Police (PNP), to prevent and suppress acts of terrorism and lawless violence in
the country;

I hereby direct the Chief of Staff of the AFP and the Chief of the PNP, as well as
the officers and men of the AFP and PNP, to immediately carry out the
necessary and appropriate actions and measures to suppress and
prevent acts of terrorism and lawless violence.
On March 3, 2006, exactly one week after the declaration of a state of national
emergency and after all these petitions had been filed, the President lifted PP
1017. She issued Proclamation No. 1021 which reads:
WHEREAS, pursuant to Section 18, Article VII and Section 17, Article XII of the
Constitution, Proclamation No. 1017 dated February 24, 2006, was issued
declaring a state of national emergency;
WHEREAS, by virtue of General Order No.5 and No.6 dated February 24, 2006,
which were issued on the basis of Proclamation No. 1017, the Armed Forces of
the Philippines (AFP) and the Philippine National Police (PNP), were directed to
maintain law and order throughout the Philippines, prevent and suppress all
form of lawless violence as well as any act of rebellion and to undertake such
action as may be necessary;
WHEREAS, the AFP and PNP have effectively prevented, suppressed and
quelled the acts lawless violence and rebellion;
NOW, THEREFORE, I, GLORIA MACAPAGAL-ARROYO, President of the
Republic of the Philippines, by virtue of the powers vested in me by law,
hereby declare that the state of national emergency has ceased to
exist.
In their presentation of the factual bases of PP 1017 and G.O. No. 5,
respondents stated that the proximate cause behind the executive issuances
was the conspiracy among some military officers, leftist insurgents of the New
Peoples Army (NPA), and some members of the political opposition in a plot to
unseat or assassinate President Arroyo.4 They considered the aim to oust or
assassinate the President and take-over the reigns of government as a clear
and present danger.
During the oral arguments held on March 7, 2006, the Solicitor General
specified the facts leading to the issuance of PP 1017 and G.O. No.
5. Significantly, there was no refutation from petitioners counsels.
The Solicitor General argued that the intent of the Constitution is to give
full discretionary powers to the President in determining the necessity of
calling out the armed forces. He emphasized that none of the petitioners has
shown that PP 1017 was without factual bases. While he explained that it is not
respondents task to state the facts behind the questioned Proclamation,
however, they are presenting the same, narrated hereunder, for the
elucidation of the issues.
On January 17, 2006, Captain Nathaniel Rabonza and First Lieutenants Sonny
Sarmiento, Lawrence San Juan and Patricio Bumidang, members of the

Magdalo Group indicted in the Oakwood mutiny, escaped their detention cell in
Fort Bonifacio, Taguig City. In a public statement, they vowed to remain defiant
and to elude arrest at all costs. They called upon the people to " show and
proclaim our displeasure at the sham regime. Let us demonstrate our disgust,
not only by going to the streets in protest, but also by wearing red bands on
our left arms." 5
On February 17, 2006, the authorities got hold of a document entitled "Oplan
Hackle I " which detailed plans for bombings and attacks during the Philippine
Military Academy Alumni Homecoming in Baguio City. The plot was to
assassinate selected targets including some cabinet members and President
Arroyo herself.6 Upon the advice of her security, President Arroyo decided not
to attend the Alumni Homecoming. The next day, at the height of the
celebration, a bomb was found and detonated at the PMA parade ground.
On February 21, 2006, Lt. San Juan was recaptured in a communist safehouse
in Batangas province. Found in his possession were two (2) flash disks
containing minutes of the meetings between members of the Magdalo Group
and the National Peoples Army (NPA), a tape recorder, audio cassette
cartridges, diskettes, and copies of subversive documents. 7 Prior to his arrest,
Lt. San Juan announced through DZRH that the "Magdalos D-Day would be on
February 24, 2006, the 20th Anniversary of Edsa I."
On February 23, 2006, PNP Chief Arturo Lomibao intercepted information that
members of the PNP- Special Action Force were planning to defect. Thus, he
immediately ordered SAF Commanding General Marcelino Franco, Jr.
to"disavow" any defection. The latter promptly obeyed and issued a public
statement: "All SAF units are under the effective control of responsible and
trustworthy officers with proven integrity and unquestionable loyalty."
On the same day, at the house of former Congressman Peping Cojuangco,
President Cory Aquinos brother, businessmen and mid-level government
officials plotted moves to bring down the Arroyo administration. Nelly Sindayen
of TIME Magazine reported that Pastor Saycon, longtime Arroyo critic, called a
U.S. government official about his groups plans if President Arroyo is ousted.
Saycon also phoned a man code-named Delta. Saycon identified him as B/Gen.
Danilo Lim, Commander of the Armys elite Scout Ranger. Lim said "it was all
systems go for the planned movement against Arroyo."8
B/Gen. Danilo Lim and Brigade Commander Col. Ariel Querubin confided to
Gen. Generoso Senga, Chief of Staff of the Armed Forces of the Philippines
(AFP), that a huge number of soldiers would join the rallies to provide a critical
mass and armed component to the Anti-Arroyo protests to be held on February
24, 2005. According to these two (2) officers, there was no way they could
possibly stop the soldiers because they too, were breaking the chain of
command to join the forces foist to unseat the President. However, Gen. Senga
has remained faithful to his Commander-in-Chief and to the chain of command.
He immediately took custody of B/Gen. Lim and directed Col. Querubin to
return to the Philippine Marines Headquarters in Fort Bonifacio.
Earlier, the CPP-NPA called for intensification of political and revolutionary work
within the military and the police establishments in order to forge alliances

with its members and key officials. NPA spokesman Gregorio "Ka Roger" Rosal
declared: "The Communist Party and revolutionary movement and the entire
people look forward to the possibility in the coming year of accomplishing its
immediate task of bringing down the Arroyo regime; of rendering it to weaken
and unable to rule that it will not take much longer to end it."9
On the other hand, Cesar Renerio, spokesman for the National Democratic
Front (NDF) at North Central Mindanao, publicly announced: "Anti-Arroyo
groups within the military and police are growing rapidly, hastened by the
economic difficulties suffered by the families of AFP officers and enlisted
personnel who undertake counter-insurgency operations in the field." He
claimed that with the forces of the national democratic movement, the antiArroyo conservative political parties, coalitions, plus the groups that have been
reinforcing since June 2005, it is probable that the Presidents ouster is nearing
its concluding stage in the first half of 2006.
Respondents further claimed that the bombing of telecommunication towers
and cell sites in Bulacan and Bataan was also considered as additional factual
basis for the issuance of PP 1017 and G.O. No. 5. So is the raid of an army
outpost in Benguet resulting in the death of three (3) soldiers. And also the
directive of the Communist Party of the Philippines ordering its front
organizations to join 5,000 Metro Manila radicals and 25,000 more from the
provinces in mass protests.10
By midnight of February 23, 2006, the President convened her security
advisers and several cabinet members to assess the gravity of the fermenting
peace and order situation. She directed both the AFP and the PNP to account
for all their men and ensure that the chain of command remains solid and
undivided. To protect the young students from any possible trouble that might
break loose on the streets, the President suspended classes in all levels in the
entire National Capital Region.
For their part, petitioners cited the events that followed after the
issuance of PP 1017 and G.O. No. 5.
Immediately, the Office of the President announced the cancellation of all
programs and activities related to the 20th anniversary celebration of Edsa
People Power I; and revoked the permits to hold rallies issued earlier by the
local governments. Justice Secretary Raul Gonzales stated that political rallies,
which to the Presidents mind were organized for purposes of destabilization,
are cancelled.Presidential Chief of Staff Michael Defensor announced that
"warrantless arrests and take-over of facilities, including media, can already
be implemented."11
Undeterred by the announcements that rallies and public assemblies would not
be allowed, groups of protesters (members of Kilusang Mayo Uno [KMU] and
National Federation of Labor Unions-Kilusang Mayo Uno [NAFLU-KMU]),
marched from various parts of Metro Manila with the intention of converging at
the EDSA shrine. Those who were already near the EDSA site were violently
dispersed by huge clusters of anti-riot police. The well-trained policemen used
truncheons, big fiber glass shields, water cannons, and tear gas to stop and
break up the marching groups, and scatter the massed participants. The same

police action was used against the protesters marching forward to Cubao,
Quezon City and to the corner of Santolan Street and EDSA. That same
evening, hundreds of riot policemen broke up an EDSA celebration rally held
along Ayala Avenue and Paseo de Roxas Street in Makati City. 12
According to petitioner Kilusang Mayo Uno, the police cited PP 1017 as the
ground for the dispersal of their assemblies.
During the dispersal of the rallyists along EDSA, police arrested (without
warrant) petitioner Randolf S. David, a professor at the University of the
Philippines and newspaper columnist. Also arrested was his companion, Ronald
Llamas, president of party-list Akbayan.
At around 12:20 in the early morning of February 25, 2006, operatives of the
Criminal Investigation and Detection Group (CIDG) of the PNP, on the basis of
PP 1017 and G.O. No. 5, raided the Daily Tribune offices in Manila. The raiding
team confiscated news stories by reporters, documents, pictures, and mockups of the Saturday issue. Policemen from Camp Crame in Quezon City were
stationed inside the editorial and business offices of the newspaper; while
policemen from the Manila Police District were stationed outside the building. 13
A few minutes after the search and seizure at the Daily Tribune offices, the
police surrounded the premises of another pro-opposition paper, Malaya, and
its sister publication, the tabloid Abante.
The raid, according to Presidential Chief of Staff Michael Defensor, is "meant to
show a strong presence, to tell media outlets not to connive or do anything
that would help the rebels in bringing down this government." The PNP warned
that it would take over any media organization that would not
follow "standards set by the government during the state of national
emergency." Director General Lomibao stated that "if they do not follow the
standards and the standards are - if they would contribute to instability in
the government, or if they do not subscribe to what is in General Order No. 5
and Proc. No. 1017 we will recommend a takeover." National
Telecommunications Commissioner Ronald Solis urged television and radio
networks to "cooperate" with the government for the duration of the state of
national emergency. He asked for "balanced reporting" from broadcasters
when covering the events surrounding the coup attempt foiled by the
government. He warned that his agency will not hesitate to recommend the
closure of any broadcast outfit that violates rules set out for media coverage
when the national security is threatened.14
Also, on February 25, 2006, the police arrested Congressman Crispin Beltran,
representing the Anakpawis Party and Chairman of Kilusang Mayo Uno (KMU),
while leaving his farmhouse in Bulacan. The police showed a warrant for his
arrest dated 1985. Beltrans lawyer explained that the warrant, which
stemmed from a case of inciting to rebellion filed during the Marcos regime,
had long been quashed. Beltran, however, is not a party in any of these
petitions.

When members of petitioner KMU went to Camp Crame to visit Beltran, they
were told they could not be admitted because of PP 1017 and G.O. No. 5. Two
members were arrested and detained, while the rest were dispersed by the
police.

of expression" and "a declaration of martial law." They alleged that President
Arroyo "gravely abused her discretion in calling out the armed forces without
clear and verifiable factual basis of the possibility of lawless violence and a
showing that there is necessity to do so."

Bayan Muna Representative Satur Ocampo eluded arrest when the police went
after him during a public forum at the Sulo Hotel in Quezon City. But his two
drivers, identified as Roel and Art, were taken into custody.

In G.R. No. 171483,petitioners KMU, NAFLU-KMU, and their members averred


that PP 1017 and G.O. No. 5 are unconstitutional because (1) they arrogate
unto President Arroyo the power to enact laws and decrees; (2) their issuance
was without factual basis; and (3) they violate freedom of expression and the
right of the people to peaceably assemble to redress their grievances.

Retired Major General Ramon Montao, former head of the Philippine


Constabulary, was arrested while with his wife and golfmates at the Orchard
Golf and Country Club in Dasmarias, Cavite.
Attempts were made to arrest Anakpawis Representative Satur Ocampo,
Representative Rafael Mariano, Bayan Muna Representative Teodoro Casio
and Gabriela Representative Liza Maza. Bayan Muna Representative Josel
Virador was arrested at the PAL Ticket Office in Davao City. Later, he was
turned over to the custody of the House of Representatives where the
"Batasan 5" decided to stay indefinitely.
Let it be stressed at this point that the alleged violations of the rights of
Representatives Beltran, Satur Ocampo, et al., are not being raised in these
petitions.
On March 3, 2006, President Arroyo issued PP 1021 declaring that the state of
national emergency has ceased to exist.
In the interim, these seven (7) petitions challenging the constitutionality of PP
1017 and G.O. No. 5 were filed with this Court against the above-named
respondents. Three (3) of these petitions impleaded President Arroyo as
respondent.
In G.R. No. 171396, petitioners Randolf S. David, et al. assailed PP 1017 on
the grounds that (1) it encroaches on the emergency powers of
Congress; (2) itis a subterfuge to avoid the constitutional requirements for the
imposition of martial law; and (3) it violates the constitutional guarantees of
freedom of the press, of speech and of assembly.
In G.R. No. 171409, petitioners Ninez Cacho-Olivares and Tribune Publishing
Co., Inc. challenged the CIDGs act of raiding the Daily Tribune offices as a
clear case of "censorship" or "prior restraint." They also claimed that the term
"emergency" refers only to tsunami, typhoon, hurricane and similar
occurrences, hence, there is "absolutely no emergency" that warrants the
issuance of PP 1017.
In G.R. No. 171485, petitioners herein are Representative Francis Joseph G.
Escudero, and twenty one (21) other members of the House of
Representatives, including Representatives Satur Ocampo, Rafael Mariano,
Teodoro Casio, Liza Maza, and Josel Virador. They asserted that PP 1017 and
G.O. No. 5 constitute "usurpation of legislative powers"; "violation of freedom

In G.R. No. 171400, petitioner Alternative Law Groups, Inc. (ALGI) alleged
that PP 1017 and G.O. No. 5 are unconstitutional because they
violate (a) Section 415 of Article II, (b) Sections 1,16 2,17 and 418 of Article
III, (c)Section 2319 of Article VI, and (d) Section 1720 of Article XII of the
Constitution.
In G.R. No. 171489, petitioners Jose Anselmo I. Cadiz et al., alleged that PP
1017 is an "arbitrary and unlawful exercise by the President of her Martial Law
powers." And assuming that PP 1017 is not really a declaration of Martial Law,
petitioners argued that "it amounts to an exercise by the President of
emergency powers without congressional approval." In addition, petitioners
asserted that PP 1017 "goes beyond the nature and function of a proclamation
as defined under the Revised Administrative Code."
And lastly, in G.R. No. 171424,petitionerLoren B. Legarda maintained that PP
1017 and G.O. No. 5 are "unconstitutional for being violative of the freedom of
expression, including its cognate rights such as freedom of the press and the
right to access to information on matters of public concern, all guaranteed
under Article III, Section 4 of the 1987 Constitution." In this regard, she stated
that these issuances prevented her from fully prosecuting her election protest
pending before the Presidential Electoral Tribunal.
In respondents Consolidated Comment, the Solicitor General countered
that: first, the petitions should be dismissed for being moot; second,petitioners
in G.R. Nos. 171400 (ALGI), 171424 (Legarda), 171483 (KMU et al.), 171485
(Escudero et al.) and 171489 (Cadiz et al.) have no legal standing; third, it is
not
necessary
for
petitioners
to
implead
President
Arroyo
as
respondent; fourth, PP 1017 has constitutional and legal basis; and fifth, PP
1017 does not violate the peoples right to free expression and redress of
grievances.
On March 7, 2006, the Court conducted oral arguments and heard the parties
on the above interlocking issues which may be summarized as follows:
A. PROCEDURAL:
1) Whether the issuance of PP 1021 renders the petitions moot and
academic.

2) Whether petitioners in 171485 (Escudero et al.), G.R.


171400 (ALGI), 171483 (KMU et
al.), 171489(Cadiz et
and 171424 (Legarda) have legal standing.

Nos.
al.),

B. SUBSTANTIVE:
1.
2.

Whetherthe Supreme Court can review the factual bases of PP 1017.


Whether PP 1017 and G.O. No. 5 are unconstitutional.
a. Facial Challenge
b. Constitutional Basis
c. As Applied Challenge

A. PROCEDURAL
First, we must resolve the procedural roadblocks.
I- Moot and Academic Principle
One of the greatest contributions of the American system to this country is the
concept of judicial review enunciated in Marbury v. Madison.21 This concept
rests on the extraordinary simple foundation -The Constitution is the supreme law. It was ordained by the people, the
ultimate source of all political authority. It confers limited powers on the
national government. x x x If the government consciously or
unconsciously oversteps these limitations there must be some
authority competent to hold it in control, to thwart its
unconstitutional attempt, and thus to vindicate and preserve
inviolate the will of the people as expressed in the Constitution. This
power the courts exercise. This is the beginning and the end of the
theory of judicial review.22
But the power of judicial review does not repose upon the courts a "selfstarting capacity."23 Courts may exercise such power only when the following
requisites
are
present: first, there
must
be
an
actual
case
or
controversy;second, petitioners
have
to
raise
a
question
of
constitutionality; third, the constitutional question must be raised at the
earliest opportunity; and fourth, the decision of the constitutional question
must be necessary to the determination of the case itself. 24
Respondents maintain that the first and second requisites are absent, hence,
we shall limit our discussion thereon.
An actual case or controversy involves a conflict of legal right, an opposite
legal claims susceptible of judicial resolution. It is "definite and concrete,
touching the legal relations of parties having adverse legal interest;" a real and
substantial controversy admitting of specific relief. 25 The Solicitor General
refutes the existence of such actual case or controversy, contending that the
present petitions were rendered "moot and academic" by President Arroyos
issuance of PP 1021.

Such contention lacks merit.


A moot and academic case is one that ceases to present a justiciable
controversy by virtue of supervening events, 26so that a declaration thereon
would be of no practical use or value. 27 Generally, courts decline jurisdiction
over such case28 or dismiss it on ground of mootness. 29
The Court holds that President Arroyos issuance of PP 1021 did not render the
present petitions moot and academic. During the eight (8) days that PP 1017
was operative, the police officers, according to petitioners, committed illegal
acts in implementing it. Are PP 1017 and G.O. No. 5 constitutional or
valid? Do they justify these alleged illegal acts? These are the vital
issues that must be resolved in the present petitions. It must be stressed that
"an unconstitutional act is not a law, it confers no rights, it imposes
no duties, it affords no protection; it is in legal contemplation,
inoperative."30
The "moot and academic" principle is not a magical formula that can
automatically dissuade the courts in resolving a case. Courts will decide cases,
otherwise moot and academic, if: first, there is a grave violation of the
Constitution;31second, the exceptional character of the situation and the
paramount public interest is involved; 32 third, when constitutional issue raised
requires formulation of controlling principles to guide the bench, the bar, and
the public;33and fourth, the case is capable of repetition yet evading review.34
All the foregoing exceptions are present here and justify this Courts
assumption of jurisdiction over the instant petitions. Petitioners alleged that
the issuance of PP 1017 and G.O. No. 5 violates the Constitution. There is no
question that the issues being raised affect the publics interest, involving as
they do the peoples basic rights to freedom of expression, of assembly and of
the press. Moreover, the Court has the duty to formulate guiding and
controlling constitutional precepts, doctrines or rules. It has the symbolic
function of educating the bench and the bar, and in the present petitions, the
military and the police, on the extent of the protection given by
constitutional guarantees.35 And lastly, respondents contested actions are
capable of repetition. Certainly, the petitions are subject to judicial review.
In their attempt to prove the alleged mootness of this case, respondents cited
Chief Justice Artemio V. Panganibans Separate Opinion in Sanlakas v.
Executive Secretary.36 However, they failed to take into account the Chief
Justices very statement that an otherwise "moot" case may still be decided
"provided the party raising it in a proper case has been and/or continues to be
prejudiced or damaged as a direct result of its issuance." The present case
falls right within this exception to the mootness rule pointed out by the Chief
Justice.
II- Legal Standing
In view of the number of petitioners suing in various personalities, the Court
deems it imperative to have a more than passing discussion on legal standing
or locus standi.

Locus standi is defined as "a right of appearance in a court of justice on a


given question."37 In private suits, standing is governed by the "real-parties-in
interest" rule as contained in Section 2, Rule 3 of the 1997 Rules of Civil
Procedure, as amended. It provides that "every action must be prosecuted
or defended in the name of the real party in interest." Accordingly, the
"real-party-in interest" is "the party who stands to be benefited or
injured by the judgment in the suit or the party entitled to the avails
of the suit."38 Succinctly put, the plaintiffs standing is based on his own right
to the relief sought.
The difficulty of determining locus standi arises in public suits. Here, the
plaintiff who asserts a "public right" in assailing an allegedly illegal official
action, does so as a representative of the general public. He may be a person
who is affected no differently from any other person. He could be suing as a
"stranger," or in the category of a "citizen," or taxpayer." In either case, he
has to adequately show that he is entitled to seek judicial protection. In other
words, he has to make out a sufficient interest in the vindication of the public
order and the securing of relief as a "citizen" or "taxpayer.

However, being a mere procedural technicality, the requirement of locus


standi may be waived by the Court in the exercise of its discretion. This was
done in the 1949 Emergency Powers Cases, Araneta v. Dinglasan,49 where
the "transcendental importance" of the cases prompted the Court to act
liberally. Such liberality was neither a rarity nor accidental. In Aquino v.
Comelec,50 this Court resolved to pass upon the issues raised due to the "farreaching implications" of the petition notwithstanding its categorical
statement that petitioner therein had no personality to file the suit. Indeed,
there is a chain of cases where this 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.51
Thus, the Court has adopted a rule that even where the petitioners have failed
to show direct injury, they have been allowed to sue under the principle of
"transcendental importance." Pertinent are the following cases:
(1) Chavez v. Public Estates Authority,52 where the Court ruled
that the enforcement of the constitutional right to information
and the equitable diffusion of natural resources are matters of
transcendental importance which clothe the petitioner
with locus standi;

Case law in most jurisdictions now allows both "citizen" and "taxpayer"
standing in public actions. The distinction was first laid down in Beauchamp v.
Silk,39 where it was held that the plaintiff in a taxpayers suit is in a different
category from the plaintiff in a citizens suit. In the former, the plaintiff is
affected by the expenditure of public funds, while in the latter, he is
but the mere instrument of the public concern. As held by the New York
Supreme Court in People ex rel Case v. Collins:40 "In matter of mere public
right, howeverthe people are the real partiesIt is at least the
right, if not the duty, of every citizen to interfere and see that a
public offence be properly pursued and punished, and that a public
grievance be remedied." With respect to taxpayers suits,Terr v.
Jordan41 held that "the right of a citizen and a taxpayer to maintain an
action in courts to restrain the unlawful use of public funds to his
injury cannot be denied."
However, to prevent just about any person from seeking judicial interference in
any official policy or act with which he disagreed with, and thus hinders the
activities of governmental agencies engaged in public service, the United State
Supreme Court laid down the more stringent "direct injury" test in Ex Parte
Levitt,42 later reaffirmed inTileston v. Ullman.43 The same Court ruled that for a
private individual to invoke the judicial power to determine the validity of an
executive or legislative action, he must show that he has sustained a
direct injury as a result of that action, and it is not sufficient that he
has a general interest common to all members of the public.
This Court adopted the "direct injury" test in our jurisdiction. In People v.
Vera,44 it held that the person who impugns the validity of a statute must have
"a personal and substantial interest in the case such that he has
sustained, or will sustain direct injury as a result." The Vera doctrine
was upheld in a litany of cases, such as,Custodio v. President of the
Senate,45 Manila Race Horse Trainers Association v. De la Fuente,46 Pascual v.
Secretary of Public Works47 and Anti-Chinese League of the Philippines v.
Felix.48

(2) Bagong Alyansang Makabayan v. Zamora, 53 wherein the Court held


that "given the transcendental importance of the issues
involved, the Court may relax the standing requirements and
allow the suit to prosper despite the lack of direct injury to
the parties seeking judicial review" of the Visiting Forces
Agreement;
(3) Lim v. Executive Secretary,54 while the Court noted that the
petitioners may not file suit in their capacity as taxpayers absent a
showing that "Balikatan 02-01" involves the exercise of Congress
taxing or spending powers, it reiterated its ruling in Bagong Alyansang
Makabayan v. Zamora,55that in cases of transcendental
importance, the cases must be settled promptly and definitely
and standing requirements may be relaxed.
By way of summary, the following rules may be culled from the cases decided
by this Court. Taxpayers, voters, concerned citizens, and legislators may be
accorded standing to sue, provided that the following requirements are met:
1.
2.
3.
4.
5.

the cases involve constitutional issues;


for taxpayers, there must be a claim of illegal disbursement of public
funds or that the tax measure is unconstitutional;
for voters, there must be a showing of obvious interest in the validity
of the election law in question;
for concerned citizens, there must be a showing that the issues
raised are of transcendental importance which must be settled early;
and
for legislators, there must be a claim that the official action
complained of infringes upon their prerogatives as legislators.

Significantly, recent decisions show a certain toughening in the Courts


attitude toward legal standing.
In Kilosbayan, Inc. v. Morato,56 the Court ruled that the status of Kilosbayan as
a peoples organization does not give it the requisite personality to question
the validity of the on-line lottery contract, more so where it does not raise any
issue of constitutionality. Moreover, it cannot sue as a taxpayer absent any
allegation that public funds are being misused. Nor can it sue as a concerned
citizen as it does not allege any specific injury it has suffered.
In Telecommunications and Broadcast Attorneys of the Philippines, Inc. v.
Comelec,57 the Court reiterated the "direct injury" test with respect to
concerned citizens cases involving constitutional issues. It held that "there
must be a showing that the citizen personally suffered some actual or
threatened injury arising from the alleged illegal official act."
In Lacson v. Perez,58 the Court ruled that one of the petitioners, Laban ng
Demokratikong Pilipino (LDP), is not a real party-in-interest as it had not
demonstrated any injury to itself or to its leaders, members or supporters.
In Sanlakas v. Executive Secretary,59 the Court ruled that only the petitioners
who are members of Congress have standing to sue, as they claim that the
Presidents declaration of a state of rebellion is a usurpation of the
emergency powers of Congress, thus impairing their legislative
powers. As to petitioners Sanlakas, Partido Manggagawa, and Social Justice
Society, the Court declared them to be devoid of standing, equating them with
the LDP in Lacson.
Now, the application of the above principles to the present petitions.
The locus standi of petitioners in G.R. No. 171396, particularly David and
Llamas, is beyond doubt. The same holds true with petitioners in G.R. No.
171409, Cacho-Olivares and Tribune Publishing Co. Inc. They alleged "direct
injury" resulting from "illegal arrest" and "unlawful search" committed by
police operatives pursuant to PP 1017. Rightly so, the Solicitor General does
not question their legal standing.
In G.R. No. 171485, the opposition Congressmen alleged there was
usurpation of legislative powers. They also raised the issue of whether or not
the concurrence of Congress is necessary whenever the alarming powers
incident to Martial Law are used. Moreover, it is in the interest of justice that
those affected by PP 1017 can be represented by their Congressmen in
bringing to the attention of the Court the alleged violations of their basic
rights.

In G.R. No. 171400, (ALGI), this Court applied the liberality rule in Philconsa
v. Enriquez,60 Kapatiran Ng Mga Naglilingkod sa Pamahalaan ng Pilipinas, Inc.
v. Tan,61 Association of Small Landowners in the Philippines, Inc. v. Secretary of
Agrarian
Reform,62 Basco
v.
Philippine
Amusement
and
Gaming
Corporation,63 and Taada v. Tuvera,64 that when the issue concerns a public
right, it is sufficient that the petitioner is a citizen and has an interest in the
execution of the laws.
In G.R. No. 171483, KMUs assertion that PP 1017 and G.O. No. 5 violated its
right to peaceful assembly may be deemed sufficient to give it legal
standing. Organizations may be granted standing to assert the rights
of their members.65 We take judicial notice of the announcement by the
Office of the President banning all rallies and canceling all permits for public
assemblies following the issuance of PP 1017 and G.O. No. 5.
In G.R. No. 171489, petitioners, Cadiz et al., who are national officers of the
Integrated Bar of the Philippines (IBP) have no legal standing, having failed to
allege any direct or potential injury which the IBP as an institution or its
members may suffer as a consequence of the issuance of PP No. 1017 and
G.O. No. 5. In Integrated Bar of the Philippines v. Zamora, 66 the Court held that
the mere invocation by the IBP of its duty to preserve the rule of law and
nothing more, while undoubtedly true, is not sufficient to clothe it with
standing in this case. This is too general an interest which is shared by other
groups and the whole citizenry. However, in view of the transcendental
importance of the issue, this Court declares that petitioner have locus standi.
In G.R. No. 171424, Loren Legarda has no personality as a taxpayer to file
the instant petition as there are no allegations of illegal disbursement of public
funds. The fact that she is a former Senator is of no consequence. She can no
longer sue as a legislator on the allegation that her prerogatives as a lawmaker
have been impaired by PP 1017 and G.O. No. 5. Her claim that she is a media
personality will not likewise aid her because there was no showing that the
enforcement of these issuances prevented her from pursuing her occupation.
Her submission that she has pending electoral protest before the Presidential
Electoral Tribunal is likewise of no relevance. She has not sufficiently shown
that PP 1017 will affect the proceedings or result of her case. But considering
once more the transcendental importance of the issue involved, this Court may
relax the standing rules.
It must always be borne in mind that the question of locus standi is but
corollary to the bigger question of proper exercise of judicial power. This is the
underlying legal tenet of the "liberality doctrine" on legal standing. It cannot
be doubted that the validity of PP No. 1017 and G.O. No. 5 is a judicial question
which is of paramount importance to the Filipino people. To paraphrase Justice
Laurel, the whole of Philippine society now waits with bated breath the ruling
of this Court on this very critical matter. The petitions thus call for the
application of the "transcendental importance" doctrine, a relaxation of the
standing requirements for the petitioners in the "PP 1017 cases."1avvphil.net
This Court holds that all the petitioners herein have locus standi.

Incidentally, it is not proper to implead President Arroyo as respondent. Settled


is the doctrine that the President, during his tenure of office or actual
incumbency,67 may not be sued in any civil or criminal case, and there is no
need to provide for it in the Constitution or law. It will degrade the dignity of
the high office of the President, the Head of State, if he can be dragged into
court litigations while serving as such. Furthermore, it is important that he be
freed from any form of harassment, hindrance or distraction to enable him to
fully attend to the performance of his official duties and functions. Unlike the
legislative and judicial branch, only one constitutes the executive branch and
anything which impairs his usefulness in the discharge of the many great and
important duties imposed upon him by the Constitution necessarily impairs the
operation of the Government. However, this does not mean that the President
is not accountable to anyone. Like any other official, he remains accountable
to the people68 but he may be removed from office only in the mode provided
by law and that is by impeachment. 69
B. SUBSTANTIVE
I. Review of Factual Bases
Petitioners maintain that PP 1017 has no factual basis. Hence, it was not
"necessary" for President Arroyo to issue such Proclamation.
The issue of whether the Court may review the factual bases of the Presidents
exercise of his Commander-in-Chief power has reached its distilled point - from
the indulgent days of Barcelon v. Baker70 and Montenegro v. Castaneda71 to the
volatile era of Lansang v. Garcia,72 Aquino, Jr. v. Enrile,73 and Garcia-Padilla v.
Enrile.74 The tug-of-war always cuts across the line defining "political
questions," particularly those questions "in regard to which full discretionary
authority has been delegated to the legislative or executive branch of the
government."75 Barcelon and Montenegro were in unison in declaring that
the authority to decide whether an exigency has arisen belongs to the
President and his
decision
is
final
and
conclusive
on
the
courts. Lansang took the opposite view. There, the members of the Court
were unanimous in the conviction that the Court has the authority to inquire
into the existence of factual bases in order to determine their constitutional
sufficiency. From the principle of separation of powers, it shifted the
focus to the system of checks and balances, "under which the
President is supreme, x x x only if and when he acts within the sphere
allotted to him by the Basic Law, and the authority to determine
whether or not he has so acted is vested in the Judicial
Department, which
in
this
respect,
is,
in
turn,
constitutionally supreme."76 In 1973, the unanimous Court of Lansang was
divided in Aquino v. Enrile.77 There, the Court was almost evenly divided on the
issue of whether the validity of the imposition of Martial Law is a political or
justiciable question.78 Then came Garcia-Padilla v. Enrile which greatly
diluted Lansang. It declared that there is a need to re-examine the latter case,
ratiocinating that "in times of war or national emergency, the President
must be given absolute control for the very life of the nation and the
government is in great peril. The President, it intoned, is answerable
only to his conscience, the People, and God."79

The Integrated Bar of the Philippines v. Zamora 80 -- a recent case most


pertinent to these cases at bar -- echoed a principle similar to Lansang. While
the Court considered the Presidents "calling-out" power as a discretionary
power solely vested in his wisdom, it stressed that "this does not prevent
an examination of whether such power was exercised within
permissible constitutional limits or whether it was exercised in a
manner constituting grave abuse of discretion."This ruling is mainly a
result of the Courts reliance on Section 1, Article VIII of 1987 Constitution
which fortifies the authority of the courts to determine in an appropriate action
the validity of the acts of the political departments. Under the new definition of
judicial power, the courts are authorized not only "to settle actual
controversies involving rights which are legally demandable and enforceable,"
but also "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." The latter part of the
authority represents a broadening of judicial power to enable the courts of
justice to review what was before a forbidden territory, to wit, the discretion of
the political departments of the government. 81 It speaks of judicial prerogative
not only in terms ofpower but also of duty.82
As to how the Court may inquire into the Presidents exercise of
power, Lansang adopted the test that "judicial inquiry can go no further than
to satisfy the Court not that the Presidents decision is correct," but that "the
President did not act arbitrarily." Thus, the standard laid down is not
correctness, but arbitrariness.83 In Integrated Bar of the Philippines, this Court
further ruled that "it is incumbent upon the petitioner to show that the
Presidents decision is totally bereft of factual basis" and that if he fails,
by way of proof, to support his assertion, then "this Court cannot undertake
an independent investigation beyond the pleadings."
Petitioners failed to show that President Arroyos exercise of the calling-out
power, by issuing PP 1017, is totally bereft of factual basis. A reading of the
Solicitor Generals Consolidated Comment and Memorandum shows a detailed
narration of the events leading to the issuance of PP 1017, with supporting
reports forming part of the records. Mentioned are the escape of the Magdalo
Group, their audacious threat of the Magdalo D-Day, the defections in the
military, particularly in the Philippine Marines, and the reproving statements
from the communist leaders. There was also the Minutes of the Intelligence
Report and Security Group of the Philippine Army showing the growing alliance
between the NPA and the military. Petitioners presented nothing to refute such
events. Thus, absent any contrary allegations, the Court is convinced that the
President was justified in issuing PP 1017 calling for military aid.
Indeed, judging the seriousness of the incidents, President Arroyo was not
expected to simply fold her arms and do nothing to prevent or suppress what
she believed was lawless violence, invasion or rebellion. However, the exercise
of such power or duty must not stifle liberty.
II. Constitutionality of PP 1017 and G.O. No. 5
Doctrines of Several Political Theorists
on the Power of the President in Times of Emergency

This case brings to fore a contentious subject -- the power of the President in
times of emergency. A glimpse at the various political theories relating to this
subject provides an adequate backdrop for our ensuing discussion.
John Locke, describing the architecture of civil government, called upon the
English doctrine of prerogative to cope with the problem of emergency. In
times of danger to the nation, positive law enacted by the legislature might be
inadequate or even a fatal obstacle to the promptness of action necessary to
avert catastrophe. In these situations, the Crown retained a prerogative
"power to act according to discretion for the public good, without the
proscription of the law and sometimes even against it."84 But Locke
recognized that this moral restraint might not suffice to avoid abuse of
prerogative powers. Who shall judge the need for resorting to the
prerogative and how may its abuse be avoided? Here, Locke readily
admitted defeat, suggesting that "the people have no other remedy in
this, as in all other cases where they have no judge on earth, but to
appeal to Heaven."85
Jean-Jacques Rousseau also assumed the need for temporary suspension of
democratic processes of government in time of emergency. According to him:
The inflexibility of the laws, which prevents them from adopting themselves to
circumstances, may, in certain cases, render them disastrous and make them
bring about, at a time of crisis, the ruin of the State
It is wrong therefore to wish to make political institutions as strong as to render
it impossible to suspend their operation. Even Sparta allowed its law to lapse...
If the peril is of such a kind that the paraphernalia of the laws are an obstacle
to their preservation, the method is to nominate a supreme lawyer, who shall
silence all the laws and suspend for a moment the sovereign authority. In such
a case, there is no doubt about the general will, and it clear that the peoples
first intention is that the State shall not perish. 86

Now, in a well-ordered society, it should never be necessary to resort to extra


constitutional measures; for although they may for a time be beneficial, yet
the precedent is pernicious, for if the practice is once established for good
objects, they will in a little while be disregarded under that pretext but for evil
purposes. Thus, no republic will ever be perfect if she has not by law provided
for everything, having a remedy for every emergency and fixed rules for
applying it.89
Machiavelli in contrast to Locke, Rosseau and Mill sought to incorporate into
the constitution a regularized system of standby emergency powers to be
invoked with suitable checks and controls in time of national danger. He
attempted forthrightly to meet the problem of combining a capacious reserve
of power and speed and vigor in its application in time of emergency, with
effective constitutional restraints.90
Contemporary political theorists, addressing themselves to the problem of
response to emergency by constitutional democracies, have employed the
doctrine of constitutional dictatorship. 91 Frederick M. Watkins saw "no reason
why absolutism should not be used as a means for the defense of
liberal institutions," provided it "serves to protect established
institutions from the danger of permanent injury in a period of
temporary emergency and is followed by a prompt return to the
previous forms of political life."92 He recognized the two (2) key elements
of the problem of emergency governance, as well as all constitutional
governance: increasing administrative powers of the executive, while
at the same time "imposing limitation upon that power."93Watkins
placed his real faith in a scheme of constitutional dictatorship. These are the
conditions of success of such a dictatorship: "The period of dictatorship
must be relatively shortDictatorship should always be strictly
legitimate in characterFinal authority to determine the need for
dictatorship in any given case must never rest with the dictator
himself"94 and the objective of such an emergency dictatorship should be
"strict political conservatism."

John Stuart Mill concluded his ardent defense of representative government: " I
am far from condemning, in cases of extreme necessity, the
assumption of absolute power in the form of a temporary
dictatorship."88

Carl J. Friedrich cast his analysis in terms similar to those of Watkins. 95 "It is a
problem of concentrating power in a government where power has
consciously been divided to cope with situations of unprecedented
magnitude and gravity. There must be a broad grant of powers, subject to
equally strong limitations as to who shall exercise such powers, when, for how
long, and to what end."96 Friedrich, too, offered criteria for judging the
adequacy of any of scheme of emergency powers, to wit: "The emergency
executive must be appointed by constitutional means i.e., he must
be legitimate; he should not enjoy power to determine the existence
of an emergency; emergency powers should be exercised under a
strict time limitation; and last, the objective of emergency action
must be the defense of the constitutional order."97

Nicollo Machiavellis view of emergency powers, as one element in the whole


scheme of limited government, furnished an ironic contrast to the Lockean
theory of prerogative. He recognized and attempted to bridge this chasm in
democratic political theory, thus:

Clinton L. Rossiter, after surveying the history of the employment of


emergency powers in Great Britain, France, Weimar, Germany and the United
States, reverted to a description of a scheme of "constitutional dictatorship" as
solution to the vexing problems presented by emergency. 98 Like Watkins and

Rosseau did not fear the abuse of the emergency dictatorship or "supreme
magistracy" as he termed it. For him, it would more likely be cheapened by
"indiscreet use." He was unwilling to rely upon an "appeal to heaven."
Instead, he relied upon a tenure of office of prescribed duration to avoid
perpetuation of the dictatorship.87

Friedrich, he stated a priori the conditions of success of the "constitutional


dictatorship," thus:
1.

No general regime or particular institution of constitutional


dictatorship should be initiated unless it is necessary or even
indispensable to the preservation of the State and its constitutional
order
2. the decision to institute a constitutional dictatorship should never
be in the hands of the man or men who will constitute the
dictator
3. No government should initiate a constitutional dictatorship without
making specific provisions for its termination
4. all uses of emergency powers and all readjustments in the
organization of the government should be effected in pursuit of
constitutional or legal requirements
5. no dictatorial institution should be adopted, no right invaded, no
regular procedure altered any more than is absolutely necessary
for the conquest of the particular crisis . . .
6. The measures adopted in the prosecution of the a constitutional
dictatorship should never be permanent in character or effect
7. The dictatorship should be carried on by persons representative of
every part of the citizenry interested in the defense of the existing
constitutional order. . .
8. Ultimate responsibility should be maintained for every action taken
under a constitutional dictatorship. . .
9. The decision to terminate a constitutional dictatorship, like the
decision to institute one should never be in the hands of the man
or men who constitute the dictator. . .
10. No constitutional dictatorship should extend beyond the
termination of the crisis for which it was instituted
11. the termination of the crisis must be followed by a complete
return as possible to the political and governmental conditions
existing prior to the initiation of the constitutional dictatorship 99
Rossiter accorded to legislature a far greater role in the oversight exercise of
emergency powers than did Watkins. He would secure to Congress final
responsibility for declaring the existence or termination of an emergency, and
he places great faith in the effectiveness of congressional investigating
committees.100
Scott and Cotter, in analyzing the above contemporary theories in light of
recent experience, were one in saying that, "the suggestion that
democracies surrender the control of government to an authoritarian
ruler in time of grave danger to the nation is not based upon sound
constitutional theory." To appraise emergency power in terms of
constitutional dictatorship serves merely to distort the problem and hinder
realistic analysis. It matters not whether the term "dictator" is used in its
normal sense (as applied to authoritarian rulers) or is employed to embrace all
chief executives administering emergency powers. However used,
"constitutional dictatorship" cannot be divorced from the implication of
suspension of the processes of constitutionalism. Thus, they favored instead
the "concept of constitutionalism" articulated by Charles H. McIlwain:

A concept of constitutionalism which is less misleading in the analysis of


problems of emergency powers, and which is consistent with the findings of
this study, is that formulated by Charles H. McIlwain. While it does not by any
means necessarily exclude some indeterminate limitations upon the
substantive powers of government, full emphasis is placed upon procedural
limitations, and political responsibility. McIlwain clearly recognized the
need to repose adequate power in government. And in discussing the meaning
of constitutionalism, he insisted that the historical and proper test of
constitutionalism was the existence of adequate processes for
keeping government responsible. He refused to equate constitutionalism
with the enfeebling of government by an exaggerated emphasis upon
separation of powers and substantive limitations on governmental power. He
found that the really effective checks on despotism have consisted not in the
weakening of government but, but rather in the limiting of it; between which
there is a great and very significant difference. In associating
constitutionalism with "limited" as distinguished from "weak"
government, McIlwain meant government limited to the orderly
procedure of law as opposed to the processes of force. The two
fundamental correlative elements of constitutionalism for which all
lovers of liberty must yet fight are the legal limits to arbitrary power
and a complete political responsibility of government to the
governed.101
In the final analysis, the various approaches to emergency of the above
political theorists - from Locks "theory of prerogative," to Watkins doctrine of
"constitutional dictatorship" and, eventually, to McIlwains "principle of
constitutionalism" --- ultimately aim to solve one real problem in emergency
governance, i.e., that of allotting increasing areas of discretionary
power to the Chief Executive, while insuring that such powers will be
exercised with a sense of political responsibility and under effective
limitations and checks.
Our Constitution has fairly coped with this problem. Fresh from the fetters of a
repressive regime, the 1986 Constitutional Commission, in drafting the 1987
Constitution, endeavored to create a government in the concept of Justice
Jacksons "balanced power structure." 102 Executive, legislative, and judicial
powers are dispersed to the President, the Congress, and the Supreme Court,
respectively. Each is supreme within its own sphere. But none has the
monopoly of power in times of emergency. Each branch is given a role
to serve as limitation or check upon the other. This system does
not weaken the President, it just limits his power, using the language of
McIlwain. In other words, in times of emergency, our Constitution reasonably
demands that we repose a certain amount of faith in the basic integrity and
wisdom of the Chief Executive but, at the same time, it obliges him to
operate within carefully prescribed procedural limitations.
a. "Facial Challenge"
Petitioners contend that PP 1017 is void on its face because of its
"overbreadth." They claim that its enforcement encroached on both
unprotected and protected rights under Section 4, Article III of the Constitution
and sent a "chilling effect" to the citizens.

A facial review of PP 1017, using the overbreadth doctrine, is uncalled for.


First and foremost, the overbreadth doctrine is an analytical tool developed for
testing "on their faces" statutes infree speech cases, also known under the
American Law as First Amendment cases. 103
A plain reading of PP 1017 shows that it is not primarily directed to speech or
even speech-related conduct. It is actually a call upon the AFP to prevent or
suppress all forms of lawless violence. In United States v. Salerno,104the US
Supreme Court held that "we have not recognized an overbreadth
doctrine outside the limited context of the First Amendment"
(freedom of speech).
Moreover, the overbreadth doctrine is not intended for testing the validity of a
law that "reflects legitimate state interest in maintaining comprehensive
control over harmful, constitutionally unprotected conduct." Undoubtedly,
lawless violence, insurrection and rebellion are considered "harmful" and
"constitutionally unprotected conduct." InBroadrick v. Oklahoma,105 it was held:
It remains a matter of no little difficulty to determine when a law may
properly be held void on its face and when such summary action is
inappropriate. But the plain import of our cases is, at the very least,
that facial overbreadth adjudication is an exception to our traditional
rules of practice and that its function, a limited one at the outset,
attenuates as the otherwise unprotected behavior that it forbids the
State to sanction moves from pure speech toward conduct and that
conduct even if expressive falls within the scope of otherwise valid
criminal laws that reflect legitimate state interests in maintaining
comprehensive controls over harmful, constitutionally unprotected
conduct.
Thus, claims of facial overbreadth are entertained in cases involving statutes
which, by their terms, seek to regulate only "spoken words" and again, that
"overbreadth claims, if entertained at all, have been curtailed when
invoked against ordinary criminal laws that are sought to be applied
to protected conduct."106 Here, the incontrovertible fact remains that PP
1017 pertains to a spectrum of conduct, not free speech, which is manifestly
subject to state regulation.
Second, facial invalidation of laws is considered as "manifestly strong
medicine," to be used "sparingly and only as a last resort," and is
"generally disfavored;"107 The reason for this is obvious. Embedded in the
traditional rules governing constitutional adjudication is the principle that a
person to whom a law may be applied will not be heard to challenge a law on
the ground that it may conceivably be applied unconstitutionally to others,
i.e., in other situations not before the Court. 108 A writer and scholar in
Constitutional Law explains further:
The most distinctive feature of the overbreadth technique is that it
marks an exception to some of the usual rules of constitutional
litigation. Ordinarily, a particular litigant claims that a statute is

unconstitutional as applied to him or her; if the litigant prevails, the


courts carve away the unconstitutional aspects of the law by
invalidating its improper applications on a case to case basis.
Moreover, challengers to a law are not permitted to raise the rights of
third parties and can only assert their own interests. In overbreadth
analysis, those rules give way; challenges are permitted to raise the
rights of third parties; and the court invalidates the entire statute "on its
face," not merely "as applied for" so that the overbroad law becomes
unenforceable until a properly authorized court construes it more narrowly. The
factor that motivates courts to depart from the normal adjudicatory rules is the
concern with the "chilling;" deterrent effect of the overbroad statute on third
parties not courageous enough to bring suit. The Court assumes that an
overbroad laws "very existence may cause others not before the court to
refrain from constitutionally protected speech or expression." An overbreadth
ruling is designed to remove that deterrent effect on the speech of those third
parties.
In other words, a facial challenge using the overbreadth doctrine will require
the Court to examine PP 1017 and pinpoint its flaws and defects, not on the
basis of its actual operation to petitioners, but on the assumption or prediction
that its very existence may cause others not before the Court to refrain
from constitutionally protected speech or expression. In Younger v. Harris,109 it
was held that:
[T]he task of analyzing a proposed statute, pinpointing its deficiencies, and
requiring correction of these deficiencies before the statute is put into effect, is
rarely if ever an appropriate task for the judiciary. The combination of
therelative remoteness of the controversy, the impact on the
legislative process of the relief sought, and above all the speculative
and amorphous nature of the required line-by-line analysis of detailed
statutes,...ordinarily
results
in
a
kind
of
case
that
is wholly
unsatisfactory for deciding constitutional questions, whichever way they
might be decided.
And third, a facial challenge on the ground of overbreadth is the most difficult
challenge to mount successfully, since the challenger must establish
that there can be no instance when the assailed law may be valid.
Here, petitioners did not even attempt to show whether this situation exists.
Petitioners likewise seek a facial review of PP 1017 on the ground of
vagueness. This, too, is unwarranted.
Related to the "overbreadth" doctrine is the "void for vagueness doctrine"
which holds that "a law is facially invalid if men of common intelligence
must necessarily guess at its meaning and differ as to its
application."110 It is subject to the same principles governing overbreadth
doctrine. For one, it is also an analytical tool for testing "on their
faces" statutes in free speech cases. And like overbreadth, it is said that a
litigant may challenge a statute on its face only if it is vague in all its
possible applications. Again, petitioners did not even attempt to show
that PP 1017 is vague in all its application. They also failed to establish

that men of common intelligence cannot understand the meaning and


application of PP 1017.

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.

b. Constitutional Basis of PP 1017


Now on the constitutional foundation of PP 1017.
The operative portion of PP 1017 may be divided into three important
provisions, thus:
First provision:
"by virtue of the power vested upon me by Section 18, Artilce VII do hereby
command the Armed Forces of the Philippines, to maintain law and order
throughout the Philippines, prevent or suppress all forms of lawless violence as
well any act of insurrection or rebellion"

The Supreme Court may review, in an appropriate proceeding filed by any


citizen, the sufficiency of the factual bases of the proclamation of martial law
or the suspension of the privilege of the writ or the extension thereof, and
must promulgate its decision thereon within thirty days from its filing.
A state of martial law does not suspend the operation of the Constitution, nor
supplant the functioning of the civil courts or legislative assemblies, nor
authorize the conferment of jurisdiction on military courts and agencies over
civilians where civil courts are able to function, nor automatically suspend the
privilege of the writ.
The suspension of the privilege of the writ shall apply only to persons judicially
charged for rebellion or offenses inherent in or directly connected with
invasion.

Second provision:
"and to enforce obedience to all the laws and to all decrees, orders and
regulations promulgated by me personally or upon my direction;"
Third provision:
"as provided in Section 17, Article XII of the Constitution do hereby declare a
State of National Emergency."
First Provision: Calling-out Power
The first provision pertains to the Presidents calling-out power. In Sanlakas v.
Executive Secretary,111 this Court, through Mr. Justice Dante O. Tinga, held that
Section 18, Article VII of the Constitution reproduced as follows:
Sec. 18. 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.

During the suspension of the privilege of the writ, any person thus arrested or
detained shall be judicially charged within three days, otherwise he shall be
released.
grants the President, as Commander-in-Chief, a "sequence" of graduated
powers. From the most to the least benign, these are: the calling-out power,
the power to suspend the privilege of the writ of habeas corpus, and the power
to declare Martial Law. Citing Integrated Bar of the Philippines v. Zamora,112 the
Court ruled that the only criterion for the exercise of the calling-out power is
that "whenever it becomes necessary," the President may call the armed
forces "to prevent or suppress lawless violence, invasion or
rebellion." Are these conditions present in the instant cases? As stated
earlier, considering the circumstances then prevailing, President Arroyo found
it necessary to issue PP 1017. Owing to her Offices vast intelligence network,
she is in the best position to determine the actual condition of the country.
Under the calling-out power, the President may summon the armed forces to
aid him in suppressing lawless violence, invasion and rebellion. This
involves ordinary police action. But every act that goes beyond the Presidents
calling-out power is considered illegal or ultra vires. For this reason, a President
must be careful in the exercise of his powers. He cannot invoke a greater
power when he wishes to act under a lesser power. There lies the wisdom of
our Constitution, the greater the power, the greater are the limitations.
It is pertinent to state, however, that there is a distinction between the
Presidents authority to declare a "state of rebellion" (in Sanlakas) and the
authority to proclaim a state of national emergency. While President Arroyos
authority to declare a "state of rebellion" emanates from her powers as Chief
Executive, the statutory authority cited in Sanlakas was Section 4, Chapter 2,
Book II of the Revised Administrative Code of 1987, which provides:

SEC. 4. Proclamations. Acts of the President fixing a date or declaring a


status or condition of public moment or interest, upon the existence of which
the operation of a specific law or regulation is made to depend, shall be
promulgated in proclamations which shall have the force of an executive order.
President Arroyos declaration of a "state of rebellion" was merely an act
declaring a status or condition of public moment or interest, a declaration
allowed under Section 4 cited above. Such declaration, in the words
of Sanlakas, is harmless, without legal significance, and deemed not written. In
these cases, PP 1017 is more than that. In declaring a state of national
emergency, President Arroyo did not only rely on Section 18, Article VII of the
Constitution, a provision calling on the AFP to prevent or suppress lawless
violence, invasion or rebellion. She also relied on Section 17, Article XII, a
provision on the States extraordinary power to take over privately-owned
public utility and business affected with public interest. Indeed, PP 1017 calls
for the exercise of an awesome power. Obviously, such Proclamation cannot
be deemed harmless, without legal significance, or not written, as in the case
of Sanlakas.
Some of the petitioners vehemently maintain that PP 1017 is actually a
declaration of Martial Law. It is no so. What defines the character of PP 1017
are its wordings. It is plain therein that what the President invoked was her
calling-out power.
The declaration of Martial Law is a "warn[ing] to citizens that the military
power has been called upon by the executive to assist in the maintenance of
law and order, and that, while the emergency lasts, they must, upon pain of
arrest and punishment, not commit any acts which will in any way render more
difficult the restoration of order and the enforcement of law." 113
In his "Statement before the Senate Committee on Justice" on March 13, 2006,
Mr. Justice Vicente V. Mendoza, 114an authority in constitutional law, said that of
the three powers of the President as Commander-in-Chief, the power to declare
Martial Law poses the most severe threat to civil liberties. It is a strong
medicine which should not be resorted to lightly. It cannot be used to stifle or
persecute critics of the government. It is placed in the keeping of the President
for the purpose of enabling him to secure the people from harm and to restore
order so that they can enjoy their individual freedoms. In fact, Section 18, Art.
VII, provides:
A state of martial law does not suspend the operation of the Constitution, nor
supplant the functioning of the civil courts or legislative assemblies, nor
authorize the conferment of jurisdiction on military courts and agencies over
civilians where civil courts are able to function, nor automatically suspend the
privilege of the writ.
Justice Mendoza also stated that PP 1017 is not a declaration of Martial Law. It
is no more than a call by the President to the armed forces to prevent or
suppress lawless violence. As such, it cannot be used to justify acts that only
under a valid declaration of Martial Law can be done. Its use for any other
purpose is a perversion of its nature and scope, and any act done contrary to
its command is ultra vires.

Justice Mendoza further stated that specifically, (a) arrests and seizures
without judicial warrants; (b) ban on public assemblies; (c) take-over of news
media and agencies and press censorship; and (d) issuance of Presidential
Decrees, are powers which can be exercised by the President as Commanderin-Chief only where there is a valid declaration of Martial Law or suspension of
the writ of habeas corpus.
Based on the above disquisition, it is clear that PP 1017 is not a declaration of
Martial Law. It is merely an exercise of President Arroyos calling-out
power for the armed forces to assist her in preventing or suppressing lawless
violence.
Second Provision: "Take Care" Power
The second provision pertains to the power of the President to ensure that the
laws be faithfully executed. This is based on Section 17, Article VII which reads:
SEC. 17. The President shall have control of all the executive departments,
bureaus, and offices. He shall ensure that the laws be faithfully
executed.
As the Executive in whom the executive power is vested, 115 the primary
function of the President is to enforce the laws as well as to formulate policies
to be embodied in existing laws. He sees to it that all laws are enforced by the
officials and employees of his department. Before assuming office, he is
required to take an oath or affirmation to the effect that as President of the
Philippines, he will, among others, "execute its laws." 116 In the exercise of such
function, the President, if needed, may employ the powers attached to his
office as the Commander-in-Chief of all the armed forces of the
country,117 including the Philippine National Police118 under the Department of
Interior and Local Government.119
Petitioners, especially Representatives Francis Joseph G. Escudero, Satur
Ocampo, Rafael Mariano, Teodoro Casio, Liza Maza, and Josel Virador argue
that PP 1017 is unconstitutional as it arrogated upon President Arroyo the
power to enact laws and decrees in violation of Section 1, Article VI of the
Constitution, which vests the power to enact laws in Congress. They assail the
clause "to enforce obedience to all the laws and to all decrees, orders
and regulations promulgated by me personally or upon my direction."
\
Petitioners contention is understandable. A reading of PP 1017 operative
clause shows that it was lifted 120 from Former President Marcos Proclamation
No. 1081, which partly reads:
NOW, THEREFORE, I, FERDINAND E. MARCOS, President of the Philippines
by virtue of the powers vested upon me by Article VII, Section 10, Paragraph
(2) of the Constitution, do hereby place the entire Philippines as defined in
Article 1, Section 1 of the Constitution under martial law and, in my capacity as

their Commander-in-Chief, do hereby command the Armed Forces of the


Philippines, to maintain law and order throughout the Philippines,
prevent or suppress all forms of lawless violence as well as any act of
insurrection or rebellion and to enforce obedience to all the laws and
decrees, orders and regulations promulgated by me personally or
upon my direction.
We all know that it was PP 1081 which granted President Marcos legislative
power. Its enabling clause states: "to enforce obedience to all the laws
and decrees, orders and regulations promulgated by me personally or
upon my direction." Upon the other hand, the enabling clause of PP 1017
issued by President Arroyo is: to enforce obedience to all the laws and to
all decrees, orders and regulations promulgated by me personally or
upon my direction."
Is it within the domain of President Arroyo to promulgate "decrees"?
PP 1017 states in part: "to enforce obedience to all the laws and decrees x x
x promulgated by me personally or upon my direction."
The President is granted an Ordinance Power under Chapter 2, Book III of
Executive Order No. 292 (Administrative Code of 1987). She may issue any of
the following:
Sec. 2. Executive Orders. Acts of the President providing for rules of a
general or permanent character in implementation or execution of
constitutional or statutory powers shall be promulgated in executive orders.
Sec. 3. Administrative Orders. Acts of the President which relate to
particular aspect of governmental operations in pursuance of his duties as
administrative head shall be promulgated in administrative orders.
Sec. 4. Proclamations. Acts of the President fixing a date or declaring a
status or condition of public moment or interest, upon the existence of which
the operation of a specific law or regulation is made to depend, shall be
promulgated in proclamations which shall have the force of an executive order.
Sec. 5. Memorandum Orders. Acts of the President on matters of
administrative detail or of subordinate or temporary interest which only
concern a particular officer or office of the Government shall be embodied in
memorandum orders.
Sec. 6. Memorandum Circulars. Acts of the President on matters relating to
internal administration, which the President desires to bring to the attention of
all or some of the departments, agencies, bureaus or offices of the
Government, for information or compliance, shall be embodied in
memorandum circulars.

Sec. 7. General or Special Orders. Acts and commands of the President in


his capacity as Commander-in-Chief of the Armed Forces of the Philippines
shall be issued as general or special orders.
President Arroyos ordinance power is limited to the foregoing issuances. She
cannot issue decrees similar to those issued by Former President Marcos
under PP 1081. Presidential Decrees are laws which are of the same category
and binding force as statutes because they were issued by the President in the
exercise of his legislative power during the period of Martial Law under the
1973 Constitution.121
This Court rules that the assailed PP 1017 is unconstitutional insofar
as it grants President Arroyo the authority to promulgate
"decrees." Legislative power is peculiarly within the province of the
Legislature. Section 1, Article VI categorically states that "[t]he legislative
power shall be vested in the Congress of the Philippines which shall
consist of a Senate and a House of Representatives." To be sure, neither
Martial Law nor a state of rebellion nor a state of emergency can justify
President Arroyos exercise of legislative power by issuing decrees.
Can President Arroyo enforce obedience to all decrees and laws through the
military?
As this Court stated earlier, President Arroyo has no authority to enact decrees.
It follows that these decrees are void and, therefore, cannot be enforced. With
respect to "laws," she cannot call the military to enforce or implement certain
laws, such as customs laws, laws governing family and property relations, laws
on obligations and contracts and the like. She can only order the military,
under PP 1017, to enforce laws pertinent to its duty to suppress lawless
violence.
Third Provision: Power to Take Over
The pertinent provision of PP 1017 states:
x x x and to enforce obedience to all the laws and to all decrees, orders, and
regulations promulgated by me personally or upon my direction; and as
provided in Section 17, Article XII of the Constitution do hereby
declare a state of national emergency.
The import of this provision is that President Arroyo, during the state of
national emergency under PP 1017, can call the military not only to enforce
obedience "to all the laws and to all decrees x x x" but also to act pursuant to
the provision of Section 17, Article XII which reads:
Sec. 17. In times of national emergency, when the public interest so requires,
the State may, during the emergency and under reasonable terms prescribed
by it, temporarily take over or direct the operation of any privately-owned
public utility or business affected with public interest.

What could be the reason of President Arroyo in invoking the above provision
when she issued PP 1017?
The answer is simple. During the existence of the state of national emergency,
PP 1017 purports to grant the President, without any authority or delegation
from Congress, to take over or direct the operation of any privately-owned
public utility or business affected with public interest.
This provision was first introduced in the 1973 Constitution, as a product of the
"martial law" thinking of the 1971 Constitutional Convention. 122 In effect at the
time of its approval was President Marcos Letter of Instruction No. 2 dated
September 22, 1972 instructing the Secretary of National Defense to take over
"the management, control and operation of the Manila Electric Company, the
Philippine Long Distance Telephone Company, the National Waterworks and
Sewerage Authority, the Philippine National Railways, the Philippine Air Lines,
Air Manila (and) Filipinas Orient Airways . . . for the successful prosecution by
the Government of its effort to contain, solve and end the present national
emergency."
Petitioners, particularly the members of the House of Representatives, claim
that President Arroyos inclusion of Section 17, Article XII in PP 1017 is an
encroachment on the legislatures emergency powers.

before he can declare a "state of national emergency." The logical conclusion


then is that President Arroyo could validly declare the existence of a state of
national emergency even in the absence of a Congressional enactment.
But the exercise of emergency powers, such as the taking over of privately
owned public utility or business affected with public interest, is a different
matter. This requires a delegation from Congress.
Courts have often said that constitutional provisions in pari materia are to be
construed together. Otherwise stated, different clauses, sections, and
provisions of a constitution which relate to the same subject matter will be
construed together and considered in the light of each other. 123 Considering
that Section 17 of Article XII and Section 23 of Article VI, previously quoted,
relate to national emergencies, they must be read together to determine the
limitation of the exercise of emergency powers.
Generally, Congress is the repository of emergency powers. This is
evident in the tenor of Section 23 (2), Article VI authorizing it to delegate such
powers to the President. Certainly, a body cannot delegate a power not
reposed upon it. However, knowing that during grave emergencies, it may
not be possible or practicable for Congress to meet and exercise its powers,
the Framers of our Constitution deemed it wise to allow Congress to grant
emergency powers to the President, subject to certain conditions, thus:

This is an area that needs delineation.


(1) There must be a war or other emergency.
A distinction must be drawn between the Presidents authority to declare "a
state of national emergency" and toexercise emergency powers. To the first,
as elucidated by the Court, Section 18, Article VII grants the President such
power, hence, no legitimate constitutional objection can be raised. But to the
second, manifold constitutional issues arise.
Section 23, Article VI of the Constitution reads:
SEC. 23. (1) The Congress, by a vote of two-thirds of both Houses in joint
session assembled, voting separately, shall have the sole power to declare
the existence of a state of war.
(2) In times of war or other national emergency, the Congress may, by law,
authorize the President, for a limited period and subject to such restrictions as
it may prescribe, to exercise powers necessary and proper to carry out a
declared national policy. Unless sooner withdrawn by resolution of the
Congress, such powers shall cease upon the next adjournment thereof.
It may be pointed out that the second paragraph of the above provision refers
not only to war but also to "other national emergency." If the intention of
the Framers of our Constitution was to withhold from the President the
authority to declare a "state of national emergency" pursuant to Section 18,
Article VII (calling-out power) and grant it to Congress (like the declaration of
the existence of a state of war), then the Framers could have provided so.
Clearly, they did not intend that Congress should first authorize the President

(2) The delegation must be for a limited period only.


(3) The delegation must be subject to such restrictions as the
Congress may prescribe.
(4) The emergency powers must be exercised to carry out a
national policy declared by Congress.124
Section 17, Article XII must be understood as an aspect of the emergency
powers clause. The taking over of private business affected with public interest
is just another facet of the emergency powers generally reposed upon
Congress. Thus, when Section 17 states that the "the State may, during the
emergency and under reasonable terms prescribed by it, temporarily
take over or direct the operation of any privately owned public utility
or business affected with public interest," it refers to Congress, not the
President. Now, whether or not the President may exercise such power is
dependent on whether Congress may delegate it to him pursuant to a law
prescribing the reasonable terms thereof. Youngstown Sheet & Tube Co. et al.
v. Sawyer,125 held:
It is clear that if the President had authority to issue the order he did, it must
be found in some provision of the Constitution. And it is not claimed that
express constitutional language grants this power to the President. The
contention is that presidential power should be implied from the aggregate of

his powers under the Constitution. Particular reliance is placed on provisions in


Article II which say that "The executive Power shall be vested in a President . . .
.;" that "he shall take Care that the Laws be faithfully executed;" and that he
"shall be Commander-in-Chief of the Army and Navy of the United States.
The order cannot properly be sustained as an exercise of the Presidents
military power as Commander-in-Chief of the Armed Forces. The Government
attempts to do so by citing a number of cases upholding broad powers in
military commanders engaged in day-to-day fighting in a theater of war. Such
cases need not concern us here.Even though "theater of war" be an
expanding concept, we cannot with faithfulness to our constitutional
system hold that the Commander-in-Chief of the Armed Forces has
the ultimate power as such to take possession of private property in
order to keep labor disputes from stopping production. This is a job
for the nations lawmakers, not for its military authorities.
Nor can the seizure order be sustained because of the several
constitutional provisions that grant executive power to the President.
In the framework of our Constitution, the Presidents power to see
that the laws are faithfully executed refutes the idea that he is to be
a lawmaker. The Constitution limits his functions in the lawmaking
process to the recommending of laws he thinks wise and the vetoing
of laws he thinks bad. And the Constitution is neither silent nor
equivocal about who shall make laws which the President is to
execute. The first section of the first article says that "All legislative
Powers herein granted shall be vested in a Congress of the United
States. . ."126
Petitioner Cacho-Olivares, et al. contends that the term "emergency" under
Section
17,
Article
XII
refers
to
"tsunami,"
"typhoon,"
"hurricane"and"similar occurrences." This is a limited view of "emergency."
Emergency, as a generic term, connotes the existence of conditions suddenly
intensifying the degree of existing danger to life or well-being beyond that
which is accepted as normal. Implicit in this definitions are the elements of
intensity, variety, and perception. 127 Emergencies, as perceived by legislature
or executive in the United Sates since 1933, have been occasioned by a wide
range
of
situations,
classifiable
under
three
(3)
principal
heads: a)economic,128 b) natural disaster,129 and c) national security.130
"Emergency," as contemplated in our Constitution, is of the same breadth. It
may include rebellion, economic crisis, pestilence or epidemic, typhoon, flood,
or other similar catastrophe of nationwide proportions or effect. 131 This is
evident in the Records of the Constitutional Commission, thus:
MR. GASCON. Yes. What is the Committees definition of "national emergency"
which appears in Section 13, page 5? It reads:
When the common good so requires, the State may temporarily take over or
direct the operation of any privately owned public utility or business affected
with public interest.

MR. VILLEGAS. What I mean is threat from external aggression, for


example, calamities or natural disasters.
MR. GASCON. There is a question by Commissioner de los Reyes. What about
strikes and riots?
MR. VILLEGAS. Strikes, no; those would not be covered by the term "national
emergency."
MR. BENGZON. Unless they are of such proportions such that they would
paralyze government service.132
xxxxxx
MR. TINGSON. May I ask the committee if "national emergency" refers
to military national emergency or could this be economic emergency?"
MR. VILLEGAS.
dislocations.

Yes,

it

could

refer

to both

military

or

economic

MR. TINGSON. Thank you very much.133


It may be argued that when there is national emergency, Congress may not be
able to convene and, therefore, unable to delegate to the President the power
to take over privately-owned public utility or business affected with public
interest.
In Araneta v. Dinglasan,134 this Court emphasized that legislative power,
through which extraordinary measures are exercised, remains in Congress
even in times of crisis.
"x x x
After all the criticisms that have been made against the efficiency of the
system of the separation of powers, the fact remains that the Constitution has
set up this form of government, with all its defects and shortcomings, in
preference to the commingling of powers in one man or group of men. The
Filipino people by adopting parliamentary government have given notice that
they share the faith of other democracy-loving peoples in this system, with all
its faults, as the ideal. The point is, under this framework of government,
legislation is preserved for Congress all the time, not excepting periods of
crisis no matter how serious. Never in the history of the United States, the
basic features of whose Constitution have been copied in ours, have specific
functions of the legislative branch of enacting laws been surrendered to
another department unless we regard as legislating the carrying out of a
legislative policy according to prescribed standards; no, not even when that
Republic was fighting a total war, or when it was engaged in a life-and-death
struggle to preserve the Union. The truth is that under our concept of
constitutional government, in times of extreme perils more than in normal

circumstances the various branches, executive, legislative, and judicial, given


the ability to act, are called upon to perform the duties and discharge the
responsibilities committed to them respectively."

A perusal of the "direct injuries" allegedly suffered by the said petitioners


shows that they resulted from theimplementation, pursuant to G.O. No. 5, of
PP 1017.

Following our interpretation of Section 17, Article XII, invoked by President


Arroyo in issuing PP 1017, this Court rules that such Proclamation does not
authorize her during the emergency to temporarily take over or direct the
operation of any privately owned public utility or business affected with public
interest without authority from Congress.

Can this Court adjudge as unconstitutional PP 1017 and G.O. No 5 on the basis
of these illegal acts? In general,does the illegal implementation of a law render
it unconstitutional?

Let it be emphasized that while the President alone can declare a state of
national emergency, however, without legislation, he has no power to take
over privately-owned public utility or business affected with public interest.
The President cannot decide whether exceptional circumstances exist
warranting the take over of privately-owned public utility or business affected
with public interest. Nor can he determine when such exceptional
circumstances have ceased. Likewise, without legislation, the President has
no power to point out the types of businesses affected with public interest that
should be taken over. In short, the President has no absolute authority to
exercise all the powers of the State under Section 17, Article VII in the absence
of an emergency powers act passed by Congress.
c. "AS APPLIED CHALLENGE"
One of the misfortunes of an emergency, particularly, that which pertains to
security, is that military necessity and the guaranteed rights of the individual
are often not compatible. Our history reveals that in the crucible of conflict,
many rights are curtailed and trampled upon. Here, the right against
unreasonable search and seizure; the right against warrantless
arrest; and the freedom of speech, of expression, of the press, and of
assembly under the Bill of Rights suffered the greatest blow.
Of the seven (7) petitions, three (3) indicate "direct injury."
In G.R. No. 171396, petitioners David and Llamas alleged that, on February
24, 2006, they were arrested without warrants on their way to EDSA to
celebrate the 20th Anniversary of People Power I. The arresting officers cited
PP 1017 as basis of the arrest.
In G.R. No. 171409, petitioners Cacho-Olivares and Tribune Publishing Co.,
Inc. claimed that on February 25, 2006, the CIDG operatives "raided and
ransacked without warrant" their office. Three policemen were assigned to
guard their office as a possible "source of destabilization." Again, the basis was
PP 1017.
And in G.R. No. 171483, petitioners KMU and NAFLU-KMU et al. alleged that
their members were "turned away and dispersed" when they went to EDSA
and later, to Ayala Avenue, to celebrate the 20th Anniversary of People Power
I.

Settled is the rule that courts are not at liberty to declare statutes
invalid although they may be abused and misabused135 and may afford
an opportunity for abuse in the manner of application.136 The validity of
a statute or ordinance is to be determined from its general purpose and its
efficiency to accomplish the end desired,not from its effects in a particular
case.137 PP 1017 is merely an invocation of the Presidents calling-out power.
Its general purpose is to command the AFP to suppress all forms of lawless
violence, invasion or rebellion. It had accomplished the end desired which
prompted President Arroyo to issue PP 1021. But there is nothing in PP 1017
allowing the police, expressly or impliedly, to conduct illegal arrest, search or
violate the citizens constitutional rights.
Now, may this Court adjudge a law or ordinance unconstitutional on the
ground that its implementor committed illegal acts? The answer is no. The
criterion by which the validity of the statute or ordinance is to be measured is
the essential basis for the exercise of power, and not a mere incidental
result arising from its exertion.138 This is logical. Just imagine the absurdity
of situations when laws maybe declared unconstitutional just because the
officers implementing them have acted arbitrarily. If this were so, judging from
the blunders committed by policemen in the cases passed upon by the Court,
majority of the provisions of the Revised Penal Code would have been declared
unconstitutional a long time ago.
President Arroyo issued G.O. No. 5 to carry into effect the provisions of PP
1017. General orders are "acts and commands of the President in his capacity
as Commander-in-Chief of the Armed Forces of the Philippines." They are
internal rules issued by the executive officer to his subordinates precisely for
the proper and efficientadministration of law. Such rules and regulations
create no relation except between the official who issues them and the official
who receives them.139 They are based on and are the product of, a relationship
in which power is their source, and obedience, their object. 140 For these
reasons, one requirement for these rules to be valid is that they must
be reasonable, not arbitrary or capricious.
G.O. No. 5 mandates the AFP and the PNP to immediately carry out the
"necessary and appropriate actions and measures to suppress and
prevent acts of terrorism and lawless violence."
Unlike the term "lawless violence" which is unarguably extant in our statutes
and the Constitution, and which is invariably associated with "invasion,
insurrection or rebellion," the phrase "acts of terrorism" is still an amorphous
and vague concept. Congress has yet to enact a law defining and punishing
acts of terrorism.

In fact, this "definitional predicament" or the "absence of an agreed definition


of terrorism" confronts not only our country, but the international community
as well. The following observations are quite apropos:
In the actual unipolar context of international relations, the "fight against
terrorism" has become one of the basic slogans when it comes to the
justification of the use of force against certain states and against groups
operating internationally. Lists of states "sponsoring terrorism" and of terrorist
organizations are set up and constantly being updated according to criteria
that are not always known to the public, but are clearly determined by
strategic interests.
The basic problem underlying all these military actions or threats of the use
of force as the most recent by the United States against Iraq consists in the
absence of an agreed definition of terrorism.
Remarkable confusion persists in regard to the legal categorization of acts of
violence either by states, by armed groups such as liberation movements, or
by individuals.
The dilemma can by summarized in the saying "One countrys terrorist is
another countrys freedom fighter." The apparent contradiction or lack of
consistency in the use of the term "terrorism" may further be demonstrated by
the historical fact that leaders of national liberation movements such as
Nelson Mandela in South Africa, Habib Bourgouiba in Tunisia, or Ahmed Ben
Bella in Algeria, to mention only a few, were originally labeled as terrorists by
those who controlled the territory at the time, but later became internationally
respected statesmen.
What, then, is the defining criterion for terrorist acts the differentia
specifica distinguishing those acts from eventually legitimate acts of national
resistance or self-defense?
Since the times of the Cold War the United Nations Organization has been
trying in vain to reach a consensus on the basic issue of definition. The
organization has intensified its efforts recently, but has been unable to bridge
the gap between those who associate "terrorism" with any violent act by nonstate groups against civilians, state functionaries or infrastructure or military
installations, and those who believe in the concept of the legitimate use of
force when resistance against foreign occupation or against systematic
oppression of ethnic and/or religious groups within a state is concerned.
The dilemma facing the international community can best be illustrated by
reference to the contradicting categorization of organizations and movements
such as Palestine Liberation Organization (PLO) which is a terrorist group for
Israel and a liberation movement for Arabs and Muslims the Kashmiri
resistance groups who are terrorists in the perception of India, liberation
fighters in that of Pakistan the earlier Contras in Nicaragua freedom fighters
for the United States, terrorists for the Socialist camp or, most drastically, the
Afghani Mujahedeen (later to become the Taliban movement): during the Cold
War period they were a group of freedom fighters for the West, nurtured by the

United States, and a terrorist gang for the Soviet Union. One could go on and
on in enumerating examples of conflicting categorizations that cannot be
reconciled in any way because of opposing political interests that are at the
roots of those perceptions.
How, then, can those contradicting definitions and conflicting perceptions and
evaluations of one and the same group and its actions be explained? In our
analysis, the basic reason for these striking inconsistencies lies in the
divergent interest of states. Depending on whether a state is in the position of
an occupying power or in that of a rival, or adversary, of an occupying power
in a given territory, the definition of terrorism will "fluctuate" accordingly. A
state may eventually see itself as protector of the rights of a certain ethnic
group outside its territory and will therefore speak of a "liberation struggle,"
not of "terrorism" when acts of violence by this group are concerned, and viceversa.
The United Nations Organization has been unable to reach a decision on the
definition of terrorism exactly because of these conflicting interests of
sovereign states that determine in each and every instance how a particular
armed movement (i.e. a non-state actor) is labeled in regard to the terroristsfreedom fighter dichotomy. A "policy of double standards" on this vital issue of
international affairs has been the unavoidable consequence.
This "definitional predicament" of an organization consisting of sovereign
states and not of peoples, in spite of the emphasis in the Preamble to the
United Nations Charter! has become even more serious in the present global
power constellation: one superpower exercises the decisive role in the Security
Council, former great powers of the Cold War era as well as medium powers
are increasingly being marginalized; and the problem has become even more
acute since the terrorist attacks of 11 September 2001 I the United States. 141
The absence of a law defining "acts of terrorism" may result in abuse and
oppression on the part of the police or military. An illustration is when a group
of persons are merely engaged in a drinking spree. Yet the military or the
police may consider the act as an act of terrorism and immediately arrest them
pursuant to G.O. No. 5. Obviously, this is abuse and oppression on their part. It
must be remembered that an act can only be considered a crime if there is a
law defining the same as such and imposing the corresponding penalty
thereon.
So far, the word "terrorism" appears only once in our criminal laws, i.e., in P.D.
No. 1835 dated January 16, 1981 enacted by President Marcos during the
Martial Law regime. This decree is entitled "Codifying The Various Laws on
Anti-Subversion and Increasing The Penalties for Membership in Subversive
Organizations." The word "terrorism" is mentioned in the following provision:
"That one who conspires with any other person for the purpose of
overthrowing the Government of the Philippines x x x by force,
violence, terrorism, x x x shall be punished by reclusion temporalx x x."
P.D. No. 1835 was repealed by E.O. No. 167 (which outlaws the Communist
Party of the Philippines) enacted by President Corazon Aquino on May 5, 1985.
These two (2) laws, however, do not define "acts of terrorism." Since there is

no law defining "acts of terrorism," it is President Arroyo alone, under G.O. No.
5, who has the discretion to determine what acts constitute terrorism. Her
judgment on this aspect is absolute, without restrictions. Consequently, there
can be indiscriminate arrest without warrants, breaking into offices and
residences, taking over the media enterprises, prohibition and dispersal of all
assemblies and gatherings unfriendly to the administration. All these can be
effected in the name of G.O. No. 5. These acts go far beyond the calling-out
power of the President. Certainly, they violate the due process clause of the
Constitution. Thus, this Court declares that the "acts of terrorism" portion of
G.O. No. 5 is unconstitutional.
Significantly, there is nothing in G.O. No. 5 authorizing the military or police to
commit acts beyond what arenecessary and appropriate to suppress and
prevent lawless violence, the limitation of their authority in pursuing the
Order. Otherwise, such acts are considered illegal.

(b) When an offense has just been committed and he has probable
cause to believe based on personal knowledge of facts or
circumstances that the person to be arrested has committed it; and
Neither of the two (2) exceptions mentioned above justifies petitioner Davids
warrantless arrest. During the inquest for the charges of inciting to
sedition and violation of BP 880, all that the arresting officers could invoke
was their observation that some rallyists were wearing t-shirts with the
invective "Oust Gloria Now" and their erroneous assumption that petitioner
David was the leader of the rally. 146 Consequently, the Inquest Prosecutor
ordered his immediate release on the ground of insufficiency of evidence. He
noted that petitioner David was not wearing the subject t-shirt and even if he
was wearing it, such fact is insufficient to charge him with inciting to
sedition. Further, he also stated that there is insufficient evidence for the
charge of violation of BP 880 as it was not even known whether petitioner
David was the leader of the rally. 147

We first examine G.R. No. 171396 (David et al.)


The Constitution provides that "the right of the people to be secured in their
persons, houses, papers and effects against unreasonable search and seizure
of whatever nature and for any purpose shall be inviolable, and no search
warrant or warrant of arrest shall issue except upon probable cause to be
determined personally by the judge after examination under oath or
affirmation of the complainant and the witnesses he may produce, and
particularly describing the place to be searched and the persons or things to
be seized."142 The plain import of the language of the Constitution is that
searches, seizures and arrests are normally unreasonable unless authorized
by a validly issued search warrant or warrant of arrest. Thus, the fundamental
protection given by this provision is that between person and police must
stand the protective authority of a magistrate clothed with power to issue or
refuse to issue search warrants or warrants of arrest. 143
In the Brief Account144 submitted by petitioner David, certain facts are
established: first, he was arrested without warrant; second, the PNP operatives
arrested him on the basis of PP 1017; third, he was brought at Camp Karingal,
Quezon City where he was fingerprinted, photographed and booked like a
criminal suspect; fourth,he was treated brusquely by policemen who "held his
head and tried to push him" inside an unmarked car; fifth, he was charged with
Violation of Batas Pambansa Bilang No. 880145 and Inciting to
Sedition; sixth, he was detained for seven (7) hours; and seventh,he was
eventually released for insufficiency of evidence.
Section 5, Rule 113 of the Revised Rules on Criminal Procedure provides:
Sec. 5. Arrest without warrant; when lawful. - A peace officer or a private
person may, without a warrant, arrest a person:
(a) When, in his presence, the person to be arrested has committed, is
actually committing, or is attempting to commit an offense.

But what made it doubly worse for petitioners David et al. is that not only was
their right against warrantless arrest violated, but also their right to peaceably
assemble.
Section 4 of Article III guarantees:
No law shall be passed abridging the freedom of speech, of expression, or of
the press, or the right of the people peaceably to assemble and petition the
government for redress of grievances.
"Assembly" means a right on the part of the citizens to meet peaceably for
consultation in respect to public affairs. It is a necessary consequence of our
republican institution and complements the right of speech. As in the case of
freedom of expression, this right is not to be limited, much less denied, except
on a showing of a clear and present danger of a substantive evil that
Congress has a right to prevent. In other words, like other rights embraced in
the freedom of expression, the right to assemble is not subject to previous
restraint or censorship. It may not be conditioned upon the prior issuance of a
permit or authorization from the government authorities except, of course, if
the assembly is intended to be held in a public place, a permit for the use of
such place, and not for the assembly itself, may be validly required.
The ringing truth here is that petitioner David, et al. were arrested while they
were exercising their right to peaceful assembly. They were not committing
any crime, neither was there a showing of a clear and present danger that
warranted the limitation of that right. As can be gleaned from circumstances,
the charges of inciting to sedition andviolation of BP 880 were mere
afterthought. Even the Solicitor General, during the oral argument, failed to
justify the arresting officers conduct. In De Jonge v. Oregon,148 it was held that
peaceable assembly cannot be made a crime, thus:
Peaceable assembly for lawful discussion cannot be made a crime. The holding
of meetings for peaceable political action cannot be proscribed. Those who
assist in the conduct of such meetings cannot be branded as criminals on that

score. The question, if the rights of free speech and peaceful assembly are not
to be preserved, is not as to the auspices under which the meeting was held
but as to its purpose; not as to the relations of the speakers, but whether their
utterances transcend the bounds of the freedom of speech which the
Constitution protects. If the persons assembling have committed crimes
elsewhere, if they have formed or are engaged in a conspiracy against the
public peace and order, they may be prosecuted for their conspiracy or other
violations of valid laws. But it is a different matter when the State,
instead of prosecuting them for such offenses, seizes upon mere
participation in a peaceable assembly and a lawful public discussion
as the basis for a criminal charge.
On the basis of the above principles, the Court likewise considers the dispersal
and arrest of the members of KMUet al. (G.R. No. 171483) unwarranted.
Apparently, their dispersal was done merely on the basis of Malacaangs
directive canceling all permits previously issued by local government units.
This is arbitrary. The wholesale cancellation of all permits to rally is a blatant
disregard of the principle that "freedom of assembly is not to be limited,
much less denied, except on a showing of a clear and present
danger of a substantive evil that the State has a right to
prevent."149 Tolerance is the rule and limitation is the exception. Only upon a
showing that an assembly presents a clear and present danger that the State
may deny the citizens right to exercise it. Indeed, respondents failed to show
or convince the Court that the rallyists committed acts amounting to lawless
violence, invasion or rebellion. With the blanket revocation of permits, the
distinction between protected and unprotected assemblies was eliminated.
Moreover, under BP 880, the authority to regulate assemblies and rallies is
lodged with the local government units. They have the power to issue permits
and to revoke such permits after due notice and hearing on the
determination of the presence of clear and present danger. Here, petitioners
were not even notified and heard on the revocation of their permits. 150 The first
time they learned of it was at the time of the dispersal. Such absence of notice
is a fatal defect. When a persons right is restricted by government action, it
behooves a democratic government to see to it that the restriction is fair,
reasonable, and according to procedure.
G.R. No. 171409, (Cacho-Olivares, et al.) presents another facet of freedom
of speech i.e., the freedom of the press. Petitioners narration of facts, which
the Solicitor General failed to refute, established the following: first, theDaily
Tribunes offices were searched without warrant;second, the police operatives
seized several materials for publication; third, the search was conducted at
about 1:00 o clock in the morning of February 25, 2006; fourth, the search
was conducted in the absence of any official of the Daily Tribune except the
security guard of the building; and fifth, policemen stationed themselves at the
vicinity of the Daily Tribune offices.
Thereafter, a wave of warning came from government officials. Presidential
Chief of Staff Michael Defensor was quoted as saying that such raid
was "meant to show a strong presence, to tell media outlets not to
connive or do anything that would help the rebels in bringing down
this government." Director General Lomibao further stated that "if they do

not follow the standards and the standards are if they would
contribute to instability in the government, or if they do not
subscribe to what is in General Order No. 5 and Proc. No. 1017 we
will recommend a takeover." National Telecommunications Commissioner
Ronald Solis urged television and radio networks to "cooperate" with the
government for the duration of the state of national emergency. He warned
that his agency will not hesitate to recommend the closure of any
broadcast outfit that violates rules set out for media coverage during
times when the national security is threatened.151
The search is illegal. Rule 126 of The Revised Rules on Criminal Procedure lays
down the steps in the conduct of search and seizure. Section 4 requires that
a search warrant be issued upon probable cause in connection with one
specific offence to be determined personally by the judge after examination
under oath or affirmation of the complainant and the witnesses he may
produce. Section 8 mandates that the search of a house, room, or any other
premise be made in the presence of the lawful occupant thereof or any
member of his family or in the absence of the latter, in the presence of two (2)
witnesses of sufficient age and discretion residing in the same locality.
AndSection 9 states that the warrant must direct that it be served in
the daytime, unless the property is on the person or in the place ordered to
be searched, in which case a direction may be inserted that it be served at any
time of the day or night. All these rules were violated by the CIDG operatives.
Not only that, the search violated petitioners freedom of the press. The best
gauge of a free and democratic society rests in the degree of freedom enjoyed
by its media. In the Burgos v. Chief of Staff152 this Court held that -As heretofore stated, the premises searched were the business and printing
offices of the "Metropolitan Mail" and the "We Forum" newspapers. As a
consequence of the search and seizure, these premises were padlocked
and sealed, with the further result that the printing and publication
of said newspapers were discontinued.
Such closure is in the nature of previous restraint or censorship
abhorrent to the freedom of the press guaranteed under the
fundamental law, and constitutes a virtual denial of petitioners'
freedom to express themselves in print. This state of being is
patently anathematic to a democratic framework where a free, alert
and even militant press is essential for the political enlightenment
and growth of the citizenry.
While admittedly, the Daily Tribune was not padlocked and sealed like the
"Metropolitan Mail" and "We Forum" newspapers in the above case, yet it
cannot be denied that the CIDG operatives exceeded their enforcement duties.
The search and seizure of materials for publication, the stationing of policemen
in the vicinity of the The Daily Tribune offices, and the arrogant warning of
government officials to media, are plain censorship. It is that officious
functionary of the repressive government who tells the citizen that he may
speak only if allowed to do so, and no more and no less than what he is
permitted to say on pain of punishment should he be so rash as to
disobey.153Undoubtedly, the The Daily Tribune was subjected to these arbitrary

intrusions because of its anti-government sentiments. This Court cannot


tolerate the blatant disregard of a constitutional right even if it involves the
most defiant of our citizens. Freedom to comment on public affairs is essential
to the vitality of a representative democracy. It is the duty of the courts to be
watchful for the constitutional rights of the citizen, and against any stealthy
encroachments thereon. The motto should always be obsta principiis.154

SR. ASSO. JUSTICE PUNO:

Incidentally, during the oral arguments, the Solicitor General admitted that the
search of the Tribunes offices and the seizure of its materials for publication
and other papers are illegal; and that the same are inadmissible "for any
purpose," thus:

As far as I know, no, Your Honor, from the facts, no.

JUSTICE CALLEJO:
You made quite a mouthful of admission when you said that the policemen,
when inspected the Tribune for the purpose of gathering evidence and you
admitted that the policemen were able to get the clippings. Is that not in
admission of the admissibility of these clippings that were taken from the
Tribune?
SOLICITOR GENERAL BENIPAYO:
Under the law they would seem to be, if they were illegally seized, I think and I
know, Your Honor, and these are inadmissible for any purpose. 155
xxxxxxxxx
SR. ASSO. JUSTICE PUNO:
These have been published in the past issues of the Daily Tribune; all you have
to do is to get those past issues. So why do you have to go there at 1 oclock in
the morning and without any search warrant? Did they become suddenly part
of the evidence of rebellion or inciting to sedition or what?
SOLGEN BENIPAYO:
Well, it was the police that did that, Your Honor. Not upon my instructions.
SR. ASSO. JUSTICE PUNO:
Are you saying that the act of the policeman is illegal, it is not based on any
law, and it is not based on Proclamation 1017.
SOLGEN BENIPAYO:
It is not based on Proclamation 1017, Your Honor, because there is nothing in
1017 which says that the police could go and inspect and gather clippings from
Daily Tribune or any other newspaper.

Is it based on any law?


SOLGEN BENIPAYO:

SR. ASSO. JUSTICE PUNO:


So, it has no basis, no legal basis whatsoever?
SOLGEN BENIPAYO:
Maybe so, Your Honor. Maybe so, that is why I said, I dont know if it is
premature to say this, we do not condone this. If the people who have
been injured by this would want to sue them, they can sue and there
are remedies for this.156
Likewise, the warrantless arrests and seizures executed by the police were,
according to the Solicitor General, illegal and cannot be condoned, thus:
CHIEF JUSTICE PANGANIBAN:
There seems to be some confusions if not contradiction in your theory.
SOLICITOR GENERAL BENIPAYO:
I dont know whether this will clarify. The acts, the supposed illegal or unlawful
acts committed on the occasion of 1017, as I said, it cannot be condoned.
You cannot blame the President for, as you said, a misapplication of the law.
These are acts of the police officers, that is their responsibility. 157
The Dissenting Opinion states that PP 1017 and G.O. No. 5 are constitutional in
every aspect and "should result in no constitutional or statutory breaches if
applied according to their letter."
The Court has passed upon the constitutionality of these issuances. Its
ratiocination has been exhaustively presented. At this point, suffice it to
reiterate that PP 1017 is limited to the calling out by the President of the
military to prevent or suppress lawless violence, invasion or rebellion. When in
implementing its provisions, pursuant to G.O. No. 5, the military and the police
committed acts which violate the citizens rights under the Constitution, this
Court has to declare such acts unconstitutional and illegal.
In this connection, Chief Justice Artemio V. Panganibans concurring opinion,
attached hereto, is considered an integral part of this ponencia.

SUMMATION
In sum, the lifting of PP 1017 through the issuance of PP 1021 a supervening
event would have normally rendered this case moot and academic. However,
while PP 1017 was still operative, illegal acts were committed allegedly in
pursuance thereof. Besides, there is no guarantee that PP 1017, or one similar
to it, may not again be issued. Already, there have been media reports on April
30, 2006 that allegedly PP 1017 would be reimposed "if the May 1 rallies"
become "unruly and violent." Consequently, the transcendental issues raised
by the parties should not be "evaded;" they must now be resolved to prevent
future constitutional aberration.
The Court finds and so holds that PP 1017 is constitutional insofar as it
constitutes a call by the President for the AFP to prevent or suppress lawless
violence. The proclamation is sustained by Section 18, Article VII of the
Constitution and the relevant jurisprudence discussed earlier. However, PP
1017s extraneous provisions giving the President express or implied power (1)
to issue decrees; (2) to direct the AFP to enforce obedience to all laws even
those not related to lawless violence as well as decrees promulgated by the
President; and (3) to impose standards on media or any form of prior restraint
on the press, are ultra vires and unconstitutional. The Court also rules that
under Section 17, Article XII of the Constitution, the President, in the absence
of a legislation, cannot take over privately-owned public utility and private
business affected with public interest.
In the same vein, the Court finds G.O. No. 5 valid. It is an Order issued by the
President acting as Commander-in-Chief addressed to subalterns in the AFP
to carry out the provisions of PP 1017. Significantly, it also provides a valid
standard that the military and the police should take only the "necessary
and appropriate actions and measures to suppress and prevent acts
of lawless violence."But the words "acts of terrorism" found in G.O. No. 5
have not been legally defined and made punishable by Congress and should
thus be deemed deleted from the said G.O. While "terrorism" has been
denounced generally in media, no law has been enacted to guide the military,
and eventually the courts, to determine the limits of the AFPs authority in
carrying out this portion of G.O. No. 5.
On the basis of the relevant and uncontested facts narrated earlier, it is also
pristine clear that (1) the warrantless arrest of petitioners Randolf S. David and
Ronald Llamas; (2) the dispersal of the rallies and warrantless arrest of the
KMU and NAFLU-KMU members; (3) the imposition of standards on media or
any prior restraint on the press; and (4) the warrantless search of
the Tribune offices and the whimsical seizures of some articles for publication
and other materials, are not authorized by the Constitution, the law and
jurisprudence. Not even by the valid provisions of PP 1017 and G.O. No. 5.
Other than this declaration of invalidity, this Court cannot impose any civil,
criminal or administrative sanctions on the individual police officers concerned.
They have not been individually identified and given their day in court. The
civil complaints or causes of action and/or relevant criminal Informations have
not been presented before this Court. Elementary due process bars this Court

from making any specific pronouncement of civil, criminal or administrative


liabilities.
It is well to remember that military power is a means to an end and
substantive civil rights are ends in themselves. How to give the
military the power it needs to protect the Republic without
unnecessarily trampling individual rights is one of the eternal
balancing tasks of a democratic state.During emergency, governmental
action may vary in breadth and intensity from normal times, yet they should
not be arbitrary as to unduly restrain our peoples liberty.
Perhaps, the vital lesson that we must learn from the theorists who studied the
various competing political philosophies is that, it is possible to grant
government the authority to cope with crises without surrendering the two
vital principles of constitutionalism: the maintenance of legal limits to
arbitrary power, and political responsibility of the government to the
governed.158
WHEREFORE, the Petitions are partly granted. The Court rules that PP 1017
is CONSTITUTIONAL insofar as it constitutes a call by President Gloria
Macapagal-Arroyo on the AFP to prevent or suppress lawless violence.
However, the provisions of PP 1017 commanding the AFP to enforce laws not
related to lawless violence, as well as decrees promulgated by the President,
are declared UNCONSTITUTIONAL. In addition, the provision in PP 1017
declaring national emergency under Section 17, Article VII of the Constitution
is CONSTITUTIONAL, but such declaration does not authorize the President to
take over privately-owned public utility or business affected with public
interest without prior legislation.
G.O. No. 5 is CONSTITUTIONAL since it provides a standard by which the AFP
and the PNP should implement PP 1017, i.e. whatever is "necessary and
appropriate actions and measures to suppress and prevent acts of
lawless violence." Considering that "acts of terrorism" have not yet been
defined and made punishable by the Legislature, such portion of G.O. No. 5 is
declared UNCONSTITUTIONAL.
The warrantless arrest of Randolf S. David and Ronald Llamas; the dispersal
and warrantless arrest of the KMU and NAFLU-KMU members during their
rallies, in the absence of proof that these petitioners were committing acts
constituting lawless violence, invasion or rebellion and violating BP 880; the
imposition of standards on media or any form of prior restraint on the press, as
well as the warrantless search of the Tribune offices and whimsical seizure of
its
articles
for
publication
and
other
materials,
are
declared UNCONSTITUTIONAL.
No costs.
SO ORDERED.

have been changes in the membership of the Court, with the


retirement of Justices Cruz and Bidin and the appointment of
the writer of this opinion and Justice Francisco. Given this fact
it is hardly tenable to insist on the maintenance of the ruling
as to petitioners' standing.
Petitioners claim that this statement "conveys a none too subtle
suggestion, perhaps a Freudian slip, that the two new appointees,
regardless of the merit of the Decision in the first Kilosbayan case
against the lotto (Kilosbayan, et al. v. Guingona, 232 SCRA 110 (1994))
must of necessity align themselves with all the Ramos appointees who
were dissenters in the first case and constitute the new majority in the
second lotto case." And petitioners ask, "why should it be so?"

G.R. No. 118910 November 16, 1995


KILOSBAYAN, INCORPORATED, JOVITO R. SALONGA, CIRILO A. RIGOS,
ERME CAMBA, EMILIO C. CAPULONG, JR., JOSE T. APOLO, EPHRAIM
TENDERO, FERNANDO SANTIAGO, JOSE ABCEDE, CHRISTINE TAN,
RAFAEL G. FERNANDO, RAOUL V. VICTORINO, JOSE CUNANAN, QUINTIN
S. DOROMAL, SEN. FREDDIE WEBB, SEN. WIGBERTO TAADA, REP.
JOKER
P.
ARROYO, petitioners,
vs.
MANUEL L. MORATO, in his capacity as Chairman of the Philippine
Charity
Sweepstakes
Office,
and
the
PHILIPPINE
GAMING
MANAGEMENT CORPORATION, respondents.
MENDOZA, J.:
Petitioners seek reconsideration of our decision in this case. They insist that
the decision in the first case has already settled (1) whether petitioner
Kilosbayan, Inc. has a standing to sue and (2) whether under its charter (R.A.
No. 1169, as amended) the Philippine Charity Sweepstakes Office can enter
into any form of association or collaboration with any party in operating an online lottery. Consequently, petitioners contend, these questions can no longer
be reopened.
Because two members of the Court did not consider themselves bound by the
decision in the first case, petitioners suggest that the two, in joining the
dissenters in the first case in reexamining the questions in the present case,
acted otherwise than according to law. They cite the following statement in the
opinion of the Court:
The voting on petitioners' standing in the previous case was a
narrow one, with seven (7) members sustaining petitioners'
standing and six (6) denying petitioners' right to bring the
suit. The majority was thus a tenuous one that is not likely to
be maintained in any subsequent litigation. In addition, there

Petitioners ask a question to which they have made up an answer. Their


attempt at psychoanalysis, detecting a Freudian slip where none exists, may
be more revealing of their own unexpressed wish to find motives where there
are none which they can impute to some members of the Court.
For the truth is that the statement is no more than an effort to explain
rather than to justify the majority's decision to overrule the ruling in the
previous case. It is simply meant to explain that because the five members of
the Court who dissented in the first case (Melo, Quiason, Puno, Vitug and
Kapunan, JJ.) and the two new members (Mendoza and Francisco, JJ.) thought
the previous ruling to be erroneous and its reexamination not to be barred
bystare decisis, res judicata or conclusiveness of judgment, or law of the case,
it was hardly tenable for petitioners to insist on the first ruling.
Consequently to petitioners' question "What is the glue that holds them
together," implying some ulterior motives on the part of the new majority in
reexamining the two questions, the answer is: None, except a conviction on
the part of the five, who had been members of the Court at the time they
dissented in the first case, and the two new members that the previous ruling
was erroneous. The eighth Justice (Padilla, J.) on the other hand agrees with
the seven Justices that the ELA is in a real sense a lease agreement and
therefore does not violate R.A. No. 1169.
The decision in the first case was a split decision: 7-6. With the retirement of
one of the original majority (Cruz, J.) and one of the dissenters (Bidin, J.) it was
not surprising that the first decision in the first case was later reversed.
It is argued that, in any case, a reexamination of the two questions is barred
because the PCSO and the Philippine Gaming Management Corporation made
a " formal commitment not to ask for a reconsideration of the Decision in the
first lotto case and instead submit a new agreement that would be in
conformity with the PCSO Charter (R.A. No. 1169, as amended) and with the
Decision of the Supreme Court in the first Kilosbayan case against on-line, hitech lotto."
To be sure, a new contract was entered into which the majority of the Court
finds has been purged of the features which made the first contract

objectionable. Moreover, what the PCSO said in its manifestation in the first
case was the following:
1.

They are no longer filing a motion for reconsideration of the Decision


of this Honorable Court dated May 5, 1994, a copy of which was
received on May 6, 1994.

2.

Respondents PCSO and PGMC are presently negotiating a new lease


agreement consistent with the authority of PCSO under its charter
(R.A. No. 1169, as amended by B.P. Blg. 42) and conformable with the
pronouncements of this Honorable Court in its Decision of May 5,
1995.
The PGMC made substantially the same manifestation as the PCSO.

There was thus no "formal commitment" but only a manifestation that the
parties were not filing a motion for reconsideration. Even if the parties made a
"formal commitment," the six (6) dissenting Justices certainly could not be
bound thereby not to insist on their contrary view on the question of standing.
Much less were the two new members bound by any "formal commitment"
made by the parties. They believed that the ruling in the first case was
erroneous. Since in their view reexamination was not barred by the doctrine
of stare decisis, res judicata or conclusiveness of judgment or law of the case,
they voted the way they did with the remaining five (5) dissenters in the first
case to form a new majority of eight.
Petitioners ask, "Why should this be so?" Because, as explained in the
decision, the first decision was erroneousand no legal doctrine stood in the
way of its reexamination. It can, therefore, be asked "with equal candor": "Why
should this not be so?"
Nor is this the first time a split decision was tested, if not reversed, in a
subsequent case because of change in the membership of a court. In 1957,
this Court, voting 6-5, held in Feliciano v. Aquinas, G.R. No. L-10201, Sept. 23,
1957 that the phrase "at the time of the election" in 2174 of the Revised
Administrative Code of 1917 meant that a candidate for municipal elective
position must be at least 23 years of age on the date of the election. On the
other hand, the dissenters argued that it was enough if he attained that age on
the day he assumed office.
Less than three years later, the same question was before the Court again, as
a candidate for municipal councilor stated under oath in her certificate of
candidacy that she was eligible for that position although she attained the
requisite age (23 years) only when she assumed office. The question was
whether she could be prosecuted for falsification. In People v. Yang, 107 Phi.
888 (1960), the Court ruled she could not. Justice, later Chief Justice, Benison,
who dissented in the first case, Feliciano v. Aquinas, supra, wrote the opinion
of the Court, holding that while the statement that the accused was eligible
was "inexact or erroneous, according to the majority in the Feliciano case," the
accused could not be held liable for falsification, because

the question [whether the law really required candidates to have the
required age on the day of the election or whether it was sufficient
that they attained it at the beginning of the term of office] has not
been discussed anew, despite the presence of new members; we
simply assume for the purpose of this decision that the doctrine
stands.
Thus because in the meantime there had been a change in the membership of
the Court with the retirement of two members (Recess